IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 MFA.No. 852 of 2001(B) --------------------------------- OPMV.827/1990 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANTS: CLAIMANTS -------------------- 1. SMT.N.V.PREMAKUMARI, W/O. LATE N.V. GOPALAN, NETTATH HOUSE, PERINGODE P.O., PALAKKAD DISTRICT. 2. N.G.SASI, S/O. LATE N.V.GOPALAN, NETTATH HOUSE, PERINGODE P.O., PALAKKAD DISTRICT. 3. N.G.SINDHU, D/O. LATE N.V.GOPALAN, NETTATH HOUSE, PERINGODE P.O., PALAKKAD DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENTS: RESPONDENTS ---------------------- 1. KARUTHEDATH KRISHNADAS, S/O.K.KARUTHEDATH HOUSE, NEAR 6TH RAILWAY GATE, KATCHERI AMSOM, KOZHIKODE TALUK. 2. K.GANGADHARAN NAIR, S/O. UNNIKUMARAN NAIR, MANNARATH HOUSE, VALAYANAD AMSOM AND DESOM, MYLAMBADI , KOZHIKODE TALUK. 3. THE UNITED INDIA INSURANCE COMPANY LTD., MFA.No 852/2001 4. THE NEW INDIA INSURANCE COMPANY LTD., CHEROOTTY ROAD, KOZHIKODE BY ADV. SRI.SUNNY MATHEW SRI.VPK.PANICKER SRI.MATHEWS JACOB(SR),SC INSURANCE B/O SRI.P.JACOB MATHEW THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.852 OF 2001 (B) ----------------------------------- Dated this the 1st day of February, 2008 J U D G M E N T KOSHY,J. One Gopalan died in a motor accident on 14.1.1990. While he was riding a scooter bearing registration No.2441 from north to South in Kozhikode-Wayanad road an autorickshaw bearing registration No.KLZ 2074 hit the same, and as a result of which, he sustained fatal injuries. He was taken to Medical College Hospital, where he succumbed to death on 18.1.1990. Claim was filed by his wife and two children for an amount of Rs.2,40,000/-. Tribunal has awarded only Rs.1,52,300/- but granted only Rs.25,000/- with interest for no-fault liability stating that accident occurred due to the negligence of the deceased himself. Against this, claimants filed this appeal. Matter was remanded to consider that question only. 2. Contention of the claimant was that accident occurred MFA.852/2001 2 in a one way road. The auto was coming negligently disobeying the one way regulation. This Court set aside the award to reconsider the question of negligence. While remanding the matter, it was observed as follows: “PW2 has deposed that the road at the place of occurrence is regulated by one way traffic. To prove this, no other evidence has been let in. Whether it is a road with one way traffic restriction or not, and, if yet, who has violated the traffic regulation is a relevant question to be decided in this case. One way traffic restriction is towards the north or towards the south is also to be looked into to enter a finding regarding negligence. Therefore, that requires evidence. Without going into the material question, the court has disposed of the issue regarding negligence. Therefore, the finding on issue No.1 has to be set aside.” After remand, even though notification was not traced out, evidence was adduced to show that accident occurred in a place where one way traffic was only allowed and autorickshaw was driven violating the one way traffic regulation. The Assistant Commissioner of Police (Traffic) was examined as PW3 and he stated that the entry towards north along the Cannanore-Wyanad road from Fathima hospital MFA.852/2001 3 to Manorama Junction was prohibited and that prohibition was applicable to all types of the motor vehicles. It is also stated that there was a sign board as regards the prohibition near the Fathima hospital where the entry starts. That clearly proves that accident occurred in a one way zone and the autorickshaw was coming violating the one way regulation in the opposite direction. That shows that autodriver was fully negligent. Only because of the auto driven violating the one way regulation, auto driver is solely negligent. Tribunal has attributed 30% negligence on the deceased after remand and 3rd respondent was directed to deposit 70% of the compensation assessed (Rs.1,06,610). We are of the opinion that the above apportionment of negligence is incorrect and the entire compensation has to be deposited by the 3rd respondent Insurance company as the autorickshaw driver alone was negligent. Therefore Rs.45,690/- determined on the ground of 30% contributory negligence on the deceased shall be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the amount decreed by the tribunal. On deposit of MFA.852/2001 4 the above amount, 50% of the amount can be withdrawn by the 1st appellant and balance in equal proportion by 2nd and 3rd appellants. Appeal is allowed partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.852 OF 2001 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 1st February, 2008