IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 MACA.No. 1352 of 2007(D) ------------------------------------- OP(MV).NO.1482/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/ CLAIMANT: ----------------------------------- JAYAPRAKASH T.M., S/O.MADHAVAN, THADATHIL HOUSE, MANNAM P.O., KOTTAYAM. BY ADV. SRI.LIJU. M.P, ADV. SRI.M.N.SAJEER. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. V.NANDANAN, S/O.GOVINDAN NAIR, PIRARATH HOUSE, KODANUR, THRISSUR. (OWNER OF KL-8F/5068). 2. SUDHAKARAN, S/O.KESAVAN NAIR, NAGALOOR HOUSE, PANANCHERY, PATTIKKAD, THRISSUR. 3. UNITED INDIA INSURANCE CO. LTD., THRISSUR, (INSURER OF KL-8F/5068) (POLICY NO.23337). 4. THANKARAJ, S/O.KARUPPANA GOUNDER, 6/22C, NALLAPPA NAYKAN STREET, SANKAGIRI, SALEM, TAMILNADU. (R.C.OWNER OF TN-28V/4646). 5. CHINNASWAMY, S/O.KANTHA SWAMY, MADUREKKATTU, KUPPANUR P.O., SANKAGIRI, SALEM DISTRICT, TAMILNADU. (DRIVER OF TN-`28V/4646). M.A.C.A. NO. 1352/2007-D: 6. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, SALEM, TAMILNADU, (INSURER OF TN-28V/4646) (POLICY NO.502203/31/21/96-00579). R3 BY ADV. SRI.N.S.MOHAMMED USMAN, R6 BY ADV. SMT.SARAH SALVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MACA No.1352 OF 2007 ===================== Dated this the 26th day of November 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV)No.1482/2000. The claimant, a driver by profession, while driving a lorry bearing Regn.No.KL-5A/1125 hit on the back of another lorry and sustained injuries. It is the case of the claimant that while his lorry was proceeding behind the other lorry, a bus which came from the opposite direction wanted to overtake the bus which was parked for alighting passengers and on account of the same, the lorry proceeding in front of the claimant's lorry applied sudden break which resulted in the claimant's lorry hitting on the back of the lorry resulting in sustainment of injuries. 2. On the other hand, the contesting respondents would contend that it is a hit from behind and there is a presumption of negligence of the claimant as a lorry driver. It is true that under the provisions of the Motor Vehicles Act, when a vehicle is driven, one is expected to keep a distance of 10 metres from the on-moving vehicle for the reason that in case of emergency MACA 1352/2007 -:2:- the vehicle will not go and jam on the other vehicle. It has also to be remembered in the present set up when the traffic congestion and transport had increased so much, there will be hardly any space for keeping this distance of 10 metres. I do not say it permits anybody to violate the law but these practical difficulties also have to be borne in mind in a situation like this. Now, in the first information statement, there is a specific case that a bus which was coming from the opposite direction that is the offending vehicle in this case attempted to overtake a parked bus, which was alighting passengers resulted in the on-moving lorry in front of the claimant's lorry to apply sudden break resulting in the accident. It is also an equally settled principle that one has to show sufficient signal while abruptly stopping the vehicle. But situation may arise, a driver may be forced to apply break to avert a major accident. When it is so, the person who comes from behind also gets into trouble and rams into the other vehicle, but, if the driver, who was coming from behind had come at a reasonable speed and had kept a reasonable distance from the on-moving vehicle, certainly he could have averted the accident or at least averted the impact of the accident. So far as this case is concerned, the front portion of the lorry which the claimant was riding was totally damaged, the steering wheel also damaged which also indicative of the fact that he was not able MACA 1352/2007 -:3:- to apply break so as to avert the accident for the reason that the distance was not sufficient. It is an error of judgment as well. But that does not mean that the person who came from the opposite direction and attempted to overtake a parked bus has to be spared as if he has not committed any fault. It was his responsibility also to see that he does not overtake a parked vehicle when vehicles are coming from the opposite direction. 3. So taking into consideration all these circumstances, the police rightly laid charge sheet against the claimant as well as the driver of the bus. Therefore I feel this is a fit case where it has to be held that both the drivers had attributed to the accident and considering the fact that there was a statutory violation by the claimant in not keeping a reasonable distance as contemplated by law, the negligence has to be attributed to him more and so I apportion the negligence at 60% on the claimant and 40% on the driver of the bus. 4. Unfortunately, the Tribunal has not fixed the quantum. But, being a matter of 1996, I do not want to remand the matter for that purpose. I got the documents from the counsel and I proceed to fix the compensation as follows: The claimant was admitted in the Government Hospital, Palakkad immediately after the accident. He had a lacerated wound on the bone deep in the right leg and there was suspected fracture of the tibia. X-ray reveals MACA 1352/2007 -:4:- that he had a fracture of the tibial spine right side. So, the suspicion of the Doctor, who admitted him was confirmed after radiological examination which would reveal that he had a fracture of the tibial spine. Being a driver by profession, I proceed to fix the compensation as follows: The accident is of the year 1997. Towards loss of earning, I award him Rs.2,000/-, towards treatment expenses, I grant him Rs.1,000/-, towards extra nourishment, transport expenses and bystander expenses I award him Rs.1,000/-, towards pain and suffering I grant him Rs.5,000/-. Though no disability certificate is produced, certainly the nature of the fracture on the tibial spine, he would have suffered temporary disability and also suffered loss of enjoyment in life for which I award him Rs.5,000/-, thereby entitling to get a total compensation of Rs.14,000/- and he is entitled to 40% of that amount, which would come to Rs.5,600/-. In the result, MACA is partly allowed and the claimant is entitled to a compensation of Rs.5,600/- with 7% interest on the said sum from the date of petition till realisation and the 3rd respondent insurance company is directed to deposit the amount within 60 days from the date of receipt of a MACA 1352/2007 -:5:- copy of this judgment. M.N.KRISHNAN, JUDGE Cdp/-