IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.No. 2042 of 2005() ----------------------- OPMV.705/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER -------------------------------------- K.D.DEVASSIA, S/O.DEVASSIA, KOTTARAPPALLIL HOUSE, MOOMANTHODE.P.O, KARIKKOTTAKKARI. BY ADV. SRI.CIBI THOMAS RESPONDENTS/RESPONDENTS -------------------------------------------- 1. C.K.DILIP, S/O.GOPALAN, KUNIYIL HOUSE, KADIRUR, P.O.KADIRUR. - THE NAME OF THE FIRST RESPONDENT IS CORRECTED AS 'C.K. DILIP' INSTEAD OF 'C.K.PHILIP' AS PER ORDER DATED 20.2.2008 IN UNNUMBERED I.A. IN MACA 2042 OF 2005. 2. V.NARAYANAN, S/O.KRISHNAN NAIR, NUCHILADATH HOUSE, P.O.NETTOOR, THALASSERY. 3. NEW INDIA ASSURANCE COMPANY, THALASSERY. BY ADV. SRI.R.SURENDRAN FOR R2 SRI.P.G.GANAPPAN FOR R3 SRI.B.SAINU FOR R1 SMT.K.SEENA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 2042 OF 2005 --------------------------------- Dated this the 25th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thalassery in O.P.(MV) No.705/2000. The claimant is the owner of the jeep bearing NO. KRC 8323. It is contended that a lorry bearing registration No. KL 13/A 4327 came in a rash and negligent manner, and as a result of the impact the jeep sustained heavy damages. The tribunal found that both the drivers equally negligent and fixed the compensation at Rs. 61,000/- deducted 50% for the contributory negligence and awarded a sum of Rs. 30,500/-. It is against that decision the claimant has come up in appeal. 2. At the time of filing the appeal the name of the respondent was shown as C.K. Philip. But the petition has been filed in the name of C.K. Dilip and it is seen that same advocate has appeared for all the respondents and the case has been contested. But while drafting the award the name of C.K. Dilip was shown as C.K. Philip and this Court directed the party to approach the court to get it M.A.C.A. 2042/2005 -2- corrected and it was corrected by the tribunal. Now the said person wants to raise so many conditions which I feel cannot be allowed for the reason that the very same person has appeared before the Addl. Chief Judicial Magistrate, Thalassery and has pleaded guilty. He was sentenced to pay a fine of Rs. 750/-, in default Simple Imprisonment for one month. His name is shown as C.K. Dilip, S/o. Gopalan and it is the very same person. Now let me analyse the merits of the case. The jeep was proceeding from west to east and the lorry was coming from east to west. It was the contention of the jeep driver that the lorry was coming behind a bus and it suddenly turned to the right without any precaution and that resulted in the accident. The police charge sheeted both the drivers and the case against the jeep driver ended in aquittal where as the lorry driver pleaded guilty and he was sentenced to pay fine. So it is very clear that one was acquitted and the other was convicted. It is also to be remembered that the judgment or other proceedings in a criminal court is not totally binding on the tribunal or on the appellate forum. The tribunal has also observed in its judgment that the damage to the lorry is on the front left side. So there is some force in the contention raised by the learned counsel for the M.A.C.A. 2042/2005 -3- appellant that the lorry was attempting to make a turn when the jeep was coming from the opposite direction and there was a bus in front of the lorry. The driver of the lorry was expected to take better care and attention than the jeep driver and therefore it is a case where the driver of the lorry has contributed more to the accident. I modify the finding of negligence as 70% on the lorry driver and 30% on the jeep driver. 3. Now comes the quantum. The tribunal had awarded Rs. 55,000/- for the damages and towards loss of income this court has repeatedly held that in this type of case loss of income cannot be granted because it is not a damage to the property. So that has to be deducted and the amount will come to Rs. 55,000/- out of which, the claimant is entitled to have 70% of the compensation which would come to Rs. 38,500/-. The Insurance Company has admitted about the valid coverage and therefore it is liable to pay the amount. In the result, a revised award is passed whereby the claimant is awarded compensation of Rs. 38,500/- with 7% interest on the said sum from the date of petition till realisation from respondents jointly and severely and third respondent Insurance Company is M.A.C.A. 2042/2005 -4- directed to deposit the amount within 60 days from the date of receipt of copy of the judgment. If any amount is deposited, that shall be credited, balance need be deposited. The M.A.C.A. is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm