IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MACA.NO. 756 OF 2003() ----------------------------------- OPMV.1151/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ------------------------------------------------------- RASHIBDIN SHAIK S/O. SHAIK RAWTHEAR P.S. AGED 24 YEARS, RESIDING AT RASHID MANZIL, KIZHAKKEKKARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA. BY ADV. SRI.K.JAJU BABU SRI.M.U.VIJAYALAKSHMI SRI.M.V.BIPIN RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. DANSEER K.M., KOTTAKKUNNEL HOUSE, KIZHAKKEKKARA P.O., MUVATTUPUZHA. 2. ORIENTAL INSURANCE CO.LTD., MUVATTUPUZHA 3. IBRAHIMKUTTY C.M., S/O. MOIDEEN, CHIRAKKAKUDY HOUSE, KANDAMTHARA, ALLAPRA P.O., PERUMBAVOOR. 4. HARISH S/O. KAYDU, MANJAMTHURUTHIL HOUSE THOTTAKKATTU KARA, ALUVA. 5. VINEESH V.K., S/O. KUMARAN, VALOOTHU VEEDU, THOTTAKKATTU KARA, ALUVA. ADV. SMT.ANNIE PAUL FOR R1 SRI.PHILIP J.VETTICKATTU FOR R1 SRI.MATHEWS JACOB (SR.) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008 ALONG WITH M.A.C.A. NO.765 OF 2003 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.756 of 2003, M.A.C.A. No.765 of 2003, M.A.C.A. No.194 of 2004 AND M.A.C.A. No.195 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008 J U D G M E N T ---------------------- Koshy, J. Motor cycle bearing Reg. No.KL-7/L-5247 driven by the first respondent collided with a car bearing Reg.No.KL0-6163 which was coming from the opposite direction. Motor cycle was carrying two pillion riders. Rider of the motor cycle and two pillion riders sustained injuries. One pillion rider succumbed to the injuries suffered in the accident. Registered owner of the Car involved in the accident was the third respondent. But before the accident the Car was transferred to the 4th respondent and the Car was being driven by the 5th respondent. Car had no insurance. During the pendency of the case registered owner of the Car died and his son was impleaded as additional respondent. Tribunal found that the accident occurred due to the negligence of the rider of the motor cycle. It was also found that there were two pillion riders and they were also negligent. Tribunal exonerated the Car driver from the charge of negligence. Since the accident occurred due to the negligence of the pillion riders M.A.C.A.No.756 of 2003 & connected cases -: 2 :- of the motor cycle also only Section 140 compensation was directed to be paid by the insurance company. Claim filed by the rider of the motor cycle was dismissed. He was not even granted the no fault liability compensation because there was no permanent disablement. He did not file appeal. But legal representatives of the pillion rider who died in the accident as well as the injured pillion rider filed two appeals. Insurance company of the motor cycle also filed two appeals against those two awards. Major contention raised is regarding the finding of negligence. 2. According to the claimants, the entire amount calculated by the Tribunal ought to have been directed to be paid by the insurance company which insured the vehicle leaving right to recover the amount from the owner of the motor cycle. It is also contended that there is no negligence on the part of the pillion riders. It was further contended that even though travelling with two pillion riders is against the Motor Vehicle Rules, negligence cannot be attributed because at the maximum penalty can be charged under the Act for violation of the Rules. 3. In this case respondents 4 and 5, actual owner and driver of the Car filed a joint written statement denying their liability. Fourth respondent had no case that the Car was not transferred to M.A.C.A.No.756 of 2003 & connected cases -: 3 :- him before the accident. Since the vehicle was transferred to him and he was in actual possession he cannot escape from liability. In this connection we refer to the Apex Court's decision in Vasantha Viswanathan v. V.K. Elayalwar (2001 AIR SCW 3304). But the Car had no insurance coverage. 4. Now the question is that of negligence. Exhibit A2 is the scene mahazar. Scene mahazar shows that the total width of the road is 6.65 metres. The accident spot is 3.30 metres west of the eastern tar end. That means that the accident occurred almost on the middle of the road at the maximum of 0.5 metres from the wrong side of the Car. It is held by the Supreme Court that when there is head on collision in a public road, negligence can be attributed to both drivers (See Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255). But the Tribunal found that the driver of the motor cycle had no driving licence, he was driving the motor cycle with two pillion riders and therefore the rider of the motor cycle is responsible for the accident. It has also come out in evidence that both the Car driver and motor cycle rider were charge-sheeted. It is true that the accident occurred on the middle of the road. At the same time we note that the motor cycle rider had no driving licence and he was driving the vehicle with two pillion riders almost through the middle of the road. M.A.C.A.No.756 of 2003 & connected cases -: 4 :- He is more negligent. But the Car driver cannot be exonerated from liability because the accident occurred at the middle and 0.5 metres of his wrong side. If he was careful and cautious the accident could have been avoided. Hence we fix the liability on the Car driver and motor cycle rider as 30% and 70% respectively. 5. With regard to the claim of compensation awarded, there was no serious dispute. For the death of one of the pillion riders on the motor cycle compensation was calculated at Rs.1,63,800/- (M.A.C.A. No.765 of 2003 arising out of O.P(MV) No.555 of 1999). Out of the said amount, 30% has to be deposited by the Car driver and owner of the vehicle, 4th and 5th respondents jointly and severally which comes to Rs.49,140/- with 9% interest per annum from the date of application till realisation as awarded by the Tribunal. The rider of the motor cycle is 70% negligent and the pillion riders are also negligent in travelling knowing fully that they are acting against the Rules. We are of the view that 40% contributory negligence can be attributed to the pillion riders. Tribunal directed the insurance company to pay Rs.50,000/- as provided under the no fault liability. As per the policy condition two pillion riders cannot travel. In the facts and circumstances of the case Rs.50,000/- has to be paid by the insurance company and get it reimbursed from the insured and from M.A.C.A.No.756 of 2003 & connected cases -: 5 :- the rider of the motor cycle. We are of the opinion that 40% negligence is attributable to the pillion riders, liability of the rider of the motor cycle is 60% of the balance compensation, i.e., Rs.68,795/-. But Insurance company was directed to deposit Rs.50,000/- with interest (no fault liability). Insurance company is allowed to recover the same from the first respondent and rider of the motor cycle. First respondent rider of the motor cycle is directed to deposit additional amount of Rs.18,793/- with interest at the rate awarded awarded by the Tribunal. 6. With regard to the injury compensation inclusive of medical expenses ordered in O.P(MV) No.1151 of 1998 (M.A.C.A. No.756 of 2003) total amount awarded was Rs.2,53,000/-. Here also 30% of the above (Rs.75,900/- with interest as awarded by the Tribunal) should be deposited by respondents 4 and 5. Insurance company which insured the motor cycle was directed to pay Rs.25,000/- but in view of violation of policy conditions. Insurance company is allowed to recover the amount from the owner and rider of the motor cycle. Since we have attributed 40% contributory negligence on the pillion riders, first respondent rider of the motor cycle has to deposit 60% of the balance amount after deducting Rs.25,000/- directed to be deposited by the Insurance company. M.A.C.A.No.756 of 2003 & connected cases -: 6 :- Owner-cum-rider of the motor cycle has to deposit 60% of the balance amount attributing 40% contributory negligence on the pillion riders after deducting Rs.25,000/- ordered to be deposited by the Insurance Company and allowed to be recovered from the rider. Hence first respondent rider shall deposit Rs.81,260/- with interest at the rate awarded by the Tribunal. On deposit claimants are allowed to withdraw the same. All appeals are disposed of as above. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv