IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 MACA.No. 1071 of 2009(A) ----------------------- OPMV.100/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT / PETITIONER: ----------------------------- ROBIN C.ALIYAS, S/O.ALIYAS, CHAKALAYIL HOUSE, MEEMPARA P.O., AIKKARANADU, SOUTH VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENTS/RESPONDENTS: ---------------------------------- 1. A.O.FRANCIS, S/O.PUSEPH, AYANIYADU HOUSE, PALISSERY, ANNAMMANADA P.O., THRISSUR DISTRICT, PIN-680 741. 2. THE MANAGER, ST.JUDE SCHOOL, KARINGACHIRA PUTHENCHIRA, THRISSUR DISTRICT, PIN-680 682. 3. UNITED INDIA INSURANCE CO LTD, P.B.NO.66, ALENGADEN BUILDINGS, IRINJALAKUDA, THRISSUR, PIN-680 121. ADV. SRI.S.ARUN RAJ FOR R3 SRI.A.C.DEVY FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, ALONG WITH MACA.1817/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.1071of 2009 And M.A.C.A. No.1817 of 2006 ---------------------------------- Dated this the 20th day of August, 2009 J U D G M E N T ---------------------- Ramachandran Nair,J. The connected appeals arise from same accident which is a collision between a School Bus and a Two Wheeler, leading to the death of the rider of the Two Wheeler and injury to the pillion rider. The claimants comprising legal heirs of the deceased rider and injured pillion rider, filed claim petition before Motor Accidents Claims Tribunal alleging negligence on the part of the driver of the Bus and consequently demanded compensation from the insurer of the Bus. However, M.A.C.T. held that the accident is solely on account of negligence of the deceased rider of the Two Wheeler and consequently compensation was granted to the legal heirs only under Section 140 of the Motor Vehicles Act, and so far as the claim by the injured pillion rider is concerned the application was rejected. Strangely the pillion rider did not make any claim against the insurer or the registered owner of the Two Wheeler as an alternate plea. MACA1071/09 & 1817/06-A 2 2. We have heard counsel appearing for the appellant and standing counsel appearing for the insurance company. The accident happened in Karingachira junction which is in Ernakulam - Muvattupuzha road, where the road from Irumpanam vertically joins at right angle. It is common knowledge that both roads are very busy all the time and both are very wide roads and either side of the junction the road is straight for quite some distance. On going through the A.M.V.I's report and the scene mahazar and after hearing both sides we are unable to sustain the order of the Tribunal holding the deceased rider of the Two Wheeler is solely responsible for the accident. Admittedly the School Bus was coming from eastern direction and was to take a right angle turn to the Irumpanam road. The accident happened obviously at the time when the Bus turned to right because the Two Wheeler hit in the center of the front Bumper damaging the number plate of the Bus. The spot of accident is on the northern half of the road which means that the Bus turns almost simultaneously when the Two Wheeler reached the junction to go straight from west to east. We are of the view that since the Bus has to cross the road to take a deviation to Irumpanam it was the duty of the driver to have verified clearance of vehicles either side and then to cross the road to the MACA1071/09 & 1817/06-A 3 right. Simultaneously it was the duty of the rider of the two wheeler to have noticed the Bus and to cross the junction only after checking whether the Bus found at low speed was turning to the right or proceeding straight. Obviously both the driver of the Bus as well as rider of the Two Wheeler recklessly proceeded to cross the junction without checking movement of the other vehicle. Therefore in our view the accident is as a result of contributory negligence by both sides. The next question raised is about percentage of contributory negligence by both sides. Admittedly the Bus as well as Two Wheeler immediately before the accident was moving in the opposite direction. The Two Wheeler was to proceed straight whereas the Bus has to turn to the right to cross the road to go to Irumpanam. Therefore it was the duty of the Bus driver to bring the Bus to a dead slow speed or even to stop it and verify clearance of the road and then to turn to the right without causing the accident. Since the Two Wheeler was coming to just in front of the junction, if he was careful he would have noticed the Bus. In such case only after the Bus crossed the junction he should have crossed the road. Therefore we feel that higher contribution is by the driver of the Bus and the contribution by the rider of the Two Wheeler is that he did not check whether the Bus was turning right or MACA1071/09 & 1817/06-A 4 proceeding straight, before crossing the junction. We therefore fix the contributory negligence of the Bus driver at 70% and fix the negligence of the deceased rider of the Two Wheeler at 30%. 3. The appeals are therefore allowed setting aside the common order passed by the Tribunal and we remand the matter to the M.A.C.T. for re-fixation of compensation for the legal heirs of the deceased rider and for the injured pillion rider. In view of the finding of contributory negligence it is opened to the legal heirs to implead registered owner as well as insured of the motor vehicle to seek appropriate relief against them in accordance with law. Claimants are also free to adduce evidence in the matter. The Motor Accidents Claims Tribunal is directed to dispose of the claim petition afresh within a period of 4 months from the date of production of a copy of the judgment. Parties are directed to enter appearance on 14.9.2009. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb