Surendran vs Sister Mydhits on 19 November, 2008

Kerala High Court
Surendran vs Sister Mydhits on 19 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 994 of 2002()


1. SURENDRAN S/O. SIVASANKARAN NAIR,
                      ...  Petitioner

                        Vs



1. SISTER MYDHITS, DHAYA BUILDING,
                       ...       Respondent

2. SURESH KUMAR S/O. SEKHARA PILLAI,

3. MANAGER, NEW INDIA ASSURANCE COMPANY LTD

                For Petitioner  :SRI.D.SAJEEV

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :19/11/2008

 O R D E R
                             M.N.KRISHNAN, J
                        =====================
                           MFA No.994 OF 2002
                        =====================

                Dated this the 19th day of November 2008

                                 JUDGMENT

This appeal is preferred against the award of the Motor Accidents

Claims Tribunal, Thiruvananthapuram in O.P.(MV)No.1303 of 1998. The

claimant was riding an autorickshaw and when it reached the place of

accident, an accident took place on account of the collision between the said

autorickshaw and a car resulting in injuries to the claimant. The Tribunal

found that the claimant has contributed 50% negligence to the accident and

fixed a compensation of Rs.52,000/- deducted 50% and awarded

Rs.26,000/- It is against that decision, the claimant has come up in appeal.

2. Learned counsel for the appellant would submit that the finding of

negligence requires interference. I had perused the charge sheet, scene

mahazar and discussion in paragraph 8 of the award. It is true that a charge

sheet is filed against the driver of the car. The scene mahazar would reveal

that the road is having a width of 4.70 metres at the place of accident and it

has taken place exactly on the middle of the road as per the scene mahazar,

i.e. 2 metres and 35 cms. east of the western tar end. The autorickshaw was

MFA 994/2002 -:2:-

going from south to north and the car from the opposite direction. Being a

driver of little more heavier vehicle than autorickshaw the law envisages

better care by such car drivers. Further, it can be seen that there are very

serious damages sustained to the car. It would indicate that the speed in

which the car has come. The autorickshaw driver also, if he had kept his

side, he could have also averted the accident. But, as held earlier, being a

driver of a bigger vehicle the car driver is expected to bestow better care

and therefore I apportion the negligence at 65% on the car driver and 35%

on the autorickshaw driver. When this is calculated, the claimant will be

entitled to an amount of Rs.33,800/- instead of Rs.26,000/-. Therefore the

award is passed for an additional compensation of Rs.7,800/-.

In the result, the MFA is partly allowed and the claimant is entitled to

an additional compensation of Rs.7,800/- with 9% interest on the said sum

from the date of petition till realisation and the insurance company is

directed to deposit the amount within 60 days from the date of receipt of a

copy of this judgment.

M.N.KRISHNAN, JUDGE

Cdp/-

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