M.A.C.A.No.3430/2018

M.A.C.A.No.3430/2018 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA,_ _1943_ ## _MACA NO. 3430 OF 2018_ _AGAINST THE ORDER/JUDGMENT IN OPMV 18/2013 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH_ _PARAVUR_ ## _APPELLANT/PETITIONER:_ _PRATHAPAN T.K., AGED 48 YEARS, S/O.KARTHIKEYAN, THACHERIL HOUSE, MOOTHAKUNNAM.P.O, PIN-683 513. MOOTHAKUNNAM VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT._ _BY ADVS. G.BALAMURALEEDHARAN (PARAVUR) SMT.LEKSHMI S.SEKHER_ ## _RESPONDENT/2ND RESPONDENT:_ _ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, MANAPPATT BUILDINGS, NORTH NADA, KODUNGALLUR.P.O, PIN-680664. THRISSUR DISTRICT REPRESENTED BY ITS BRANCH MANAGER._ _BY ADV SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.3430/2018 2 ## **JUDGMENT** The appellant herein is the petitioner in O.P. (MV).No.18/2013 on the file of the Motor Accidents Claims Tribunal, North Paravur. The aforesaid claim petition was filed by him seeking compensation for the injuries sustained in a motor accident occurred on 26.09.2012. The accident occurred when the motor cycle ridden by him through Kodungalloor – Irinjalakuda road was collided with another motor cycle ridden by the 1[st] respondent in the claim petition. The motor cycle bearing registration No.KL-47/B-6206, which was being ridden by the 1[st] respondent was insured with the respondent herein, who was the 2[nd] respondent before the Tribunal. It was contended that he sustained serious injuries due to the accident, which resulted in permanent partial disablement as well. It was contended that the accident occurred due to the sole negligence of the 1[st] respondent. An amount of Rs.10,00,000/- was claimed as the compensation from the respondent in the claim petition. M.A.C.A.No.3430/2018 3 2. The 1[st] respondent did not contest the claim petition and he was set ex parte. The 2[nd] respondent in the claim petition, who is the respondent herein filed a written statement disputing the negligence and quantum of compensation. It was contended that the accident occurred due to the negligence on the part of the appellant himself. However, the coverage of policy in respect of the motor cycle driven by the 1[st] respondent before the Tribunal was accepted. The appellant got himself examined as PW1 and Exts.A1 to A8 were marked. From the side of the respondents Exts.B1 to B3 were marked. 3. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence of the appellant as well as the 1[st] respondent and the contributory negligence on the part of the appellant was fixed as 40%. The quantum of compensation awarded was Rs.4,92,360/- and being 60% of the said amount Rs.2,95,416/- was directed to be deposited by the 2[nd] respondent insurance company along with interest at the rate of 7.5% per annum from the date of petition. This appeal is filed challenging the aforesaid award. M.A.C.A.No.3430/2018 4 4. Heard Sri.G.Balamuraleedharan, learned counsel for the appellant and Sri.A.R.George, learned counsel for the insurance company. 5. The main dispute that is raised by the learned counsel for the appellant is with regard to the contributory negligence. It is contended that the Tribunal went wrong in fixing contributory negligence upon the appellant with regard to the cause of accident. However, the learned counsel for the insurance company points out that the police has filed charge sheet implicating both the appellant as well as the 1[st] respondent. In such circumstances, it was pointed out that, the finding of the Tribunal need not be interfered with. 6. It is true that, the police after completing the investigation filed a charge sheet against the appellant as well. In the award, the Tribunal has discussed the contents of scene mahazar in detail and fixed the percentage of contributory negligence as 40% on the basis of the same. During the course of discussion with regard to the said issue, the Tribunal relied upon the judgment of this Court reported in **Jose P.J v. Niyas and Others [2016 (1) KHC 485 (DB)]** , wherein, the liability M.A.C.A.No.3430/2018 5 of the parties under similar circumstances was considered and fixed the contributory negligence of the claimant therein as 25%. 7. The appellant got himself examined as PW1 and gave evidence as against the findings in the police report. On the contrary, no evidence is seen adduced by the respondents. It is a well settled position of law that in the absence of any contra evidence, the findings in the final report filed by the police can be accepted for the purpose of determining the liability for adjudicating the question of negligence in an application under Section 166 of the Motor Vehicles Act. However, in a case where a party has adduced evidence contrary to the findings in police report, a different approach can be made and a decision can be arrived on an analysis of the quality of evidence adduced by the party. 8. In this case, the appellant came forward and explained the circumstances under which the accident occurred. In his deposition as PW1, he had specifically stated that, at the time of accident the 1[st] respondent was overtaking another vehicle and the accident occurred due to negligence of M.A.C.A.No.3430/2018 6 the 1[st] respondent. The Tribunal did not accept the said evidence and conclusion was arrived at by relying upon the scene mahasar prepared by the police and the measurements contained therein. In **Jiju Kuruvila and others v. Kunjunjamma Mohan and others [(2013) 9 SCC 166)** it was observed by the Honourable Supreme Court as follows: “The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.” Thus it is evident that mahasar which is prepared by police after the accident, as such cannot be relied upon. This is particularly so, when there are other materials to the contrary. M.A.C.A.No.3430/2018 7 In this case, there is evidence of PW1 providing a different version of the accident than described in the police report. His evidence withstood the test of cross examination. In such circumstances, I am of the view that, the assertion made by the appellant while he was examined as PW1, can be given some weightage instead of simply accepting the findings in the final report submitted by the police and also the contents of the scene mahazer. However, in the facts and circumstances of the case, a complete exoneration cannot be given to the appellant also, as obviously, if he exercised some care and caution,, the accident could have avoided. Apparently, even going by the evidence of PW1, accident has occurred on the middle of the road and a reasonable precaution should have been taken by the appellant as well. In such circumstances, the contributory negligence on his part cannot be fixed as high as 40%, but a lesser percentage of responsibility must be fixed upon the appellant as well. The materials available before me indicate that 25% can be fixed as the contributory negligence on the part of the appellant instead of 40% fixed by the Tribunal. M.A.C.A.No.3430/2018 8 9. With regard to the quantum of compensation, on examining the amounts awarded under various heads in the light of the materials available, I am of the view that the amount is reasonable and no interference is warranted. In the above circumstances, the appeal is allowed in part, and the award passed by the Tribunal is modified, in the matter of contributory negligence by revising the same as 25% instead of 40% fixed by the Tribunal. The insurance company shall therefore, deposit 75% of the award, after adjusting the amounts already deposited by them, within a period of three months from the date of receipt of a copy of this judgment. It is made clear that, while computing the interest for the additional amount of compensation as ordered here, the insurance company shall be entitled to exclude 284 days, which is the extent of delay occurred in filing the appeal, as the aforesaid delay was condoned by this court on that condition. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/29.11.21