IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 MACA.No. 2095 of 2009 ----------------------- OP(MV).449/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): 2ND RESPONDENT: -------------- THE UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE CO. LTD., OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENT(S): PETITIONERS & RESPONDENT NO:1 --------------- 1) SATHIYAN, S/O. BHASKARAN ASARY, VANASURYATHUVELI HOUSE, S.L.PURAM PO, KANJIKKUZHY GRAMA PANCHAYAT, WARD NO.X, ALAPPUZHA DISTRICT. 2) PANKAJASHAN P.M., THEKKETHARAYIL VEEDU, (NAVITHA NIVAS), PATTANAKKAD PO, PATTANAKKAD PANCHAYAT, WARD NO.X, CHERTHALA, ALAPPUZHA DISTRICT. ADV. SRI.A.T.ANILKUMAR FOR R1 SMT.V.SHYLAJA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 2095 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of December, 2011 JUDGMENT Ramkumar, J. Insurer of a mini lorry, which was involved in the accident, challenges the award passed by the Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV) No.449/2003 in favour of the 1st respondent herein. For the injuries sustained by the 1st respondent, who was a pedestrian, the Tribunal awarded a sum of Rs.2,70,000/-. 2. According to the appellant, the accident took place on account of the negligence of the rider of a motor cycle which entered the main road from a road on the north and it was to avoid a direct collision with the mini lorry which was proceeding from west to east on the proper side, that the driver of the mini lorry swerved to the right resulting in the 1st respondent who was a pedestrian sustaining the injuries. 3. The learned counsel for the appellant submitted that in a claim made by the pillion rider of the motor cycle, MACA 2095/2009 2 the Tribunal had found composite negligence on the part of the rider of the motor cycle and the driver of the mini lorry and had apportioned the liability by 50 : 50 and the same yardstick may be adopted in the present case also. The counsel argued that the mini lorry which was proceeding west to east was on its proper side. 4. We heard the learned counsel for the first respondent also. 5. We are unable to accept the submission made on behalf of the appellant. The road on the side of the accident is running east west. The mini lorry which stands insured with the appellant was proceeding from west to east and while it reached the road intersection, according to the appellant, a motor cycle driven in a rash and negligent manner,came from the northern road and entered the main road. Even if the argument of the appellant that it was to avoid a direct collision with the motor cycle (which was driving in a rash and negligent manner) that the present occurrence which was inevitable occurred is accepted, the MACA 2095/2009 3 1st respondent who was only a pedestrian cannot be faulted for the injuries he sustained. Merely because in a claim made by the pillion rider of the motor cycle, the very same Tribunal had apportioned the liability by 50 : 50, it cannot be contended that the rider of the motor cycle should have been held liable for at least a portion of the negligence, particularly when the rider of the motor cycle was not impleaded in the present proceedings and an opportunity was not given to meet this case of the appellant. Moreover, it is admitted that the police had charge-sheeted the driver of the mini lorry and not the driver of the motor cycle and the driver of the mini lorry was convicted by the Magistrate. That apart, the rider of the motor cycle had preferred an appeal challenging the finding that he was partly responsible for the accident. We are therefore not inclined to accept the above contention of the appellant that the accident took place on account of the negligence on the part of the rider of the motor cycle. No other point is argued by the learned counsel for the appellant. MACA 2095/2009 4 6. Taking into consideration all these circumstances, we find no reason to admit this appeal particularly when the 1st respondent who was only a pedestrian was no way responsible for the accident. This appeal is accordingly dismissed. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.