IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 MACA.No. 1637 of 2007(C) ------------------------------------ [O.P(MV).NO.2643/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM] .................... APPELLANT: ------------------- K.C.JOSEPH @ JOSE,KOLAMPALLY HOUSE, KOTHANALLOOR P.O KOTAYAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE. RESPONDENTS: ------------------------ 1. LAVI GEORGE,S/O.GEORGE, PULINIKKUMKALAYIL VEEDU,KOTHANALLOOR P.O, KOTTAYAM DISTRICT. 2. ABRAHAM @ SAJI,S/O.CHERIAN, NJARUKULAM VEEDU,KONDUKALA BHAGOM, OMALLOOR KARA,MANJOOR P.O,KOTTAYAM DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD, BAKER JUNCTION,KOTTAYAM-1. R1 BY ADV. SRI.MATHEW JOHN (K), R3 BY SRI.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1637 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of November, 2010 JUDGMENT Basheer, J. The short question that arises for consideration in this appeal filed by the claimant is whether the Tribunal was justified in holding that the appellant had also contributed to the accident to the extent of 40%. In order to arrive at this finding, the Tribunal relied on the contents of Ext.P2 scene mahazar and also on certain marks that were found on the body of the bus. 2. It is the admitted case that the appellant was proceeding from north to south on his two wheeler. The alleged offending vehicle (bus) was also proceeding in the same direction. It is on record that the bus was in a stationary position. The accident occurred, when the appellant tried to over take the stationary bus. The case of the appellant was that as he was in the process of overtaking the stationary bus, the 2nd respondent suddenly took the bus forward, as a result of which the bus knocked MACA 1637/2007 2 down the two wheeler. The scene mahazar revealed that the two wheeler was about 38 c.m. east of the western road margin. This clearly indicated that the case of the appellant that the accident occurred while he was overtaking the stationary bus was more probable and believable. 3. In that view of the matter, the finding entered by the Tribunal that the appellant had also contributed to the accident cannot be sustained at all. Therefore, the said finding is set aside. It is held that the accident occurred solely due to the negligence of the 2nd respondent driver of the offending bus and that respondent No.3 is liable to indemnify the owner of the vehicle. 4. In this context ,it may also be noticed that the police had charge sheeted respondent No.2 for the offences punishable under sections 279, 338 and 304A IPC (the pillion rider had succumbed to the injuries sustained by him in the accident). 5. The other grievance raised by the appellant is that the amount of compensation awarded is on the lower side. MACA 1637/2007 3 Having perused the entire materials available on record, we find no merit in the above contention. In our view the Tribunal has awarded just and reasonable compensation, considering the facts and circumstances of the case. 6. The award is modified to the extent indicated above. Respondent No.3 shall deposit the entire amount of compensation as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The appeal is disposed of in the above terms. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.