IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 MACA.No. 1426 of 2006(F) ------------------------------------- [O.P(MV).NO.554/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR] .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., EDAPPILLY, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). RESPONDENT/CLAIMANT/RESPONDENT/4TH RESPONDENT: ---------------------------------------------------------------------------------------- 1. RAJESH, S/O.KUMARAN, CHERPUKALARIKKAL HOUSE, P.O.VELLANCHIRA, VIA-KALLETTUMKARA, THRISSUR DISTRICT. 2. RAJAN, S/O.APPUKKUTTY, MUKKATH HOUSE, S.N.PARK, POOTHOLE P.O., THRISSUR DISTRICT. R1 BY ADV. SRI.P.V.CHANDRA MOHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 1426/2006-F: ORDER ON I.A. NO. 1624/2006 IN M.A.C.A. NO. 1426/2006-F. DISMISSED 21/12/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1426 OF 2006 = = = = = = = = = = = = = = = Dated this the 21st day of December, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV) 554/00. The claimant, a rider of a motorbike KL- 8C/157, sustained injuries in a road accident when it collided with a tempo van bearing Reg.No.KL-7N/2604. The Tribunal found the driver of the tempo van negligent for the accident and granted an amount of Rs.16,045/- including Rs.2,745/- as the cost of repairmen of motorcycle. It is against that decision the insurance company has come up in appeal. 2. Heard the learned counsel for the insurance company as well as the respondents. On the unfortunate day while the claimant as the rider of the bike with one Ramachandran as pillion rider was M.A.C.A. 1426 OF 2006 -:2:- proceeding from south to north and when it reached the place of accident a tempo van came from the opposite direction and as a result of the collision the claimant as well as the pillion rider sustained injuries in the accident. The first information statement was given by the cleaner of the tempo van whereby he had attributed negligence both on the tempo driver as well as on the motorcyclist. The police after due investigation also has filed charge sheet against both the rider and the driver. A scene mahazar was prepared and as per the scene mahazar the place of accident is almost on the middle of the road. The scene mahazar had been filed by the claimants to establish their case. The road was having a width of 7 mtrs. at the place of the accident. The Hon'ble Supreme Court in so many decisions had held that when a head on collision takes place on the middle M.A.C.A. 1426 OF 2006 -:3:- of the road it is on account of the composite negligence of the drivers that the accident takes place. 3. Now the learned counsel for the respondents would submit before me that a reading of the scene mahazar would reveal that blood was found on the north eastern corner of the road and therefore scene mahazar could not be relied upon by the Court. He had also pointed out to me that the criminal case against the claimant had ended in acquittal and he had made available a copy of the same for perusal. It would show that the pillion rider had deposed against his 161 Statement and that had ended in favour of the claimant. Now it is the very same person who had been trusted and believed by the Court below. The Court finds fault for the non examination of the driver of the tempo van but it is absolutely silent about the non examination of M.A.C.A. 1426 OF 2006 -:4:- the rider, the present appellant who is the claimant before the Court. Therefore parties cannot be permitted to blow hot and cold at the same time and therefore being a case of civil nature the preponderance of probabilities may have to be considered in arriving at a decision. It has also to be stated that under law when a heavy vehicle meets with an accident with a light vehicle responsibility is more on the driver of the heavy vehicle rather than on the light vehicle. That is also a fact which the Court has to take note of. So from the materials emanating in this case the accident had taken place somewhere in the middle of the road and therefore both of them have to be held responsible for the accident. But as the driver of a heavy vehicle the percentage is to be attributed more on the tempo van. So taking into consideration all these factors I fix the M.A.C.A. 1426 OF 2006 -:5:- negligence on the tempo van driver at 75% and that of the motorcyclist namely claimant at 25%. 4. Now the learned counsel for the insurance company would contend before me that the owner of the vehicle is impleaded in the petition as 4th respondent in O.P.(M.V)496/00 and also as the 4th respondent in the present claim application filed by him. Learned counsel for the claimant would submit before me that he had purchased the vehicle from the owner and that is why he had claimed damages to the vehicle. It is true that under the provisions of the Sale of Goods Act selling a vehicle for consideration and parting with possession will amount to divestiture of title of the vehicle but there must be some materials to prove the same and the mere averment in the petition is not sufficient to confer ownership of the vehicle on the claimant. Therefore the M.A.C.A. 1426 OF 2006 -:6:- amount awarded as Rs.2,745/- towards damages to the vehicle has to be deleted. When it is deleted the amount will come to Rs.13,300/- and the claimant will be entitled to 75% of the same and it will come to Rs.9,975/- In the result, the M.A.C.A. is partly allowed and it is found that the claimant is entitled to an amount of Rs.9,975/- as compensation with 7% interest on the said sum from the date of petition till realisation and the insurance company namely the appellant in this case is directed to pay such amount if already not paid within a period of 60 days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-