IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 MACA.No. 749 of 2010() ---------------------- OPMV.853/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER ------------------------ CHARLES LINTO @ LINTO 25 YEARS S/O. THOMAS, KUTTIKKATTU HOUSE, AYILLUR.P.O. NENMARA, MANNAM, PALAKKAD. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS: --------------- 1. HIDUR MUHAMMED, S/O. ABDULKADAR, PAYYR ROAD, MUDAPPALLUR.P.O., PALAKKAD. 2. SABOORA, W/O. ABDUL MUTHALIF, 10/378, PAYYUR ROAD, MUDAPPALLUR, ALATHUR, PALAKKAD. 3. UNITED INDIA INSURANCE CO. LTD., ORIZON COMPLEX, VADAKKANCHERRY ROAD, LUNNAMKULAM, THRISSUR POLICY NO. 101202/31/05/02/ 00009791 VALID FROM 17-02-2006 TO 16/03/2007. ADV. SRI.K.SANDESH RAJA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ M.A.C.A.No. 749 OF 2010 ------------------------ Dated this the 2nd day of November, 2010 JUDGMENT Gopinathan, J. At 3.30 p.m. on 3-4-2006 along Ayilur – Mudappallur road at Uriyarikudam, the appellant while riding a motor cycle bearing Reg.No.KL-9/R-1319 hit on the rear of an on going jeep bearing Reg.No.KL-10/B-5272 driven, owned and insured by the respondents and as a result the petitioner sustained injuries. Alleging that the motor cycle ridden by the appellant hit on the rear of the jeep because the first respondent, who was driving the jeep, suddenly applied the break and thus there was negligence on the side of the first respondent and hence the respondents are liable to compensate the petitioner, claiming a sum of Rs.2 Lakhs as compensation, the appellant filed O.P. No.853/2006 before the Motor Accidents Claims Tribunal, Ottappalan. 2. Respondents 1 and 2 remained ex parte. The 3rd respondent filed written statement denying the negligence MACA.No.749/2010 2 alleged against the first respondent and attributing negligence against the appellant. The appellant was said to be aged 18 years. The age of the appellant was also disputed. It was further contended that the claim made in the petition is very excessive and that since the accident occurred because of the negligence of the appellant, the 3rd respondent is not liable to compensate the petitioner. 3. During the enquiry, the appellant was examined as PW1. Exts.A1 to A6 were also marked. The Tribunal below on evaluation of the evidence on record arrived at a conclusion that the accident occurred due to the negligence of the petitioner as well as that of the first respondent. 50% negligence was found against the first respondent and the appellant was found 50% negligent. The Tribunal below relying upon the evidence of the appellant supported by A3 to A5, determined the compensation at Rs.31,950/- 50% of the same was deducted towards contribution of negligence by the appellant and a sum of Rs.15,975/- was awarded as the compensation to which the appellant is entitled to realize from the respondent. 4. Assailing inadequacy of the compensation awarded as MACA.No.749/2010 3 well as deducting 50% of the compensation towards the negligence of the appellant, this appeal was preferred. 5. We heard Sri.Sheji P.Abraham learned counsel appearing for the appellant as well as Sri.K.Sandesh Raja, learned standing counsel for the 3rd respondent. The learned standing counsel for the 3rd respondent submitted that this is a case in which full negligence was on the side of the appellant as it is a hit behind an on going jeep. According to the learned counsel, the appellant was at a very rash and high speed and was not keeping safe distance between the on going vehicle and thus he was negligent and it is that rashness and negligence resulted in the accident. Having heard either side, we find much merit in the submission. The principle of the maxim res ipsa loquitur is squarely applicable to the case on hand. The accident itself speaks the negligence of the appellant. We are sure that had the appellant been cautiously driving at a controllable speed with caution and keeping safe distance with the on going jeep, the accident would have been averted even if the jeep suddenly stopped. Therefore, we find that 100% negligence is on the side of the appellant and the first respondent was not negligent. MACA.No.749/2010 4 We notice that the appellant had in fact not reported the accident to the police. Later, a private complaint was lodged before the Judicial Magistrate of the First Class, Alathur stating that the jeep overtook the motor cycle and seeing a person crossing the road, break was applied and thus the accident occurred. Whereas in the petition, it is stated that on going jeep suddenly stopped and thus the motor cycle ridden by the petitioner hit behind. There is no case of any pedestrian crossing road. Pleas are inconsistent. Though it is seen that the complaint filed before the Judicial Magistrate of the First Class, Alatur was forwarded to the Station House Officer, Wadakancherry, under Section 156(3) of the Code of Criminal Procedure, no final report was filed against the first respondent. It appears that the complaint was filed only for a make show to see whether the appellant could make the complaint as a basis to support of the plea of negligence. From the materials on record, as we mentioned earlier, the negligence was on the side of the appellant himself. Therefore, in fact the appellant is not entitled to get any compensation from the respondent. However, the Tribunal below assessed the compensation and award was MACA.No.749/2010 5 passed against the respondents allowing the appellant to realize 50% of the compensation from the respondents. If at all the Tribunal erred, it is only against the respondents whereby the appellant was benefited. The respondents were slapped with liability to compensate the appellant, who does not deserve. The compensation now awarded is in fact a reward for the negligence of the appellant. Such being the facts and circumstances, the appellant is not entitled to get any enhancement. The appeal is devoid of merits and accordingly it is dismissed with no order as to costs. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk