IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 MACA.No. 1254 of 2007() ----------------------- OPMV.446/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANTS/RESPONDENTS: ----------------------------- 1. NANDHAKUMARI @ RATHNAM, AGED 28 YEARS, W/O.LATE SASIDHARAN, POKKATHU VEEDU, KALAPETTI POST, KUZHALMANNAM. (K.R.P. 6646 LEGAL HEIR OF OWNER OF SCOOTER). 2. AISWARYA, AGED 14 YEARS, MINOR, D/O.LATE SASIDHARAN, POKKATHU VEEDU, KALAPETTI POST, KUZHALMANNAM. (K.R.P. 6646 LEGAL HEIR OF OWNER OF SCOOTER). 3. ANURAG, AGED 8 YEARS, MINOR, S/O.LATE, SASIDHARAN, POKKATHU VEEDU, KALAPETTI POST, KUZHALMANNAM. (K.R.P. 6646 LEGAL HEIR OF OWNER OF SCOOTER). BY ADV. SMT.P.K.RADHIKA RESPONDENTS/PETITIONERS: ------------------------- 1. KAVITHA AGED 19 YEARS, D/O.LATE MANAPULLY, VI/228, POLICE QUARTERS, KANNADI POST, KANNADI VILLAGE, PALAKKAD. 2. MANIKANDEN, AGED 18 YEARS, S/O.LATE MANAPULLY, VI/228, POLICE QUARTERS, KANNADI POST, KANNADI VILLAGE, PALAKKAD. 3. MAMATHA, AGED 15 YEARS, D/O.LATE MANAPULLY, VI/228, POLICE QUARTERS, KANNADI POST, KANNADI VILLAGE, PALAKKAD. 4. DURGADEVI, AGED 13 YEARS, D/O.LATE MANAPULLY, VI/228, POLICE QUARTERS, KANNADI POST, KANNADI VILLAGE, PALAKKAD. MACA.1254/07 5. RAJUMON, AGED 11 YEARS, S/O.LATE MANAPULLY, VI/228, POLICE QUARTERS, KANNADI POST, KANNADI VILLAGE, PALAKKAD. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2008 ALONGWITH MACA NO.1822 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NOS.1254 & 1822 OF 2007 (B) ----------------------------------- Dated this the 22nd day of August, 2008 J U D G M E N T KOSHY,J. On 22.2.1999, a motor cycle and a scooter collided, and as a result, both riders sustained fatal injuries. Legal representatives of the rider of the motor cycle filed O.P.(MV). No.446/1999 before the Motor Accident Claims Tribunal, Palakkad. The legal representatives of the rider of the scooter filed O.P.(MV).No.637/1999. Both cases were considered by the Tribunal together. None of the claimants have seen the accident. Before the Tribunal, witnesses were examined. RW2, who was examined deposed that he came to the spot after the accident and from the motor cycle, liquor bottles were seized. But in the post mortem report of the rider of the motor cycle, it was not seen that he had consumed liquor. But it is submitted that based on the scene mahazar alone negligence of the driver cannot be proved. Tribunal found M.A.C.A.NOS.1254 & 1822 OF 2007 2 that accident occurred due to the negligence of the scooterist. Unfortunately, both the vehicles involved in the accident had no insurance. The dependents of the motor cyclist were awarded a compensation of Rs.1,25,950/- and directed the legal representatives of the scooterist to pay the same. Since it was found that accident occurred due to the negligence of the scooterist, only compensation of Rs.50,000/- was awarded under Section 140 of the Motor Vehicles Act, and legal representatives of the scooterist filed these appeals questioning the awards in both cases. 2. We have gone through the scene mahazar. Only on the basis of the scene mahazar, Tribunal found that accident involved is due to the negligence of the rider of the scooter. The scene mahazar would show that the Police officer has not seen the accident but the place of accident was shown to him by somebody else and the person who has shown the place of accident was not examined. It is also submitted that the rider of the motor cycle was a retired Police Head Constable and his M.A.C.A.NOS.1254 & 1822 OF 2007 3 erstwhile colleague has written the scene mahazar in such a way. According to the appellants, the motor cyclist was actually negligent. Absolutely there is no independent evidence to show that he was responsible for the accident. Ext.A5 charge sheet shows that both riders were charge sheeted. But charges abated due to the death of both the riders. The Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta and others (AIR 2006 SC 1255), held that if there is a head on collision in the highway, in the absence of clear evidence, negligence can be found on both drivers, that is 50:50. Therefore, in the absence of evidence, we can only hold that both riders were equally negligent, and, if any one of them were not negligent, accident could have been avoided. Then the question is what is the quantum of compensation payable. With regard to the age of the rider of the scooterist, he was 45 years old. He was an agriculturist, but his income was not proved. In the absence of any evidence or data regarding M.A.C.A.NOS.1254 & 1822 OF 2007 4 the income, we fix Rs.1,25,950/- as the compensation payable in this case also as is payable to the legal representatives of the rider of the motor cycle. In effect, both sides are entitled to equal amount and 50% of the amount calculated has to be paid to each other as we apportioned negligence equally. In other words, no amount will be payable by both sides as it will be adjusted against rival claims. Both appeals are disposed of accordingly. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008