IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 MACA.No. 1487 of 2007() ----------------------- OPMV.275/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER IN M.V.O.P --------------------------------------------- SAVAD, AGED 35 YEARS, S/O.ABDULLA, PARILAKATHUTTU HOUSE, THOTTAKKATTUKARA, ALUVA. BY ADV. SRI.P.T.GOVINDAN RESPONDENT(S): RESPONDENTS IN M.V.O.P ------------------------------------- 1. NISSAR AHAMMED, HOUSE NO.2890, ASOK ROAD, KALOOR, COCHIN-17. 2. SENTHILKUMAR, S/O.RAMASWAMI, THOPPIL HOUSE, NEAR PARAVOOR KAVALA, THOTTAKKATTUKARA, ALUVA. 3. THE ORIENTAL INSURANCE CO.LTD., PATTAMANA BUILDING, R.S.ROAD, ALUVA - 683 101. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.A.C.A. No. 1487 of 2007 --------------------------------------------- Dated, this the 17th day of November, 2009 J U D G M E N T P.R. Ramachandra Menon, J. The motor cycle ridden by the appellant and the autorikshaw driven by the second respondent which was coming from the opposite side collided with each other on 27.12.2000 at about 8.30 a.m. causing injuries to the rider of the motor cycle, leading to the claim petition filed before the Tribunal. 2. The owner and driver of the autorikshaw, arrayed as respondents 1 and 2 before the Tribunal, did not turn up and were set exparte. The claim was resisted by the 3rd respondent/insurer contending that the accident was only because of the negligence on the part of the rider/claimant himself; that the driver of the autorikshaw was not having a valid and effective driving licnece and that the amounts claimed under the various heads were very much on the higher side. The claimant got examined himself as PW1, besides examining two other witnesses as PW2 and PW3; simultaneously producing and marking Exts.A1 to A8 on his side. No evidence was adduced, either oral or documentary, from the MACA No.1487 of 2007 2 part of the 3rd respondent, but for producing a copy of the Policy as Ext.B1; despite the sanction obtained under section 170 of the MV Act; to have wider defence. 3. On conclusion of the trial, the Tribunal observed that the claimant/PW1 had deposed before the Tribunal that the records prepared by the Police were very much correct and proper, though in the course of evidence, PW1 chose to take a somersault and deposed that the accident was on the 'eastern' side of the road. Referring to the contents of Ext.P2 scene mahazar, it has been noted by the Tribunal that the road was lying north to south with a total width of 2.57 meters and that the place of occurrence was at 88 cm to the east, from the western tarred end of the road. Admittedly, the claimant was riding the motor cycle from the north to the south, while the autorikshaw was coming from the opposite side. Appraising the facts and figures, the Tribunal held that the autorikshaw was being driven along the correct side, while the claimant had gone to the extreme wrong side of the road, to hit against the autorikshaw, causing the accident and sustaining the injuries. 4. The learned counsel for the appellant submits that the finding and reasoning given by the Tribunal are not at all correct or proper; particularly for having ignored the evidence tendered by PW2 and 3 in support of the version given by PW1, the claimant. The version put forth by the said witnesses has MACA No.1487 of 2007 3 not been taken by the Tribunal as such, for the reason that even according to PW1, he had absolutely no grievance against the contents of the scene mahazar. It was in the said circumstance, that the Tribunal arrived at a finding that the accident was only because of the negligence of the rider of the motor cycle, i.e., the claimant. Based on the fixation of negligence as above, the Tribunal held that the claimant was not entitled for any compensation and accordingly, the claim petition itself was dismissed, without working out the quantum, if at all payable. 5. As discussed above, it is brought on record that the road was actually a 'canal road', having only a width of 2.57 meters. Considering the fact that the total width of the road was much narrow, when compared with the normal roads and also taking note of the other attendant circumstances, it can't but be held that both the persons concerned were very much in a position to see the other vehicle which was coming from the opposite side. This being the position, the fixation of negligence solely on the rider of the motor cycle is not correct or proper. This is more so, in view of the law declared by the Apex Court in Bijoy kumar Dugar Vs. Bidhyadhar Dutta & others [AIR 2006 SC 1255] holding that in the cases of 'head-on collision', negligence has to be fixed equally on the drivers of both the vehicles. That apart, the appellant has got a further contention that showing the spot of occurrence as 88 cms to the east, from the western tarred end of the road MACA No.1487 of 2007 4 could not be correct, in view of the fact that the road was narrow, having a total width of 2.57 metres and further that the normal width of an autorikshaw itself is more than 1.5 mtrs. Weighing the evidence as a whole, we find that the accident was resulted because of the negligence of both the claimant/rider of the motor cycle and the driver of the autorishaw, to an equal extent. 6. For the reasons aforesaid, we find that the fixation of negligence by the Tribunal and the consequential dismissal of the claim petition are not correct or sustainable. We make it clear that the negligence will stand fixed in the ratio of 50:50 on the claimant, as well as on the driver of the autorikshaw and the actual compensation payable in respect of the injuries sustained shall be worked out by the Tribunal, taking into consideration of all the relevant facts and figures brought on record. Accordingly, the impugned award is set aside and the matter is remanded to the Tribunal for fresh consideration, as to the quantum payable. The Appeal is disposed of as above. Both the parties shall appear before the Tribunal on 21.12.2009. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc