IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 MACA.No. 586 of 2003(C) ----------------------- OPMV.1297/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/3RD RESPONDENT: ------------------------------------------ THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS: PETITIONER: ------------------------ SHRI HARIKUTTAN, S/O. KURUMBAN, KAKKATTUMALY VEEDU, THURUTHU BHAGAM, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE. (NO RELIEFS ARE CLAIMED AGAINST THE 1ST & 2ND RESPONDENTS IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... M.A.C.A. No.586 of 2003 .................................................................... Dated this the 29th day of July, 2008. JUDGMENT Ramachandran Nair, J. The appeal is filed by the Insurance Company challenging the award on the main ground that accident was caused on account of the negligence of the claimant, the respondent herein. Another ground raised is that compensation awarded under various heads, particularly for disability, is not based on any evidence. We have gone through the award and we find that the MACT has passed the award based on documents and nobody offered any oral evidence. Negligence was found on the part of the driver of the vehicle which was insured by the appellant, based on the Police case against the driver of the vehicle. The claimant has not chosen to find out as to what happened to the criminal case. However, counsel for the appellant submitted that scene mahazar itself will show that the accident occurred at a place in the road which is wrong side for the claimant. Therefore, the appellant wants us to draw a presumption that accident was on account of negligence of the claimant who was on the wrong side of the road at the time of accident. We do not think it safe to rely on just the scene mahazar 2 for holding that the claimant was negligent and accident was attributable to him. No positive evidence was adduced by the appellant before the MACT to establish their case. Therefore, we do not find any ground to interfere with the finding of the MACT. The accident was caused on account of negligence of the driver of the vehicle which was covered by appellant's insurance policy. However, we find some force in the contention of the appellant that there is no justification to grant compensation for permanent disability because it was not proved by the respondent before the MACT either by examining himself or through the Doctor. Consequently we cancel the award of compensation of Rs.9,720/- towards 3% disability and consequent loss of earning power. Another contention raised by the appellant is with regard to rate of interest granted which is 9%. Going by the decision of the Supreme Court, we feel interest at 7.5% only is justified. We, therefore, reduce the rate of interest on compensation to 7.5% as against 9% awarded by the MACT. The appeal stands allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms