IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 MACA.No. 242 of 2009() ---------------------- OPMV.2947/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S)/PETITIONER: -------------- MOHAMMED, 53 YEARS, S/O.MOHAMMED, KANCHERY HOUSE, PO.KORATTIKKARA, TRICHUR. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS: --------------- 1. DHAMODHARAN, S/O.ACHUTHAN, VARIKKAL HOUSE, CHERKKALAM PO., VIYANAGAR, MUTTATHODY TALUK KASARGODE 2. SONY.J.PADAYATTLE, S/O.JOHN PADAYATTLE, PADAYATTILE HOUSE, COCHIN-18. 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, CITY POINT BUILDING, PRESIDHA JN., M.G.ROAD, KASARGODE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 242 OF 2009 --------------------------------- Dated this the 29th day of January, 2009 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thrissur in O.P.(MV) No.2947/2003. The claimant was a pillion rider in a motorbike which had a collision with a car resulting in serious injuries. The tribunal fixed the compensation at Rs. 71,750/- deducted 40% for the reason that the rider of the bike and Insurance Company is not impleaded and therefore directed the Insurance Company of the car to pay 60% of the amount. It is against that decision the claimant has come up in appeal. 2. The learned counsel for the appellant very strongly contends before me that the materials available would only show negligence on the part of the car driver. Therefore the tribunal was erroneous in finding the rider of the motorbike also negligent. Admittedly the car was proceeding from north to south and the bike from south to north. The correct side of the car was eastern side and that of the bike was the western side. M.A.C.A. 242/2009 -2- Ext. B2 scene mahazar referred to by the Tribunal would show that the place of accident is 2.36 metres west from the eastern tar end. So it is a total transgression to the wrong side by the motorcyclist. The learned counsel would contend that the charge sheet is against the driver of the car and therefore the tribunal should have held that the driver of the car alone is negligent. It has to be stated that the claimant was clever enough not to produce the scene mahazar and it was produced by the Insurance Company alone. Further the charge sheet produced by the claimant also would establish that the place of accident is 2.36 meters west from the eastern tar end. The learned counsel would contend that immediately after the accident the vehicle has been pulled to the other side and that is why it is shown as on the eastern side of the road. One cannot state that such things may not happen. But there must be a pleaded case. Further there must be some evidence before the tribunal to show that the vehicle happened to go to the wrong side on account of other factors. The claimant sat quite in his house and based on police charge sheet wanted to attribute the entire negligence on the car M.A.C.A. 242/2009 -3- driver. The points referred in the scene mahazar is totally against him. Still the tribunal has very considerate to the claimant and had only deducted 40% for the negligence of the motorcyclist. I do not find any error committed by the tribunal in arriving at a decision. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN,JUDGE vkm M.A.C.A. 242/2009 -4-