IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 MACA.No. 681 of 2010() ------------------------------------ OPMV.1755/2003 of ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): 3RD RESPONDENT -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD,METRO PALACE,OPP.NORTH RAILWAY STATION, ERNAKULAM,REPRESENTED BY ITS DULY AUTHORISED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): 3RD RESPONDENT ----------------------------------------------------- 1. P.M.RAJU,S/O.MAMMAN,PUTHUPADICKAL HOUSE, PANDIPPARA P.O,IDUKKI. 2. SURESH K.C,S/O.CHELLAPPAN, KAROTTUKOLATHU HOUSE, THANKAMANY P.O,KATTAPPARA, NEAR ST.MARYS L.P. SCHOOL,IDUKKI. 3. V.N.GIREESH KUMAR,S/O.NARAYANAN, VATTAKKERI VEEDU,THATHAMPALLY WARD, ARYAD VILLAGE,AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. R2 BY ADV. SRI.M.P.MOHAMMED ASLAM R3 BY ADVS.SRI.ANIL S.RAJ, SMT.K.N.RAJAN, SRI.RADHIKA RAJASEKHARAN P., SMT.ANILA PETER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------------------------------------- M.A.C.A.No.681 OF 2010 --------------------------------------------------------- Dated this the 20th day of August, 2010. JUDGMENT This is an appeal preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.1755 of 2003. The claimant while riding a motorcycle and when it reached near Mathrubhoomi Junction in Kaloor, It is contended that a mini lorry which was going in front of the motorcycle without any signal turned to the right side thereby resulting the motorcycle hitting on the back of the mini lorry and the claimant sustained severe injuries. On the other hand the Insurance Company would contend that the motorcyclist had rashly and negligently hit on the back of the mini lorry and, therefore, he is totally responsible for the accident. The Tribunal found negligence against the mini lorry driver and awarded compensation of Rs.23,650/-. It is against that decision, the Insurance Company has come up in appeal. 2. Heard the learned counsel for both sides. 3. The learned counsel for the Insurance Company had made available before me the documents for a proper disposal of the case. Ext.A1 is the first information statement. The first M.A.C.A.No.681 OF 2010 2 information statement is given by the claimant before the police. According to him when he was proceeding, the lorry which was on his front suddenly swerved towards the right side resulting in the accident. But when he moved the application for compensation he would aver that the lorry came from behind overtook the motorcycle and then turned to the right rashly and negligently. It resulted in the accident. A person who knows about Ernakulam and the place of accident can easily understand that there cannot be a very rash driving at the place, for the reason that it is always jam packed, over crowded with traffic congestion. Only thing that happens is that the two wheeler travelers in their enthusiasm makes acrobatic attempts and some unfortunately end with this type of accident. This cannot be forgotten. So, there is a diametrically opposite version about the accident in the F.I statement and in the petition. But when it is found that the motorcyclist came from behind, under the Motor Vehicle Rules he is expected to keep the distance of 10 metres from the on moving vehicle. There also I shall give some concession to the claimant for the reason in such busy roads one may not be able to keep the distance of 10 metres. But unfortunately, the place of accident is an area where one has to M.A.C.A.No.681 OF 2010 3 be absolutely careful especially for the reason that there is a church on the western side of the road which is always crowded and people cross abruptly to the other side in that area. Therefore, motorcyclist however, enthusiastic he may be, should have shown restraint in that area. Now the learned counsel for the Insurance Company would contend the entire negligence has to be attributed to the claimant. I had perused the AMVI report of the lorry. It also shows that the hit is on the back of the lorry. But if the lorry driver had made an abrupt stop the rider coming from behind cannot anticipate the same and therefore it can result in accidents. When compared to a two wheeler driver of a heavy vehicle is expected to show better care and prudence and, therefore, the driver of the mini lorry also should have been careful. He had not come before the court to adduce evidence nor the Insurance Company had tendered evidence to show regarding the lack of negligence on the part of the mini lorry driver. So taking into consideration the whole matter, I feel this is a fit case where being a driver of a heavy vehicle more negligence can be attributed on the mini lorry driver and a lesser percentage on the motorcyclists. I apportion negligence on 30% of petitioner and 70% on mini lorry driver. When 30% M.A.C.A.No.681 OF 2010 4 contributory negligence is taken into consideration and it is deducted the claimant would be entitled to compensation of Rs.15,558/- which I round as Rs.16,000/-. In the result, M.A.C.A is partly allowed and revised award is passed as follows:- The claimant is awarded a compensation of Rs.16,000/- with 8% interest on the said sum from the date of petition till realisation and also the costs of Rs.500/-. The Insurance Company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. If the amount is already deposited the claimant can withdraw the same. If in case there is excess deposit let it be reimbursed to the Insurance company. Parties are directed to suffer respective costs in the appeal. M.N.KRISHNAN, JUDGE. mns