IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 MACA.No. 240 of 2005() -------------------------------- OPMV.1679/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ------------------------------------ K.G. SURENDRAN, AGED 31 YEARS, SON OF GOPALAN, KUZHIKKALA HOUSE, THENGODE P.O. BY ADV. MR.ANIL S.RAJ SMT.NITHYA.K. SMT.MANJUSHA MOHANDAS RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. P.K. NAZEER, PUTHUNILATHU HOUSE, MARKET P.O., MUVATTUPUZHA. 2. PAREED, VIPPANATTUKUDIL HOUSE, KAITHAKADUKARA, PATTIMATTOM. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, BAZAR ROAD, MATTANCHERRY, KOCHI-2. R3 BY ADV. MR.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2009, ALONG WITH MACA NO.345 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 240 and 345 OF 2005 = = = = = = = = = = = = = = = Dated this the 17th day of September, 2009. J U D G M E N T These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) Nos.1679 and 3689/98. O.P.(MV)1679/98 is filed by the rider of the motor bike involved in the accident and O.P.(MV) 3689/98 is filed by the owner of the motorbike claiming damages to the vehicle. A perusal of the materials available before Court would show that Mr.Surendran was riding the motorbike with Feby D'Cotha as the pillion rider who is the owner of the vehicle as well and they were proceeding from south to north. A lorry was coming from east to west and an accident had taken place 4.95 mtrs. south of the northern tarred end. A reading of the award of the Tribunal would show that the road lying east to west was the main road and other was a road joining the main road at that junction. Unfortunately the investigating agency has not given the width of the road but would state that the accident had taken M.A.C.A. Nos. 240 & 345 OF 2005 -:2:- place 4.95 mtrs. south of the western tarred end. Unless one is able to know the correct width of the road one may not be able to precisely say whether the lorry was on the wrong side or not. Two possibilities are there, namely, if the road is having a larger width then the lorry would have been on the wrong side for the reason that the accident had taken place 4.95 mtrs. south of the northern tarred end. Another possibility is that the motorcyclist who was riding the vehicle had crossed the junction and if the road is not having a substantive width it is almost certain that he had crossed and reached the other side of the road. These are only two possibilities. The evidence tendered in this matter does not show all these things. Admittedly it is a road junction. Lorry was coming from the main road. The motorcyclists were proceeding from the side road. Ordinarily better care has to be taken by the persons proceeding to the main road from the side road. That is why it is always said that when you are in a junction 'stop and proceed'. But it is true that if the lorry driver also knows that there is a junction, especially M.A.C.A. Nos. 240 & 345 OF 2005 -:3:- being a vehicle of a heavy motor vehicle he should also bestow better care and attention anticipating these types of actions by the people. One cannot hold it as a head on collision between two vehicles. If both had come at a controllable speed and one was able to see the other from a distance both could have averted the accident by swerving the vehicle to one side or the other. So taking into consideration all these probabilities and especially the factum of the responsibility of both the riders I am inclined to apportion the negligence at 60% on the rider of the motorcycle and 40% on the lorry driver. 2. Since the claimant in O.P.(MV)1679/98 has contributed to the accident he is not entitled to any compensation for his negligence. But he will be entitled to compensation of 40% from the other tortfeasor namely the lorry driver, owner and the insurance company. Then I will fix the compensation as we find that the injury sustained by him does not appear to be very serious. He had an abrasion on the abdominal region and a contusion on the right side. M.A.C.A. Nos. 240 & 345 OF 2005 -:4:- He was admitted on 25.4.98 and discharged on 29.4.98. I feel a total compensation of Rs.5,000/- would be sufficient out of which he will be entitled to get only 40% which would come to Rs.2,000/-. So the claimant in O.P.(MV)1679/98 is granted a compensation of Rs.2,000/- and the appeal is disposed of accordingly. 3. So far as the other appeal is concerned particulars and evidence are lacking and the Tribunal has not discussed about the damages sustained and therefore this Court has to remand the case to determine the quantum of damages which the claimant therein is entitled to. 4. In the result the M.A.C.As. are disposed of as follows. M.A.C.A. 240/05 is partly allowed and the claimant therein is awarded a compensation of Rs.2,000/- with 7.5% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.A.C.A. Nos. 240 & 345 OF 2005 -:5:- In M.A.C.A. 345/05 the award is set aside and the matter is remitted back to the Tribunal to consider the quantum of damages which the claimant therein is entitled to and for the said purpose the claimant as well as the insurance company are permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 11.11.2009. M.N. KRISHNAN, JUDGE. ul/-