IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 MACA.No. 1483 of 2009() ----------------------- OPMV.161/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): -------------- UNNIKRISHNAN, AGED 33, S/O KESAVAN, KIZHAKETHIL HOUSE, CHAZHIYATTIRI, PALLIPADAM, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S): --------------- 1. YOUSUF, S/O ABOOBACKER, MULLATH HOUSE, PERUMBILAVU. 2. THE NEW INDIA ASSURANCE COMPANY, KOLLALLUR BUILDING, PALACE ROAD, THRISSUR. ADV. SRI.P.K.BABU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jma M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1483 and 1490 OF 2009 = = = = = = = = = = = = = = = Dated this the 11th day of November, 2009. J U D G M E N T MACA 1483/09 is preferred against the award of the Motor Accidents Claims Tribunal, Ottapalam in O.P.(MV) 161/06 and the other is preferred against the award in O.P. (MV)159/06. By a common award passed in these cases along with two other cases the Tribunal awarded a compensation of Rs.2,000/- in O.P.(MV)159/06 and a sum of Rs.5,750/- in O.P.(MV)161/06. It is against the decision the claimants have come up in appeal before this court. 2. Heard the learned counsel for the appellant and the insurance company. The brief facts necessary for the disposal of the appeals are stated as follows. The claimant in O.P.(MV)161/06 was a rider of a passenger auto rickshaw bearing Reg.No.KL-9-2343. When it reached the place of accident it collided with another goods auto rickshaw bearing Reg.No.KL-8-AD1923 driven by R1. It is the definite case of the claimants that the accident took place on account of the M.A.C.A.s. 1483 and 1490 OF 2009 -:2:- negligent driving by R1 in the case. PWs.1 and 2 were examined and documents were marked and the Tribunal on an analysis of the evidence came to the conclusion that the accident had taken place on account of the composite negligence of both the drivers of the auto rickshaw and thereby further held that PW2 the claimant in O.P.(MV) 161/06 has also contributed to the accident. 3. The learned Tribunal had dealt with the materials in detail. The auto rickshaw driven by PW2 the claimant in O.P.(MV)161/06 was proceeding from south to north. The goods auto rickshaw was coming from opposite direction. The auto rickshaw driven by PW2 since was proceeding from south to north, its correct side was western side and that of the opposite vehicle was the eastern side. The road is having a width of 6½ mts. at the place of accident. It is specifically stated that the accident had taken place 4½ mt. west from the eastern tarred end which means that it had taken place on the western side of the road which is the correct side of the goods auto rickshaw. Factually it is to be M.A.C.A.s. 1483 and 1490 OF 2009 -:3:- held that the auto rickshaw driven by PW2 has transgressed to the wrong side and has caused the accident. Ext.A2 is the scene mahazar produced by the claimants and relied upon by them for the purpose of establishing their case. They cannot detract from the correctness of a document which is produced by them. Therefore by a mere perusal of the scene mahazar it is evident that the claimant in PW2 has also been responsible for causing the accident. If the drivers of both the auto rickshaws were little more vigilant they could have averted the accident and most probably it is on that basis that the Tribunal had apportioned negligence equally, i.e. 50% each. By any stretch of imagination the negligence on PW2 cannot be below 50%. Therefore the finding of the Tribunal on the question of negligence does not require any interference. 4. So far as the quantum of compensation is concerned it is adequate. It is true that in O.P.(MV) 159/2006 the claimant was only a passenger. The claimant has only impleaded the driver, owner and insurer of the M.A.C.A.s. 1483 and 1490 OF 2009 -:4:- goods auto rickshaw. The finding is that both the auto rickshaw drivers were negligent, by virtue of the principles laid down by the Court. They are called not joint tortfeasors but several tortfeasors who are individually responsible for the accident. Since the claimant had chosen not to implead the driver, owner and the insurer of the auto rickshaw in which the claimant travelled, the question of awarding compensation from them does not arise. Therefore the Tribunal was perfectly justified in awarding 50% of the amount which is the entitlement of the claimant from the insurance company of the goods auto rickshaw. So from these discussions I find no merit in these appeals and therefore they are dismissed. M.N. KRISHNAN, JUDGE. ul/-