IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 MACA.No. 810 of 2010 (C) ------------------------------------- (O.P.(MV).NO.1824/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA) .......... APPELLANT/PETITIONER: -------------------------------------- JOSEPH CHACKO @ RAJAN, AGED 39 YEARS, S/O.CHACKO, KOMAMKARIL VEEDU, KOZHIMAL P.O ERAVIPEROOR, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADVS. SRI. K.SHAJ, SRI. SAJJU.S. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. RADHAKRISHNA PILLAI, S/O.SUNDARAM PILLAI, 4/66, THUNDAMPARAMBIL VEEDU, KONNI P.O., PATHANAMTHITTA. 2. THE ORIENTAL INSURANCE CO.LTD., THIRUVALLA. R2 BY ADV. SRI.RAJESH THOMAS. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.810 OF 2010 ............................................. Dated this the 14th day of July, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pathanamthitta in OP(MV)No.1824/2005. The claimant, an auto driver by profession, sustained injuries when his auto rickshaw collided with a lorry which was moving in front of it. As a result of the same, grievous injuries were sustained and the Tribunal apportioned negligence at 50% and awarded a compensation of Rs.87,355/=. It is against that decision, the claimant has come up in appeal for enhancement mainly challenging the finding of contributory negligence. 2. Heard the learned counsel for the appellant as well as the insurance company. The learned counsel for the appellant would contend that the reason for the accident was sudden application of break by the lorry driver without any reason and therefore, his vehicle happened to hit on the back of the lorry. 3. On the other hand the learned counsel for the insurance company by adverting to the rules under the : 2 : M.A.C.A.NO.810 OF 2010 Motor vehicles Act would contend that the driver of a vehicle coming behind is expected to keep a reasonable distance. Therefore the Tribunal held that if the auto driver had kept a reasonable distance, the accident could have averted. 4. One cannot find fault with the said reasoning of the learned Tribunal. But each case has to be decided on its facts. Now we are in a society where number of vehicles are more which the road can bear. Travelling has become a problem and though the rule stipulates to keep a reasonable distance, it may not be possible in the light of the present scenario for the reason that the vehicle coming behind of that vehicle may not be able to adjust. So, it has to be stated that availability of the road, width of the road etc are causing great concern to the present day traffic system. When a lorry, which is a heavy vehicle, is plying through a road, certainly being the driver of a heavy motor vehicle, he is expected to keep better vigilant than the driver of a light motor vehicle. Situations cannot be ruled out when there may be emergency where the driver of the on : 3 : M.A.C.A.NO.810 OF 2010 moving vehicle may have to apply sudden break. If such a situation is explained, then one can hold that it was beyond the control of the lorry driver and therefore his negligence is to be viewed in that angle. But here the police has charge sheeted him for causing the accident by application of sudden break. It was incumbent upon him to come and explain before the court regarding the reason for such application. 5. So taking into consideration the facts and circumstances of this case, I feel that this is eminently a fit case where negligence can be attributed more on the driver of the lorry though he was moving in front of the auto rickshaw. I apportion the negligence at 65% on the lorry driver and 35% on the auto driver. It has also to be stated that on account of the accident the claimant had sustained serious dislocation of the hip coupled with fracture of the leg. The medical board also assessed his permanent disability at 15% which has been accepted by the court. Therefore I feel that the compensation awarded has to be enhanced for the reason that the contributory negligent : 4 : M.A.C.A.NO.810 OF 2010 part has come down to 35% in stead of 50%, i.e., a difference of 15%. When the lorry driver is negligent to a tune of 65% and as the total amount awarded is Rs.1,74,710/=, the claimant will be entitled to a compensation of Rs.1,13,561/= of which Rs.87,355/= is already awarded and therefore the claimant will be entitled to an additional compensation of Rs.26,206/= which I am rounding as Rs.26,200/=. 6. In the result, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.26,200/= with 7.5% interest on the said sum from the date of petition till realisation and the respondent 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. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : M.A.C.A.NO.810 OF 2010 : 6 : M.A.C.A.NO.810 OF 2010