IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 MACA.NO. 1489 OF 2006() -------------------------------------- OPMV.1343/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/CLAIMANT: ------------------------------------------------------- GIMENS, S/O. ELDHOSE, NOW AGED 20 YEARS, PLAMKUDY HOUSE, ALINCHUVADU BHAGOM, PINDIMANA VILLAGE, PINDIMANA KARA. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S) - RESPONDENTS: ---------------------------------------------- 1. BABY, S/O. POULOSE, KUTHAMATTATHIL HOUSE, KOZHIPPILLY KARA, VARAPPETTY VILLAGE. 2. P.I. YACOB, S/O. ISSAC, PAREKKARA HOUSE, PAREKKARA MOTOR SERVICE, KOTHAMANGALAM. 3. UNITED INDIA INSURANCE CO.LTD., ALUVA BRANCH. ADV. SRI.C.V.BIMAL ROY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.1489 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of November, 2008 J U D G M E N T ---------------------- Koshy, J. Appellant-claimant while traveling as pillion rider on motor cycle bearing Reg. No.KL-7/Q-3257 sustained injuries on 7.6.2002 when the bus bearing Reg. No.KL-7/AE-8482 driven by the first respondent hit the motor cycle. Tribunal rejected the claim as negligence of the first respondent who was driving the bus was not proved. Third respondent alone contested the case. Both sides relied on documentary evidence. No oral evidence was produced. Exhibit A1 is the FIR which alleges negligence only on the driver of the bus. Exhibit A2 shows that the driver of the bus was charge-sheeted. Exhibits A3 and A4 are the Motor Vehicle Inspector's report. Tribunal was of the opinion that as per the charge-sheet, accident spot is a little on the wrong side of the motor cyclist and therefore bus driver cannot be held to be negligent. As per the charge-sheet, collision had occurred at a distance of 25 cms south of the northern end of the tar road. Bus was proceeding from west to east while the motor cycle was proceeding slightly on the wrong side. It is contended by the learned counsel for the appellant that immediately on the bus hitting the motor cycle it was pushed M.A.C.A. No.1489 of 2006 -: 2 :- back and the position of the motor cycle after accident mentioned in the charge-sheet is not correct and on the basis of the accident spot stated in the mahazar, it cannot be held that motor cyclist was solely responsible for the accident. It was a head on collision. In fact after enquiry police charge-sheeted the bus driver. The Supreme Court in Bijoy Kumar Dugar v. Bidyadar Dutta and Others (AIR 2006 SC 1255) held that in a case of head on collision in the absence of clear evidence, negligence of both drivers can be presumed. Learned counsel contended that the driver of the motor cycle pleaded guilty before the Magistrate and produced a copy of the criminal court judgment. Considering all these facts, we are of the opinion that the motor cyclist and the bus driver were negligent and apportion the negligence on both the drivers in equal proportion, i.e. 50:50. The rider of the motor cycle is not a party to the claim. First respondent driver of the bus has to pay the 50% of the compensation awarded. Second respondent owner is vicariously liable and he is also jointly and severally liable to pay compensation. Third respondent being the insurer of the bus has to pay the amount. We find that the Tribunal has not assessed the quantum of compensation. We are of the opinion that for that purpose, the matter has to be sent back. We have found M.A.C.A. No.1489 of 2006 -: 3 :- that there is 50:50 negligence. Hence the respondents are liable to pay only 50% of the compensation to be assessed by the Tribunal. Appeal is allowed in part. The award under challenge dismissing the application is set aside. Case is remanded to the Motor Accidents Claims Tribunal, Muvattupuzha for assessment of compensation and passing award. Parties are directed to appear in the Tribunal on 2.2.2009. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv