IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 MACA.No. 1424 of 2007() ----------------------- OPMV.1334/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ------------------------- JOSE POULOSE,S/O.POULOSE, RESIDING AT PALLUPATTA HOUSE, RAMALLOOR, KOTHAMANGALAM. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS/RESPONDENTS: ---------------------------------- 1. JOSEPH MATHEW, PROF. OF GEOLOGY, M.A. COLLEGE OF ENGINEERING, KOTHAMANGALAM. 2. K.V.EYOBE, S/O. VARKEY, KALAKUDIYIL HOUSE, INCHOOR, KOZHIPPILLY, KOTHAMANGALAM. 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD.,MUVATTUPUZHA. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 1424 OF 2007 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF NOVEMBER, 2009. J U D G M E N T Ramachandra Menon, J. Fixation of quantum and negligence in respect of a motor accident occurred on 23.7.2003 is the subject matter of this appeal. 2. The appellant, who was the claimant, was riding a motor cycle on 23.7.2003 through Ramalloor road at about 8.45 A.M. and while so, a car bearing No. KLO/7008, owned by the first respondent, driven by the second respondent and insured by the third respondent, came from the opposite direction and collided with the motor cycle causing serious injuries to the rider of the motor cycle, leading to the claim. 3. The claim was resisted mainly from the part of the insurer. The evidence consists of the oral testimony of PW.1- the claimant and the documentary evidence produced and marked as Exts.A1 to A13. No evidence was adduced, either oral or documentary on the part of the respondent - insurer. 4. On conclusion of the trial, the Tribunal observed that the motor M.A.C.A. 1424/2007 2 cycle was being driven by the claimant without possessing a valid driving licence and the police had proceeded against him in respect of the offence under Section 130 (1) read with Section 177 and under Section 158(1)(a) of the Motor Vehicles Act . With reference to the contents of the scene mahazar, it was observed by the Tribunal that the road was lying north to south with a width of 9.60 metres and the scene of occurrence was 1.30 metres east of the western tar end. Since the car was proceeding from north to south and the motor cycle was ridden from south to north, it was observed by the Tribunal that the rider of the motor cycle was maintaining his proper side whereas the car had gone to the extreme wrong side of the road to hit against the motor cycle. In such circumstances, negligence was apportioned in the ratio of 50:50. 5. After discussing the other vital particulars which are germane for fixation of quantum, taking note of the serious nature of the injuries as revealed from Ext.A7 wound certificate, as discussed in Paragraph 15 of the Award and also Ext.A8 discharge summary, the Tribunal awarded amounts under different heads, fixing the total compensation as Rs. 1,54,008/- which was directed to be paid with interest at 8.5%, of course based on the ratio of negligence. The claimant has approached this Court by filing this appeal, challenging the fixation of negligence as above and M.A.C.A. 1424/2007 3 also seeking for enhancement of the compensation awarded. 6. Learned counsel appearing on behalf of the appellant submits that despite the observation made by the Tribunal with reference to Ext.A5 scene mahazar that the car had gone to the wrong side of the road and hit against motor cycle which was proceeding along the proper side, negligence has been wrongly fixed on the rider of the motor cycle as well, and there is absolutely no justification in apportioning the liability as 50:50. The learned counsel for the Insurance Company submits that the finding of the Tribunal on negligence and the fixation of the quantum are very much correct and sustainable, particularly, in view of the fact that the claimant was a violator of law, who does not deserve any sympathy at all. 7. Taking note of the entire facts and figures, we find that the fixation of quantum effected by the Tribunal, awarding various amounts under permissible heads are very much correct and proper and the total amount awarded as Rs. 1,54,008/- does not call for any interference at all. Moreover, the Tribunal has awarded 8.5% interest as against the normal rate of interest at 7% per annum. 8. Coming to the fixation of negligence, it is true that the claimant was riding the motor cycle without possessing any valid driving licence. But that does never mean that the driver of the car was having a passport to M.A.C.A. 1424/2007 4 drive along the wrong side of the road and to hit against the rider of the motor cycle which was being ridden along the proper side. In any view of the matter, no evidence was adduced by the respondents to show that the claimant was riding the motor cycle in a rash and negligent manner for apportioning the liability in an equal manner. Weighing the evidence as a whole, we re-fix the negligence in the ratio of 75:25, ie. 75% will stand mulcted on the driver of the car and 25% on the claimant/rider of the motor cycle. 9. In the above circumstances, the appellant/claimant will be entitled to get a further sum of Rs. 38,500/- which shall be satisfied by the Insurance Company with interest at the rate of 7% per annum, as . expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The appeal is thus allowed in part. No cost. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, knc/- (JUDGE)