IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 MACA.No. 876 of 2009() ----------------------------- OPMV.839/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): (2ND RESPONDENT) ------------------------------------------ BENNY.K.V, S/O.VARGHESE,KONICKAL HOUSE, MARALA.P.O.,OLAMATTOM KARA, THODUPUZHA. BY ADV. SMT.LEELAMMA GEORGE SRI.PRATAP ABRAHAM VARGHESE RESPONDENT(S): PETITIONER 1 TO 3 AND (R)1 &3,4, ADDL.5,6. --------------------------------------------------------------------------- 1. AMAL SIBI,S/O.SIBI, AGED 7 YEARS, KONICKAL HOUSE,MARALA.PO,OLAMATTOM KARA, THODUPUZHA TALUK(MINOR)REP BY FATHER AND NEXT FRIEND S/O.VARGHESE RESIDING AT -DO- 2. AMMAL @ AMMU, D/O.SIBI, AGED 2 YEARS, RESIDING AT KONICKAL HOUSE, MALA.PO,OLAMATTOM KARA THODUPUZHA TALUK(MINOR)REP BY FATHER AND NEXT FRIEND SIBI S/O.VARGHESE RESIDING AT -DO- -DO- 3. SIBI.K.V,S/O.VARGHESE,KONICKAL HOUSE, MRALA.PO,OLAMATTOM KARA,THODUPUZHA TALUK, IDUKKI DISTRICT. 4. THE MANAGING DIRECTOR,KERALA STATE ROAD TRANSPORT CORPORATION,FORT,THIRUVANANTHAPURAM. * 5. M.V.SKARIA,MANDOTHIL HOUSE,ONNUKAL.PO, KOTHAMANGALAM TALUK,ERNAKULAM DISTRICT.DELETED svs ...........2/-... ...2... * THE NAME OF THE RESPONDENT NO.5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 19/03/2010 IN I.A. NO.749/2010. 6. THE NATIONAL INSURANCE CO.LTD, THODUPUZHA BRANCH AND THE NATIONAL INSURANCE CO. LTD PERUMBAVOOR BRANCH AND NATIONAL INSURANCE CO.LTD, MUVATTUPUZHA. 7. MR.RAMESHAN,S/O.NARAYANAN,THURVACKAL HOUSE,MANNOOR.PO,IYRAPURAM VILLAGE,KUNNATHUNADU TALUK. 8. KURIACHEN, S/O.VARKEY,ERAPPIL HOUSE, KAYANAD.PO,MARADY VILLAGE,MUVATTUPUZHA TALUK. R1 TO 3 BY ADV. SRI.VARGHESE JOHN R4 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC R6 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 19/10/2010, COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== M.A.C.A. No. 876 of 2009 =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== Dated this the 19th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the respondent No.2 in O.P.(MV) No. 839 of 2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. In this appeal he challenges the judgment and award of the Tribunal dated January 25, 2008 awarding a compensation of Rs.3,60,000 against respondents 1, 2 and 5 in the O.P. for the loss caused to the claimants on account of death of one Jessi Sibi in a motor accident. 2. Claimants are the two minor children and husband of deceased Jessi Sibi. The accident happened on May 16, 2004 at about 12 O' Clock in the noon while deceased was travelling in car bearing registration No.KET/5621 along Kochi – Madurai National Highway. When they reached at Thonnioka in Iykkaranadu Village a K.S..R.T.C. bus bearing registration No.KL.15/1903 hit on the rear side of the car, as a result of which, respondent No.2 who was driving the car lost control and the car hit an auto-rickshaw bearing MACA 876/2009 2 registration No.KL-7A/9348. She sustained serious injuries and succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the driver of the above three vehicles, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.6 lakhs. 3. Respondent No.1 in the O.P. is the Managing Director of the K.S.R.T.C. and respondent No.2 is the owner-cum-driver of the offending car. Respondent No.4 in the O.P. is the insurer of the car and auto-rickshaw involved in the accident and respondent No.3 is the owner of the auto-rickshaw. Respondent Nos.5 and 6 in the O.P. are the driver of the bus and driver of the auto-rickshaw respectively. 4. Respondents Nos.1, 3 and 6 in the O.P. remained absent before the Tribunal. Respondent No.2 filed a written statement admitting the accident but attributed negligence to the driver of the K.S.R.T.C. bus. Respondent No.5 driver of the K.S.R.T.C. bus filed a written statement admitting the accident but attributed negligence on the part of the driver MACA 876/2009 3 of the car. Respondent No.4 Insurance Company admitted the policy of the vehicles. 5. This petition was jointly tried along with another O.P. filed by the injured daughter of the deceased and a common award was passed. PWs.1 and 2 were examined and Exts.A1 to A18 were marked on the side of the claimants. RW1 was examined and Exts.B1 and B2 were marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of respondents 5 and 2 in the O.P., drivers of K.S.R.T.C. bus and car respectively, and awarded a compensation of Rs.3,60,000/- with interest at the rate of 8% p.a. from the date of petition till realization and proportionate cost. The Tribunal exonerated respondent No.4 Insurance Company from the liability as the policy issued to the offending car was an Act only policy and that therefore the risk of passengers in the car were not covered by the said policy. Respondent No.2, the owner- cum-driver of the car, has come up in appeal challenging the said finding of the Tribunal. MACA 876/2009 4 6. Heard the learned counsel for the appellant and learned counsel for the third respondents 1 to 3/claimants and that of the Insurance Company. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that respondent No.2, driver of the car, and respondent No.5, driver of the K.S.R.T.C. bus, are equally negligent in causing the accident can be sustained? 2) Whether the finding of the Tribunal that the risk of the passengers in the car is not covered by the policy and thereby exonerating the Insurance Company can be sustained? 8. The Tribunal found that the accident occurred due to negligence of the drivers of the bus and the car i.e., respondents 5 and 2 respectively. At the time of the accident the car was overtaking the auto-rickshaw. The K.S.R.T.C. bus hit the car from behind and the car hit the auto-rickshaw. The place of incident is a curve. The F.I.R. was registered against the driver of the bus, but the charge was laid against the driver of the car. Taking into consideration all these aspects, we are of the view that the Tribunal is perfectly justified in holding that the accident MACA 876/2009 5 occurred due to negligence of drivers of the car as well as that of the bus and making them liable at the ratio of 50 : 50. 9. The next question to be considered is whether the risk of the passengers travelling in the car is covered by the policy. Admittedly the policy issued was an Act only policy, which does not cover the risk of the passengers in the vehicle. Therefore, the Tribunal is perfectly justified in exonerating respondent No.4 Insurance company. For all these reasons we find no merit in the appeal and the same is liable to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn