IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 MACA.No. 519 of 2004() ---------------------- OPMV.563/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- BUHARI, S/O. SHAHUL HAMEED, THAYYIL HOUSE, KUNNAM KARA, KARIKKODU VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: RESPONDENTS: --------------------------- 1. FRANCIS K.A., S/O. ABRAHAM, KADUKKAMMACKAL HOUSE, ANCHIRI KARA, ANCHIRI P.O., ALAKODE VILLAGE. 2. THE ORIENTAL INSURANCE CO. LTD., THODUPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON 22/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 519 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in O.P.(M.V.) No. 563 of 1999 on the file of the Motor Accident Claims Tribunal, Thodupuzha. Respondents 1 and 2 are respondents 1 and 2 in that Original Petition. That petition was filed under Section 166 of the M.V. Act. 2. The allegation is that on 25.1.1999 at about 9.45 a.m. the petitioner was driving an autorikshaw, bearing No. KL 6A 280, through the left side of Thodupuzha - Udumpannoor road. When the autorikshaw reached in front of Khader Plaza building situated on the side of that road, a motor cycle, bearing No. KL 6/2720, driven by the first respondent suddenly came from the back and attempted to overtake the autorikshaw. Then a M.A.C.A.No. 519 of 2004 2 friend of the first respondent called him by clapping the hands. Immediately, the first respondent stopped the motor cycle in front of the autorikshaw without giving any signal. To avoid collision, the appellant moved his autorikshaw further to the left, but it hit the crash guard on the left side of the motor cycle. The autorikshaw over turned and the appellant sustained serious injuries. The appellant alleges that the accident occurred due to the rash and negligent driving of the first respondent. The appellant claimed Rs.2 lakhs as compensation. 3. The first respondent filed written statement admitting the accident, but contends that the accident was due to the negligence of the appellant. The second respondent filed a written statement admitting the policy of the motor cycle, but contends that the accident was due to the negligence of the appellant. 4. Before the Claims Tribunal, PWs. 1 and 2 and RW1 were examined. Exts.A1 to 5 series and B1 to B5 were marked. The Tribunal assessed the compensation payable to the appellant as Rs.33,000/- But the Original Petition was dismissed on the ground that M.A.C.A.No. 519 of 2004 3 the appellant failed to prove rash and negligent driving on the part of the first respondent. Against that award the petitioner filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. The learned counsel for the respondents submitted that the Tribunal has rightly dismissed the Original Petition, on finding that the appellant failed to prove rash and negligent driving of the first respondent. Whereas, the learned counsel for the appellant submitted that the Tribunal failed to appreciate the evidence on record properly. It is now well settled position of law that while considering a Claim Petition the Tribunal is required to hold an enquiry and is not to act as a criminal court so as to find whether the appellant has established the occurrence beyond reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence, there is no reason to disbelieve such evidence. 7. PW1, Ahammedkutty, is an eye witness to the accident. He deposed that at the time of the accident, himself and one Mathai Sir M.A.C.A.No. 519 of 2004 4 were standing in the veranda of Sreelakshmi Agencies near the side of the road. At that time, the first respondent came in a motor cycle and tried to overtake the autorikshaw from behind and then Mathai Sir called the first respondent by clapping his hands. Then the motor cycle suddenly turned to the left side and at that time the autorikshaw hit the motor cycle. PW1 swears that the accident occurred as the first respondent suddenly turned the motor cycle without giving any signal. PW1 was examined as a prosecution witness in the criminal case charged against the appellant in connection with the accident which was charge sheeted on the basis of the F.I. statement given by the first respondent and tried as C.C.162 of 1999. Ext.A2 is the copy of the judgment in C.C. 162 of 1999 on the file of the J.F.C.M. -II, Thodupuzha. In that case, PW1 gave similar version with regard to the accident. In that case the appellant herein was the accused and he was found not guilty and was acquitted on the ground that there was contributory negligence on the part of the first respondent, who was driving the motor cycle. M.A.C.A.No. 519 of 2004 5 8. PW2, Abbas, is another eye witness to the accident. He also gave more or less same version as given by PW1 with regard to the accident. Ext.A1 is the copy of the private complaint filed by the appellant against the first respondent. In that complaint also it is stated that the accident was due to the rash and negligent driving of the first respondent, who was driving the motor cycle. 9. The first respondent was examined as RW1. He deposed that the accident was due to the rash and negligent driving of the appellant, who was driving the autorikshaw. In the absence of independent evidence, the testimony of RW1 about the accident cannot be believed. Since the testimony of PW1 was corroborated by PW2 and further corroborated by Ext.A2 judgment, we are of the view that the Tribunal is not justified in finding that the appellant failed to prove negligence on the part of the first respondent. In the facts and circumstances of the case and the evidence on record and having heard the learned counsel for the parties, we are of the view that both the appellant and the first respondent are responsible for the accident and the degree of M.A.C.A.No. 519 of 2004 6 negligence attributable to the appellant, autorikshaw driver, and the first respondent, motor cyclist, would be in the ratio 70:30. 10. Ext.A4 is the copy of the treatment certificate proving that due to the accident the appellant sustained compound fracture of both bones of left leg and he was treated as an inpatient for 25 days and he left the hospital with plaster cast on the knee. 11. The Tribunal fixed the monthly income of the appellant as Rs.1,500/- and loss of income for three months is calculated as Rs.4,500/- Rs.15,000/- was assessed towards compensation for pain and sufferings and loss of amenities and enjoyment in life. Rs.11,634/- was assessed as medical expenses. Rs.100/- was assessed towards transportation charges. Rs.1,000/- towards by-stander's expenses and Rs.500/- towards extra nourishment. 12. On considering the nature of injuries and the treatment undergone by the appellant, we are of the view that the compensation assessed by the Tribunal is just and reasonable, i.e. Rs.33,000/- Since we have held that contributory negligence of the appellant is 70%, M.A.C.A.No. 519 of 2004 7 from the above figure the net amount of compensation payable to the appellant works out to Rs.9,900/-, which is rounded of to Rs.10,000/- 13. This appeal is accordingly allowed in part. The appellant is entitled to get Rs.10,000/- as compensation together with interest at the rate of 7.5% p.a. from the date of petition till the date of realisation from respondents 1 and 2. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm