IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 MACA.No. 1361 of 2006() ----------------------- OPMV.1187/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- SANTHOSH, S/O.KUNJIKOCHU, AGED 31 YEARS, NELLIPPILLIL HOUSE, CHALU, KALLOORKKADU. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): RESPONDENTS. --------------------------- 1. P.HARI, CHARUVILA PUTHEN VEEDU, VENDAR P.O. KOTTARAKKARA. 2. T.K.MUHAMMED ALI, S/O.ABDUL KAREEM, THYPPARAMBIL HOUSE, PUTHUKKUZHY KARA, KANJIRAPPALLY. 3. ORIENTAL INSURANCE COMPANY LIMITED, MUVATTUPPUZHA BRANCH. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.1361 of 2006 ---------------------------------------- Dated this the 26th day of February 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He suffered personal injuries in an accident which occurred on 22/6/2000 and suffered personal injuries. He was driving a car which was proceeding from west towards east along a 10.42 metres wide road. There was a collision between his vehicle and a lorry which was coming in the opposite direction. After the incident, the police had registered a crime and they, after due investigation, filed a final report raising allegations against the petitioner herein. He contested the indictment. He was found not guilty and acquitted. In a private complaint filed by him against the lorry driver alleging rashness and negligence, the lorry driver pleaded guilty. He was convicted and sentenced on the basis of that plea of guilty. The appellant preferred a claim for compensation. He claimed an amount of Rs.2.25 lakhs by way of compensation. Exts.A1 to A9 were marked. The scene mahazer prepared by the police was marked as Ext.A10/Ext.B1. There is some confusion as to who has produced the scene M.A.C.A.No.1361/06 2 mahazer which is marked as Ext.A10 as per the body of the award and Ext.B1 as per the appendix. The scene mahazer shows that the spot of the accident is located at a distance of 4.67 metres north of the southern kerb. The appellant as PW1 tendered evidence. The insurance company, suspecting foul play and collusion, sought and was granted permission under Section 17 of the Motor Vehicles Act to raise all contentions. The insurance company relied on Ext.A10/Ext.B1. On the basis of that document alone, the tribunal sailed to the conclusion that the appellant was guilty entirely and proceeded to dismiss the claim of the appellant for compensation. 2. The learned counsel for the appellant submits that on the evidence of PW1 and considering the fact that the appellant has been acquitted in the criminal charge as also the fact that the driver of the lorry had pleaded guilty to the charge of negligence/charges against him, the tribunal was obviously wrong in assuming from the mere circumstance that the spot of the accident was located in the scene mahazer at a distance of 54 cms to the right of the imaginary midline, that the accident occurred entirely on account of the negligence of the appellant. M.A.C.A.No.1361/06 3 The appellant does not accept that the accident took place at that precise spot. That is why he did not initially choose to produce the scene mahazer. At any rate, from the mere fact that the petitioner's vehicle had strayed (assuming that location if the spot to be true) 54 cms to the right of the imaginary midline on a 10.42 meter wide road - admittedly there was no actual midline or median on the road, the assumption could not have been drawn that the appellant was negligent. We have been taken through the scene mahazer to show that too much of importance cannot be given to the precise location of the spot of the accident as per the scene mahazer. It is only an approximate statement made by the investigating officer in Ext.A10/Ext.B1 and the same cannot be accepted and swallowed as gospel truth, contends the learned counsel. 3. We have considered all the relevant documents. We are satisfied that there is merit in the contention of the learned counsel for the appellant. We note that the spot of accident is not located with reference to any specific input as per the intrinsic materials which are available in Ext.A10/Ext.B1. We do further note that the alleged deflection to the right of the midline M.A.C.A.No.1361/06 4 is only to an extent of 54 cms. That is the road has a width of 10.42 metres. The imaginary midline must be at a distance of 5.21 metres from either kerb and the spot of the accident located as per the scene mahazer is only 54 cms to the right of the imaginary midline; that is 4.67 meter to the left (north of the southern curb). We do take note of the fact that the appellant was acquitted in the criminal charge. We further note that the respondent driver had pleaded guilty to the charge in a private complaint filed by the appellant. 4. We note the contention of the learned counsel for the insurance company that the subsequent plea of guilty by the driver should not in any way influence the court and that the same was only a collusive venture on the part of the driver of the vehicle and the appellant knowing fully well that the plea of guilty might entitle the driver to go off with a flee bite sentence. We are satisfied that too much of importance cannot be granted either to the acquittal of the appellant or to the plea of guilty of the respondent. We note that the only direct evidence about the cause of the accident is the oral evidence of PW1 and that piece of evidence supports the case of the appellant. We do further M.A.C.A.No.1361/06 5 note that the only input available - about the specific identification of the spot of the incident in Ext.A10/Ext.B1 is far from satisfactory. The same does not convincingly inspire us. Even assuming that input to be acceptable, the alleged indiscretion if any is only that the appellant's vehicle was being driven along the centre of the road - 54 cms to the right of the imaginary midline. We are satisfied, in these circumstances, that in any view of the matter, apportionment of the responsibility for the accident equally between the drivers of the two vehicles would have catered to the interest of justice ideally. The same would have been a more just and reasonable conclusion in the circumstances of the case. The challenge raised succeeds to the above extent. The liability of the insurance company is not disputed. The only dispute raised was about the negligence of the quantum. Both sides agree that the matter can be sent back to the tribunal. 5. In the result, a) This M.A.C.A is allowed. b) The impugned award and the finding regarding negligence is set aside. M.A.C.A.No.1361/06 6 c) It is directed that both drivers i.e. the appellant herein and the second respondent driver were equally responsible for the accident and that the appellant is entitled to recover 50% of the loss suffered by him from respondents 1 to 3. d) The matter is sent back to the tribunal for determination of the compensation to which the appellant is entitled on the basis of the above finding regarding negligence. e) To save time, it is directed that the parties shall appear before the tribunal on 31/3/2009. A copy of this judgment shall be handed over to both counsel who shall ensure that the parties appear before the tribunal on that day. The tribunal shall dispose of the case as expeditiously thereafter as possible and at any rate, within a period of sixty days from 31/3/2009. The option of the tribunal to refer the matter to the Lok Adalath shall not be fettered by the this judgment. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.1361/06 7 M.A.C.A.No.1361/06 8 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009