IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 MFA.No. 60 of 2001(B) --------------------- OPMV.739/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT: 3RD RESPONDENT: -------------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, PONKUNNAM, REPRESENTED BY ITS ASST.MANAGER, THIRD PARTY CLAIMS CELL, IV, VETTUKATTIL BUILDINGS, JOSE JUNCTION, KOCHI – 16. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: PETITIONER AND RESPONDENTS 1, 2, 3 & 4: ------------------------------------------------------------------------------------------- 1. P.A.DAVOOD, S/O.ABDULKHADAR, AGED 25 YEARS, PADINJARU VATTATHU PUTHENPURA, MARADY VILLAGE, RAMAMANGALAM KARA, MUVATTUPUZHA TALUK, MUVATTUPUZHA P.O. 2. ABDUL RAHIMAN, AGED 38 YEARS, S/O.ABDUL PAREETH, VATTAKUNNEL PUTHENPURA, MARKET P.O., MUVATTUPUZHA. 3. K.S.SALIM, S/O.SAYEDMUHAMMED, MADATHIL KAROTTU, CHIRAKKADAVU, PONKUNNAM. 4. ABDU REHIMAN.V., S/O.ABDU, VALLIKADAN HOUSE, MAMPADU P.O., MALAPPURAM. 5. K.P.KUNJALLY, MANKUZHIYIL HOUSE, PAPPILASSERY, KOZHIKODE. ADV. SRI.ABRAHAM MATHEW (VETTOOR) FOR R3 SRI.SUNNY MATHEW FOR R5 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.612/2001 IN M.F.A.NO.60/2001 DISMISSED 31/07/2008 SD/- J.B.KOSHY, JUDGE SD/- V.K.MOHANAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss J.B.KOSHY & V.K.MOHANAN, JJ. --------------------------------------------- M.F.A.No. 60 of 2001 --------------------------------------------- Dated this the 31st day of July, 2008 J U D G M E N T Koshy,J: This appeal is filed by the insurance company who was arrayed as third respondent in O.P.(MV) No.739 of 1997 on the file of the M.A.C.T., Muvattupuzha, challenging the award passed. On 26.12.1994, while the claimant in that case was travelling in a jeep, it collided with a lorry bearing Regn.No.KL-11-B-6248. The above lorry was driven by the fourth respondent herein and owned by the fifth respondent herein. The jeep, which was insured by the insurance company, was owned by the third respondent herein and driven by the second respondent herein. The Tribunal found that the accident occurred due to negligence of the driver of the jeep insured by the appellant, insurance company to the extent of 75% and 25% negligence attributed to the driver of the lorry. It is the contention of the insurance company that the accident occurred only due to the negligence of the jeep driver. It MFA NO.60 OF 2001 :-2-: is further contended that after the incident, First Information Report was registered on the basis of the complaint of one of the injured and that shows that the entire negligence is on the driver of the lorry. It is further contended that after investigation, the Police issued charge sheet against the lorry driver which is marked as Ext.A1 and jeep driver was not charge sheeted. It is contended by the insurance company that the petitioner has a calculated attempt to attribute the negligence against the driver of the jeep before the Claims Tribunal because the lorry was not having any insurance coverage at the time of accident. PW1 deposed that the accident occurred due to the rash and negligent driving of the driver of the jeep and the jeep was driven in an over speed. 2. The Tribunal in Issue No.1 found as follows:- “PW.1 is the petitioner who was given evidence in detail as to how the accident occurred. He deposes that on 26.12.1994 at 1 p.m. the accident occurred at Puthuveli. He was travelling in a jeep KEK 4318 from Muvattupuzha to Kottayam. The lorry came from the opposite direction collided with the MFA NO.60 OF 2001 :-3-: jeep. In the accident, he sustained severe injuries. He stated that the jeep was hired as a taxi and it was proceeding in over speed. PW.1 has alleged rash and negligent driving of the lorry. After collision with the lorry the jeep driver lost his control and it hit against a tree on the road and a fencing of the adjacent compound. The accident spot was a sharp curve. According to PW.1 absolute negligence was on the part of the jeep driver and is claiming compensation from respondents 1 to 3, the owner, driver and insurer of the jeep. The petitioner has produced various documentary evidence. Ext.A1 is the copy of the charge-sheet submitted by the police before the Judicial First Class Magistrate's Court, Palai alleging negligence against the driver of the lorry. The police after investigation into the matter charge sheeted the lorry driver for his rash and negligent driving. Ext.A2 is the FIR registered by the police soon after the occurrence of the accident wherein criminal case was registered against the driver of the lorry. The case was registered on the basis of a statement given by one of the injured while undergoing treatment in the hospital. Ext.A3 is the scene mahazar. As per the scene mahazar, the accident spot was located as 3.24 metres towards west from the eastern tar end. The road was having a width of 7.60 metres. The petitioner was proceeding from north towards south and the lorry was coming from south towards north. The accident spot was some what on the middle of the road. There was sufficient space for the jeep driver on the MFA NO.60 OF 2001 :-4-: eastern side. The jeep driver has taken 3.24 metres into the middle of the road and the collision has taken place. Similarly the lorry driver also has taken 4.36 metres from the western tar end into the middle of the road. It is also deposed by PW1 that there was a sharp curve and the accident occurred on this curve. The driver of both the vehicles ought to have been careful while negotiating the curve. In this case, both the vehicle drivers have contributed to the accident.” The Tribunal noticed that after the accident, the jeep driver lost his control and it hit an electric post on the road side and the jeep was kept on the eastern side of the road. Therefore, the Tribunal attributed 75% negligence on the part of the jeep driver and 25% on the lorry driver. The Tribunal had correctly found earlier that both drivers were negligent. Even PW1 stated that the lorry driver was also negligent apart from the negligence of the jeep driver. It is true that the lorry driver alone was charge sheeted, but considering the evidence on record, both drivers were equally negligent. In the matter of the proportion of negligence, the Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. (AIR 2006 SC 1255) held that in the absence of MFA NO.60 OF 2001 :-5-: clear evidence, the negligence can be contributed equally between the drivers when there is head-on collision in a highway. Therefore, we are of opinion that 50% of the amount with interest as awarded by the Tribunal should be paid by the appellant- insurance company and balance 50% by the driver and owner of the lorry. The appeal is allowed as above. J.B.KOSHY, Judge V.K.MOHANAN, Judge MBS/ MFA NO.60 OF 2001 :-6-: J.B.KOSHY & V.K.MOHANAN, JJ. -------------------------------------------- MFA.NO. 60 OF 2001 ----------------------------------------- J U D G M E N T DATED: 31-7-2008 MFA NO.60 OF 2001 :-7-: