IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1968 of 2007()
1. THE ORIENTAL INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. XAVIOUR P.GEORGE, S/O. GEORGE,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SMT.SHOBA ANNAMMA EAPEN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/08/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 1968 OF 2007
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Dated this the 29thday of August, 2008
JUDGMENT
This appeal is preferred against the award passed by the Motor
Accident Claims Tribunal, Thrissur, in OP(MV) 3052/02. Two cases were
jointly tried. The rider of the vehicle KL8/Q/1720 was awarded a
compensation of Rs.68,550/- and the other petitioner was awarded a sum
of Rs.3,750/-. The Tribunal found negligence on the part of the rider of KL-
7/Q/6191. Aggrieved by that decision, the Insurance Company has come
up in appeal challenging the question of negligence.
2. I am informed that permission was granted under section
170 of the Motor Vehicles Act to contest the case. It is true that no appeal
is preferred against the award in OP(MV) 3051/2002, for the reason that
the amount awarded is less than Rs.10,000/- the insurance company is
precluded from filing an appeal under section 173 of Motor Vehicles Act.
Therefore, the non filing of an appeal against that award will not militate
against the contention of Insurance Company.
3. Now the question to be considered is regarding the
negligence. The Kinetic Honda driven by the claimant in OP(MV) 3052/02
collided with the motor cycle driven by the 2nd respondent in the claim
petition bearing Reg. No. KL-7/Q/6191. The Tribunal on the basis of
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Ext.A5 charge sheet held that the negligence is on the 2nd respondent in
the claim petition and awarded compensation. The Tribunal relied upon the
fact that a charge is preferred against the 2nd respondent in the claim
petition, who is the rider of the motor cycle.
4. Learned counsel for the Insurance Company had made
available before me a copy of the charge sheet which would show that
there is A charge and B charge and that the claimant in OP(MV) 3052/02
was an absconding accused. But the said absconding accused had
prosecuted the claim petition and had received the compensation. Less
said about the better. In the scene mahazar it is clear that the motor cycle
was coming from east to west and the Kinetic Honda from west to east.
The road at the place of accident was having a width of 4.25 metres and
the accident had taken place at about 2.35 metres north of the southern tar
end, which means it is almost on the middle of the road. When an accident
took place on the middle of the road, that too on a head on collision, one
cannot attribute negligence on one driver alone. The police after
investigation has filed charge against both drivers and the Tribunal has
mistook it as a charge only against the rider of the motor cycle. Therefore,
the Tribunal has committed error. As far as claimant in the case is
concerned, even he is evading the process of law when the charge is filed
against him and therefore his evidence should not be waived with such a
liberal view. So the scene mahazar coupled with charge sheet would
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indicate that the accident took place almost on the middle of the road and
that it was a head on collision. Therefore, it was a case where the Tribunal
should have apportioned the negligence at 50% each on the rider of the
motor cycle and Kinetic Honda. To this extent the apportionment of
negligence is modified. The quantum of compensation awarded appears
to be reasonable. But for the contributory negligence 50% has to be
reduced.
Therefore, the award passed by the Tribunal is modified and
the claimant is awarded a compensation of Rs. 34,275/- with 7% interest
on the said sum from the date of petition till realisation. 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
vps
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