IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 MACA.No. 556 of 2007() ---------------------- OPMV.615/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- K.SURESH BABU, AGED 36, S/O.LATE C.KUMARAN, AMBALAPURAM HOUSE, WEST YAKKARA P.O., PALAKKAD. BY ADV. SRI.K.S.MADHUSOODANAN SRI.K.B.SUJAI KUMAR SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.SHAHIN M.KOMATH RESPONDENT(S): --------------- 1. C.R.JONEY, CHETHALAN HOUSE, ELINJIPRA P.O., CHOWKA, CHALAKUDY (OWNER OF LORRY NO.KBE 8507). 2. SHAJU, S/O.VARGHESE, PAINAKATH HOUSE, MENOOR VILLAGE, MURINGOOR P.O., MUKUNDAPURAM, TRISSUR (DRIVER OF LORRY NO.KBE 8507). 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, OTY HEIGHTS, BUILDINGS, CHALAKUDY-680 307, (INSURER OF LORRY NO. KBE 8507). ADV. SRI.DINESH R.SHENOY FOR R1-2 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MACA No. 556 of 2007 ------------------------------------ Dated, this the 22nd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. The appellant who is stated as engaged as an Advocate Clerk sustained some injuries on 26.06.1999, when the TVS Moped ridden by him was knocked down by the lorry bearing No. KBE 8507, which came from the opposite side, causing serious injuries which led to the claim. 2. The case of the appellant/claimant was that he was proceeding along the proper side of the road, i.e., maintaining the eastern side of the road, which is lying north to south and was proceeding from the north to south; whereas the offending lorry, which was coming from the opposite side overtaking another tanker lorry, came and dashed against him and thereafter, the lorry could be stopped only after hitting against a tree, nearly 15 meters on the eastern side of the road, which by itself speaks about the negligence on the part of the driver of the lorry. Despite this, the Tribunal, making a reference to the contents of Ext.A2 scene mahazar, held that the spot of occurrence was on the extreme west of the road and hence that the appellant/claimant was proceeding along the wrong side of the road, whereby he was MACA No. 556 of 2007 2 totally liable and responsible for the accident and hence that no compensation was liable to be paid. Accordingly even though the quantum of compensation was fixed as Rs.29,250/-, the claim petition was dismissed, based on the finding on negligence; which in turn is subjected to challenge in this appeal. 3. The learned counsel appearing for the appellant submits that the finding and reasoning given by the Tribunal as to the fixation of negligence is not at all correct or proper. It is also pointed out that the amounts awarded by the Tribunal under various heads are much on the lower side (though the entire compensation has been rejected to be given, based on the finding of negligence). The learned counsel further submits that, despite the proven permanent disability of 16% certified in Ext.A10 certificate and as deposed by the Doctor who was examined as PW1, absolutely no amount has been awarded by the Tribunal under this head. It is further contended that, despite the serious nature of the injuries resulting in permanent disability of 16%, nothing has been awarded or stated as payable in respect of the loss of earning. The learned counsel appearing for the Insurer, on the other hand asserts that the Award passed by the Tribunal does not call for any interference; particularly in view of the fact that the appellant/claimant did not choose to mount the box, which is only an attempt on the part of the claimant to avoid the cross MACA No. 556 of 2007 3 examination. The learned counsel also submits that the amounts worked out by the Tribunal are very much reasonable and proportionate to the gravity of the injuries sustained and further that the appellant/claimant is actually not entitled to get any compensation, as the accident was only because of the negligence on the part of the rider himself. 4. After hearing the rival submissions and also going through the discussions made by the Tribunal, we find that there is some palpable error in arriving at the conclusion by the Tribunal; particularly when the spot of occurrence as described in the scene mahazar and the position of the offending lorry after the accident, do not reconcile with each other. More so when, the specific pleadings and evidence adduced from the part of the claimant (though he did not choose to mount the box) have not been controverted by the Insurance Company. No respondents have chosen to adduce any evidence, either oral or documentary. It is also discernible from the materials on record that the Insurance Company had filed application under Section 170 of the Motor Vehicles Act and had obtained sanction to have wider defence, through the said opportunity is not seen utilized. 5. We have gone through a copy of Ext.P2 scene mahazar, made available by the learned counsel for the appellant. The description of the spot of occurrence, as revealed therefrom and also as discussed by MACA No. 556 of 2007 4 the Tribunal in paragraph 7 of the Award, shows that the exact spot of occurrence was 10.85 metres to the east, from the western tarred end of the road. This observation was made by the Tribunal to fix the negligence only on the rider of the moped and to absolve the driver of the lorry. The specific case of the claimant was that he was coming from the north, along the road lying from the north to the south and that the offending lorry was coming from the opposite side, after overtaking a tanker lorry which was lying parked on the western side of the road. In the said attempt of overtaking the tanker lorry, the driver of the offending lorry lost control of the vehicle and hit against the moped ridden by the claimant and thereafter proceeded further and it could be stopped only on dashing against a tree situated 15 meters to the east of the eastern tarred end of the road. The sequence of events as narrated by the appellant/ claimant does have some force, in view of the description in Ext.A2 scene mahazar; particularly as to the availability of the tanker lorry which was parked on the western side of the road. This being the position, we find that the case put forth by the appellant/claimant, that the offending lorry was coming from the opposite side, i.e., from south to north after overtaking the parked tanker lorry and it was at this point, that it happened to collide with the moped ridden by the claimant which was coming from the opposite side is more acceptable. That apart, the damage noted by MACA No. 556 of 2007 5 the AMVI in respect of both the vehicles are on the ‘front side’. This shows that the offending lorry could not have been on the western side of the road lying north to south; so as to arrive at an inference that it was proceeding along the proper side. In other words, since the offending lorry was coming after overtaking the tanker lorry lying parked on the western side of the road, the description of the exact spot of occurrence as ‘3 meters east’ from the western tarred end of the road and that after the accident, the moped was pushed over to the eastern side of the road, can’t be correct at all. 6. In the above facts and circumstances, we find that the fixation of negligence, attributing the same solely on the claimant/rider of the moped is thoroughly wrong and misconceived. We set aside the same and refix the negligence in an equal proportion; i.e., on the ratio of 50:50, on the claimant/rider as well as the driver of the lorry. 7. With regard to the quantum of compensation awarded, we find that the permanent disability has been certified as 16% as borne by Ext.A1 disability certificate. The said certificate has been proved by examining PW1 Doctor. In the said circumstance, particularly since no contra evidence has been adduced from the part of the insurer, the claimant is liable to be compensated by the respondent. Taking note of the fact that he was aged about 30 years and the appropriate multiplier MACA No. 556 of 2007 6 being 17, reckoning the notional income of injured as Rs.1,500/- per month (in the absence of better evidence), we find that the claimant is entitled to get a compensation of Rs.14,960/- towards the permanent disability. Similarly, nothing has been awarded towards the loss of earning. The nature of injuries sustained and the disability would have caused much adverse consequences, compelling the claimant, who was stated as an Advocate’s clerk to have abstained atleast for about 3 months from his duties; thus enabling him to get Rs.4,500/- under this head as well. Since we have apportioned the liability based on the ratio of 50:50, the claimant will actually be entitled to get only 50% of the said amount; which comes to Rs.40,875/-. We make it clear that the said amount shall be deposited by the 3rd respondent Insurance Company, with interest at the rate of 7% per annum from the date of the petition, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The appeal is allowed in part. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc