IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 MACA.No. 1208 of 2005() ----------------------- OPMV.213/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER IN OP(MV)NO.213/01 ----------------------------------------------------- SHIBU, S/O.KUTTAPPAN, PUNACKAL HOUSE, RAJAMUDY KARA, UPPUTHODU VILLAGE. BY ADV. SRI.M.V.SABU RESPONDENT(S): RESPONDENTS IN OP(MV)NO.213/01 --------------------------------------------- 1. SUNIL CHACKO, S/O.CHACKO, THEKKUMKATTIL HOUE, MANKULAM P.O. 2. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, P.B.NO.50, ELANJICKAL MATHEW, MEMORIAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2008 ALONG WITH MACA 1435/2005 THE COURT ON THE SAME DAY DELIVERED FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. Nos. 1208 & 1435 OF 2005 -------------------------------------------- Dated this the 11th day of December, 2008 JUDGMENT Ramachandran Nair,J. Appellant in M.A.C.A.No. 1208 of 2005 has filed appeal against the order of the MACT rejecting his claim for compensation for the injuries sustained by him in an accident. Even though the appellant alleged negligence on the first respondent, whose jeep hit the motorbike driven by the appellant, MACT found that appellant without a driving licence negligently drove the bike which led to the accident. We have heard counsel appearing for the appellant and standing counsel appearing for the insurance company. 2. While the case of the appellant is that accident was on account of negligence of first respondent whose jeep hit the appellant's bike, counsel for the insurance company contended that the accident was on account of negligence of the appellant. We are unable to accept this contention because appellant's case was against the first respondent 2 who was driver-cum-owner of the jeep involved in the accident. However, MACT rejected the appellant's case as such and held that the accident was on account of negligence of the appellant only because of the damage to the vehicles. We do not think damage to the vehicles by itself is the evidence of the position of the vehicles on the road at the time of the accident which is very crucial for deciding as to who was negligent. The accident admittedly occurred in the Munnar-Adimali road which is a winding road and had a width of around 6 metres at the place of accident. The vehicles were removed after the accident from the road to avoid traffic block. Therefore scene mahazar as such is not reliable for holding that the rider of the bike alone was negligent. No evidence is adduced on both sides to prove negligence on the part of either side. Appellant relied on police case against first respondent and MACT came to the conclusion exactly opposite to the case of police just based on scene mahazar and damage to vehicles. We are unable to uphold the inference drawn by MACT from the damage to the vehicles that accident was on account of negligence of appellant alone. However, if appellant was driving on the southern side of the road, which was his correct side, then at least collision would have been on 3 the right side of the bumper of the jeep and not in the middle. Therefore there is certainly contributory negligence on the part of the appellant in driving the motorbike without even a driving licence. We therefore hold that both the appellant and first respondent are equally negligent which led to the accident. However, after 10 years of the accident, we do not want to send back the matter to the MACT for adjudication of compensation payable. Appellant has not suffered any permanent disability though he was in the hospital for two months. In the connected case, MACT awarded compensation of Rs. 18,750/- to the pillion rider whose injury was not so serious as the one suffered by the appellant. We therefore grant a total compensation of Rs. 30,000/- to the appellant and after reducing Rs. 15,000/- towards contributory negligence, appellant will be entitled to Rs. 15,000/- with interest at 7.5 per cent per annum from the date of application till date of deposit by the insurance company. 3. MACT No.1435 of 2005 is filed by registered owner of the bike against whom recovery is permitted by the MACT after payment of compensation by the insurance company to the pillion rider who sustained injuries. In the connected case, MACT 1208 of 2005 4 disposed of above, we held that accident was on account of equal negligence of both the rider of the bike and the driver of the jeep. In view of the finding above, 50% of the compensation would be payable by the insurer of the jeep and balance 50% after payment can be recovered from the registered owner of the bike by the insurer of the said bike. However, since insurer is the same company, appeal is allowed in part by authorising recovery of 50% of the compensation by the company from the appellant who is the registered owner of the bike who allowed the bike to be driven by a person without a driving licence. Appeals are allowed as above. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 5