IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MACA.No. 814 of 2004(B) ------------------------------------ OPMV.1400/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT:PETITIONER --------------------------- P.C. PAULOSE, S/O. CHACKO, THALIYAMBARAMBIL HOUSE, MAMALASSERRY P.O., MAMAMANGALAM (VIA.). BY ADV. SRI.PAUL K.VARGHESE RESPONDENTS: RESPONDENTS ----------------------- 1. NIMMY KANADIYIL, KANADIYIL HOUSE, ARAKUNNAM, PIRAVOM (VIA.) 2. SUNNY, S/O. PAILY, ONASSERIL VEETTIL PIRAVOMKARA, PIRAVOM. 3. ORIENTAL INSURANE CO.LTD., MUVATTUPUZHA. BY ADV. SRI.A.R.GEORGE - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------------------- M.A.C.A.No.814 OF 2004 --------------------------------------- Dated this the 9th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) No.1400/2000. The claimant was riding a bike bearing Registration No.KL-7/X 9182 from south to north and when it reached the place of accident, another bike driven by the second respondent in the Original Petition came in a rash and negligent manner and hit on the bike of the petitioner resulting in injuries to him. The second respondent took the petitioner to the hospital and a case was registered against the said respondent, and charge was filed and the case was numbered as ST.3946/00. The second respondent therein entered appearance, pleaded guilty and was sentenced to pay fine. 2. Before the Tribunal, the claimant did not enter the box. But, PW2 was examined. The Insurance Company summoned RW2 the driver of the other bike and he was examined. The Tribunal found that the claimant had not been examined. There M.A.C.A.No.814/04 2 was smell of alcohol on him and the evidence of PW2 is not believable and therefore, dismissed the claim petition. It is against that decision, the present appeal is preferred. 3. Heard learned counsel for both sides. It is a fact that the claimant was riding his bike from south to north and the other vehicle came from the opposite direction. The road was having a width of 4.20 meters and the accident had taken place 1.40 meters east of the western tarred end. Since the claimant was proceeding from south to north, his correct side was western side and that of the other vehicle was eastern side. If scene mahazar is taken as a clue for deciding the place of accident, then certainly the accident had taken place on the wrong side of the second respondent in the Original Petition. The Tribunal also did not believe the case of that respondent that the accident had taken place on the eastern side of the road. 4. It can also be seen from the award that there were tyre marks of both the vehicles at the place of accident. This is indicative of the fact that both of them had come at a considerable speed and had applied sudden brakes, which has resulted in the tyre mark, which is indicative of the factor that M.A.C.A.No.814/04 3 they had not come at a reasonable speed. One cannot find fault with anybody for driving at high speed but that driving must be cautiously. Here the place of occurrence as per the scene mahazar is on the western side of the road. It is also to be stated that under normal circumstance, the place of accident would never be the place where the vehicles are stationed after the accident is over. The reason being that both the riders would try their level best to avoid the accident. 5. The evidence of RW2 that the other man alone came negligently cannot be accepted in the light of the factum that the accident had taken place on his wrong side and that there are tyre marks on the road which indicates the negligence of him as well. The two vehicles have come in opposite direction and there has been almost a head on collision. It is now well settled that in such a case unless the contrary is proved to the satisfaction, the accident takes place on account of the negligence of both the parties. Therefore, the finding of the Tribunal that the claimant alone is responsible for the accident is liable to be vacated. I find that the accident had taken place on account of the negligence of both the riders and therefore, apportioned the negligence at 50% each. M.A.C.A.No.814/04 4 6. The next question is regarding quantum. Unfortunately, materials are lacking and the Tribunal has not considered it and fixed it. It is seen from the wound certificate produced that there had been a crush injury and it is also submitted that there had been amputation of the second toe. These are all matters which requires genuine consideration by the Tribunal after hearing all concerned. Therefore, in order to fix the quantum, the matter has to be remitted back to the Tribunal and I do so. In the result, the appeal is partly allowed and I hold that the accident had taken place on account of the negligence of both the riders equally. The matter is remitted back to the Tribunal for fresh consideration on the question of quantum which the claimant is entitled to and it goes without saying that 50% of the compensation found has to be deducted for his contributory negligence. For the purpose of fixing the quantum, parties are permitted to adduce both documentary and oral evidence in support of their respective contentions. The Tribunal shall dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 23.07.2008. M.N. KRISHNAN, JUDGE. smp