IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 466 of 2006()
1. P.V.SUMESH, S/O.VASAN,
... Petitioner
Vs
1. K.M.THAJUDEEN, KOTHAKULATH HOUSE,
... Respondent
2. ABDUL ASSIZ, S/O.AIMUNNY,
3. THE NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.K.V.SABU
For Respondent :SRI.S.MAMMU
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/06/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 466 OF 2006
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Dated this the 24th day of June, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)
1108/02. The claimant, a cyclist, sustained injuries in a
road accident on account of a collision between a cycle and
an auto rickshaw. The Tribunal found that the cyclist alone
was negligent and dismissed the claim. It is against that
decision, the present appeal is preferred.
2. Heard the counsel for both sides. Learned counsel
for the insurance company would contend before me that a
perusal of the scene mahazar would show that the auto
rickshaw was proceeding through the correct side, ie., from
south to north through the western side and the accident had
taken place 60 cms. east of the western tarred end. In a
road of 4.50 mts. width indicating that the cyclist was
travelling on the wrong side of the road and therefore the
Tribunal was right in dismissing the application.
M.A.C.A. 466 OF 2006
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3. On the other hand, the learned counsel for the
appellant would contend the tribunal has not appreciated the
materials properly. The police after due investigation has
filed a charge sheet and that is against the driver of the auto
rickshaw. It has to be borne in mind that a scene mahazar
may not always reflect the correct place of accident unless
there are visible tyre marks. When an accident is about to
take place both the riders will be attempting or trying their
level best to swerve the vehicles to one side or the other so
as to avert the accident. But one thing is clear that the
cyclist had transgressed to the wrong side. The accident had
taken place in the night. Being the driver of a little more
heavier vehicle than a cycle there is always a responsibility
on such a driver to bestow maximum care and attention.
Ordinarily one must be conscious of the fact that during night
there will be abrupt crossing of the road and people will be
coming in cycle without even light. So these things have to
be borne in mind when a vehicle is driven and therefore I feel
this is a fit case where the Court can safely fix the negligence
aspects on both equally, ie. 50% each. To that extend the
award of the Tribunal is set aside.
M.A.C.A. 466 OF 2006
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4. Next is regarding the compensation. It can be
seen that he was treated as an inpatient for 5 days and he
had contusion on the thumb, abrasion on the wrist and leg
and there is lacerated wound on the forehead, one having a
dimension of 6 cm x 2 cm x 1 cm. Considering the length of
treatment and the nature of injuries I feel a compensation of
Rs.6,000/- can be fixed and after deducting 50% for the
contributory negligence, the claimant can be awarded a sum
of Rs.3,000/-. Being a matter which does not involve so
much of complication I think it is not necessary to remand
the case again. Therefore I fix the compensation and
dispose of the appeal.
Therefore the MACA is allowed and the claimant is
awarded a compensation of Rs.3,000/- with 7% interest on
the said sum from the date of petition till realisation and the
insurance company is directed to deposit the same within a
period of sixty days from the date of receipt of a copy of the
judgment.
M.N. KRISHNAN, JUDGE.
ul/-