IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 MFA.No. 1551 of 2001() ------------------------------- OPMV.2180/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ------------------------------------ VIJAYAKUMAR, DEVI SADANAM, PUZHAVATHU.P.O., CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS/RESPONDENTS AND ADDL. RESPONDENTS -------------------------------------------------------------------------------------- 1. VIJAYAKUMAR, S/O. DHAMODHARANPILLAI, KALLUPURAYIL VEEDU, THIRUVALLA. 2. VARGHESE POTHAN, MARIPARAMBIL HOUSE, THOLASSERI, THIRUVALLA. 3. THE NEW INDIA ASSURANCE COMPANY LTD., CHENGANNOOR. 4. MUHAMMED THAHA, S/O.P.K.KASIM, KOCHUPARAMBIL, THRIKKODITHANAM.P.O., CHANGANACHERRY. 5. MATHAI THOMAS, CHERGAZHASSERIL HOUSE, THRIKKODITHANAM, CHANGANACHERRY. 6. THE NATIONAL INSURANCE CO. LTD., MADRAS, REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. BY ADV. SRI.KKM.SHERIF - R3 SRI.P.JAYASANKAR - R6 SRI.P.HARIDAS - R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.1551 OF 2001 ------------------------------------- Dated 20th June, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident. Appellant was an autorickshaw driver. He was aged 31 at the time of accident. He claimed a total compensation of Rs.2,00,000/= contending that the accident occurred due to the negligence of the driver of the car which was insured by the third respondent insurance company. It is his case that he was standing on the road side. An authorickshaw was hit by a car and in turn the autorickshaw lost its control and hit the appellant who was standing on the road side. From his evidence it is clear that the car hit him from behind. One witness was examined as PW1. He deposed that the car came in the wrong side and hit autorickshaw and autorickshaw driver was also negligent as he turned broadly to the right side. Considering the totality of evidence, the Tribunal found that the accident occurred due to the composite negligence of the car driver as well as autorickshaw driver and, therefore, apportioned the liability as 50 : 50. We see no ground to interfere in the finding regarding negligence. There was no insurance for the car. Therefore, driver and owner of the car were held liable. The autorickshaw has valid insurance. MFA.1551/2001 2 Since 50% negligence was fixed on the autorickshaw driver, insurance company of the autorickshaw is liable to pay 50% of the compensation. That was done by the Tribunal. It is also stated that percentage of disability as assessed by the doctor is not correct. Therefore, we directed the claimant to be examined by a Medical Board of Medical College Hospital, Kottayam. Medical Board was constituted and he was directed to appear before the Medical Board on 18.9.2007, but, he failed to report before the Medical Board. In the above circumstances, we are unable to interfere in the impugned award. The appeal is dismissed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks