IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 MACA.No. 1464 of 2004() ----------------------- OP MV.750/1999 of ADDL.D.C. & MACT,THODUPUZHA .................... APPELLANT : CLAIMANT: --------------------------------------- SAJAN K.JACOB, S/O.CHACKO, SAHAYAGIRI, KOVILKADAVU, KANTHALLOOR, IDUKKI DISTRICT. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENTS: RESPONDENTS: ----------------------------------------------------- 1. SAJI, S/O.KESAVAN, CHALIKKARA HOUSE, PADAMUKHAM P.O., VATHIKKUDY, IDUKKI DISTRICT. 2. K.I.VARGHESE, S/O.ISSAC, KUTTIPPUZHAYIL HOUSE, ADIMALI P.O. 3. ORIENTAL INSURANCE COMPANY LTD. ALUVA. BY ADV. SRI.M.P.ABRAHAM (SR.) - R2 SRI.M.JACOB MURICKAN - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MACA No.1464 OF 2004 ===================== Dated this the 4th day of July 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)No.750 of 1999. The claimant was a pillion rider in a brand new bike which met with an accident. The collision was in between the bike and the jeep. The Tribunal found that there was contributory negligence on the part of the rider of the motor cycle to the tune of 75% and granted a compensation of 75% of Rs.6,000/- to the claimant. It is against that decision, the claimant has come up in appeal. 2. Learned counsel for the appellant very seriously opposes the finding on negligence that after having found that the jeep was coming at an over speed, the Tribunal should not have entered into a finding that the negligence was more on the rider of the bike. A perusal of the award itself would show that the road was having a width of 6.08 meters and there was a a bent at the side of the place of accident. The Tribunal found that the accident had taken place almost on the middle of the road, but proceeded to further hold that the other vehicle was a jeep and therefore the rider of the MACA 1464/2004 -:2:- bike should not have gone to the middle portion of the road. The court also held that the driver of the jeep was coming at an over speed. When the accident had taken place on the middle of the road, one cannot attribute guilt only on one person and it must be applicable to both. Similarly, the driver of a heavy vehicle is expected to take more care in a curve. The motor cyclist also should have slowed down the vehicle or kept his side rather than going to the middle of the road anticipating the arrival of a vehicle from the opposite side. Therefore it is a case where the accident had taken place on account of the negligence of both the drivers. I feel since the vehicle involved in the accident is a bike and jeep and as the bike could have gone little towards its side from the middle of the road, the negligence can be only apportioned at 50% each, though the other vehicle was a heavy vehicle. It is also to be remembered that in hilly terrains there is always an apprehension on the part of the drivers not to go to the side apprehending that there may be land-slide or something like that. As held by the Supreme Court unless there are other materials, it is desirable to attribute 50% negligence to each. Thus I find so and modify the finding on negligence. 3. So far as the quantum of compensation is concerned, the claimant had sustained contusion and abrasion over the right chin, abrasion over the right elbow and contusion on the right shoulder and I am told that there is a MACA 1464/2004 -:3:- stitched wound and the claimant was hospitalized for a period of 7 days. Though the Tribunal has discarded some of the medical bills, it has come to the conclusion that the amount actually spent by him for the treatment for the injuries sustained in the accident is Rs.2,271/-. He was a businessman by profession. Taking into consideration the nature of treatment he had undergone, it is certified that there was something which requires inpatient treatment. I enhance the overall compensation by Rs.8,000/-, i.e enhancement by Rs.2,000/-. Since the contributory negligence is 50% he is entitled to Rs.4,000/-. In the result, the MACA is partly allowed and the claimant is awarded compensation of Rs.4,000/- with 7% interest on the said sum from the date of petition till realisation and the 3rd respondent insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. If any amount is already paid that shall be deducted. M.N.KRISHNAN, JUDGE Cdp/- MACA 1464/2004 -:4:-