IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 MACA.No. 971 of 2005() ---------------------- OPMV.951/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SIKKANNAN, S/O.SUBHAYYA, SELVAM BROILERS (P) LTD., KUZHUR DESOM, KAKKULASSERY VILLAGE, THRISSUR DISTRICT. PRESENTLY RESIDING AT C/O.SUBHAYYA, VADAMADURAI, TAMIL NADU. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENTS -------------------------- 1. JAISON E.T., S/O.THOMAS, EAROTH HOUSE, KUNDOOR DESOM, KAKKULASSERY VILLAGE, THRISSUR DISTRICT. 2. V.D.PRABHAKARAN, S/O.DAMODHARAN, VALIYAKANDATHIL HOUSE, CHERUKADAPPURAM, NORTH PARAVUR. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO LTD., NORTH PARAVUR. 4. SUNIL G., S/O.GANGADHAR, SELVAM BROILERS(P) LTD., KUZHUR DESOM, KAKKULASSERY VILLAGE, THRISSUR DISTRICT. 5. M/S.SELVAM BROILERS (P) ALTD., NO.10, CO-OP. COLONY, GANDHI NAGAR, NAMAKKAL. 6. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO LTD., DIVISIONAL OFFICE NO.2, DR. SANKARAN ROAD, NAMAKKAL-637 002. ADV. SRI.M.S.PATTALI FOR R3 SRI.K.J.KURIACHAN FOR R3 SRI.FRANKLIN ARACKAL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.A.C.A. No.971 of 2005 .................................................................... Dated this the 20th day of October, 2008. JUDGMENT Ramachandran Nair, J. Appeal is filed challenging the award passed by the MACT holding that appellant is not entitled to recover compensation from respondents 1 to 3, though MACT fixed eligible compensation to the appellant. Even though notice was served on all respondents except 4th respondent, there is appearance only for 5th respondent. According to the appellant, accident admittedly is on account of collision between the motor bike driven by 4th respondent and a bus driven by the first respondent that was owned by second respondent. Even though first respondent stood charge-sheeted for rash driving, MACT came to the finding that accident was on account of rash and negligent driving by 4th respondent who was the rider of the bike in which appellant was a pillion rider. We have heard counsel for the appellant and have gone through the award passed by the MACT. 2. We are unable to accept the finding of the MACT based on scene mahazar that the accident was caused by 4th respondent. Admittedly accident occurred in a road the width of which was only 3.14 metres. The 2 time of accident was 10 p.m. and there is no occurrence witness except the persons involved in the accident. In fact the road is so narrow that there was just enough space for a bus and a bike to cross. Going by the damage to both vehicles noted by AMVI, it is clear that both the vehicles collided while on the road. MACT by noting damage to the bus came to the conclusion that the bike would have been on the wrong side or otherwise, damage would not have been caused to the right bumper of the bus. We are of the view that the position of the vehicle on the road at the time of accident cannot be determined solely with reference to the damage to the vehicle alone. In fact scene of occurrence was only a guess work made because the bike after hitting the bus was thrown off. The accident occurred in the night. There is nothing on record to indicate about the speed of the bus or the bike at the time of accident. We are unable to uphold the finding of rash and negligent driving on the side of the bike rider by the MACT merely based on the scene mahazar. The enquiry by Police prove that the bus driver was negligent. Above all, we notice that the width of the road was only 3.14 metres and there was enough space for a bus and a bike to pass. In the absence of any independent evidence, we do not think MACT was right in holding that the accident was caused by rider of the bike by directly hitting front of the bus coming in the night in the opposite direction. 3 The Insurance Company also has not got the driver of the bus or any person examined to support this case. In the circumstances and in view of the materials available in the F.I.R. against the first respondent, we feel the accident is attributable to the driver of the bus. Consequently we hold respondents 1 and 2 liable to compensate the appellant. Since the vehicle was covered by a valid policy, there will be direction to the third respondent to deposit the compensation amount with proportionate cost awarded by MACT, but without interest, within two months from date of production of copy of this judgment. The appeal is allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms