IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 3098 of 2009() ----------------------- OPMV.1170/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): PETITIONER: -------------------------------------------- PRADEEP, S/O.JADANATHAN, AGED 33 YEARS, PUNNAVILA PUTHEN VEEDU, ELIYODE, IDAKKADAM P.O., EZHUKONE. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. MANOJ BOSE, S/O.V.R.G.BOSE, MANIMANDIRAM, PATTATHANAM, KOLLAM. 2. JAYANDU BOSE, MANIMANDIRAM, PATTATHANAM, KOLLAM RESIDING AT MANIMANDIRAM, THEKKEVILA CHERRY, ERAVIPURAM VILLAGE, KOLLAM. 3. BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD., KOLLAM. R3 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.3098 OF 2009 ............................................. Dated this the 9th day of June, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kollam in OP(MV)NO.1170/2003. The claimant, a 26 year old man, sustained injuries in a road accident and the Tribunal found him negligent to a tune of 80%, granted compensation of Rs.44,100/= and made him to receive a compensation of Rs.8,820/=. It is challenging the question of negligence as well as the quantum, the appeal is preferred. 2. Heard. A perusal of the award would reveal that while the claimant was driving a motor cycle and when it reached the place of accident, it had a head on collision with a maruti car resulting in sustainment of injuries. A perusal of the award would reveal that as per Ext.A2 scene mahazer the road at the place of accident is having 11 mtrs width. The road is running east west direction. The motor cycle was proceeding from east to west and the maruti car was proceeding from west to east. The correct side of the : 2 : M.A.C.A.NO.3098 OF 2009 motor bike was southern side and that of the maruti car northern side. The accident had taken place 4.7 mtrs south of the northern tar end which means that the motor cyclist had transgressed by 70 cms on the wrong side resulting in the accident. 3. One cannot precisely say that the place noted in the scene mahazer is the real place of accident. It often happens that collision is a doubt to take place drivers' in their desperate attempt to save the accident would swerve the vehicle to one side or other side giving paramount importance for the avoidance of the accident. But in this case, no serious objection had been raised and Ext.A2 is a document produced by the claimant himself in support of his case. So necessarily one has to hold that the claimant was slightly on the wrong side. It has to be remembered that here both the vehicles are small vehicles; one is a motor bike and the other is a maruti car. There was straight sight at the place of accident. If the drivers had bestowed some attention and if they had driven the vehicle at a reasonable speed in a road of 11 mtrs width, possibly the : 3 : M.A.C.A.NO.3098 OF 2009 accident could have been averted. In many cases it has been held that when there is a head on collision, it happens on account of the composite negligence of both the drivers. Therefore one cannot attribute absolute negligence on the rider of the bike alone. It has to be apportioned between him and the driver of the car. Even if the car driver had seen the motor cyclist coming in a high speed, he could have swerved the vehicle to avert the accident. It can be seen that both the vehicles were almost on the middle of the road. If the maruti car was driven keeping the left side of the road, certainly it would not have reached 4.7 mtrs. Therefore I feel that it is a case where the negligence is slightly on the higher side of the claimant but it is not as high as 80%. In the facts and circumstances, I feel that the negligence has to be apportioned at 60% on the claimant and 40% on the car driver. 4. So far as the quantum is concerned, I had perused the award. For a nasal bone fracture, the Tribunal has taken 4% disability and calculated the compensation even without a disability certificate. It is true that while entering : 4 : M.A.C.A.NO.3098 OF 2009 into the column the compensation for disability is shown as nil but when it is totally calculated, it is also taken into consideration and amount is awarded. It appears to be a just and reasonable amount. Therefore fixation of the amount at Rs.44,100/= does not call for any interference. From these discussions, the claimant will be entitled to get 40% of Rs.44,100/= as compensation with interest as ordered by the Tribunal or in other words the claimant will be entitled to recover an amount of Rs.17,640/= with 7.5% on the said sum from the date of petition till realisation and the 3rd respondent insurance company is liable to deposit the amount. It is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. If any amount is deposited already, that can be given credit to and the balance need be deposited. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : M.A.C.A.NO.3098 OF 2009 : 6 : M.A.C.A.NO.3098 OF 2009