IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 MACA.No. 464 of 2008() ------------------------------------- OP(MV) NO.687/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM ------ APPELLANT/PETITIONER: ------------------------------------- SHARMILA, W/O. BERNAD SHA, PARIYATHUSSERY HOUSE, KANDAKADAVU P.O., COCHIN-8. BY ADV. SRI.T.C.SURESH MENON SRI.K.P.JOSE RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. N.J. PETER, ST. YOHANNAN, TOTTANKARA HOUSE, POOTHOTTA P.O. 2. SABU ISSAC, S/O. PATHROSE ISSAC, KADALIKANDATHIL HOUSE, KINGINIMATTOM P.O. 3. UNITED INDIA INSURANCE CO. LTD., M.T.P.C. OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN. 4. THE ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. ADV. SRI.T.J.LAKSHMANAN FOR R3 ADV. SRI.M.JACOB MURICKAN FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MACA No.464 OF 2008 ===================== Dated this the 19th day of December 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.687 of 2000. She along with her husband was travelling in a motor bike through M G road from south to north and according to her, at that time a bus coming from east to west driven by the 2nd respondent came in a rash and negligent manner and hit on the motor cycle resulting in injuries to her and her husband. The insurance company of the bus had taken up the contention that the accident had taken place only on account of the negligence of the motor cyclist and therefore it is not liable to pay the amount. The insurance company of the motor cycle had taken up the contention that since the owner of the motor bike is not impleaded as a party and as no negligence is attributed against him, and so the claimant cannot get any compensation from the insurer of the motor cycle. 2. In the trial court, Exts.A1 to A10 and B1 were marked and Pws1 and 2 were examined. On the basis of the materials, the Tribunal found that MACA 464/2008 -:2:- the accident took place on account of the negligence of the motor cyclist and therefore non-suited the claim of the wife and granted compensation for the husband under Section 140 of the Motor Vehicles Act and I am informed that against that award an appeal is pending before a Division Bench of this Court. 3. The question to be considered is whether the finding of the Tribunal that the accident took place on account of the negligence of the motor cyclist alone or bus driver alone or of both. The Tribunal felt that police after due investigation had arrived at a decision that it is an inevitable accident and had referred the case. Ext.B1 is the refer report. A reading of Ext.B1 report only cast more suspicion than clarity and further when Ext.B1 report itself states that there was no negligence on the part of both the drivers and the accident was inevitable one cannot hold that the accident took place on account of the negligence of the motor cyclist alone. Filing a protest complaint is a matter which the parties have to decide and in a case before the Tribunal just because a protest complaint is not launched it will not result in non-suiting a person, if materials are available to decide the question of negligence. Admittedly the motor cyclist was proceeding the main road from south to north and his correct side was the western side. The bus was coming from east to west. It can be seen from the refer report MACA 464/2008 -:3:- that the motor cyclist was driving through the western end of the road. If it is true, it is the proper side through which he is expected to drive the vehicle. The Tribunal did not accept the contention that the bus had hit the motor bike in the light of the AMVI's report that the signal light(indicator) on the left side of the bus had been damaged. The indicator of a bus is on the front side of the bus but it will be there on the right hand corner as well as the left hand corner and it will never be on the left side portion of the bus or the right side portion of the bus. If the motor cycle had gone and hit on the tyre of the bus then there was no occasion for the indicator light to be broken. Just because a lady who was travelling as a pillion rider stated that the motor cycle hit on the tyre does not absolve the duty of the court from analyzing the materials to arrive at a proper decision. As things stand, it has to be stated that the motor cyclist was proceeding through his side along the main road and the bus was coming from a side road. The rider of the motor cycle is not expected to know about the traffic regulation made off and on in the city of Ernakulam and it is for the traffic authorities to do it properly. Suppose a bus is coming from an inside road which is not the usual route, then the responsibility is all the more on those persons coming through the deviated road. So, it cannot be held that the driver of the bus was totally innocent and the motor cyclist alone was negligent. But the accident took MACA 464/2008 -:4:- place in a junction where there is lot of traffic congestion, drivers of both the vehicles should have been more careful so that these type of accidents could have been averted. So this is a case where the accident had taken place on account of the negligence of the bus driver as well as the motor cyclist. When an accident had taken place in a junction and if there is a traffic constable on duty people and if the drivers are not heeding to the direction of such a constable then the whole traffic system will get into trouble. Since it has not been done in this case, the accident had taken place and therefore I feel this is a case where negligence has to be apportioned equally on the bus driver as well as the motor cyclist. Therefore I set aside the award passed by the Tribunal and find that both the drivers are equally liable for the accident and apportion the negligence at 50% each. 4. It is true that the Tribunal has dismissed the claim application without fixing the compensation. I do not want to remit back the case to the Tribunal for the reason that materials are available here to fix the compensation. A perusal of the wound certificate Ext.A7 relating to the claimant in this case would show that she had a deep lacerated wound over occipital region, abrasion over upper lip, closed fracture left clavicle middle third, etc. She was treated in the hospital as an inpatient upto MACA 464/2008 -:5:- 2.8.1999 from 27.7.1999. She had expended a sum of Rs.2,137.47 and with these materials let me fix the compensation. Towards medical expenses, I grant her Rs.2,150/-, towards damage to closing and extra nutritious food, I grant Rs.500/-. Toward bystander expenses, I grant an amount of Rs.700/-. Towards loss of earning I award a sum of Rs.2,500/- either as an employee or as a house wife. Since she had sustained lacerated wound over occipital region, I award Rs.5,000/- towards pain and suffering, making a total compensation of Rs.10,850/-. Since she has not attributed any negligence on her husband and as he is not impleaded as a party the insurance company of the motor cycle cannot be saddled with the liability to pay compensation and therefore the claimant will be only entitled to 50% of the amount from the insurance company of the bus, viz., the 3rd respondent. In the result, the MACA is partly allowed and the claimant is awarded a compensation of Rs.5,425/- with 7.5% interest on the said sum from the date of petition till realisation and the 3rd respondent insurance company, viz., the United India Insurance Company is liable to deposit the amount within 60 days from the date of receipt of a copy of this judgmnet. M.N.KRISHNAN, JUDGE MACA 464/2008 -:6:- Cdp/-