IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 MFA.No. 1255 of 2001(B) ----------------------- OPMV.631/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM dated 11/04/2001 .......................................... APPELLANT: PETITIONER IN THE O.P.(MV) NO.631/1998: ----------------------------------------------------------------------------------- K.SULAIMAN, S/O.KOYAMU, KELASSERY HOUSE, THRITHALA POST, PALAKKAD DISTRICT. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.SANTHEEP ANKARATH RESPONDENTS: RESPONDENTS IN O.P.(MV) NO.631/1998: -------------------------------------------------------------------------------------- 1. JOHN BABY M.V., S/O.JOHN.C., 43/97, ARAKKEL HOUSE, KOONAM MOOCHI, GURUVAYOOR, THRISSUR DISTRICT (OWNER CUM DRIVER). 2. THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, ORISON BUILDING, WADAKKANCHERRY ROAD, KUNNAMKULAM, THRISSUR DISTRICT. R2 BY ADV. SRI.P.JAYASANKAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 1255 OF 2001 = = = = = = = = = = = = = = = Dated this the 23rd day of May 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ottapalam in OP(MV) 631/98. The petition is one for proper damages and the Court below held that, “Both R1 as well as the petitioner were absolutely negligent in causing the accident. Both of them were centpercent negligent”. I feel the said approach of the Tribunal is not in conformity with law. Composite negligence arises only when a person who is not connected with the vehicle gets involved in the accident sustained injury and the drivers of the offending vehicles jointly and separately caused such accident. Therefore this is a case where the question of composite negligence does not arise at all. 2. This is a case where the question of contributory negligence will arise. When there is a collision between two vehicles and both the drivers are found to be negligent then it MFA 1255 OF 2001 -2- has to be held in such cases that both have contributed to the accident and therefore while awarding compensation the contributory part of the person claiming compensation has to be deducted. Therefore the finding of the Tribunal requires interference and it is set aside. 3. The Tribunal also found that there is no materials for assessing the damages. But it is also a matter that can be looked into with available materials. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration after affording equal opportunities to both sides to produce documents and adduce evidence in support of their respective contentions. The matter has to be decided afresh by the Tribunal in the light of the legal position and the parties are directed to appear before the Court below on 2.7.2008. M.N. KRISHNAN, JUDGE. ul/- MFA 1255 OF 2001 -3- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No.1255 OF 2001 = = = = = = = = = = = J U D G M E N T 23rd May, 2008.