IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 MACA.No. 837 of 2004() --------------------------------- OPMV.1608/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT IN M.V.O.P. : ---------------------------------------------------------------- M/S. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, TIRUR, REPRESENTED BY THE MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN 682 018. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2 IN M.V.O.P. : -------------------------------------------------------------------------------------------------------- 1. A.MANIKANDAN, ASHOKAM HOUSE, P.O.THRIKKAVU, PONNANI TALUK, MALAPPURAM DISTRICT. 2. K.C.ABDUL KHADER, S/O. KUNHALAN, MC DOWEL HOUSE EDAPPAL AMSOM, EDAPPAL DESOM, PONNANI TALUK. 3. MC DOWEL VEETTIL ILIYAS, S/O. ABDUL KHADER K.C., EDAPPAL AMSOM, EDAPPAL DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.NO.837/2004 ORDER ON I.A.NO.1284/2005 IN M.A.C.A.NO.837/2004 DISMISSED 03.07.2008 SD/-, M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE scm M.N. KRISHNAN, J. ------------------------------ M.A.C.A.No. 837 of 2004 ------------------------------ Dated this the 3rd day of July, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident claims Tribunal, Tirur in O.P. (MV) No. 1608/1996. The pillion rider of the bike is the claimant. The tribunal found negligence on the second respondent in the claim petition and awarded compensation of Rs. 35,500/- . It is against that decision, the Insurance company has come up in appeal. Heard both sides. The point that is canvased before me is regarding the finding of the negligence by the tribunal. Admittedly, there has been another case, which had arisen out of the same accident as O.P.(MV) 1607/1996. It was disposed of by the tribunal finding 50% negligence on each of the riders. The riders of both the vehicles were parties before the tribunal and they have allowed that finding to become final. The tribunal wanted to distinguish that by stating that as the present claimant was not a party, it is not binding on him. It is true that he was not a party, but so far as it relates to one and the same accident, there cannot be two divergent findings attributing M.A.C.A.No. 837 / 2004 Page numbers 50% negligence in one case and 100 % in the other case. The quantum of negligence was in inter se dispute between the two riders of the vehicles and when a finding is arrived with them on record in previous case, which has become final, it is not proper to hold otherwise in another case. Therefore, the approach of the tribunal does not appear to be correct and therefore, I modify the quantum of negligence at 50% each. 2. The next question is regarding compensation. Being a pillion rider, the claimant may be entitled to claim compensation from both the offending vehicles. Unfortunately, the rider and Insurance Company of the vehicle in which he travelled as a pillion rider are not made parties and no claim is made against him. As far as the position of law is concerned, though the accidents had taken place on account of the composite negligence of two riders, now the act has to be stated as act of several tort feasors and not of joint tort feasors. When it is an act of several tort feasors, each of them is liable to pay in accordance with the proportion of their negligence. Therefore, the claimant in this case will be entitled to only 50% of the amount from the respondents in M.A.C.A.No. 837 / 2004 Page numbers this claim petition. Therefore, the award passed by the tribunal is modified and claimant is awarded a compensation of Rs. 17,750/- with 9% interest on the said sum, from the date of petition till realisation with a cost of Rs. 1,000/- as ordered by the tribunal. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE scm