IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 MFA.No. 137 of 2002() --------------------- OPMV.2389/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER --------------------- ROBERT, S/O. VICTOR, 'VICTOR VILLA', CHOONDAL, KECHERY, THRISSUR DISTRICT, REPRESENTED BY GUARDIAN MOTHER, BINU, W/O. VICTOR, 'VICTOR VILLA', CHOONDAL, KECHERY, THRISSUR DISTRICT. BY ADV. SRI.ANIL XAVIER SRI.ZAKEER HUSSAIN SMT.MANJU CHACKO SRI.REJI PAUL RESPONDENTS: RESPONDENTS: ------------------------- 1. FRANCIS, S/O. ANTONY, NELLISSERY HOUSE, P.O. KANDASANKADAVU, THRISSUR DISTRICT. 2. M.U. MOHANAN, S/O. UKKUNNY, MANDUPAL HOUSE, P.O. ANJOORKUNNU, KUNNAMKULAM, THRISSUR DISTRICT. 3. THE UNITED INDIA INSUSRANCE CO. LTD., BRANCH OFFICE, KUNNAMKULAM. BY ADV. SRI.P.JAYASANKAR , SC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008 , ALONG WITH MFA NO. 220 OF 2002 MFA NO. 219 OF 2002 MFA NO. 146 OF 2002 MFA NO. 147 OF 200 THE COURT ON 04/02/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.Nos.137, 146, 147, 219 and 220 of 2002 ------------------------------------- Dated 4th February, 2008 JUDGMENT Koshy,J . All these appeals are filed from the common award passed by the Motor Accidents Claims Tribunal in five cases. Claimants in these case were travelling in a car bearing registration No.KLV 950. Car was damaged and passengers in the car were injured when a lorry insured by the third respondent collided with the car. The car was driven by the appellant in O.P.(M.V)No.1969 of 1997. O.P.(M.V) No.126 of 1998 was filed by him for the damages caused to the vehicle. All other O.Ps were filed by other injured passengers. Tribunal rejected the petitions filed by the driver of the car on the finding that accident occurred due to his contributory negligence. With regard to the other petitions, Tribunal awarded the compensation fixed under section 140 of the Motor Vehicles Act. No compensation was claimed against the driver, owner or insurance company of the car. So, the main question to be considered is the finding of negligence on the part of the car driver. Insurance coverage of the lorry is admitted. No negligence was against the driver or insurance company of the lorry. Lorry was insured by the third respondent insurance company. Second respondent, driver of the lorry MFA.Nos.137/2002 & Connection 2 remained ex parte. First respondent as well as third respondent filed written statements contending that the accident occurred due to the negligence of the car driver. But, on their behalf no oral evidence was adduced. PW1, car driver gave oral evidence attributing negligence on the driver of the lorry. Ext.A1 F.I. Statement shows that lorry driver was negligent. After acquisition of evidence police charge sheeted the lorry driver, the second respondent, as can be seen from Ext.A13. It is also stated that lorry driver pleaded guilty and he was convicted. But, the Tribunal did not accept the police records and evidence of PW1 because in the F.I. Statement PW1 has stated that the wheel of the lorry hit the right side of his car, but, before the court he deposed that wheels of the lorry flew off from the lorry and dashed against the front portion of his car. We are of the opinion that there is no contradiction in the above statement. When wheel of the lorry hit the front portion of the car he got perplexed and the accident occurred. But, we note that Tribunal also found that lorry was running in the correct side whereas car was in the wrong side. But, after hitting of the wheel of the lorry, naturally PW1 driver of the car was perplexed and it shifted the position. In any event, it is a head on collision in a National Highway. The front side of the car as well as lorry were fully damaged as can be seen from the A.M.V.I's report. We are of the opinion that negligence can be attributed as 50% each MFA.Nos.137/2002 & Connection 3 on the side of the lorry driver as well as car driver. In this connection, we refer to the decision of the Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255). Therefore, compensation has to be assessed for the damage of the car as well as for the injuries suffered to the car driver and the passengers and insurance company of the lorry has to pay 50% of the total compensation calculated. Tribunal has to assess compensation for the damages of the car and compensation to the injured passengers. Therefore, we set aside the award and remand the matter for calculating compensation. After calculating compensation, 50% of the same shall be paid by the third respondent insurance company. Parties shall appear before the Tribunal on 1.4.2008. J.B.KOSHY JUDGE K.HEMA JUDGE tks