IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 MACA.No. 1782 of 2005() ----------------------- OPMV.1232/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS 1 &2 IN THE O.P ------------------------------------------------------------------ 1. V.MOHANDAS, S/O.V.R.CHITHAMBARAM, VALLAKUDATH HOUSE, ERUMALIKARA, KUMARAPURAM P.O. 2. V.R.CHITHAMBARAM, VALLAKUDATH HOUSE, EURUMELIKARA, KUMARAPURAM P.O. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.ISAC SANJAY RESPONDENTS/PETITIONER IN O.P & RESPONDENTS 3 & 4 IN THE O.P: ----------------------------------------------------------------------------------------------------- 1. P.K.SIVAN, S/O.KAVALAN, PARUTHAYIL HOUSE, VILANGUE KARA & P.O.PATTIMATTOM VILLAGE. 2. UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, COCHIN-382 011. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, NO.4, JOSE TRUST BUILDING, CHITTOOR ROAD, COCHIN. BY ADV. SRI.S.MAMMU FOR R2,R3. SRI.P.SANJAY FOR R1 SRI.A.PARVATHI MENON FOR R1 SRI.C.K.AJAYAKUMAR FOR R1 SRI.JINU JOSEPH FOR R1 SRI.M.MUHAMMED SHAFI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.No. 1782 of 2005 APPENDIX ORDER ON I.A. NO.3215 OF 2005 IN MACA NO.1782 OF 2005 DISMISSED. 19.6.2008 (SD/- M.N.KRISHNAN, JUDGE) /TRUE COPY/ P.A. TO JUDGE M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1782 OF 2005 --------------------- Dated this the 19th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Perumbavoor, in OP(MV) 1232/00. The scooter driven by the appellant and a motorcycle collided as a result of which injuries were sustained by the claimant. He had sustained displaced fracture of the tibia and the Tribunal awarded him a compensation of Rs.24,300/- and further found that the motorcyclist was totally negligent for the accident. 2. At the outset, I make like to point out that the parties before the Motor Accident Claims Tribunal, even when they disputed negligence, they are not prepared to adduce any evidence or to explain the documents they are producing and therefore even on the question of negligence guess work has become a necessity. It is not a practice which cannot be appreciated. The Tribunal found the negligence on the motorcyclist totally on the basis of scene mahazar which says that the road is having a width of 6 meters at the place of the accident and the accident had taken place 4.44 meters north from the southern tar end. The scooter was proceeding from east to west and motorcycle from the opposite direction. The correct side of scooter was the southern side and that of motorcycle the northern MACA No.1782/05 2 side. The accident had taken place on southern side and therefore the Tribunal found this scooterist being on wrong side is liable for negligence that has resulted in the accident. If it is true then one cannot find fault with it. The Tribunal did not look into the Motor Vehicle Inspector’s report, which would reveal that more damage is caused to the motorcycle rather than the scooter. It is well known that the motorcycle is having a better weight and height than a scooter and under ordinary circumstances when a scooter hits a motorcycle, there will be substantial damages to the scooter. Therefore, the damage caused would show something about what has transpired. The damage caused to the scooter is comparatively minimal when compared to the damages caused to the motorcycle. Therefore one has to weigh the evidence available to decide the question of negligence. So far as scene mahazar is concerned, it may not always be correct to hold that the place pointed out is where the accident had taken place. When two vehicles are proceeding and an accident is about to take place, it is the normal human tendency to avert the accident by swerving the vehicle to one side from the other side. That does not itself will indicate that one has come through the wrong side. When there is a head on collision the Apex court has taken a view that in such cases negligence has to be apportioned. Unfortunately, in this case, the scene mahazar is not controverted so also the Motor Vehicle Inspector's report. So the preponderance of probability when taken into consideration, it has to be MACA No.1782/05 3 held that the scooter has come through the wrong side. The nature of damages would indicate that it cannot be stated precisely who has hit whom. Therefore, it is only safe to apportion the negligence. Considering the factum that scooter was totally on the wrong side, I feel that major contribution can be given to the scooterist. Therefore, I apportion 70% on the scooterist and 30% on the motorcyclist. 3. So far as quantum of compensation is concerned, the claimant had sustained fracture of the tibia and he was treated as an inpatient. The Tribunal has awarded a sum of Rs.24,300/-. Out of this, the medical expenses comes to about Rs.3,200/-. The actual loss of earning is granted only for three months. The Tribunal granted an amount of Rs.10,000/- for pain and suffering and Rs.4,000/- for loss of amenities and enjoyment in life. Considering the nature of the fracture, the period of hospitalisation, I feel the compensation awarded is only just and reasonable which does not call for any interference. In the result, the MACA is partly allowed and the claimant is entitled to receive 70% of the amount awarded from the appellants in this case. Since there is no impleadment of the rider of the motorcycle, no compensation can be awarded against him. M.N.KRISHNAN, JUDGE vps MACA No.1782/05 4 MACA No.1782/05 5 MACA No.1782/05 6