IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 MFA.No. 1549 of 2001() ---------------------- OPMV.168/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT: ----------- C.V.JOSE, S/O.VAREED, CHAKKALAMITTATH HOUSE, KURUVILASSERRY, VALIYAPARAMBU, MALA, THRISSUR DIST. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS: ------------- 1. P.A. MARIYA, W/O.ABDUL JAMAL PONNANIPADIKKAL HOUSE, SANTHIPURAM, KODUNGALLOOR, THRISSUR DIST. 2. VIKRAMANUNNI, S/O.RAJAN, VAZHAPPILLI HOUSE, KUZHIMBRAM P.O., VALAPPAD VILLAGE, THRISSUR DIST. 3. ORIENTAL INSURANCE CO. LTD BRANCH OFFICE, NORTH NADA, KODUNGALLOOR, THRISSUR DIST. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A. No. 1549 OF 2001 --------------------- Dated this the 26th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, North Paravur, in OP(MV) 168/98. The claimant, a fish vendor by profession, was riding the luna moped from west to east. When it reached the place of accident, a collision took place between the luna moped and a bus resulting in injuries to him. The Insurance Company contended that the accident took place on account of the negligence of the claimant. The Tribunal after raising proper issues and considering the documents held that the claimant was totally responsible for the accident and fixed the compensation at Rs.54,000/- but disallowed the claim on the ground that there was total negligence on his part. It is against that decision, the present appeal is preferred by the claimant. 2. Learned counsel for the appellant would contend before me that fixing the negligence on the claimant by the Tribunal merely on the basis of scene mahazar is incorrect. A perusal of the award would reveal that the road is having a width of 3.10 meters at the place of the accident. The Tribunal held that the accident had occurred 78 cms north of the southern tar end, which is the proper side of the bus and a wrong side of MFA No.1549/01 2 the moped. It has to be borne in mind that PW1 has been examined and he had deposed about the negligence of the bus driver. Admittedly, the width of the road at the place of the accident is not very much and when a bus is driven, being a heavy vehicle, the driver of the said bus is expected to bestow more care rather than a rider of the moped. It is also to be stated that the place of occurrence recorded in the scene mahazar may not always be the correct position where the accident had taken place for the reason that attempts will be made by both drivers to avert an accident and may in the process swerve the vehicle this side or that side. So it is not desirable to fix the place of accident merely on the basis of the scene mahazar especially when there is no tyre marks or other physical things to fix the place of accident. A perusal of the scene mahazar would reveal that there is a straight vision for 160 meters on the eastern side and a curve on the western side. So, when there is curve, both the vehicle should have come at a reasonable speed and it should not have been very difficult to aver the accident if it was done. Therefore, it is not correct to fix the entire responsibility on the moped rider alone. Being a heavy vehicle, the driver of the bus should have exercised more caution while proceeding. 3. Therefore, I feel that the finding of negligence requires interference. Classifying it as a head on collision between the two vehicles, I apportion 50% negligence on both drivers. The Tribunal has fixed the compensation at Rs.54,000/-, which I do not want to interfere at this stage. MFA No.1549/01 3 Therefore, the MFA is allowed and the claimant is awarded a compensation of Rs.27,000/- with 7% interest on the said sum from the date of petition till realisation. The third respondent Insurance Company is directed to deposit the said amount within 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MFA No.1549/01 4 MFA No.1549/01 5 MFA No.1549/01 6