IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 MACA.No. 110 of 2005() ---------------------- OPMV.2602/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER IN OP(MV) NO.2602/97) ----------------------- GOPALAKRISHNA PILLAI, AGED 63 YEARS, S/O.PADMANABHA PILLAI, WARRIAM VEEDU, CHENGAMANAD KARA, CHENGAMANAD VILLAGE. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR.G. RESPONDENT(S): RESPONDENTS IN OP.(MV) NO.2602/97) ------------------------- 1. MINI RAJAGOPAL, QUARTER NO.D4, HIL COLONY, UDYOGAMANDAL P.O., ELOOR, PIN-683 501. 2. PRASAD, S/O.SUDHAKARAN, NIRAKALLUNGAL, PALLIKKARA, PIN-670 316. 3. UNITED INDIA INSURANCE CO.LTD., UDYOGAMANDAL P.O., ELOOR, PIN-683 501. 4. E.S.UNNIKRISHNAN, S/O.SEKHARA PILLAI, ELLATHUPARAMBIL HOUSE, CHENGAMANAD KARA, CHENGAMANAD VILLAGE. 5. ORIENTAL INSURANCE CO.LTD., ALUVA, PIN-683 101. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R5 SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2008, ALONG WITH MFA NO. 175 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA Nos.110 & 175 OF 2005 ===================== Dated this the 1st day of December 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)Nos.2602 & 2603 of 1997. The brief facts necessary for the disposal of the appeals are stated as follows: The appellant in MACA Mo.175/2005 was riding a scooter with the other claimant as a pillion rider along the Aluva-Ernakulam National Highway and when it reached the place of accident a car driven by the 2nd respondent in the claim petition came from south to north and hit against the scooter resulting in sustainment of injuries to the claimant. The Tribunal after consideration of the entire materials held that the accident took place on account of the negligence of the claimant in O.P.(MV)No.2603 of 1997 and therefore dismissed the claim for compensation and allowed the claim of the other claimant against the owner and the insurance company of the scooter. It is against that decision, the appeals have been preferred. 2. Learned counsel for the appellants very strongly contends before me that the finding on negligence by the Tribunal is totally erroneous MACAs 110 & 175/05 -:2:- which requires consideration. He had handed over me a copy of the first information statement, scene mahazar, etc. The first information statement was given by the claimant himself and it is stated by him that while he was proceeding from north to south in a slow speed the car which came from the opposite direction suddenly turned to the right side without proper signal, as a result of which the scooter happened to hit on the back of the car resulting in injuries to him. According to the claimant, the accident took place on account of the negligence of the car driver. The investigating agency has charge sheeted only the car driver. Scene mahazar is also made available before me. It would show that the road has a width of 9.88 metres at the place of accident and it is having a direct vision of 100 metres on each side. Besides this, the road is having a margin of 2.36 metres on the western side and there is a road turning to Changampuzha Nagar on the other side. So, it is crystal clear from the place of accident that the accident had taken place in a road which was having a substantial width and where there was clear vision for the riders of both the vehicles to see each other. Admittedly, the scooterist was proceeding from north to south and its correct side was eastern side. As per the scene mahazar the accident had taken place 6.48 metres west of the eastern tar end which shows that the scooterist had gone to the wrong side. The place of accident after the MACAs 110 & 175/05 -:3:- accident would not clearly show what really transpire in the absence of clear tyre marks. When two vehicles are about to collide a desparate attempt will be made by both the riders to avert the accident and in that process, the vehicles are normally swerved to one side or the other. Merely because the scooterist was found on the wrong side after the accident one shall not hold that he alone is responsible for the accident especially when the car which was coming from the opposite side wanted to take a diversion to the right and proceed. But, if the scooterist had come at a reasonable speed and as the road was having a substantial width, certainly he would have been in a position to avert the accident by adverting better care and caution. Negligence is more on this scooterist for the reason that the accident had taken place on the wrong side of the scooter. But, at the same time when a vehicle which comes in a national highway wants to turn to the right, there was an imperative duty cast upon that driver also to bestow better care and attention and if he had done so, the damages could have been certainly reduced. Therefore, taking into consideration these materials, I hold that the scooterist had contributed 70% to the accident and the car driver 30% to the accident. 3. Since the Tribunal had dismissed the application of the scooterist it has become necessary to fix the compensation. Before the Tribunal, the MACAs 110 & 175/05 -:4:- scooterist had produced medical bills for an amount of Rs.12,128/-. He was working in a weaving society as a Secretary. The documents would reveal that he had sustained fracture of the upper end of the left tibia. He was admitted in the hospital on 4.9.1997 and discharged on 17.9.1997. Subsequently he had visited the hospital and the chest x-ray reveals that the fracture has united as well and he has been advised mobilization. So, with these materials, let me fix the compensation. Certainly on account of the accident, he would have been prevented from doing any work for a period of two months and I award him Rs.3,000/- towards loss of earning. Towards medical expenses I award him Rs.12,200/-. Towards transport expenses, extra nourishment and bystander expenses, I award him Rs.2,000/-. Towards pain and suffering, I award him Rs.10,000/-. Certainly the fracture of the tibia would have caused him loss of amenities and enjoyment in life. Towards loss of amenities and enjoyment in life, I award him a sum of Rs.5,000/- making it Rs.32,200/-. When 70% of the amount is deducted the claimant will be entitled to Rs.9,660/-. 4. So far as the other case is concerned, the claimant therein had sustained only contusions on the shoulder and chest and abrasions on the knee. He had produced medical bills for an amount of Rs.1,982/-. The Tribunal, after taking into consideration the entire matter had fixed a MACAs 110 & 175/05 -:5:- reasonable compensation of Rs.8,000/- with which I do not want to disagree. But, in that case also the entire amount is ordered to be paid by respondents 4 and 5, viz., the Oriental Insurance Company. But since I have apportioned the negligence at 70% and 30% now the United India Insurance company may have to pay 30% of the amount to the claimant and if the entire amount is paid by the Oriental Insurance Company that 30% of the amount shall be given to the Oriental Insurance Company by the United India Insurance Company as it is entitled to for the same. So far as O.P. (MV)No.2603 of 1887 is concerned, the claimant is awarded a compensation of Rs.9,660/- with 7% interest on the said sum from the date of petition till realisation and the 3rd respondent United India Insurance company is directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment. In O.P.(MV)No.2602 of 1997 the liability is apportioned at 70% on Oriental Insurance Company and 30% on United India Insurance Company. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-