IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 MACA.No. 1968 of 2007() ----------------------- (AGAINST THE ORDER DATED 24/01/2007 IN OPMV.3052/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR) .................... APPELLANT/3RD RESPONDENT ----------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT: PETITIONER ----------------------- XAVIOUR P.GEORGE, S/O. GEORGE, PALATTY HOUSE, ELTHURUTHU DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SMT.SHOBA ANNAMMA EAPEN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 1968/07 ORDER ON IA No. 2496/07 IN MACA No.1968/07 DISMISSED 29.8.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1968 OF 2007 --------------------- Dated this the 29th day of August, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Thrissur, in OP(MV) 3052/02. Two cases were jointly tried. The rider of the vehicle KL8/Q/1720 was awarded a compensation of Rs.68,550/- and the other petitioner was awarded a sum of Rs.3,750/-. The Tribunal found negligence on the part of the rider of KL- 7/Q/6191. Aggrieved by that decision, the Insurance Company has come up in appeal challenging the question of negligence. 2. I am informed that permission was granted under section 170 of the Motor Vehicles Act to contest the case. It is true that no appeal is preferred against the award in OP(MV) 3051/2002, for the reason that the amount awarded is less than Rs.10,000/- the insurance company is precluded from filing an appeal under section 173 of Motor Vehicles Act. Therefore, the non filing of an appeal against that award will not militate against the contention of Insurance Company. 3. Now the question to be considered is regarding the negligence. The Kinetic Honda driven by the claimant in OP(MV) 3052/02 collided with the motor cycle driven by the 2nd respondent in the claim petition bearing Reg. No. KL-7/Q/6191. The Tribunal on the basis of MACA No. 1968/07 2 Ext.A5 charge sheet held that the negligence is on the 2nd respondent in the claim petition and awarded compensation. The Tribunal relied upon the fact that a charge is preferred against the 2nd respondent in the claim petition, who is the rider of the motor cycle. 4. Learned counsel for the Insurance Company had made available before me a copy of the charge sheet which would show that there is A charge and B charge and that the claimant in OP(MV) 3052/02 was an absconding accused. But the said absconding accused had prosecuted the claim petition and had received the compensation. Less said about the better. In the scene mahazar it is clear that the motor cycle was coming from east to west and the Kinetic Honda from west to east. The road at the place of accident was having a width of 4.25 metres and the accident had taken place at about 2.35 metres north of the southern tar end, which means it is almost on the middle of the road. When an accident took place on the middle of the road, that too on a head on collision, one cannot attribute negligence on one driver alone. The police after investigation has filed charge against both drivers and the Tribunal has mistook it as a charge only against the rider of the motor cycle. Therefore, the Tribunal has committed error. As far as claimant in the case is concerned, even he is evading the process of law when the charge is filed against him and therefore his evidence should not be waived with such a liberal view. So the scene mahazar coupled with charge sheet would MACA No. 1968/07 3 indicate that the accident took place almost on the middle of the road and that it was a head on collision. Therefore, it was a case where the Tribunal should have apportioned the negligence at 50% each on the rider of the motor cycle and Kinetic Honda. To this extent the apportionment of negligence is modified. The quantum of compensation awarded appears to be reasonable. But for the contributory negligence 50% has to be reduced. Therefore, the award passed by the Tribunal is modified and the claimant is awarded a compensation of Rs. 34,275/- 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. 1968/07 4