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 30TH AUGUST 2010 / 8TH BHADRA 1932 MACA.No. 237 of 2005() ---------------------- OPMV.1678/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- FABY D' COTHA, AGED 29 YEARS S/O. BENNY D' COTHA, NELPURAPARAMBIL HOUSE, PUTHUVYPPU P.O., VYPEEN. BY ADV. SRI.ANIL S.RAJ SMT.NITHYA.K. SMT.MANJUSHA MOHANDAS RESPONDENT(S): RESPONDENTS -------------------------- 1. P.K.NAZEER, PUTHUNILATHU HOUSE, MARKET P.O., MUVATTUPUZHA. 2. PAREED, VIPPANATTUKUDIL HOUSE, KAITHAKADUKARA, PATTIMATTOM. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, BAZAR ROAD, MATTANCHERRY, KOCHI-2. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.237 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of August, 2010 JUDGMENT Barkath Ali, J. Claimant is the appellant in O.P.(MV)No.1678/1998 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claimant sustained injuries in a motor accident that occurred on April 25, 1998 at Kakkanad-Pattupurakkal. While the claimant was pillion riding on the motor cycle bearing Reg.No.KL-7A/3320, he was knocked down by a lorry bearing Reg.No.KL-7/P-3096. Alleging negligence against the second respondent, the driver of the lorry, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 2 lakhs. 2. Respondents 1 and 2, the owner and the driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contended that there was also negligence on the part of the rider of the motor cycle. 3. This O.P. was jointly tried along with O.P.(MV) No.1679/1998 filed by the rider of the motor cycle and O.P(MV) MACA.No.237/2005 2 No.3689/1998 filed by the appellant for damages caused to his motor cycle and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A13 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of the rider of the motor cycle, the claimant in O.P.(MV)No.1679/1998 and dismissed all the three claim petitions. The claimant has now come up in appeal challenging the said finding of the Tribunal. 4. The following points arise for consideration : 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the rider of the motor cycle can be sustained ? 2) Whether the claimant is entitled to any compensation from respondents, if so, to what extent ? 5. The claimant in O.P.(MV)No.1679/1998 and the present appellant who is the claimant in O.P.(MV)No.3689/1998 challenged the same judgment and award of the Tribunal in M.A.C.A.N.240/2005 and 345/2005 respectively before this court. The learned Single Judge MACA.No.237/2005 3 by a common judgment dated September 17, 2009 disposed of both those appeals holding that the rider of the motor cycle was negligent to the extent of 40% and the driver of the lorry was negligent to the extent of 60%. The learned Single Judge has remanded O.P.(MV) No.3689/1998 to the Tribunal for considering the quantum of damages which the claimant therein is entitled to. 6. Following the said decision in this appeal also, we are inclined to hold that the rider of the motor cycle is negligent to the extent of 40% and that of the lorry driver 60%. The claimant has not made the rider and the owner of the motor cycle as parties in the application. 7. Therefore, he will be entitled to only 60% of the compensation due to him. As the Tribunal has not fixed the compensation due to the claimant, the award of the Tribunal is set aside and O.P.(MV)No.1678/1998 is remanded to the Tribunal to consider the quantum of compensation to which the claimant is entitled to. Both parties are entitled to adduce further evidence before the Tribunal in respect of the quantum of compensation the claimant is entitled to. MACA.No.237/2005 4 Parties are directed to appear before the Tribunal on November 15, 2010. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.237/2005 5