IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 MACA.No. 1669 of 2007() ----------------------- OPMV.178/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- M/S NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE NO.1, KOTTACKAL ARYAVAIDYASALA BUILDING, ERNAKULAM REPRESENTED BY ITS MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): PETITIONER AND RESPONDENTS 1,2,4,5,AND 6 ------------------------------------------------------- 1. SHAMSHAD T.A., S/O.ABDUL KAREEM, THOPPIL PARAMBIL, VEDIMARA, MANNAM. 2. HAJI.M.MEERAN SAHIB, JASMIN MANZIL, ANAPPARA P.O., PATHANAMTHITTA. 3. K.K.THANKAPPAN, S/O.GOVINDAN, KALLICHETHU HOUSE, PLAVELIMUDI, WARD NO.16, PATHANAMTHITTA DISTRICT. 4. P.S.BIJUMON, PUTHALATH HOUSE, PERUPADANNA P.O., N.PARAVUR. 5. K.K.ABDUL LATHEEF, S/O KADERSHA, KANJIRAPARAMBIL, N.PARAVUR. 6. THE UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS MANAGER, BRANCH OFFICE, PARAVOOR. ADV. SMT.RAJI T.BHASKAR FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010 ALONG WITH MACA NO. 2240 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1669 OF 2007 & 2240 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of a common judgment dated March 29, 2007 in O.P.(MV)No.73/2002 and 178/2002 on the file of Motor Accidents Claims Tribunal, North Paravur. The appellants in both these appeals are third respondent in the O.P., M/s. New India Insurance Company Ltd. In M.A.C.A.No.2240/2008, the appellant challenges the judgment and award of the Tribunal awarding a compensation of Rs. 3,33,500/- to the claimants ( respondents 1 to 8 in the appeal) for the loss caused to them on account of the death of deceased Shamsuddin in a motor accident. In M.A.C.A.No.1669/2007 the same Insurance Company challenges the judgment and award of the Tribunal awarding a compensation of Rs. 10,250/- to the claimant ( respondent No.1 in the appeal) for the loss caused to him on account of the injuries sustained by him in the said motor accident. 2. The accident happened on July 1, 2000 at about MACA.No.1669/2007 2 9.15 a.m. The car bearing Reg.No.KL 8/H-1935 in which the clainat in O.P. (MV)No.178/2002 and the deceased Samsuddin were travelling collided head on with the bus bearing Reg.No.KL 01/J 4444 driven by the second respondent. The deceased, who was a passenger in the car sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. The claimant in O.P.(MV) No.178/2002 was also a passenger in the car and he sustained the following injuries in the accident : Contusion upper chest, tenderness right, abrasion over left forearm, fracture distal end of radius. X-ray of right wrist revealed comminuted fracture distal end of radius. 3. Alleging negligence against the drivers of both the vehicles, the legal heirs of deceased Samsuddin filed O.P.(MV)No.73/2002 and the injured claimant Shamshad T.A. filed O.P.(MV)No.178/2002 claiming a compensation of Rs. 6,00,000/- and Rs. 60,000/- respectively. These O.Ps. were jointly tried along with other O.P.s filed by the other injured persons in the accident and a common award was passed. 4. Pws 1 and 2 were examined and Exts.A1 to A9 were MACA.No.1669/2007 3 marked on the side of the claimants before the Tribunal. Exts.B1 and B2 were marked on the side of the contesting respondents. The Tribunal on an appreciation of evidence found that there was 40$ negligence on the part of the driver of the bus and 60% negligence on the part of the driver of the car and awarded Rs. 3,33,500/- with interst @ 7% from the date of petition till realisation and proportionate cost in O.P.(MV)No.73/2002 and Rs. 10,250/- with interest @ 7% from the date of petition till realisation and proportionate cost in O.P.(MV) No.178/2002, The third respondent, the insurer of the bus involved in the accident filed both these appeals challenging the finding of the Tribunal that the bus driver was negligent to the extent of 40% and the car driver to the extent of 60% and apportioning the liability to that extent in between respondents 3 and 6, the respective Insurance Companies. 5. The following point arises for consideration : Whether the finding of the Tribunal that there was negligence to the extent of 60% on the driver of the car and 40% on the driver of the bus can be sustained ? 6. The Tribunal came to the above conclusion on the ground MACA.No.1669/2007 4 that the car was on the wrong side. The police has referred the case. Pws 1 and 2 have testified convincingly regarding the negligence on the part of the drivers of both the vehicles. No contra evidence was adduced by the appellant Insurance Company to prove otherwise. Therefore, we feel that the Tribunal is perfectly justified in holding that there was negligence to the extent of 60% on the part of the driver of the car and 40% on the side of the driver of the bus. We confirm the said finding of the Tribunal. No other point is argued before us. That being so, both the appeals have to be dismissed. In the result, both the appeals are dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. 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