IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 MACA.No. 2328 of 2007() ----------------------- OPMV.1752/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT ----------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER -------------------- K.D.HOCHIMINH @ LAL, S/O.K.V.DAMODARAN, KALLUMPURATH HOUSE, PRAPOYIL P.O., THALIPARAMBU, KANNUR DISTRICT NOW RESIDING AT MINI LODGE, PERUVA P.O., MULAKKULAM VILLAGE, VAIKOM TALUK.(NO RELIEF ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE OP AND BY ADV. SRI.ALIAS M.CHERIAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A. No. 2328 of 2007 ------------------------------- Dated this the 7th September, 2009 J U D G M E N T Ramachandra Menon, J. Sustainability of the Award passed by the Tribunal granting a total sum of Rs.1,83,400/= with interest, in respect of the injuries sustained by the claimant, when the motor cycle ridden by him hit against the lorry insured by the appellant herein, on 26.2.2002, is the issue involved in this appeal, preferred by the Insurer. 2. The case of the appellant is that the claimant who was riding the motor cycle at the relevant time did not have valid driving licence to ride a motor cycle and that he was riding the same, after consuming alcohol, as evident from the charge sheet filed by the police, which was marked before the Tribunal as Ext.A5. Apart from other contentions, the Insurance company had also filed a petition under Section 170 of Motor Vehicles Act M.A.C.A.No.2328 of 2007 2 to have wider defence, enabling the appellant to contest the matter on all points, particularly, since the owner as well as the driver of the lorry did not contest the matter, and the same is stated as allowed. 3. Though negligence was attributed on the driver of the lorry, it is seen from the Award that the claimant did not choose to enter the box to substantiate the pleadings, but has produced some documents marked as Exts.A1 to A14. Ext.X1 is the disability certificate showing a permanent disability of 10%, as assessed by the medical board. After considering the available materials on record, the Tribunal held that the accident was only because of the rash and negligent driving of the lorry, and accordingly, after granting the compensation under various heads, the liability was mulcted upon the owner and driver of the lorry, in turn, making the Insurer of the vehicle to satisfy the same. M.A.C.A.No.2328 of 2007 3 4. The grievance of the appellant is that in spite of the fact brought to light before the Tribunal that the claimant was riding the motor cycle, after consuming alcohol, as shown in Ext.A5 charge sheet itself, and in spite of the fact that he did not even choose to enter the box, to sustain the plea of negligence as also the quantum, the Tribunal has awarded exorbitant amount and the same has been directed to be satisfied by the appellant-Insurer without any rationale and hence under challenge. 5. After hearing, this Court finds that there is considerable force in the submissions made from the part of the appellant, particularly as to the manner in which the accident occurred, when the motor cycle ridden by the claimant and the lorry driven by the driver came from the opposite sides, and further that there is an observation in Ext.A5 charge sheet to the effect that the rider of the motor cycle was riding the same, without any valid licence. That apart, nobody else has been examined on the part of the claimant to fix the negligence solely M.A.C.A.No.2328 of 2007 4 on the driver of the lorry insured by the appellant. This is more so, since the Apex Court has observed, as per the decision reported in Bijoy Kumar Dugar v. Bidyadhar Dutta and others (AIR 2006 SC 1255), that in a case of head on collision, unless the contrary position is discernible from the materials on record, the liability has to be fixed equally on the driver/rider of both the vehicles. 6. Considering the totality of the circumstances, this Court finds that the fixation of negligence solely on the driver of the lorry insured by the appellant was not correct or proper, and that the matter requires to be reconsidered. In such circumstances, the impugned Award is set aside. O.P.(MV) No.1752/2002 is remitted to the Tribunal for fresh consideration, with liberty to both the sides to adduce further evidence in support of their pleadings on negligence. Both the parties shall appear before the Tribunal on 8.10.2009 M.A.C.A.No.2328 of 2007 5 and the matter shall be considered and finalised within a period of four months thereafter. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.