IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 MACA.No. 1177 of 2004() ----------------------- OPMV.988/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ------------------------------------- K.ANEESHKUMAR, S/O.RAGHAVAN, RAJITHA NIVAS, P.O. THIRUVANGAD, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: RESPONDENTS: --------------------------------------------------- 1. K.SREEDHARAN, S/O.KUNHIRAMAN, KOTTAYMPOYIL (P.O.), KANNUR DISTRICT. 2. K.K.JAYASHEELAN, VIKAS BHAVAN, P.O. PANNIYANNOOR, CHOKLI. 3. NEW INDIA INSURANCE COMPANY LTD; M.G. ROAD, THALASSERY. BY ADV. SRI.A.C.DEVY - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1177 OF 2004 --------------------- Dated this the 13th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Addl. Motor Accident Claims Tribunal, Thalassery, in OP(MV) 988/98. The appellant is the rider of the bike which met with an accident on account of the collision with the car resulting in injuries to him. He was aged 26 years and was conducting hotel business. The Tribunal found that as he did not have a valid driving licence it must be presumed that he does not know the traffic rules and therefore dismissed the claim petition. It is against that decision, the present appeal is preferred. 2. Heard counsel for both sides. It is an admitted case that the bike was proceeding along the main road and the car was coming from another road to join the main road. When it is so, the normal principle is that the vehicle which joins the main road shall halt and proceed because there is always clearance for a vehicle which moves along the main road unless there is a traffic signal. The fact that the motor bike had hit on the door of the car also indicates that the car was attempting to enter the main road and the bike which came from the main road hit on the right door of the car. So, one cannot hold that the motor cyclist was totally negligent. Definite care had to be taken by the car driver also while he was joining the main MACA No.1177/04 2 road. He should have taken care to see whether there is clearance on the road to join the main road. Therefore, the finding of the Tribunal that the accident took place on account of the negligence of the motor cyclist alone cannot be accepted in toto. 3. It is true that the appellant did not produce his driving licence. But one shall not jump to a conclusion that the absence of the driving licence is a cause for the accident when things speaks for itself regarding the incident. The motor cyclist also should have been careful and if he had come at a reasonable speed, he could have seen the vehicle and would have been able to averted the accident. Therefore he is also equally negligent and therefore I apportion the negligence at 50% each on both the drivers. 4. It is true that the Tribunal has not estimated the compensation. A remand for such a purpose will again consume the time of the court as well as the time of the parties. Already 10 years are over after the accident had taken place. So with the assistance of the learned counsel for both sides, I fix the compensation. The appellant is a hotel businessman by profession aged 26 years and he had sustained a fracture of the radius and his hand was under plaster for sometime. It is certain that it would have disabled him from doing any work for two months. Therefore I award Rs.4,000/- under that head. He was inpatient for a period of 7 days and he has not produced any medical bills. Certainly there would have been somebody MACA No.1177/04 3 with him and would have purchased some medicines. So I fix the compensation under that head at Rs.1,500/-. So far as pain and suffering is concerned, he would have suffered excruciating pain for which I award a sum of Rs.7,000/-. I also feel that on account of the accident certainly he would have lost his amenities and enjoyment in life for sometime. Being a hotel businessman there would not have been any direct loss of earning. Therefore I award Rs.4,000/-under that head. Thus the appellant will be entitled to a compensation of Rs. 8,250/- i.e. 50 % of 16500. In the result, the MACA is partly allowed and the claimant is awarded a compensation of Rs.8,250/- with 7% interest on the said sum from the date of petition till realisation. The Insurance company is directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MACA No.1177/04 4