IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1835 of 2009()
1. UNITED INDIA INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. VIPIN, S/O. JOSEPH,
... Respondent
2. MOHANANDAS, S/O. RAGHAVAN,
3. THE ORIENTAL INSURANCE COMPANY LIMITED,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/01/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. Nos.1835 & 2157 OF 2009
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Dated this the 18th day of January, 2010.
J U D G M E N T
Both these appeals are preferred against the awards of
the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)
Nos.1429/02 and 415/03. MACA 1835/09 is preferred by
the pillion rider in a motorcycle and MACA 2157/09 is filed by
the scooterist. It is the case of the parties that on 4.5.2002
a motorcycle and a scooter which were proceeding in
opposite directions collided resulting in injuries to the parties.
The learned Tribunal found that the rider of the motorcycle
alone was negligent and therefore cast the liability on the
insurance company of the motorcyclist to be paid to the
pillion rider in the motorcycle as well the scooterist. It is
against those decisions the appeals have been preferred.
2. The two points that arise for determination in the
appeals are (1) Whether the finding on negligence is proper
(2) Whether it was correct on the part of the Tribunal to have
cast the liability on the insurance company even if the
M.A.C.A.Nos.1835 & 2157 OF 2009
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negligence was on the motorcyclist, so as to pay to the
pillion rider for the reason that the vehicle was only covered
by an Act only policy.
3. I have perused the award and heard the learned
counsel appearing for both the insurance companies. It can
be seen that the police have charge sheeted both the riders
for rash driving by filing A and B charge sheet. The Tribunal
found that the accident had taken place 3.74 mtrs. west of
the eastern tarred end. The road is having a width of 6.08
mtrs. The Tribunal found that the motorcyclist was
proceeding from north to south and the scooterist was
proceeding from south to north. The correct side of the
motorcycle was eastern side and that of the scooterist was
western side. Since the accident had taken place 3.74 mtrs.
West of the eastern tarred end the Tribunal held that the
motorcyclist had transgressed to the wrong side and
therefore he alone is negligent. When people drive motor
vehicles one cannot always precisely go through the exact
middle of the road and just because there is a transgression
M.A.C.A.Nos.1835 & 2157 OF 2009
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of 70 cms. to the wrong side it is not correct on that basis
alone to come to the conclusion that the accident had taken
place on account of the negligence of the motorcyclist. The
correctness of the scene mahazar is also a question which
has been discussed and held that distance from the post is
not a matter for consideration. Therefore I feel in the light of
the police charge sheet and the factum that only a slight
transgression one would not be justified in holding that there
is absolute negligence on one person. Anyhow the matter
requires reconsideration by permitting all concerned to
adduce evidence in the matter. Therefore the finding on
negligence is set aside.
4. If ultimately the Court finds that the motorcyclist
was solely responsible for the accident then the petitioner in
O.P.(MV)1429/02 being a pillion rider whether entitled to be
indemnified by the insurance company will arise. It is
submitted that the vehicle was covered only by an Act only
policy. If it is only an Act only policy then the dictum laid
down in Tilak Singh’s case [United India Insurance Co.
M.A.C.A.Nos.1835 & 2157 OF 2009
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Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) will squarely
apply then in that angle also the matter requires
consideration. Therefore the awards under challenge are set
aside and the matter is remitted back to the Tribunal for
fresh consideration by permitting both parties to produce
documentary as well as oral evidence in support of their
respective contentions. Since the private parties had not
entered appearance before this Court it is directed that the
United India Insurance Company Ltd. will take out notice to
those parties after it enters appearance on 22.2.2010 and
thereafter the matter be disposed of in accordance with law.
The MACA is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-