IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1782 of 2005()
1. V.MOHANDAS, S/O.V.R.CHITHAMBARAM,
... Petitioner
2. V.R.CHITHAMBARAM, VALLAKUDATH HOUSE,
Vs
1. P.K.SIVAN, S/O.KAVALAN, PARUTHAYIL
... Respondent
2. UNITED INDIA INSURANCE CO. LTD.
3. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.V.K.ISSAC
For Respondent :SRI.S.MAMMU
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/06/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 1782 OF 2005
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Dated this the 19th day of June, 2008
JUDGMENT
This appeal is preferred against the award passed by the
Motor Accident Claims Tribunal, Perumbavoor, in OP(MV) 1232/00. The
scooter driven by the appellant and a motorcycle collided as a result of
which injuries were sustained by the claimant. He had sustained displaced
fracture of the tibia and the Tribunal awarded him a compensation of
Rs.24,300/- and further found that the motorcyclist was totally negligent for
the accident.
2. At the outset, I make like to point out that the parties before the
Motor Accident Claims Tribunal, even when they disputed negligence, they
are not prepared to adduce any evidence or to explain the documents they
are producing and therefore even on the question of negligence guess
work has become a necessity. It is not a practice which cannot be
appreciated. The Tribunal found the negligence on the motorcyclist totally
on the basis of scene mahazar which says that the road is having a width
of 6 meters at the place of the accident and the accident had taken place
4.44 meters north from the southern tar end. The scooter was proceeding
from east to west and motorcycle from the opposite direction. The correct
side of scooter was the southern side and that of motorcycle the northern
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side. The accident had taken place on southern side and therefore the
Tribunal found this scooterist being on wrong side is liable for negligence
that has resulted in the accident. If it is true then one cannot find fault with
it. The Tribunal did not look into the Motor Vehicle Inspector’s report,
which would reveal that more damage is caused to the motorcycle rather
than the scooter. It is well known that the motorcycle is having a better
weight and height than a scooter and under ordinary circumstances when a
scooter hits a motorcycle, there will be substantial damages to the scooter.
Therefore, the damage caused would show something about what has
transpired. The damage caused to the scooter is comparatively minimal
when compared to the damages caused to the motorcycle. Therefore one
has to weigh the evidence available to decide the question of negligence.
So far as scene mahazar is concerned, it may not always be correct to
hold that the place pointed out is where the accident had taken place.
When two vehicles are proceeding and an accident is about to take place,
it is the normal human tendency to avert the accident by swerving the
vehicle to one side from the other side. That does not itself will indicate
that one has come through the wrong side. When there is a head on
collision the Apex court has taken a view that in such cases negligence has
to be apportioned. Unfortunately, in this case, the scene mahazar is not
controverted so also the Motor Vehicle Inspector’s report. So the
preponderance of probability when taken into consideration, it has to be
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held that the scooter has come through the wrong side. The nature of
damages would indicate that it cannot be stated precisely who has hit
whom. Therefore, it is only safe to apportion the negligence. Considering
the factum that scooter was totally on the wrong side, I feel that major
contribution can be given to the scooterist. Therefore, I apportion 70% on
the scooterist and 30% on the motorcyclist.
3. So far as quantum of compensation is concerned, the claimant
had sustained fracture of the tibia and he was treated as an inpatient. The
Tribunal has awarded a sum of Rs.24,300/-. Out of this, the medical
expenses comes to about Rs.3,200/-. The actual loss of earning is granted
only for three months. The Tribunal granted an amount of Rs.10,000/- for
pain and suffering and Rs.4,000/- for loss of amenities and enjoyment in
life. Considering the nature of the fracture, the period of hospitalisation, I
feel the compensation awarded is only just and reasonable which does not
call for any interference.
In the result, the MACA is partly allowed and the claimant is entitled
to receive 70% of the amount awarded from the appellants in this case.
Since there is no impleadment of the rider of the motorcycle, no
compensation can be awarded against him.
M.N.KRISHNAN, JUDGE
vps
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