IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 MACA.NO. 1249 OF 2006() ------------------------------------ OPMV.1280/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER: ------------------------------------------------------- SHIHAB S/O. SHAHUL HAMEED, OTTATHENGAL, B.O.C. ROAD, PERUMBAVOOR. BY ADV. SRI.T.K.SAJEEV RESPONDENT(S): --------------- 1. KRISHNAN. K.C., S/O. CHANDRAN KELA, KAVANPARAMBIL HOUSE, KUTHUKUZHI, OONNUKAL, KOTHAMANGALAM. 2. THE DIRECTOR GENERAL OF POLICE, TRIVANDRUM. 3. UNITED INDIA INSURANCE CO.LTD., K.A.P.COMMERCIAL CENTRE, R.S. ROAD, ALUVA. 4. THE ORIENTAL INSURANCE CO.LTD., CITY HEIGHTS BUILDINGS, SOUTH JUNCTION, CHALAKUDY-680 307. ADV. SRI.M.A.GEORGE FOR R3 SRI.A.R.GEORGE FOR R4 BY GOVERNMENT PLEADER SHRI BENNY GERVASIS FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.1249 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Appellant, while riding a motor cycle was hit by a police Jeep belonging to the second respondent on 29.5.1999 and claimed compensation for the injuries he suffered. Respondents contended that the accident occurred due to the rash and negligent conduct of the appellant himself. Tribunal accepted that contention and dismissed the application. Hence this appeal. 2. Heard counsel for appellant and respondents. 3. Point for consideration is whether accident occurred due to the rashness and negligence of the first respondent? 4. Perused relevant records. 5. The Point: Facts which are not in dispute are that appellant was riding the motor cycle from east to west, while Jeep driven by the first respondent came from west to east. According to the appellant, the Jeep tried to overtake another vehicle going ahead of it and in that process, hit the motor cycle. Appellant gave evidence in that line as P.W.1. He examined P.W.2 who claimed to have witnessed the M.A.C.A. No.1249 of 2006 -: 2 :- incident. P.W.2 supported the appellant and claimed that he had taken the appellant to the hospital. Exhibit A1 is the copy of FIR. Case was registered against the first respondent for causing the accident by rash and negligent driving. Exhibit A2 is the copy of the scene mahazar. Police after investigation concluded that there was no rashness or negligence on the part of first respondent and that the accident occurred when an animal abruptly strayed into the road, appellant swerved the motor cycle and it skidded. On that finding, refer charge was submitted by the police. Exhibit A3 is copy of that report. Exhibit A4 series are copies of the reports prepared by the Assistant Motor Vehicle Inspectors after inspecting the vehicles involved. It is contended by the counsel for appellant that finding of the Tribunal is not correct. According to learned counsel evidence of P.Ws.1 and 2 was not properly appreciated by the Tribunal. Counsel for respondents contended that negligence was on the part of the appellant. 6. In Exhibit A2, width of the tar road is given as 7.60 metres at the place of occurrence. Accident spot is 2.10 metres south of the northern tar end. If Exhibit A2 were to be believed, it would appear that the accident occurred in the northern half of the road which is slightly on the wrong side of the appellant who was riding the motor M.A.C.A. No.1249 of 2006 -: 3 :- cycle from east to west. Exhibit A2 states that the road is straight upto 300 metres towards west and 200 metres towards east. Exhibit A2 is the document produced by the appellant and therefore we cannot ignore it. Admittedly there is evidence of appellant as P.W.1 and his witness as P.W.2. Though evidence of P.W.2 was attempted to be challenged on the ground that he is speaking falsehood, nothing in that line has come out. Exhibit A4 series show that there was damage on both the vehicles. Jeep suffered damage on the front right side and the motor cycle suffered damage on the front side. Therefore it is clear from Exhibit A4 that vehicles had collided at the place of incident. 7. Assuming that an animal had abruptly strayed into the road and the appellant had to swerve the vehicle and it skidded, that certainly indicated negligence on the part of the appellant. But, that did not overrule negligence on the part of the first respondent also. We stated from Exhibit A2 that the road is sufficiency straight towards either side from the accident spot. Had the first respondent kept the Jeep within controllable speed, he would have been able to stop the same within short distance without hitting the motor cycle. We stated from Exhibit A4 that the vehicles collided. Exhibit A2 does not show presence of any tyre mark on either side of the road to indicate that M.A.C.A. No.1249 of 2006 -: 4 :- the appellant or the first respondent had applied break and tried to stop the vehicles. In other words, it was unmindful of the vehicles coming from opposite sides that appellant and the first respondent drove the vehicles. On seeing the motor cycle first respondent should have controlled his vehicle so that in case of any contingency as in this case, he could have stopped the Jeep within reasonable distance and avoid hitting of the vehicles. That circumspection and look out, first respondent did not exhibit. We are inclined to think that there was negligence on the part of the first respondent as well. It is true that police submitted final report as seen from Exhibit A3 indicating that there was no negligence on the part of first respondent. We have to bear in mind that the offending vehicle is a police Jeep and the first respondent is a police driver. Mere fact that appellant did not challenge Exhibit A3 by filing a private complaint does not mean that he accepted whatever stated in Exhibit A3. We also take note of the fact that first respondent did not mount to the witness box to give contra evidence. In the facts and circumstances of the case, we are inclined to think that appellant as well as first respondent were negligent and apportion the percentage of negligence among them as 70:30 (negligence to the extent of 70% on the appellant and 30% on the first respondent). Finding of the Tribunal regarding negligence is M.A.C.A. No.1249 of 2006 -: 5 :- modified to that extent. 8. Since Tribunal has not entered finding regarding compensation payable to the appellant, we are constrained to set aside the dismissal of the application and remit the case to the Tribunal for decision on the question of compensation. Resultantly, this appeal is allowed in the following lines: (i) Finding of the Tribunal that the accident occurred due to the negligence of the appellant is set aside, holding that appellant and the first respondent contributed to the accident and apportioning the negligence among them at 70:30. (ii) Application is remitted to the Tribunal for decision on the question of compensation payable to the appellant in the light of our finding regarding cause of accident. Parties shall appear before the Tribunal on 2.2.2009. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv