IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 MACA.No. 1835 of 2009() ----------------------- OPMV.1429/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): 3RD RESPONDENT: ------------------------------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. BY MR.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): PETITIONER & RESPONDENTS 1 AND 2: ------------------------------------------------------------------------------------------ 1. VIPIN, S/O. JOSEPH, KURISINGAL HOUSE, MULANTHURUTHY, KANAYANNOOR TALUK. 2. MOHANANDAS, S/O. RAGHAVAN, JOSHI NIVAS, ERUVELI, CHOTTANIKKARA P.O. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, MTPC OFFICE, M.G.ROAD, ERNAKULAM. R3 BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010 ALONG WITH MACA NO. 2157 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.2135/2009 IN MACA.NO.1835/2009 DISMISSED 18/01/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. Nos.1835 & 2157 OF 2009 = = = = = = = = = = = = = = = Dated this the 18th day of January, 2010. J U D G M E N T Both these appeals are preferred against the awards of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) Nos.1429/02 and 415/03. MACA 1835/09 is preferred by the pillion rider in a motorcycle and MACA 2157/09 is filed by the scooterist. It is the case of the parties that on 4.5.2002 a motorcycle and a scooter which were proceeding in opposite directions collided resulting in injuries to the parties. The learned Tribunal found that the rider of the motorcycle alone was negligent and therefore cast the liability on the insurance company of the motorcyclist to be paid to the pillion rider in the motorcycle as well the scooterist. It is against those decisions the appeals have been preferred. 2. The two points that arise for determination in the appeals are (1) Whether the finding on negligence is proper (2) Whether it was correct on the part of the Tribunal to have cast the liability on the insurance company even if the M.A.C.A.Nos.1835 & 2157 OF 2009 -:2:- negligence was on the motorcyclist, so as to pay to the pillion rider for the reason that the vehicle was only covered by an Act only policy. 3. I have perused the award and heard the learned counsel appearing for both the insurance companies. It can be seen that the police have charge sheeted both the riders for rash driving by filing A and B charge sheet. The Tribunal found that the accident had taken place 3.74 mtrs. west of the eastern tarred end. The road is having a width of 6.08 mtrs. The Tribunal found that the motorcyclist was proceeding from north to south and the scooterist was proceeding from south to north. The correct side of the motorcycle was eastern side and that of the scooterist was western side. Since the accident had taken place 3.74 mtrs. West of the eastern tarred end the Tribunal held that the motorcyclist had transgressed to the wrong side and therefore he alone is negligent. When people drive motor vehicles one cannot always precisely go through the exact middle of the road and just because there is a transgression M.A.C.A.Nos.1835 & 2157 OF 2009 -:3:- of 70 cms. to the wrong side it is not correct on that basis alone to come to the conclusion that the accident had taken place on account of the negligence of the motorcyclist. The correctness of the scene mahazar is also a question which has been discussed and held that distance from the post is not a matter for consideration. Therefore I feel in the light of the police charge sheet and the factum that only a slight transgression one would not be justified in holding that there is absolute negligence on one person. Anyhow the matter requires reconsideration by permitting all concerned to adduce evidence in the matter. Therefore the finding on negligence is set aside. 4. If ultimately the Court finds that the motorcyclist was solely responsible for the accident then the petitioner in O.P.(MV)1429/02 being a pillion rider whether entitled to be indemnified by the insurance company will arise. It is submitted that the vehicle was covered only by an Act only policy. If it is only an Act only policy then the dictum laid down in Tilak Singh's case [United India Insurance Co. M.A.C.A.Nos.1835 & 2157 OF 2009 -:4:- Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) will squarely apply then in that angle also the matter requires consideration. Therefore the awards under challenge are set aside and the matter is remitted back to the Tribunal for fresh consideration by permitting both parties to produce documentary as well as oral evidence in support of their respective contentions. Since the private parties had not entered appearance before this Court it is directed that the United India Insurance Company Ltd. will take out notice to those parties after it enters appearance on 22.2.2010 and thereafter the matter be disposed of in accordance with law. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-