IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MACA.No. 2031 of 2006() ----------------------- OPMV.1137/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MAKKAR, S/O.MUHAMMED, AGED 51 YEARS, KALAYITHINAMKUZHY HOUSE, KUTTINLANJI, IRAMALLOOR P.O., KOTHAMANGALAM TALUK. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): --------------- 1. ABDUL KHADER, S/O.MUHAMMED, AGED 29 YEARS, KUTTICHIRA HOUSE, PANIPRA KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM. 2. THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., KOTHAMANGALAM. ADV. SRI.S.MAMMU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.2031 OF 2006 ............................................. Dated this the 23rd day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Muvattupzua in OP(MV)No.1137/2001. The claimant was riding a motor cycle and it collided with an auto rickshaw resulting in sustainment of the injuries. The Tribunal on analysis of the evidence found the claimant negligent and dismissed the application. It is against that decision, the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. The learned counsel had made available before me a copy of the scene mahazer for perusal which would reveal that the accident had taken place in a road which is having a total width of 3.86 meters and as per the scene mahazer, the accident had taken place at 1.52 meters north of the southern tar end. The motor cycle driven by the claimant was proceeding from west to east and its correct side was northern side. The auto rickshaw was proceeding from the opposite direction and its correct : 2 : M.A.C.A.No.2031 OF 2006 side was southern side. So, a perusal of the scene mahazer would reveal that rider of the motor bike namely the applicant had slightly gone to wrong side of the road in causing the accident. The accident had taken place as a result of the collision between the auto rickshaw and the motor bike which are comparatively smaller vehicles and if rider of the vehicles had bestowed better attention, they could have avoided the accident. When a road is having the width of approximately 4 meters and if the auto rickshaw had come in a reasonable speed, it could have swerved and the nature of the damages shown on the auto rickshaw also indicates the speed in which both the vehicles have come up from the opposite directions. The Apex Court in so many decisions held that when the accident takes place almost on the middle of the road, then it is a case of composite negligence. Applying that theory, I feel this is a fit case where the negligence can be fixed at 60% on the claimant and 40% on the auto rickshaw driver. Unfortunately the Tribunal has not fixed the quantum nor had referred to the documents so as to make this Court to fix the quantum. : 3 : M.A.C.A.No.2031 OF 2006 3. Therefore for fixing the quantum, the matter has to go back. The claimant will be entitled to compensation for 40% which the insurance company has to pay. The appeal is allowed and the award passed by the Tribunal is set aside and it is found that the claimant is entitled to 40% of the compensation to be fixed and I direct the Tribunal to permit both the claimant as well as the respondent to produce documentary and adduce oral evidence in support of their respective contentions and fix the quantum and dispose of the matter in accordance with law. The parties are directed to appear before the Tribunal on 21.12.2009. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.2031 OF 2006