IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 MACA.No. 1689 of 2004() ----------------------- OPMV.1563/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANTS/3RD RESPONDENT: ----------------------------------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, KOCHI, REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2 RESPECTIVELY: -------------------------------------------------------------------------------------------------------------------- 1. U.M.HASSAN, S/O.PAREETH MOHAMMED, AGED 34 YEARS, ULLALIL MUNDETH HOUSE, SOUTH VAZHAKULAM P.O. ALUVA - 5. 2. CHERIYAN KATTAKKAYAM, KATTAKKAYAM HOUSE, SOUTH VAZHAKKULAM P.O. ALUVA. 3. SAJU, S/O.KORATH, PANAPPATTU HOUSE, SOUTH VAZHAKKULAM, ALUVA. ADV. SRI.K.I.ABDUL RASHEED FOR R1 SRI.K.A.SHAMSUDEEN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, ALONG WITH MACA NO. 993 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1689 OF 2004 & 993 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July 2010 JUDGMENT Basheer, J. These two appeals are being disposed of by this common judgment, since they are arise from the same award passed by the Motor Accidents Claims Tribunal. 2. MACA 1689/04 is at the instance of the insurer of the alleged offending vehicle involved in a road traffic accident. The grievance of the appellant is that the Tribunal, after having found that the claimant had also contributed to the accident, was not justified in apportioning the liability as 90:10 between the driver of the offending vehicle and the claimant. In other words, the contention is that the Tribunal ought to have apportioned the percentage of negligence as 50:50. 3. The case of the claimant was that he was riding his motor vehicle from east to west through the southern end of the road which has a width of 6.68 meters. Admittedly, the offending vehicle was coming from west to east. It is not in dispute that the claimant was thrown off his two wheeler after it was hit by the offending vehicle driven by respondent No.3 herein. But according to the appellant/insurance company, it was found by the Tribunal that the investigating officer had noted in Ext.A2 scene mahazar that the spot of accident was 2.09 meters towards south from the northern M.A.C.A.Nos.1689/04 & 993/08 :: 2 :: tar end of the road margin. According to the learned counsel, the Tribunal after having accepted the version given by RW1, the Investigating Officer, as regards the spot of the accident it ought to have been held that the rider of the two wheeler was equally negligent in causing the accident. He points out the evidence of RW1 clearly indicated that the two wheeler was on the wrong side. 4. But it has to be noticed that PW2, the eye witness to the accident, had categorically stated that the accident occurred because of the rash and negligent driving of respondent No.3, driver of the tempo van. The evidence of PW2 as regards the allegation of negligence on the part of respondent No.3 stood uncontroverted. More importantly, the driver of the offending vehicle never bothered to step into the box and deny the allegation. Still further, the police had registered the case in connection with the above accident only against respondent No.3. In other words, the police had not even chosen to register a case against the claimant or atleast filed charges as A and B against the two drivers involved in the accident. 5. However the Tribunal, relying on the description of the alleged spot of the accident as marked in Ext.A2, proceeded to hold that the claimant had also contributed to the accident to some extent. The Tribunal therefore apportioned the percentage of negligence as 90:10 between the driver of the offending vehicle and the claimant. M.A.C.A.Nos.1689/04 & 993/08 :: 3 :: 6. RW1, who had prepared Ext.A2 scene mahazar, admitted that he had marked the spot of the accident as pointed out by PW2. But PW2, in his evidence, has asserted that he had pointed out spot of the accident as 2.09 meters from the southern tar end of the road. According to PW2, the investigating officer (RW1) had mistakenly noted down the spot of accident as 2.09 meters towards south from the northern tar end. 7. Having carefully perused the deposition of PWs1 and 2 and also RW1, we are satisfied that the finding entered by the Tribunal that the claimant had also contributed to the accident to the extent of 10% cannot be sustained. The evidence of RW1 will further show that the offending vehicle which was coming from west to east was found a little far away from the spot of the accident as compared to the two wheeler which was found very near to the spot. This clearly indicated that the offending vehicle was coming at a considerable speed, as otherwise, it would have stopped somewhere near the spot of the accident itself. In the above facts and circumstances, we are satisfied that there is no merit in any of the contentions raised by the appellant. 8. In M.A.C.A.No.993/08, filed by the claimant, the contention is that the quantum of compensation awarded is inadequate and also that the finding of negligence on the part of the claimant to the extent of 10% is incorrect. We have already found that the claimant had not contributed to M.A.C.A.Nos.1689/04 & 993/08 :: 4 :: the accident as held by the Tribunal. As regards the claim for enhancement, we do not find any reason to interfere with the award passed by the Tribunal. It is held that accident occurred because of the rashness and negligence of respondent No.3 alone. In that view of the matter, the insurance company shall be liable to pay the entire amount of compensation to the claimant. Both appeals are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes