IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 MACA.No. 907 of 2006(A) ----------------------- OP(MV).1589/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/6TH RESPONDENT: ----------------- THE NEW INDIA ASSURANCE COMPANY LTD., PERUMBAVOOR NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.JACOB MATHEW RESPONDENT(S): --------------- 1. KALPATHARU, S/O. KANNACHARANDAS, SEEPISON PLYBOARDS, KANDANTHARA, ALLAPRA P.O. 2. P.V. UNNI, S/O. VELAYUDHAN, KARTHIKA, EAST KADUNGALLOOR, U.C. COLLEGE P.O., ALUVA. 3. NAVEEN, S/O. RAVI, PATHAPILLY HOUSE, VALAYANCHIRANGARA P.O. 4. THE ORIENTAL INSURANCE COMPANY LTD., PATTAMANA BUILDINGS, R.S.ROAD, ALUVA. 5. RAJAN, S/O. YOHANNAN, CHOOLAPARAMBIL HOUSE, N. MAZHUVANNOOR. 6. LATHEESH BABU, S/O. BALAN, CHANOTHU VEETIL, RAYAMANGALAM P.O. BY ADV. SRI.T.A.SOMAN FOR R2 SRI.SUNIL CYRIAC FOR R1 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A. No.907 of 2006 ------------------------------- Dated this the 7th December, 2009 J U D G M E N T Raman, J. The appellant, New India Assurance Company Ltd., was the 6th respondent in the claim petition, O.P.(MV) No.1589 of 2001, on the file of Motor Accidents Claims Tribunal, Perumbavoor. The first respondent herein was the claimant before the Tribunal. He was a pillion rider in a motor bike ridden by the 6th respondent. The accident occurred when the motor bike in which the claimant was a pillion rider collided with another vehicle, which was also a motor bike, coming from the opposite direction. The Tribunal found the apportionment of the liability between two vehicles equally. 2. According to the appellant, there is a mistake in Ext.A8 mahazar produced. It is pointed out that the accident point is shown to be one meter from west, whereas the road itself M.A.C.A.No.907 of 2006 2 is west to east, and, therefore, it could only be one meter either from north or south. It is also pointed out that Naveen, the rider of the other vehicle, which was insured with the 4th respondent, has admitted his guilt before the criminal court, and therefore, the entire liability could have been fastened with the other vehicle and the appellant should have been absolved from the liability. On the other hand, the counsel appearing for the fourth respondent, the Insurance Company of the other vehicle, submits that the accident is a head on collision. Placing reliance on the decision of the Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors. (AIR 2006 SC 1255), it is contended that the decision of the Tribunal to apportion the liability to 50:50 is correct. 3. We heard both sides. It is an admitted fact that two vehicles were involved in the accident and collided each other. Both of them were motor bike, and therefore, one is not a heavier vehicle than the other. The accident occurred somewhere in the middle of the road, though exactly it cannot be M.A.C.A.No.907 of 2006 3 said with mathematical precision, one meter from one side of the road, in a total width of three metres proximately to be the middle of the road, and one cannot precisely say whether the mahazar was prepared immediately after the accident or subsequent to it, and further whether the impact of the accident would have taken either of the vehicle to other side. At any rate, in a situation like this and in the absence of better evidence, and since the accident is as a result of collision between the two vehicles, the finding of the Tribunal cannot be interfered with. The fact that one of them admitted the guilt is also of no consequence, after all ultimately a penalty of imposing a fine was made in the case. Nobody has a case as to what happened to the other rider of the vehicle. It is then contended that it is only the vehicle ridden by the third respondent has some damage and the damage occurred on the right side, which evidently shows that opposite vehicle has hit this vehicle, because damage has occurred in the right side. In M.A.C.A.No.907 of 2006 4 the result, we find no merit in the appeal and it is accordingly dismissed. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.