IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 MACA.No. 518 of 2004() ---------------------- OPMV.2404/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S/PETITIONER IN OP(MV): --------------------------------------------- KAMALAKARAN, AGED 38 YEARS, S/O. RAMAN, KEEZHKOTTIL HOUSE, MANNOOR KARA, MANNOOR VILLAGE, KOZHIKODE. BY ADV. SRI.P.M.NATESAN RESPONDENT(S): RESPONDENTS IN OP (MV): -------------------------------------- 1. MOHAN KUMAR, S/O. PURUSHOTHAMAN NAIR, NILAPPANAYIL HOUSE, MEENACHIL KARA, MEENACHIL TALUK. 2. LILLY ROY, W/O. JOS M.THOMAS ROY, MALAMUKAL HOUSE, LOVELY COTTAGE, PALA. 3. NATIONAL INSURANCE COMPANY LTD., CHERUPUZHPAM BRANCH, PALA, REPRESENTED BY ITS BRANCH MANAGER. ADV. SRI.BABY THOMAS FOR R.1 SRI.P.K.MURALEEDHARAN SRI.GIGIMON ISSAC FOR R.1 SRI.JOE KALLIATH FOR R3 SRI.SHAJI THOMAS PORKKATTIL FOR R2 SRI.BINU PAUL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 518 OF 2004 --------------------------------------------------------- Dated this the 27th day of November, 2008 JUDGMENT Ramachandran Nair, J. Appeal is filed challenging the award passed by the Motor Accidents Claims Tribunal, Kottayam in O.P. (M.V.) No.2404 of 1998 declining to grant compensation to the appellant for the reason that the accident was on account of his negligence. We have heard counsel appearing for the appellant and Standing Counsel appearing for the Insurance Company. 2. Counsel appearing for the appellant relied on the judgment of the Judicial Magistrate of the First Class, Vaikom in a private complaint filed by the appellant against the driver of the lorry wherein that person had pleaded guilty of the charge alleged under Sections 279, 337 and 338 I.P.C. However, Standing Counsel for the Insurance Company referred to the award and contended that the scene of occurrence itself shows that the accident was caused on account of the appellant going to the wrong side of the road. Though F.I.R. was registered against the appellant, the police did not charge sheet him before the Magistrate's Court, but referred the case. Therefore, we do not think that the finding of the Tribunal that the accident was caused solely by the appellant is tenable. We are of the view that at the maximum, there may be contributory negligence on the part of M.A.C.A. NO.518/2004 2 the appellant, more so because the driver of the other vehicle pleaded guilty to the charges levelled against him, though in a private complaint filed by the appellant. In any case, the scene mahazar by itself cannot be taken as conclusive evidence to prove negligence. Since the road was fairly straight and sufficiently wide enough to accommodate two vehicles, we feel the accident is on account of human error. In other words, negligence of one or the other or both only could have caused the accident. In view of the above finding, we hold that the accident was on account of negligence of both the drivers equally. We, therefore, award a compensation of Rs.60,000/-, but reduce 50% towards contributory negligence. In other words, the appellant will be entitled to recover Rs.30,000/- from the third respondent. The third respondent will remit the said amount with interest at the rate of 7.5% per annum from the date of application till date of payment. Appeal is allowed to the extent indicated above. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NO.518/2004 3 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NO. 518/2004 JUDGMENT 27th November, 2008