Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE1T DAY OF OCTOBER20139TH ASWINA, 1935 MACA.No. 1007 of 2009 ( ) -------------------------- OPMV.1531/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM. ........... APPELLANT/6TH RESPONDENT: ------------------------------------------------ UNITED INDIA INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE. ADV. SRI.P.JACOB MATHEW. RESPONDENTS/PETITIONERS AND RESPONDENTS1TO3 ---------------------------------------------------------------------------------------- 1. NADEERA SULAIMAN, W/O.LATE M.E.SULAIMAN, CHELLIPPADATH HOUSE, BRAHMAPURAM P.O., AMBALAMEDU.
2. NAJINA SULAIMAN, D/O.LATE M.E. SULAIMAN, DO. DO.
3. RAHEENA SULAIMAN, D/O.LATE M.E.SULAIMAN, DO. DO.
4. MAHIN ABOOBACKER, S/O.LATE M.E.SULAIMAN, DO. DO. *5. AYISHA IBRAHIM, W/O.LATE IBRAHIM, DO. DO. *(DELETED) * THE5H RESPONDENT IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
DATED0802/2011 IN I.A. NO.644/2010.
6. M.NIZAMUDHEEN, S/O.S.A.MAJEED, 1, OLD SANTIPETTA, METTUPALAYAM.
7. K.M. MOHAMMED ALI, S/O.ABDUL GAFOOR, HOUSE NO.16/36, MAHADEVAPURAM, METTUPALAYAM. MACA.No. 1007 of 2009 8. THE NEW INDIA ASSURANCE COMPANY LIMITED, M.G.ROAD, ERNAKULAM. (NO RELIEFS ARE CLAIMED AGAINST THE RESPONDENTS4 5 AND7IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). R1 TO R4 BY ADVS. SMT.P.C.JEEVA, SRI.K.JANARDHANAN, SRI.K.J.MANU RAJ.
R8 BY ADVS. SRI.M.RAJAGOPALAN, SRI.RAJIT, SRI.M.L.SURESH KUMAR, SRI.RANJIT BABU, SRI.V.V.JOY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON0110-2013, ALONG WITH MACA NO.1013/2009 AND MACA NO.1015/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S. Siri Jagan & K. Ramakrishnan, JJ.
=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= M.A.C.A. Nos. 1007, 1013 & 1015 of 2009 =-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1st day of October , 2013.
JUDGMENT
Ramakrishnan, J.
Insurer of a tempo van, one of the vehicles involved in an accident, which prompted the legal heirs of two persons died in the accident and one injured, who later died, file the applications, O.P.(MV) Nos. 1531/2002, 1532/2002 and 1533/2002, is the appellant in these appeals. The case of the claimants in those applications for compensation was that the accident occurred due to the rash and negligent driving of the tempo van , which is insured with the the appellant and the driver of the lorry insured with the 3rd respondent in the lower court. After considering the evidence on record, the Tribunal found that both the drivers of the tempo van and lorry were equally negligent and apportioned the negligence in the ratio 50:50 and awarded compensation to the claimants making both the insurers of the vehicle to indemnifying their respective insured. Aggrieved by the finding regarding negligence, the insurer of the tempo van has filed these appeals.
2. Heard counsel for the appellant and counsel for the respondents.
3. Counsel for the appellant submitted that criminal case was registered against the driver of the lorry alone and after investigation, the police has submitted a final report against the driver of the lorry alone for negligent driving. Further, the place of occurrence as located in the scene -:
2. :- mahazar prepared by the police also will go to show that the accident happened on the wrong side of the lorry. Further, though, earlier, in the claim petitions, formal allegation of negligence was alleged against the tempo van, later they filed amendment application and deleted the allegation of negligence against the tempo driver and only at a later stage after the evidence and hearing were over, they again filed application for amendment and the earlier allegations against the tempo driver was restored. So, all these will go to show that the claimants had no case that there was any negligence on the part of the driver of the tempo van. Further, the Tribunal had only assumed certain things, which were not in evidence and came to the conclusion that the tempo van was also responsible for the accident and it was the negligence on the part of the tempo driver, which caused primarily the reason for the accident and on that basis found that both the drivers of the vehicles were negligent, which is unsustainable in law, on the basis of the evidence available on record. At any rate, the Tribunal should not have apportioned the negligence equally, considering the manner in which the accident occurred, considering the speed of the lorry etc. So, according to the learned counsel for the appellant, the Tribunal was not justified in fixing the responsibility for the accident on the driver of the van, which was insured with them.
4. On the other hand, counsel for the insurer of the -:
3. :- lorry argued that admittedly, the tempo van suddenly entered the national highway from the petrol bunk situated on the eastern side of the road. If, after he had stopped the vehicle and only after ascertaining that he can safely enter the national highway and thereafter he entered the national highway, this accident would have been avoided. So, according to the learned counsel, the Tribunal was perfectly justified in fixing the negligence on the driver of the tempo van as well as there was enough contribution from his side also for the accident.
5. Counsel for the claimants also supported the findings of the Tribunal regarding negligence.
6. We have considered rival contentions of both parties in detail.
7. It is an admitted fact that the lorry insured with the appellant was proceeding from north to south and the car in which the deceased and the injured were travelling was proceeding from south to north. It is also an admitted fact that on the basis of a statement given by PW2, one of the passengers in the car, a crime was registered against the lorry driver alone and after investigation, final report was also submitted against the driver of the lorry alone. But, that alone is not sufficient to come to the conclusion that the accident occurred due to the negligence of the driver of the lorry alone. If there are other evidence available and a different inference can be drawn on the -:
4. :- basis of the evidence, the Tribunal is not prevented from entering such a finding on the basis of the evidence available on record. Similarly, merely because the claimants were wavering regarding the question of negligence, is not a ground to come to the conclusion that they have no case of negligence against the driver of tempo van at all. They need only say that two vehicles have involved in the accident other than their vehicle and if the contesting respondents have taken up contradictory defences on the question of negligence, it is for the Tribunal to resolve that dispute also on the basis of the evidence. That is what has been done by the Tribunal in this case.
8. It is true that as per the scene mahazar, the accident occurred on the wrong side of the lorry. The insurer of the lorry had a case that their vehicle was proceeding through the national highway on a proper speed, but the tempo van which was parked on the side of the road in a petrol bunk suddenly emerged into the national high way in a negligent manner without observing the rules and in order to avoid a collision, he had turned the vehicle to the right and that was how the vehicle had gone to the wrong side and hit the car coming from the opposite direction. The driver who stopped the vehicle in the petrol bank has also equal duty to see that he can safely enter the main road, after ascertaining whether there are any vehicles coming on either side of the road. If he had -:
5. :- stopped the vehicle and ascertained this fact and entered the road, he may have avoided the accident as well. The evidence on record shows that the driver of the van had not entered the road fully and turned to the northern side. Before that, the accident happened. It shows that he was not diligent before taking the vehicle to the main road from the petrol bunk. So, in the circumstances, the Tribunal was perfectly justified in coming to the conclusion that the driver of the tempo van had also contributed to the accident. But, on the basis of the evidence, the finding of the Tribunal that they were equally negligent cannot be accepted. If the driver of the lorry had stopped the vehicle on seeing the tempo van entering the road, he also could have avoided the accident. Further, the fact that after hitting the van, the wheel of the lorry detached from the vehicle and then it proceeded further to the west and hit the car shows that he was coming at a high speed, which he could not have controlled and that resulted in the accident. So, under the circumstances, we feel that the apportioning of the negligence between the driver of the lorry and the driver of the temp van in the ratio 75:25 will be sufficient and that will meet the ends of justice on the basis of the evidence available on record, and we do so.
9. Accordingly, the finding of the Tribunal that both vehicle were equally negligent is set aside and the same is modified by apportioning the negligence between the lorry -:
6. :- driver and tempo driver in the ratio 75:25. The Insurance Company of the lorry and the appellant are liable to pay the amount on the basis of the present apportionment made. In view of the above finding, the insurers of the respective vehicles are directed to deposit the compensation amount before the Tribunal in the ratio mentioned above. With the above modification of the impugned award of the Tribunal, these appeals are disposed of. Sd/- S. Siri Jagan, Judge. Sd/- K. Ramakrishnan, Judge. Tds/ [True copy] P.S to Judge.