IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 MACA.No. 1410 of 2007(F) ------------------------------------ OP(MV).NO.1441/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM. .................... APPELLANT/PETITIONER: ------------------------------------- S.JAYASANKER, S/O K.SUDHEER, CHANDRA BABU, SAVINI, THEVALLY, KOLLAM. BY ADV. SRI.C.RAJENDRAN. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. SAJEEV V.GOPALA, T.C.18418, BELGURI ANKALA, KARNATAKA STATE. 2. SOMANNOR, S/O DASAMIAH, N.NO.T4/2, S.V.P.COLONY, JAGFALLS, SHIMUGA, KARNATAKA STATE. 3. NATIONAL INSURANCE COMPANY LTD.,1628, KAIKANAI ROAD, KARWAR. 4. K.SUDHEERCHANDRA BABU, SAVINI, THEVALLY, KOLLAM. 5. NOUPHAL A.N., PATHIYARAM, PUNNATHALA, KOLLAM-17. 6. NATIONAL INSURANCE COMPANY LTD., PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM. R6 BY ADV. SRI.M.A.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MACA No.1410 OF 2007 ===================== Dated this the 6th day of November 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kollam in O.P.(MV)No.1441 of 1998. The claimant sustained injuries in a road accident while he was riding as a pillion rider. The Tribunal found that the accident took place on account of the negligence of the rider of the motor cycle and therefore dismissed the claim, but awarded a compensation of Rs.14,685/-. It is against that decision the claimant has come up in appeal. 2. A perusal of the award would reveal that the claimant along with the rider of the motor bike while travelling in a bike met with an accident on account of a collision with a lorry. The Tribunal found that the accident had taken place almost on the middle of the road and that both the claimant as well as the rider of the bike had consumed alcohol and therefore disbelieved the case of the claimant and dismissed the case. 3. The pleaded case is that while they were riding from west to east and when it reached the place of accident a lorry came from the opposite MACA 1410/2007 -:2:- direction and hit on the motor bike resulting in injuries to them. In the scene mahazar the place of accident is shown as 2.25 metres south from the northern tar end. Unfortunately for the claimant herein, he would state the vehicle was proceeding from west to east but the pillion rider has a case that it was from east to west. Whatever it may be, the place of accident is 2.25 metres south of the northern tar end. Really the correct side of the lorry was southern side. So there is certainly transgression by the lorry as well to the other side. The award of the Tribunal also would show that the road was having a straight vision of 100 metres. If both the rider and the driver had been careful it was a case where the accident could have been averted. The Tribunal held that since the occupants of the motor cycle were intoxicated they would have been careless and that should have caused the accident. One thing is very definite that they have not totally transgressed to the wrong side whereas the lorry has straightly transgressed. There was a clear vision for both the vehicles. It is not proved that the rider of the motor cycle was under the influence of alcohol so as to hold that there was absolute violation of the traffic rules. Since the accident had taken place almost on the middle of the road, the Tribunal should have taken a reasonable view and should have apportioned the negligence equally on both the drivers of the motor cycle and lorry. Therefore I set aside the finding of the Tribunal MACA 1410/2007 -:3:- and hold that the rider of the bike and the driver of the lorry were equally responsible for the accident, viz. 50% each. 4.Now let me consider about the compensation. The Tribunal had considered documentary evidence and awarded a sum of Rs.14,685/-. A perusal of paragraph 13 of the award would reveal that the claimant had sustained a lacerated injury of 12 x 6x 1 cm on the right knee. Another lacerated injury of 3 x 1 x 1 cm on the frontal region and other abrasions on the knee. He was treated as an inpatient in the hospital from 26.9.1997 to 27.10.1997 or in other words, he was in the hospital for a period of 33 days as an inpatient. It is true that he had not sustained any fracture, but most probably serious lacerated wound on the knee would have handicapped him which would have resulted in a prolonged treatment in the hospital. No amount is seen given under the head actual loss of earning. I feel that for 3 months at the rate of Rs.2,000/- he has to be awarded Rs.6,000/-. Similarly, he has to be awarded some amount towards loss of amenities and enjoyment in life which I fix at Rs.5,000/- thereby making the total compensation payable at Rs.25,685/-. 5. It is true that being a pillion rider contributory negligence cannot be attributed. The rider of the bike and the driver of the lorry are liable to pay compensation. But the claimant has not chosen to prefer any claim MACA 1410/2007 -:4:- against the rider of the bike. Or, in other words, he had exonerated that person from claiming compensation. So he will be only entitled to get 50% of the amount awarded from the insurance company of the lorry which is the 3rd respondent in the claim petition. In the result, MACA is partly allowed and the claimant is awarded a compensation of Rs.12,850/- with 7% interest on the said sum from the date of petition till realisation and the 3rd respondent 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 Cdp/-