IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 MACA.No. 600 of 2003() ---------------------- (AGAINST THE AWARD PASSED IN OPMV.973/2000 DATED 17/07/2003 BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA) .................... APPELLANT/PETITIONER: -------------------------------------- PRINCE K. GEORGE, KARAKOMBIL HOUSE, MINIPADY, CHELADU KARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: RESPONDENTS: ------------------------- 1. JAYAN PETER, PULICKAL HOUSE, MALAYINKEEZHU KARA, KOTHAMANGALAM. 2. BIJOY, SON OF JOY, PULICKAL HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM BRANCH. BY ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- M.A.C.A.No.600 of 2003 --------------------------------- Dated, this the 29th day of July, 2008 J U D G M E N T Ramachandran Nair, J. Heard learned counsel for the appellant and learned counsel appearing for the 3rd respondent Insurance Company. 2. The appeal is filed against the award of the MACT rejecting appellant's claim for compensation for the reason that accident was caused on account of negligence of the appellant. The accident occurred on 31/05/1998 at 3.15 p.m. when the motor bike driven by petitioner along Kothamangalam - Cheladu road hit another motor bike driven by 2nd respondent. Learned counsel for the appellant contended that accident was caused on account of negligence of 2nd respondent and the crime was also registered against him. He has referred to the judgment of the Magistrate Court wherein 2nd respondent was found guilty of rash and negligent driving, which led to the accident. Based on the police case and the conviction by the Magistrate Court, learned counsel for the appellant contended that the rejection of the claim by the MACT is untenable. Learned counsel for the Insurance Company on the other hand referred to the F.I. statement given by the appellant wherein he has stated that foot rest of the motor bike driven by 2nd respondent hit on his left leg and on account of the same he lost control and the vehicle went to the wrong MACA No.600/2003 -2- side of the road and he fell on the southern side. Even though, we find force in the contention of the learned counsel for the 3rd respondent that if FI statement is true, then the accident probably would have happened on the southern side of the road, which is wrong side for the appellant. However, no explanation is offered by the insurance company as to how the 2nd respondent got charge sheeted for rash and negligent driving and he pleaded guilty of the charge. Moreover, we find that scene of occurrence is taken by the MACT based on evidence of PW2 and the scene mahazar prepared by the police. It is seen that appellant's evidence regarding the place of the occurrence is rejected by the MACT based on scene mahazar. Admittedly, the motor bike was found lying outside the road. There is no tyre mark on the road detected by the police officer, who prepared the scene mahazar, and consequently, place of occurrence is essentially a matter assumed by the police officer, who prepared the scene mahazar, based on the statement given by PW2, who gave evidence in favour of the appellant. We see no reason why the evidence of PW2 was rejected by the MACT even though he was an eye witness of the occurrence. We are of the view that probabilities of negligence on both drivers of the bikes contributed to the accident and the claim happened to be made by the appellant because the other person, namely 2nd respondent, did MACA No.600/2003 -3- not sustain any injury. Therefore, we feel that the rejection of the claim petition by the MACT is not correct. We, therefore, hold that both the appellant and the 2nd respondent would have been probably equally negligent, which led to the accident, more so when 2nd respondent was found guilty of the charge and paid fine. So far as the amount of compensation is concerned, in normal course we should remand the matter to the MACT for considering the evidence. However, for the sake of the finality and having considered the injury sustained by appellant i.e. recorded in the award of the MACT, we award a total compensation of Rs.50,000/- which includes the reimbursement of the expenses incurred by appellant towards hospital charges. As it is also found that appellant was equally negligent as 2nd respondent, we direct the 3rd respondent to pay 50% of the compensation i.e. Rs.25,000/- with interest at 7.5% from the date of application till date of deposit to appellant. The M.A.C.A. is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg