IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 6TH MARCH 2011 / 16TH CHAITHRA 1933 MACA.No. 1912 of 2006() ----------------------- OPMV.1706/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER --------------------------------------------- HARIHARA KRISHNAN, S/O.SUBRAMANIA IYER, MUDEMPILLY MADOM, RESIDING AT CHAKKAMKULANGARA DESOM, NADAM VILLAGE, TRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS/ RESPONDENTS IN OP(MV): ------------------------------------- 1. K.K. MACKAR, S/O.KUNJU MOHAMMED, KUZHIPPILLY HOUSE, HOSE NO.6/729, NELLIKUZHY P.O., KOTHAMANGALAM. 2. L. JUDESN VAZ, S/O.LAWRANCE VAZ, MARRY HOUSE, CO-OPERATIVE COLONY, VALPARI. 3. MANAGER, ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, T.H.TOWERS, MARKET ROAD, MUVATTUPUZHA. ADV. SRI.T.N.MANOJ FOR R1,2 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R.3 SRI.P.JACOB MATHEW FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 6/4/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1912 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1706/2000 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal, he challenges the judgment and award of the Tribunal dated October 25,2005 dismissing the O.P. filed by the claimant claiming a compensation of Rs.65,000/- for the loss caused to him on account of the damage caused to his car in a motor accident. 2. The accident occurred on April 29,2000 at about 5 p.m. at Kodakara on NH 47 while deceased Padmanabha Iyer was travelling the car bearing Reg.No.KEF 6474 in which the claimant was travelling. When he reached near Gandhi Nagar Junction at Kodakara, the stage carriage bearing Reg.No.KL-7/Y 1168 driven by the second respondent collided head on with the car of the claimant. Claimant sustained serious injuries while Padmanabha Iyer succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the second respondent, the driver of the stage carriage, the claimant filed the O.P. under Section 166 of the Motor MACA.No.1912/2006 2 Vehicles Act claiming a compensation of Rs. 65,000/- for the loss caused to him on account of the damage caused to his car in the accident. 3. Respondents 1 and 2, the owner and the driver of the offending stage carriage remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy. 4. Claimant was examined as PW1 before the Tribunal and PW2 was also examined on his side. Claimant produced Exts.A1 to A11 before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of deceased Padmanabha Iyer, the driver of the car and dismissed the O.P. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The question which arises for consideration in this appeal is whether the finding of the Tribunal that the accident occurred due to MACA.No.1912/2006 3 the negligence of the driver of the car who died in the accident can be sustained. 7. For several reasons, we find that the finding of the Tribunal regarding the negligence on the part of the driver of the car cannot be sustained. The Tribunal came to such a conclusion on the basis of the scene mahazar which shows that the car was on its wrong side. But in the present case, PW1, the claimant has sworn in a convincing manner before the Tribunal that the accident occurred due to the negligence of the driver of the stage carriage. Nothing was brought out during his cross examination to discredit his evidence. Further, no evidence was adduced by the contesting third respondent to show that there was any negligence on the part of the driver of the car. Further, this is a head on collision. Therefore, naturally the accident would have taken place due to the negligence of drivers of both the vehicles. Under these circumstances, we feel that the finding of the Tribunal regarding the negligence on the part of the driver of the car has to be set aside and hold that both the drivers are equally responsible for the accident. That being so, the claimant is entitled to 50% of the compensation to be assessed. MACA.No.1912/2006 4 8. It is not disputed that the car of the claimant suffered serious damages in the accident. The claimant produced the report of the Surveyor showing the damage caused to the car as Rs.29,368/- which appears to be reasonable. In the light of the damages caused to the car as detailed in the said report of the Surveyor and as there was 50% negligence on the part of the driver of the car, we are of the view that the claimant is entitled to only 50% of the said amount i.e Rs.14,684/-. 9. In the result, the judgment and award of the Tribunal dismissing the O.P. is set aside. The O.P. is allowed. The claimant is found entitled to a compensation of Rs.14,684/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1912/2006 5 MACA.No.1912/2006 6