IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 MACA.No. 520 of 2003() -------------------------------- OPMV.792/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/3RD RESPONDENT. ------------------------------------------ THE BRANCH MANAGER, NEW INDIAS ASSURANCE COMPANY LIMITED, ATTINGAL. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANT AND RESPONDANTS 1, 2 &4. -------------------------------------------------------------------------------- 1. AMBILY, S/O.PRABHAKARAN, KALLANVILA VEEDU, MARKET ROAD, ATTINGAL. ATTINGAL POST 2. ANTOCHAN, THRISSUR FASHION JEWELLERY, MAIN ROAD, ATTINGAL. 3. IJA, S/O.FRANCIS, AUTOCARAN HOUSE, KURIACHIRA KARUKKAM, CHERRY VILLAGE, NOW WORKER IN THRISSUR FASHION JEWELLERYL. (* DELETED) 4. ANILKUMAR, KALLANVILA VEEDU, MARKET ROAD, ATTINGAL, ATTINGAL POST. * THE NAME OF THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 28/07/05 IN I.A. NO.2006/05. BY ADV. SRI.M.R.RAJESH - R1 SMT.A.K.PREETHA - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1836/2003 IN MACA. NO.520/2003. DISMISSED 02/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N.KRISHNAN, J ===================== MACA No.520 OF 2003 ===================== Dated this the 2nd day of July 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Attingal in O.P.(MV)No.792 of 1997. The insurance company has challenged the award passed by the Tribunal on the ground that the Tribunal has erred in fixing the negligence on the 2nd respondent in the claim application. It is the case of the claimant that while he was riding on a motor cycle from north to south, a motor cycle was abruptly pulled by the 2nd respondent across the road from east to west and that the claimant's vehicle happened to hit on its middle as a result of which the claimant fell down and sustained injuries. The evidence in the case consists of the oral testimonies of Pws.1 to 4 and RW1. Exts.A1 to A6 and X1 were marked. PW1 the claimant would depose before court that there was an abrupt crossing that has resulted in the accident. PW3 is an occurrence witness and he would depose that the claimant was coming in his motor cycle and at that time the 2nd respondent in the claim petition pulled his motor bike across the road and on account of the abrupt action, PW1 happened to hit on the said MACA 520/2003 -:2:- bike. PW4 is a neighbour who is running a tea shop. He also deposed in terms as spoken to by Pws.1 and 3. The court below found that the evidence of Pws.1, 3 and 4 can be believed. It is true that the police after investigation has referred the matter. It is submitted that Pws 3 and 4 are close relatives of PW1 which has been stoutly denied by them. As per the scene mahazar, the accident had taken place 1 meter west of the eastern tar end. Admittedly, the motor bike was coming from north to south and its correct side was eastern side. It was on the eastern side the accident had taken place which indicates that the claimant was driving the vehicle only through the proper side and the factum of the accident had taken place very close to the tar end indicates regarding the abrupt crossing. The Tribunal had analyzed the evidence and rejected the report of the police. Just because a person smells alcohol one cannot jump into the conclusion that he has caused the accident especially when there is no evidence to show that he was under the influence of alcohol. The inconsistent stand taken by the 2nd respondent also assumes importance in this case. The insurance company would contend that it was on a parked vehicle the claimant came and hit whereas the 2nd respondent would contend that he was pulling the vehicle along the road in the north south direction and it was at that time, the accident had taken place. If one was going through the extreme side of MACA 520/2003 -:3:- a road there was no necessity for a motor cycle which was coming through the correct side to go and hit. These are inconsistent versions raised by the respondents in the claim petition which cannot be given much weight. Therefore, I do not find any ground to interfere with the decision rendered by the Tribunal on the question of negligence. 2.So far as the quantum is concerned, it can be seen that the claimant has suffered injury on the temporal region with subdural heamatoma and PW3, the Doctor had deposed that it was a very severe head injury. Taking stock of the materials available, the Tribunal has awarded a compensation of Rs.62,670/- fixing the disability at 4%. One cannot hold that it is on the higher side for the reason that immediately after the accident, it was found that his ear canal was completely filled with blood. Therefore I do not find that the Tribunal has erred in fixing the compensation as well. Therefore the appeal fails and the same is dismissed without costs. M.N.KRISHNAN, JUDGE Cdp/-