IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1259 of 2011 ----------------------- OPMV.516/2006 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT : RESPONDENT NO.3 ----------------------------- NEW INDIA ASSURANCE COMPANY LTD., REGIONAL OFFICE, ERNAKULAM,COCHIN-11,REP.BY ITS DEPUTY MANAGER 682 011. BY ADV. SRI.KKM.SHERIF RESPONDENTS: --------------- 1. KAVITHA.K.R, W/O.LATE MANI,POLAKKAL HOUSE,CHAKKALAMATTU,THRIPPOONITHURA PO, NADAMA VILLAGE,KANAYANNUR TALUK,ERNAKULAM DISTRICT 682 301. 2. NAYANA.P.M,D/O.LATE MANI,POLAKKAL HOUSE,CHAKKALAMATTU,THRIPPOONITHURA PO, NADAMA VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 301. 3. NIVYA.P.M,D/O.LATE MANI,POLAKKAL HOUSE,CHAKKALAMATTU,THRIPPOONITHURA PO, NADAMA VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 301. 4. P.O.VARGHESE,S/O.LATE UTHUP, POLAKKAL HOUSE,CHAKKALAMATTU,THRIPPOONITHURA PO, NADAMA VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 301. 5. KANAKAM.C.K,W/O.P.O.VARGHESE, POLAKKAL HOUSE,CHAKKALAMATTU,THRIPPOONITHURA PO, NADAMA VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 301. MACA.No. 1259 of 2011 - 2 - 6. KOCHURANI,W/O.PAUL,THOTTAKKATH HOUSE, KOTHAD PO, CHITTOOR,COCHIN-27. 7. V.P.AJAYAN,PALAKKAPRAMBU,IRUMBANAM PO, ERNAKULAM DISTRICT 682 309. 8. P.N.BINDU,W/O.LATE P.M.RAJESH, THALAMUTTATH HOUSE,THYKOODAM,VYTTILA PO, COCHIN-19. 9. T.R.VIMALA RAJ(MINOR), S/O.LATE P.M.RAJESH, THALAMUTTATH HOUSE,THYKOODAM,VYTTILA PO, COCHIN-19. 10. T.R.RAJALAKSHMI,D/O.LATE P.M.RAJESH, THALAMUTTATH HOUSE,THYKOODAM,VYTTILA PO, COCHIN-19. 11. P.N.MUKUNDAN,S/O.NEELAKUTTY, THALAMUTTATH HOUSE,THYKOODAM,VYTTILA PO, COCHIN-19. 12. P.K.OMANA,W/O.P.N.MUKUNDAN, THALAMUTTATH HOUSE,THYKOODAM,VYTTILA PO, COCHIN-19. 13. THE ORIENTAL INSURANCE COMPANY LTD, METROPLASA,REGIONAL OFFICE, NORT RAILWAY STATION ROAD, ERNAKULAM 682 018. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1259 of 2011 ***************************** Dated this the 8th day of August, 2011 JUDGMENT BASANT, J. The insurer of an insured autorickshaw is the appellant. Admittedly the vehicle was involved in an accident. The autorickshaw was proceeding in front. The motorcycle was proceeding at the rear. The road was straight at the scene of occurrence. Autorickshaw swerved suddenly to the right. As this was not anticipated, the motorcycle with the rider and the pillion rider had hit on the rear of the autorickshaw . Both suffered injuries. Both succumbed to the injuries. Their legal heirs lodged separate claims against the driver, owner and insurer of the autorickshaw. The claim was staked against the owner/insurer of both vehicles. 2. The Tribunal allowed the claim staked by the legal heirs of the deceased/rider of the motorcycle under Section 163A of the Motor Vehicles Act. The appellant was made entirely liable to pay compensation to the legal heirs of the rider. 3. The claim of the legal heirs of the deceased/pillion rider was taken up for consideration. The Tribunal took note of M.A.C.A No.1259 of 2011 2 the fact that the police had not filed a final report alleging culpable negligence on the part of the autorickshaw driver. It appears that the police had come to the conclusion that the autorickshaw was obliged to turn suddenly to the right to save a cyclist, who had entered the main road from a side road. The Tribunal came to the conclusion that the driver of the autorickshaw was responsible for the accident. Hence the Tribunal directed payment of compensation to the legal heirs of the deceased pillion rider. The driver, owner and insurer of the autorickshaw alone were made liable. 4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the challenge, the learned counsel for the appellant only submits that the Tribunal had erred grossly in coming to the conclusion that the blame for the accident must rest solely on the shoulders of the driver of the autorickshaw. The responsibility for the accident must have been appropriately apportioned between the driver of the autorickshaw and the rider of the motorcycle. At any rate, the driver, owner and insurer of the autorickshaw should not have been made entirely liable to compensate the legal heirs of the victim/pillion rider. This is the only and the short point raised M.A.C.A No.1259 of 2011 3 for consideration. 5. The admitted version of the accident speaks for itself. The autorickshaw was proceeding in front. It was followed by the motorcycle in which the deceased persons were travelling. Suddenly the autorickshaw was swerved to the right. This had resulted in the motorcycle hitting against the autorickshaw. 6. As a general principle, it can safely be held that before so turning suddenly to the right obstructing the course of those who come behind, the driver of the autorickshaw must have shown signals and ensured that the safety of those coming behind him is not put to peril. On that aspect, there cannot possibly be a dispute. 7. The contention now strenuously urged is that the autorickshaw was obliged to turn suddenly to the right because of the unexpected conduct on the part of a bicycle rider, who entered the road from a side road. If that is his explanation for the accident, certainly and undoubtedly the burden was on the driver/owner/insurer to explain how exactly the accident had taken place. It was upto them to establish before the court that he did not have sudden reflex time to pursue any better course of action than to turn his vehicle suddenly to the right. That M.A.C.A No.1259 of 2011 4 burden stands undischarged. We have only the circumstance that the police had not filed a final report/charge sheet raising allegations of culpable negligence against the driver of the autorickshaw. That does not resolve the controversy at all. As rightly observed by the court below, punishable negligence under the Penal Code is distinct and separate from actionable negligence in a claim founded on the law of torts. The driver of the autorickshaw had admittedly swerved his vehicle suddenly to the right without giving caution to the motorcycle which was proceeding behind. That course of conduct has not been explained by the driver of the autorickshaw. It is impossible for us, now sitting as a court of appeal against the finding of fact rendered by the subordinate Tribunal, to come to the conclusion that the findings are in any way defective or erroneous as to invoke our appellate jurisdiction under Section 173 of the Motor Vehicles Act. An explanation was offered by the autorickshaw driver that the cycle had entered suddenly from the road on the side. That explanation appears to have been accepted by the police to conclude that there was no culpable negligence. But that cannot absolve the driver of the autorickshaw and its owner and insurer in turn to avoid liability for actionable negligence M.A.C.A No.1259 of 2011 5 under the law of torts for the reason that the conduct of the driver of the autorickshaw has not been explained. We hold that the finding of the Tribunal is correct on the basis of the materials presently available and, at any rate, it does not warrant appellate jurisdiction. The challenge fails. This appeal is, in these circumstances, dismissed holding that the impugned award does not warrant interference at the instance of the appellant. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/