IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 763 of 2009()
1. NATIONAL INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. BIJU A.ANANDAN, S/O.ANANDAN,BIJU BHAVAN,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :04/06/2009
O R D E R
V. RAMKUMAR , J.
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M.A.C.A. No. 763 of 2009
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Dated this the 4th day of June, 2009.
JUDGMENT
In this appeal filed by the insurer, the award dated
31.07.2008 in O.P. (MV) No. 1489 of 2000 on the file of the
Motor Accident Claims Tribunal, Attingal is challenged. The
original petition filed by the sole respondent herein, was under
Section 166 of the Motor Vehicles Act, 1988 (“The Act” for short)
for the injuries sustained by him in a road traffic accident which
took place on 18.08.1988. The respondent/claimant was riding
his motorcycle bearing registration No. KL-01/K-4692 which
collided with another motorcycle bearing registration No. KL-01/C
3439. The riders of both the motorcycles sustained injuries and
the driver of the other motorcycle succumbed to the injuries. The
respondent/claimant had sustained multiple fractures and the
learned Tribunal after a careful evaluation of the oral and
documentary evidence in the case, assessed the just
compensation at Rs.91,429/- payable with interest at the rate of
7.5% per annum from the date of the application namely
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25.10.2000 till the date of award and thereafter at the rate of
9%.
2. The main contentions of the appellant/insurer are the
following:-
i. The dependents of the driver of the motorcycle
bearing registration No. KL-01/C-3439 who succumbed to the
injuries in the accident had lodged a claim as O.P. (M.V.) No.
1134 of 1998 in which they proceeded on the basis that the
respondent herein was negligent. The said O.P ended in
compromise awarding a huge amount to the claimants therein.
Thereafter, the respondent herein was estopped from filing the
present O.P on the footing that the accident took place on
account of the negligence of the deceased.
ii. The Mangalapuram Police had charge sheeted
the respondent/claimant as the person responsible for the rash
and negligible driving resulting in the accident. It was on that
basis that O.P (M.V) No. 1134 of 1998 came to be awarded
against the respondent herein. Hence, the respondent was
precluded from filing the present claim on the footing that the
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accident took place on account of the negligence of the deceased
rider of the other motor cycle.
3. I am afraid that I find myself unable to agree with the
above contentions. As per the impugned award, the respondent
as well as the rider of the other motor cycle have been found
responsible for the accident apportioning the liability between
them in the ratio of 50:50. If so, merely because the claim was
made against the respondent herein on the footing that he was
negligent for the accident and that claim was finally settled
awarding compensation to the dependents of the rider of the
other vehicle, does not preclude the respondent herein from
lodging a claim alleging negligence on the part of the rider of the
other vehicle.
4. It is true that the Mangalapuram police had charge
sheeted the respondent herein as the person responsible for the
rash and negligent driving resulting in the accident. But the
stand taken by the police cannot be the final say to the matter
particularly when the fact remains that the respondent herein
was acquitted by the criminal court. Hence, it cannot be said
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that the respondent was estopped from preferring a claim against
the other vehicle involved in the accident.
5. As for the quantum of compensation, I do not think that
the assessment by the Tribunal is on the higher side. I,
therefore, do not find any good ground for interference with the
impugned award. This appeal is, accordingly, dismissed in
limine.
Dated this the 4th day of June, 2009.
V. RAMKUMAR, JUDGE.
rv
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