IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 MACA.No. 1632 of 2004() ----------------------- OPMV.1119/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/PETITIONERS: ------------------------------------- PAUL, S/O. PAILY, AGED 43 YEARS, RESIDING AT ELAVUMTHATTIL HOUSE, MULAKULAM NORTH PIRAVOM VILLAGE, PIRAVOM P.O., ERNAKULAM DIST. BY ADV. SRI.M.V.SABU RESPONDENTS/RESPONDENTS --------------- 1. BABU MATHAI, KOZHAKKOTTU THOTTATHIL HOUSE, MUVATTUPUZHA. 2. CHACKO K., S/O. DAVID, AGED 35, KUMBALATHIL HOUSE, MULAKULAM P.O. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., MUVATTUPUZHA. ADV. SRI.A.R.GEORGE FOR R3 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.1632 of 2004 ------------------------------------- Dated this the 25th day of February, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.2.5 lakhs as compensation for injuries suffered in a motor accident which occurred on 23.05.1999. He was riding a motorcycle. Lie of the road was north-south. He was proceeding from south towards north. An autorickshaw was coming in the opposite direction. The road has a width of 4.56 metres. There was a collision between the two vehicles. The appellant had suffered injuries. The appellant examined himself as PW1. Exts.A1 to A9 were marked. 2. The Tribunal did not accept the evidence of PW1, but relying on indications available in the scene mahazar marked as Ext.A2 came to the conclusion that the appellant was completely responsible for the accident that occurred. Thereupon the Tribunal did not proceed to ascertain the quantum of compensation, but dismissed the claim on the ground that the appellant has not succeeded in proving negligence on the part of the respondent/driver of the autorickshaw. There is no dispute M.A.C.A. No.1632 of 2004 2 about the insurance coverage and the liability of the insurer to compensate the victim of the accident if the accident had taken place on account of the negligence of the driver of the autorickshaw. 3. The learned counsel for the appellant assails the finding in the impugned award that the accident occurred completely on account of the negligence of the appellant. The counsel contends that the said conclusion is totally incorrect and perverse and has resulted in miscarriage of justice. 4. Why did the Tribunal find that the appellant is solely responsible for the accident ? The learned counsel for the appellant submits that the Tribunal on the basis of two circumstances alone jumped to the conclusion that the entire blame can be left at the doors of the appellant. The circumstances are i) That the appellant was smelling alcohol when he was taken to the doctor for treatment of injuries; ii) The spot of the accident happens to be located in the scene mahazar at a distance of 63 c.m to the right of the imaginary mid line running along the centre of the road. M.A.C.A. No.1632 of 2004 3 5. The learned counsel for the appellant submits that both these are not probative circumstances which could have helped the Tribunal to come to a finding completely against the appellant. The road has a total width of 4.56 metres. The imaginary line runs at a distance of 2.28 metres from either kerb. On such a narrow road it would be idle to expect a vehicle to always keep to the right of the imaginary line, contends the learned counsel for the appellant. The fact that the vehicle keeps to the centre of the road in a narrow road like that and does not go along its extreme left is by itself no reason to assume that such driver was completely responsible for the accident, contends the learned counsel for the appellant. We find merit in that contention. It would be myopic to jump to a conclusion about the responsibility for the accident merely from the location of the spot of the accident in a scene mahazar. The question of negligence cannot be blindly and over simplistically decided on the basis of the question whether the spot of accident is located in the scene mahazar on the right side of the imaginary mid line or left side of the imaginary mid line. Of course in a broad road if a rider without any explanation had gone to his right hand (wrong) side, the Tribunal may be justified in looking for his M.A.C.A. No.1632 of 2004 4 explanation as to how he happened to reach such a place. But in the instant case the imaginary mid line runs at a distance of 2.28 metres from both kerbs and the spot of the accident is at a point 2.15 meters left of the kerb on the right side ie. 63 c.m to the right of the imaginary line. There is nothing to show that there was a median or white or yellow line at the centre of the road. We are satisfied that from that circumstance a ready and instant conclusion on negligence should not have been drawn at all. 6. The counsel contends that it must also be seen that the spot of accident is not located in Ext.A2 scene mahazar with reference to any tangible data. That is only the opinion of the Investigating Officer. On what basis he jumped to that conclusion cannot be deciphered from intrinsic materials available in Ext.A2 scene mahazar. He has not been examined also. At the spot of accident he did not find any marks. The motor cycle in which the appellant was travelling is found at a distance of 3 metres north-west of the spot of the accident and the vehicle was found on the road margin on the left hand side of the road. The counsel alertly points out that the autorickshaw which was coming in the opposite direction had overturned and capsized. It was found at a distance of 15 meters southwards M.A.C.A. No.1632 of 2004 5 from the point of impact. The counsel contends that if reasonable inferences were drawn from the location of the vehicles after the impact, it must have been concluded that the autorickshaw driver was negligent and was driving the vehicle at a very high speed resulting in the said vehicle being stopped only after 15 meters after the point of impact and that too after it overturned. We find merit in that contention of the learned counsel for the appellant. 7. The second circumstance relied on is that the appellant was smelling alcohol when he reached the doctor long later at 8.40 p.m the accident having taken place at 7 p.m. Though there is no evidence to show that he was under the influence of alcohol, the fact that he was riding a heavy motorcycle (bullet) after consuming alcohol may be taken note of, submits the learned counsel for the insurance company. Mere consumption of alcohol may not justifiably lead to an inference of negligence but in the facts and circumstances of this case, we are satisfied that the Tribunal committed no error in taking note of that unassailable circumstance. 8. Precise apportionment of the responsibility of the accident is indeed difficult in the fact and circumstances of the M.A.C.A. No.1632 of 2004 6 case. Normally it would have been easier to reckon that both were equally responsible. But in the facts and circumstances of the case, considering the position of the vehicles after the accident and the fact that the autorickshaw had overturned, we conclude, notwithstanding the smell of alcohol detected by the doctor that the appellant can be attributed only 40% of the responsibility for the accident. Should we err (if error be inevitable) on this aspect we would definitely choose to err in favour of the victim who appears to have suffered serious injury in the accident. We therefore come to the conclusion that responsibility for the accident must be apportioned at 40% for the appellant and 60% for the driver of the autorickshaw. 9. Records have not been called for. We are satisfied that after recording the above findings the matter can be sent to the Tribunal for fresh disposal in accordance with law. The option of the parties to pray for a reference to the Lok Adalat before the Tribunal shall also remain. 10. In the result: i) This appeal is allowed in part; ii) The impugned award is set aside. The finding regarding negligence is vacated and it is held that responsibility M.A.C.A. No.1632 of 2004 7 for the accident must be apportioned at 40% for the appellant and 60% for the respondent/driver of the autorickshaw; iii) The matter is sent back to the Tribunal for fresh disposal in accordance with law as expeditiously as possible. 11. Hand over a copy of this judgment to the learned counsel for the appellant. The appellant shall appear before the Tribunal on 30.03.2009. The Tribunal shall ensure that the matter is disposed of afresh in accordance with law as expeditiously as possible - at any rate, before 30.04.2009. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-