IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 MACA.No. 1958 of 2008() ----------------------------------- OPMV.791/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER:- -------------------------------------------------------------- BIJU, S/O XAVIER, VADAKKEL HOUSE, PARIYARAM BHAGAM, EDAMARUKU KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): ------------------------- 1. BABY JACOB, S/O CHACKO,KUNNUMPURATHU HOUSE, CHENKARA P.O., KODAKARA 2. DAMODARAN, S/O GOPALAN, PUTHENPURAYIL HOUSE, AMAYAPRA BHAGAM, EDAMARUKU KARA, UDUMBANOOR VILLAGE, THODUPUZHA TALUK. 3. THE ORIENTAL INSURANCE CO LTD., REPRESENTED BY ITS BRANCH MANAGER, TRICHUR. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1958 OF 2008 --------------------------------- Dated this the 27th day of January, 2009 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thodupuzha in O.P.(MV) No.791/2003. The claimant, a rider of the motorbike, sustained injuries in a road accident and the tribunal found him negligence to a tune of 60% and awarded him a compensation after deduction a sum of Rs. 21,500/-. It is against that decision the claimant has come up in appeal. 2. Heard the counsel for Insurance Company as well as the appellant. The first question argued before me is regarding negligence. Admittedly the lorry was proceeding from west to east . The motorcycle came from the opposite direction. The correct side of the motorcycle is southern side and that of the lorry was northern side. The road was having a width of 8.5 metres at the place of the accident. As per the opening sentence in the scene mahazar accident had taken place at 2.80 metres south of the northern tarred end which may indicate about the transgression of the motorcycle into wrong side. Much confusion is further drawn in the M.A.C.A.No. 1958/2008 -2- scene mahazar by stating the place of accident in so many other places. Whatever it may be, one has to understand that unless there are specific crystal tyre marks, the lie of the vehicle may not be an important factor to consider the exact place where the accident took place. Further it has also to be remembered that when the vehicles are about to meet with an accident, there will be desperate attempt made by both the riders to avert the accident and in that process one vehicle or the other may transgress into the wrong side. That is why in such cases when there is a head on collision between two vehicles, the apex court held unless there are crystal clear evidence, negligence can be equally apportioned among both drivers. Though the first part of the scene mahazar reveals the transgression of the motorcycle into the wrong side, the subsequent descriptions may show that the tyre marks is somewhere on the other side. Therefore in the fitness of things I take it as a case of head on collision and apportion the negligence at 50% each. 3. Now let me consider about the quantum. The tribunal found that the claimant has sustained a fracture of the patella and also burn injuries and there was internal fixation. He was in the hospital for 12 days and he was re-admitted in the hospital for M.A.C.A.No. 1958/2008 -3- quadriceps exercise. I feel, the claimant on account of the burn injury coupled with the injury of patella had suffered a lot and he had undergone three surgeries. So taking into consideration those aspects, I am inclined to award Rs. 2,000/- more under the head of pain and suffering , Rs. 2,000/- more for loss of amenities and enjoyment in life and another Rs. 1,500/- for loss of earning, making an additional compensation of Rs. 5,500/-. When it is added to the original compensation of Rs. 53,525/- the total amount would come to Rs. 59,025/- and 50% of the sum is Rs. 29,517/-, rounded it as Rs. 29,500/- In the result, a revised award is passed whereby the claimant is awarded a compensation of Rs. 29,500/- with 6% interest on the said sum from 21.10.2003 till realisation from respondents 1 to 3 jointly and severally. The Insurance Company is directed to deposit the amount within a period of 60 days from the date of receipt of copy of the judgment. It is made clear that only the balance amount need be deposited by the Insurance Company. M.N. KRISHNAN,JUDGE vkm