IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1689 of 2004()
1. NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. U.M.HASSAN, S/O.PAREETH MOHAMMED,
... Respondent
2. CHERIYAN KATTAKKAYAM, KATTAKKAYAM HOUSE,
3. SAJU, S/O.KORATH, PANAPPATTU HOUSE,
For Petitioner :SMT.RAJI T.BHASKAR
For Respondent :SRI.K.I.ABDUL RASHEED
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :29/07/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.Nos.1689 OF 2004 & 993 OF 2008
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Dated this the 29th day of July 2010
JUDGMENT
Basheer, J.
These two appeals are being disposed of by this common judgment,
since they are arise from the same award passed by the Motor Accidents
Claims Tribunal.
2. MACA 1689/04 is at the instance of the insurer of the alleged
offending vehicle involved in a road traffic accident. The grievance of the
appellant is that the Tribunal, after having found that the claimant had also
contributed to the accident, was not justified in apportioning the liability as
90:10 between the driver of the offending vehicle and the claimant. In
other words, the contention is that the Tribunal ought to have apportioned
the percentage of negligence as 50:50.
3. The case of the claimant was that he was riding his motor vehicle
from east to west through the southern end of the road which has a width of
6.68 meters. Admittedly, the offending vehicle was coming from west to
east. It is not in dispute that the claimant was thrown off his two wheeler
after it was hit by the offending vehicle driven by respondent No.3 herein.
But according to the appellant/insurance company, it was found by the
Tribunal that the investigating officer had noted in Ext.A2 scene mahazar
that the spot of accident was 2.09 meters towards south from the northern
M.A.C.A.Nos.1689/04 & 993/08
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tar end of the road margin. According to the learned counsel, the Tribunal
after having accepted the version given by RW1, the Investigating Officer,
as regards the spot of the accident it ought to have been held that the rider
of the two wheeler was equally negligent in causing the accident. He points
out the evidence of RW1 clearly indicated that the two wheeler was on the
wrong side.
4. But it has to be noticed that PW2, the eye witness to the accident,
had categorically stated that the accident occurred because of the rash and
negligent driving of respondent No.3, driver of the tempo van. The
evidence of PW2 as regards the allegation of negligence on the part of
respondent No.3 stood uncontroverted. More importantly, the driver of the
offending vehicle never bothered to step into the box and deny the
allegation. Still further, the police had registered the case in connection
with the above accident only against respondent No.3. In other words, the
police had not even chosen to register a case against the claimant or atleast
filed charges as A and B against the two drivers involved in the accident.
5. However the Tribunal, relying on the description of the alleged
spot of the accident as marked in Ext.A2, proceeded to hold that the
claimant had also contributed to the accident to some extent. The Tribunal
therefore apportioned the percentage of negligence as 90:10 between the
driver of the offending vehicle and the claimant.
M.A.C.A.Nos.1689/04 & 993/08
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6. RW1, who had prepared Ext.A2 scene mahazar, admitted that he
had marked the spot of the accident as pointed out by PW2. But PW2, in
his evidence, has asserted that he had pointed out spot of the accident as
2.09 meters from the southern tar end of the road. According to PW2, the
investigating officer (RW1) had mistakenly noted down the spot of accident
as 2.09 meters towards south from the northern tar end.
7. Having carefully perused the deposition of PWs1 and 2 and also
RW1, we are satisfied that the finding entered by the Tribunal that the
claimant had also contributed to the accident to the extent of 10% cannot
be sustained. The evidence of RW1 will further show that the offending
vehicle which was coming from west to east was found a little far away
from the spot of the accident as compared to the two wheeler which was
found very near to the spot. This clearly indicated that the offending
vehicle was coming at a considerable speed, as otherwise, it would have
stopped somewhere near the spot of the accident itself. In the above facts
and circumstances, we are satisfied that there is no merit in any of the
contentions raised by the appellant.
8. In M.A.C.A.No.993/08, filed by the claimant, the contention is that
the quantum of compensation awarded is inadequate and also that the
finding of negligence on the part of the claimant to the extent of 10% is
incorrect. We have already found that the claimant had not contributed to
M.A.C.A.Nos.1689/04 & 993/08
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the accident as held by the Tribunal. As regards the claim for
enhancement, we do not find any reason to interfere with the award passed
by the Tribunal. It is held that accident occurred because of the rashness
and negligence of respondent No.3 alone. In that view of the matter, the
insurance company shall be liable to pay the entire amount of compensation
to the claimant.
Both appeals are disposed of in the above terms.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
jes