IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 MACA.No. 733 of 2004() -------------------------------- OPMV.241/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT(S): /6TH RESPONDENT: ---------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., KODUNGALLOOR, REPRESENTED BY ITS ASST.MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT: --------------------------------------------- 1. PROMOD, S/O. AMBUJAKSHAN, APARNA, NELSON MANDALA ROAD, N. PARAVUR, PARAVUR TALUK. 2. ABDUL SALAM, S/O. MOHAMMED, VALIYAKATH HOUSE, `U' BAZAR, ERIYADU VILLAGE, KODUNGALLOOR TALUK. 3. MOHAMMAD HASEEM P.A., MANAPPATT HOUSE, MADAVANA P.O., KODUNGALLOOR. 4. THE NEW INDIA ASSURANCE CO., BRANCH OFFICE, IRINJALAKUDA. 5. UNNIKRISHNAN, S/O. GOPI, THOZHUTHUNGAL HOUSE, KOVILKADAVU, LOKAMALLESWARAM, KODUNGALLOOR. 6. P.R. DEVASSYKUTTY, S/O. RAPPAI, PANAKKADAN HOUSE, CHALAKUDY, CHALAKUDY P.O. R1 BY ADV. SRI.P.K.SAJEEV R4 BY ADV. SRI.A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 733 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 19th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the sixth respondent Insurance Company in O.P.(MV) No.241 of 1999 on the file of the Motor Accidents Claims Tribunal, N. Paravur. Claimant filed the O.P. under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.4 lakhs for the loss caused to him, on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On July 15, 1994 claimant was riding his motor cycle bearing registration No. KA-05-K-8400 along Paravur – Kodungallur road. When he reached near Kongini Temple, Sringapuram at 2.45 p.m., an auto-rickshaw, which was going in front of the motor cycle, suddenly stopped and to avoid hitting the auto-rickshaw, he swerved the motor cycle towards the right, as a result of which, crash guard of the motor bike hit by an Ambassador Car, driver by the first MACA 733/2004 2 respondent, which was coming from the opposite side. The claimant contended that the accident occurred due to negligence on the part of the driver of the auto-rickshaw and the driver of the car. 3. Respondents 1 and 2, the driver and owner of the car, remained absent and were set ex parte by the Tribunal. Third respondent, the insurer of the car, filed a written statement, admitting the accident, but contending that there was also negligence on the part of the claimant. Fourth respondent, driver of the auto-rickshaw filed a written statement, attributing negligence to the claimant. Fifth respondent, owner of the auto-rickshaw remained absent. Sixth respondent, insurer of the auto-rickshaw, filed a written statement, admitting the policy. 4. PWs.1 and 2 were examined and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. RW1 was examined and Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the MACA 733/2004 3 negligence of the fourth respondent as well as that of the claimant and apportioned the liability to 60 : 40 between them. The Tribunal assessed a compensation of Rs.1,49,100/- and awarded 60% of the same to the petitioner i.e., Rs.89,460/-. Sixth respondent Insurance Company has come up in appeal challenging the above findings of the Tribunal. 5. Heard the counsel for the appellant, the counsel for the first respondent/claimant and fourth respondent. 6. The only question raised by the appellant Insurance Company is that the Tribunal went wrong in fixing negligence at the ratio of 60 : 40. It is contended that in O.P.(MV) No.416 of 2001 filed by RW1, who was injured in the same accident, the Tribunal found that the driver of the auto-rickshaw as well as the rider of the motor cycle were equally negligent and apportioned the liability as 50 : 50 and that therefore, in this case also the liability should have been apportioned to that exent. There is some force in the above contention. It is the admitted case that in that MACA 733/2004 4 O.P. the claimant was the first respondent. The Tribunal found that rider of the motor cycle and the driver of the auto-rickshaw were equally negligent. The claimant in that case was examined as RW1 before the Tribunal. The claimant in this case has not challenged the said finding of the Tribunal by filing an appeal. Therefore, the finding of the Tribunal in that O.P. regarding the negligence has become final and the said finding is binding on the claimant. Therefore, in this case also we hold that the claimant as well as the fourth respondent, rider of the auto-rickshaw, are equally negligent and the liability is apportioned at 50 : 50. That being so, the claimant is entitled to only 50% of the compensation assessed i.e., Rs.74,550/-. The Insurance Company has not challenged the adequacy of the compensation awarded by the Tribunal 7. In the result, the appeal is disposed of holding that the claimant is entitled to only Rs.74,550/- as compensation with interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. The MACA 733/2004 5 appellant/sixth respondent shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.