IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 MACA.No. 1942 of 2005() ----------------------- OPMV.86/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT (PETITIONER IN OP(MV) 86/1997: -------------------------------------------------------------------- JOSE MATHEW, AGED 45 YEARS, S/O. MATHEW, THOTTANANYIL, KANAKKERY POST, KOTTAYAM DISTRICT NOW RESIDING AT THOTTANAYIL HOUSE, PULLOOTTY POST. BY ADVS. MR.V.K.GOPALAKRISHNA PILLAI, MR.GOPAKUMAR.G. RESPONDENT(S): (RESPONDENTS IN OP(MV):86/1997: --------------------------------------------------------------------------------- 1. M.K. NAZEER, MONEPILILLY HOUSE, THAIKKATTUKARA, AMBATTUKAVU, ALUVA, PIN-683 106. 2. BACKER M.A., S/O. ALIKUNJU K.M., MONEPILLY HOUSE, THAIKKATTUKARA, AMBATTUKAVU, ALUVA, PIN-683106. 3. THE NATIONAL INSURANCE CO. LTD., SREENARAYANA TOURIST BUILDING, OPP. TOWNSHIP BUS STAND, EAST NADA, GURUVAYOOR. R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE, BY ADV. MR.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... M.A.C.A. No.1942 OF 2005 ............................................. Dated this the 29th day of March, 2010. J U D G M E N T This appeal is preferred against the award of the Claims Tribunal, Perumbavoor whereby the petition was dismissed. The accident took place when the claimant was travelling in a bus. It is the case of the applicant that while he was sitting on the second rear seat of the bus and when the bus driver without any care overtook another vehicle, the back side of the bus graced with the other vehicle resulting in sustainment of the injuries to him including fracture. On the other hand, it is contended that the accident took place on account of the other vehicle namely the lorry and therefore the claimant is not entitled to any compensation. 2. The police also did not charge sheet the bus driver and it was referred. It is the settled principle that law of civil negligence and criminal negligence are totally different. It is the well settled principle of law that the driver of the vehicle especially a passenger carrying vehicle : 2 : M.A.C.A. No.1942 OF 2005 should be conscious of the fact that some of the passengers in spite of written warning may protrude their hands out side the bus or place their hands with the elbow slightly projecting from the window. It has also been equally settled that in such a situation, the driver who is in charge of the vehicle, should anticipate the same and should keep a reasonable distance from the other vehicle so as to avoid this danger. It is certain that if this distance has been maintained, the accident would not have taken place. But that does not mean that the passenger is given licence to put his hand outside so as to invite accident. 3. So considering the materials available, I feel that this is a fit case where the claimant has attributed 50% to the accident and the driver of the bus 50%. Unfortunately the tribunal has not considered quantum which the claimant is entitled to. I cannot also consider it for the reason that there is a disability certificate which has not been considered and the correctness of the same has not been accepted by the insurance company. So, the matter requires reconsideration for the purpose of fixing the : 3 : M.A.C.A. No.1942 OF 2005 quantum. 4. Therefore the award under challenge is set aside and it is found that the driver of the bus has attributed 50% to the accident. For the purpose of determining the quantum, the matter is remitted back to the tribunal with a direction to all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the tribunal on 28.04.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A. No.1942 OF 2005