IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 MACA.No. 1592 of 2008(D) --------------------------------- OPMV.1214/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER : ------------------------------- RAMACHANDRAN, S/O.SUBRAMANYAN, RESIDING AT MANGALATH MADOM, MANNAMKANDAM, DEVIKULAM, IDUKKI. BY ADV. SRI.A.A.MOHAMMED NAZIR RESPONDENTS/RESPONDENTS : --------------------------------------- * 1. EASOW VARGHESE, MOTHEDATHU GRACE VILLA KURAVANKUZHY P.O., TIRUVALLA 689 645. 2. RAJAN, S/O.KOSHY THARAKAN, POLLACHIRAYIL HOUSE, PAYPATTU P.O., ALAPPUZHA. 3. M/S.NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, THIRUVALLA. ADV. SRI.S.SHANAVAS KHAN - R2 SRI.E.M.JOSEPH - R3 * R1 IS DELETED AS PER ORDER DATED 29.10.2008 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, ALONG WITH MACA NO.1593 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : M.N. KRISHNAN, J ----------------------- M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008 --------------------------------- Dated this the 29th day of October, 2008 JUDGMENT These appeals are preferred against the award of the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(MV) Nos. 1214/2004 and 1207/2004. The brief facts necessary for disposal of these appeals are stated as follows: 2. The claimant in O.P. 1207/04 was a rider of a two wheeler with the petitioner in O.P. 1214/04 as the pillion rider. A lorry bearing Registration No. KL-3D/5814 driven by the 2nd respondent in the claim application was going ahead of this motorbike. It is the case of the petitioners that the driver of the lorry applied sudden brake as a result of which the bike went and hit on the back of the lorry resulting injuries to both the occupants of the motorbike. The Insurance Company would contend that the accident took place only on account of the negligence of the motorcyclist and therefore the claim petitions are liable to be dismissed. 3. The Tribunal after consideration of the materials agreed with the contention of the Insurance Company and dismissed the M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008 -2- claim applications. It is against that decision, the appeals are preferred. The question that arise for determination in these appeals is whether the motorcyclist alone is negligent or the lorry driver alone is negligent or whether both are negligent. It is true that there is a statutory obligation for driver or rider of a vehicle to keep a distance of 10 metres from the vehicle going in front of it. When such a condition is always satisfied then there will be no chance for a hit from behind in all cases. It does not mean that one may be always able to keep a distance of 10 metres in a road for the reason that the vehicle traffic in the present condition is so thick and there can not be a distance of even one or two metres between the vehicles. This is a practical difficulty which is experienced in the present set up. It does not mean that one can go so close and later blaming ongoing vehicles for the accident. In these cases it has to be specifically understood that the strong contention of the rider of the motorbike is that the lorry which was going in front of him applied sudden brake which resulted in the dashing of the motorcycle on the back of the lorry. There may be circumstances where the on moving vehicle may have to apply sudden brake. But it is for that party to come before the court and give evidence what M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008 -3- prompted or forced him to apply a sudden brake. Instead of rendering an explanation, what the driver of the lorry has done is, on receipt of the summons from the criminal court, appears before the court and pleads guilty and pays the fine. So by his conduct after understanding the allegations in the criminal case he had pleaded guilty which shows that he had applied sudden brake. When he had applied sudden brake and if the motorcycle was coming at a reasonable speed even then he might not have been in a position to stop the vehicle because it was so unexpected and in some cases if sudden brake is applied the rider as well as the pillion rider will be thrown out resulting in serious injuries. It has also to be born in mind that no person will like to go and hit on the back of a vehicle and sustain injury for himself. Therefore here is a case where the lorry driver was primarily responsible for applying a sudden brake without proper care and a motorcyclist on account of the lack of non compliance of the statutory regulations had gone and hit on the back of the lorry. So both the drivers had contributed equally to the accident. The Tribunal has extracted the deposition of PW1 wherein PW1 admits that he knows that a reasonable distance has to be kept from the on moving vehicle and M.A.C.A.Nos. 1592 OF 2008 & 1593 OF 2008 -4- when a question was put him regarding application of sudden brake he had given the explanation that if sudden brake was applied, both of them would have fallen from the bike. 4. Therefore from the circumstances available in this case I hold this is a case where the rider of the bike as well as the lorry has equally contributed to the accident and therefore I apportion the negligence at 50% each on both the rider of the bike and the lorry driver. The next question is regarding compensation. In view of this finding the Tribunal may have to consider the quantum of compensation. For that purpose both the parties are permitted to produce documentary as well as oral evidence and the matter be disposed of in accordance with law. Both the parties are directed to appear before the Tribunal on 15.12.2008. M.N. KRISHNAN, JUDGE vkm