IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 663 of 2009() --------------------------------- OPMV.576/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/3RD RESPONDENT IN THE OP: -------------------------------------------------------------- THE ORIENTAL INSURANC CO. LTD., THODUPUZHA, REPRESENTED BY THE AUTHORIZED SIGNATORY , THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI -18. BY ADV. MR.A.R.GEORGE RESPONDENTS/CLAIMANT & RESPONDENTS 1, 2 & 4 TO 6 IN THE OP: ---------------------------------------------------------------------------------------------------- 1. LEELA, W/O.KUNJUKUNJU, KUDILUMATTATHIL HOUSE, IRAMBILLY BHAGOM, WEST KODIKULAM KARA, KODIKULAM VILLAGE. 2. LATHEEF, S/O. SULAIMAN, MULAKKAPARAMBIL HOUSE, MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK. 3. SHAIK MUHAMMED, S/O. ISMAIL, PULIMOOTTIL HOUSE, THODUPUZHA. 4. BINISH JOSE, KOMBI KARA, MUTHALAKODAM, THODUPUZHA. 5. NATIONAL INSURANCE CO. LTD., KOTTAYAM BRANCH. * 6. ANISH, S/O. CHACKO, CHERIYIL HOUSE, MRALA P.O., KARIKKUNNAM VILLAGE. (*DELETED) *THE 6TH RESPONDENT IS DELETED FROM THE PARTY ARRAY, VIDE ORDER DATED 22/09/2009 IN I.A. NO.2644/2009. R1 BY ADV. MR.E.D.GEORGE R5 BY ADV. SMT.SARAH SALVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 663 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of September, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)576/05. The claimant sustained injuries in a road accident. The claimant was a passenger in a bus. The bus was coming down and the lorry was going up and the claimant who was sitting on the backside of the bus got injuries on his hand, in all probability on account of putting the hand on the window- sill. The police after investigation filed a charge sheet against the driver of the lorry. The Tribunal accepted the same and found the driver of the lorry negligent for the accident and awarded the compensation. 2. Learned counsel for the appellant very strongly contends before me that a reading of the scene mahazar would reveal that the negligence is on the part of the bus driver. The place of occurrence as per the scene mahazar is 50 c.m. west of the eastern tarred end in a road having 4.20 M.A.C.A. 663 OF 2009 -:2:- mtr. width. It is true that there is road margin on both the sides. Suppose the contention of the learned counsel for the appellant is to be accepted, I find that really there is no width for a lorry to pass if the scene of occurrence is correct. It is to be remembered that when an accident is about to take place and the drivers understand such a situation then normally they desperately attempt to avert the accident by swerving the vehicle this side or that side and in very many cases the scene of occurrence reported by the police officers may not be correct. Here I need not elaborate for the reason that the accident had taken place only 50 mtrs. west of eastern tar end indicating the factor that there was no tarred road at all for the lorry to pass. So it is clearly incorrect. 3. Now the question is whether a person putting a hand on the window-sill can he be held to be contributory negligent in a motor accident case. This has been the subject matter of the decision in very many cases and the High Court of Andra Pradesh in the decision reported in 1992 (2) TAC 724 (AP) i.e A.P.S.R.T.C v. Ramisetty M.A.C.A. 663 OF 2009 -:3:- Koteswara Rao and others held that there is a duty for drivers to take reasonable precaution by leaving sufficient space while overtaking or crossing any vehicle to ensure safety to passengers. Therefore if the driver of the lorry had kept a reasonable distance between two vehicles then even if the hand was on window-sill the accident would not have taken place. Therefore in the light of the investigating agency's conclusion that the lorry driver was negligent coupled with the liability of the lorry driver to keep a reasonable distance between the two vehicles to avoid such contingencies I am not inclined to interfere with the decision rendered by the Tribunal. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-