SIVADASAN Vs. P M SHAJIVASAN

JUDGEMENT

(1.) The appellant, an autorickshaw driver aged 30 years, sustained very serious injuries in a road traffic accident, occurred on 26/1/1998. Allegedly, while the appellant was riding his autorickshaw, it collided with another autorickshaw, which came from the opposite direction. The appellant preferred a claim under Section 163A of the Motor Vehicles Act, for a sum of Rs.3,14,000/- under various heads. The learned Tribunal relying on the police records, found that the appellant was responsible for the accident and dismissed the claim petition after quantifying the amount of compensation as Rs.50,600/-. The finding of the learned Tribunal that the appellant was negligent as well as the adequacy of compensation are under challenge in this appeal. We have heard the learned counsel for the appellant and the learned counsel for the third respondent insurance company. We have also perused the impugned award.

(2.) The claim was preferred by the appellant under Section 163A of the Act. The learned counsel for the appellant would submit that, as the claim was one under section 163A of the Act, the appellant ought to have been awarded adequate compensation without going into the question of negligence by the learned Tribunal.

(3.) The learned counsel for the third respondent, relying on the judgment of the Apex Court in National Insurance Company Ltd. v. Sinitha,2011 2 KerLT 821 (SC)), per contra, would submit that as the claim under Section 163A being founded on "fault liability" principle, the same can be defeated by pleading and establishing the negligence of the victim. The police records which were pressed into service are Ext.A2, which is the copy of the scene mahazar and Ext.A5, which is the copy of the police charge. As per Ext.A5, the appellant was charge sheeted. Ext.A2 scene mahazar reveals that the appellant was on the wrong side. It is seen from Ext.A2 scene mahazar that the tarred portion of the road where the accident took place had a width of 12 metres. The exact point of accident is 4.5 metres towards east from the western tarred end. Admittedly, the appellant was proceeding from north to south. That would go to show that the appellant was on the wrong side.