IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 MACA.No. 853 of 2008() ---------------------- OPMV.598/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT: -------------------------------------------------- THE UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS DY. MANAGER, REGIONAL OFFICE SHARANYA, HOSPITAL ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: -------------------------------------------------------------------------------------------------------- 1. NOUSHAD BABU, AGED ABOUT 25 YEARS, S/O. MOHAMMEDKUTTY, MANIKUNNATHA HOUSE, EDAYOOR P.O. VALANCHERY. 2. T.MOHANAN,S/O. CHATHAN, THATTARAKKARA HOUSE, EDAYOOR P.O. VALANCHERY. 3. K. SAIDALAVY,S/O. MOIDEENKUTTY, KAYAKKAL HOUSE, PARAPPUR P.O., KADAMPUZHA. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2-/ ORDER ON I.A.NO.1061/2008 IN M.A.C.A.NO.853C/2008 DISMISSED 23/05/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 853 OF 2008 = = = = = = = = = = = = = = = Dated this the 23rd day of May, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(MV)598/04. The Tribunal found the claimant negligent to an extend of 50% and awarded a total compensation of Rs.45,000/-. The claimant was riding on a motor bike and when he reached the place of accident a jeep came from the opposite direction and there was a collision which resulted in injuries to the claimant. The learned counsel for the insurance company very strongly contends before me that the Tribunal has erred in apportioning the negligence for the reason that the driver of the bike was on the wrong side at the time of the accident and therefore should have arrived at a decision on that basis. She has also invited my attention to the observation in the award. 2. PW3 is a person who had shown the place of incident to PW4, a Head Constable who prepared the M.A.C.A. 853 OF 2008 -:2:- mahazar. PW3 has turned against the insurance company but PW4 had deposed that he had noted the place as pointed out by PW3. It can be seen from the award that the claimant was proceeding from west to east and his correct side was the northern side. The other vehicle was coming from the opposite side which means its correct side was the southern side. As per the scene mahazar the accident had taken place at a distance of 1.5 meters to the north from the southern end which shows primarily that the rider of the bike was on the wrong side. It is always to be remembered that when an accident is about to take place and it is a head-on collision there will be a desperate attempt by both to avert the accident and therefore one cannot take the position of the lie of the vehicle after the accident as the main evidence for finding out unless there are clear tyre marks and other things available on the spot. Here is a case where it is found by the Tribunal that the road is straight at that point of place and there is a clear vision of 150 meters and when such a situation is there a jeep being a heavier vehicle than the bike M.A.C.A. 853 OF 2008 -:3:- the driver of the jeep was expected to bestow better care and attention especially in the back drop of a straight road and therefore he has also contributed to the accident. So really there is negligence on both sides and therefore I find that one need not disturb the finding of the apportionment of negligence as 50 : 50. So far as the claimant is concerned the Tribunal has only awarded a reasonable compensation taking the disability at 4% and an young man aged 22 years had sustained fracture and had undergone prolonged treatment by spending about Rs.32,000/- towards medical expenses. So I do not find any ground to entertain this appeal and hence it is dismissed. M.N. KRISHNAN, JUDGE. ul/-