IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 MACA.No. 34 of 2005() -------------------------------- OPMV.255/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER IN OP(MV) ----------------------------------------------- GOPALAKRISHNAN S/O. KUMARAN, KUMARA BHAVAN, PERUVAKARA, MULAKULAM VILLAGE. BY ADV. SRI.P.P.JACOB RESPONDENTS: RESPONDENTS IN OP(MV) ---------------------------------------------------------- 1. AJITHKUMAR S/O. SHANKARAN NAIR, MARAVATTICAL HOUSE, VADUKUNNAPUZHA KARA, MULAKULAM VILLAGE. 2. V.K.SREEKUMAR, VELLAPPILLIL HOUSE, KARIKODU P.O., PERUVA. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, T.H.TOWERS, MUVATTUPUZHA. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.34 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of September, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Appellant a Senior Plant Engineer working in Hindustan Newsprint Ltd., Vellur claimed compensation from the respondents in O.P(MV) No.255 of 2000 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. He met with a motor vehicle accident on 12.11.1999 at 5.30. p.m. while riding a motor cycle from west to east. He alleged that while nearing at the place of the accident, the Jeep driven by the first respondent, owned by the second respondent and insured with the third respondent emerged from the workshop on the right side of the road, proceeded in the same direction ahead of him for some distance and abruptly stopped at the place of the accident which resulted in the motor cycle hitting the rear side of the Jeep and his sustaining injuries. He claimed that the accident occurred due to the rashness and negligence of the first respondent. Respondents 1 and 2 remained ex parte in the Tribunal. The third respondent contested the application on various grounds including that the accident occurred due to the MACA NO.34 OF 2005 -: 2 :- negligence of the appellant. The Tribunal found that the accident occurred due to the rashness and negligence of the appellant, he is not entitled to claim any compensation from the respondents and consequently dismissed the application. Hence the appeal. 2. Heard learned counsel for the appellant and the learned counsel for the contesting respondent. 3. The following points arose for consideration: (1) Whether the accident occurred due to the negligence of the appellant? and (2) What, if any, is the quantum of compensation payable to the appellant? 4. Point No.1: It is contended by the learned counsel for the appellant that the finding of the Tribunal regarding cause of accident is not justified. Learned counsel submitted that going by the spot of the accident as stated in Exhibit A3, copy of the scene mahazar there was no possibility of the Jeep remaining stationary at the spot of the accident as found by the Tribunal. Counsel for the contesting respondent supported the finding of the Tribunal. 5. The appellant gave evidence as P.W.1 in tune with the averments in the application concerning the cause of the accident. Exhibit A2 is the copy of the first information statement given by the MACA NO.34 OF 2005 -: 3 :- appellant while undergoing treatment at Medical College Hospital on 13.11.1999. There also, he repeated the accident in the way spoken before the Tribunal but, there was no mention of the Jeep emerging from the workshop immediately before the accident. Exhibit A4 is the copy of the wound certificate. The appellant was examined by the medical officer on 12.11.1999 (date of accident) at 7.30 p.m. The history and the alleged cause of injury in Exhibit A4 as stated by the appellant himself is that the motor cycle which he was riding hit the rear side of the stationary Jeep. The Tribunal observed that the appellant has not controverted the said statement in Exhibit A4, is bound by it and therefore his version that the Jeep was going ahead of him was abruptly stopped and that caused the motor cycle hit the rear side of the Jeep cannot be accepted. 6. In Exhibit A3, scene mahazar the lie of the road is shown as east-west. The width of the tarred portion at the spot of accident is shown as 7.26 metres. The accident spot is fixed as 2.82 metres south of the western tar end which means that the accident occurred almost towards the centre of the tar road. It is on the strength of the said description that the counsel for the appellant argued that there was no possibility of the Jeep remaining stationary at that part of the MACA NO.34 OF 2005 -: 4 :- road. However, the version of the appellant in Exhibit A4 would bind him even if it is assumed that the first respondent was negligent in keeping the Jeep stationary at that part of the road as shown in Exhibit A3. 7. It is revealed from Exhibit A3 that the road at the place of the accident is straight towards either side upto a distance of 150 metres. That means, the appellant could have seen the Jeep remaining stationary at the spot of the accident. Even if it is assumed that the Jeep was proceeding ahead of the appellant and was abruptly stopped it was the responsibility of the appellant to keep sufficient distance from the Jeep to avoid any folly on the part of the first respondent stopping of the Jeep abruptly. 8. It is not in dispute and Exhibit A6 also shows that the police after investigation charge sheeted the first respondent for causing the accident on account of the rash and negligent driving of the Jeep. The Tribunal was not inclined to act upon Exhibit A6 since the prosecution was only pending. Counsel for the appellant submitted that the first respondent pleaded guilty before the Criminal Court and was convicted. He produced for our perusal the copy of the judgment of the Judicial First Class Magistrate, Vaikkom in C.C. MACA NO.34 OF 2005 -: 5 :- No.165 of 2000 arising from Crime No.135 of 1999 of Vellur Police Station (Exhibit A6). It is seen that the first respondent pleaded guilty, was convicted for the offences punishable under Sections 279 and 338 IPC and was sentenced accordingly. Therefore the first respondent cannot contend that he was not negligent. On a consideration of the entire evidence, we are inclined to think that the accident occurred due to the rashness and negligence of the appellant as well as the first respondent, the percentage of which is apportioned between them at 50:50. 9. Point No.2: As regards the quantum of compensation payable to the appellant, the Tribunal did not enter any finding. In the circumstances, we did not consider it proper to decide the quantum of compensation in this appeal. The appropriate course will be to remit the case to the Tribunal for consideration of the quantum of compensation. Resultantly this appeal succeeds. The award under challenge is set aside and the case is remitted to the Motor Accidents Claims Tribunal, Muvattupuzha to decide the quantum of compensation payable to the appellant in the light of the finding entered by us regarding the cause of the accident and the apportionment of the MACA NO.34 OF 2005 -: 6 :- negligence between the appellant and the first respondent. The parties shall appear before the Tribunal on 13.10.2008. The Tribunal is directed to dispose of the application as expeditiously as possible. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv