IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MACA.No. 329 of 2006(A) ----------------------- OPMV.709/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S)/PETITIONER: ----------------------------------- FIRDHOSE, S/O. MUHAMMAD, AGED 24 YEARS, CHAPPAMKOTTU HOUSE, PIDAVOOR, PALLARIMANGALAM P.O., KOTHAMANGALAM. BY ADVS. SRI.JOHN JOSEPH(ROY) SRI.JEFRIN MANUEL RESPONDENT(S)/RESPONDENTS: --------------- 1. JIBI, S/O. CHACKO, MANGALATHU HOUSE VETTAMPARA, PINDIMANA P.O., KOTHAMANGALAM. 2. BIJUMON P.K., PALLIKKAMALIL HOUSE, BHOOTHATHANKETTU P.O., KOTHAMANGALAM. 3. UNITED INDIA INSURANCE CO.LTD., MUVATTUPUZHA. ADV. SRI.P.MURALEEDHARAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DEIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 329 OF 2006 --------------------------------------------------------- Dated this the 19th day of November, 2008 JUDGMENT Ramachandran Nair, J. Appeal is filed challenging the order of the Motor Accidents Claims Tribunal, Muvattupuzha declining to grant compensation to the appellant finding that the accident was caused on account of the rash and negligent driving by the appellant. We have heard counsel appearing for the appellant and Standing Counsel appearing for the Insurance Company. 2. Admittedly, accident is the result of collision between the appellant's bike and an autorickshaw. At the time of the accident, both the vehicles were proceeding from Kothamangalam in the east direction in the Munnar road. Appellant's case is that the accident occurred as the autorickshaw which was going in front abruptly turned to the right without any indication and collided with his bike as he was trying to overtake the autorickshaw. The Tribunal, on the other hand, found that the appellant's bike went and hit against the autorickshaw proceeding in front, so much so, the accident is on account of the appellant's own contribution. M.A.C.A. NO. 329/2006 2 Counsel appearing for the Insurance Company supported the finding of the Tribunal. 3. Counsel appearing for the appellant relied on Ext.A10 which is the certificate issued by the Assistant Motor Vehicles Inspector after examining the vehicles. We find from Ext.A10 that the damage caused to the autorickshaw is on the front right portion where denting is noticed besides other damages. So far as the bike is concerned, damage is to the front rim and also bursting of the front tyre. Damage to both the vehicles clearly prove beyond doubt that the accident happened when the autorickshaw turned to the right as claimed by the appellant. The Insurance Company did not adduce any contra evidence to prove that the accident occurred on account of the appellant's own contribution. F.I.R. was also registered against the driver of the autorickshaw who pleaded guilty. Since both the vehicles were going in the same direction and the site of the accident is a straight road, the bike could have hit the autorickhaw only if the autorickshaw had turned to the right as claimed by the appellant. Therefore, the finding of the Tribunal that the appellant caused the accident on account of his own negligence stands disproved by Ext.A10 alone. However, the matter does not rest here because the bursting of the front tyre of the bike is clear indication of the enormous M.A.C.A. NO. 329/2006 3 speed at which the appellant was riding the motor bike at 11.30 at night. We, therefore, hold that the appellant also contributed to the accident. Had he been careful, he could have avoided the accident or at least reduced the impact of the accident. 4. In the circumstances, we hold that there is contributory negligence of 50% each on the drivers of both vehicles. Considering the expenses incurred by the appellant for the treatment and hospitalisation for over two weeks, we grant a compensation of Rs.50,000/- and a further sum of Rs.20,000/- towards cost of medical expenses. In view of the above finding, the appellant will be entitled to 50% of the compensation, that is , Rs.35,000/- which will carry interest at the rate of 7.5% per annum from the date of application till date of payment. Appeal is allowed to the extent indicated above. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NO. 329/2006 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NO. 329/2006 JUDGMENT 19th November, 2008 M.A.C.A. NO. 329/2006 5