IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 1996 of 2009() ----------------------- OPMV.3195/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: 6TH RESPONDENT ---------------------------- UNITED INDIA INSURANCE COMPANY LTD NOW REP.BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS: PETITIONER & RESPONDENTS 1 TO3 --------------------------------------------- 1. SATHISH BABU @ SATHISH KAVYADHARA, S/O.ARANMULA SATHYAVRATHAN, SREEKARPAKAM, MAPPILASSERY ROAD, C.C.XXIX/1276, VYTTILA, ERNAKULAM 2. ANWAR S/O.MUHAMMED MULLANGARA HOUSE, MANKEDA, MALAPPURAM DIST. 3. C.P.MUHAMMEDALI, S/O.KUNJUMOIDU, CHERAPPURATH HOUSE, KOOTTIL PO, VIA MANKEDA, MALAPPURAM DIST. 4. THE ORIENTAL INSURANCE COMPANY LTD, JASEELA COMPLEX, NILAMBUR ROAD, MANJERI. ADV. SRI.T.A.SHAJI FOR R1 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. ------------------------------------------------------------ M.A.C.A.NO.1996 OF 2009 ---------------------------------------- Dated this the 3rd day of June, 2010 JUDGMENT A.K.Basheer,J The short and only question that has been raised in this appeal by the appellant Insurance Company is whether the Tribunal was justified in fixing the percentage of culpability or negligence as 60 : 40 on the drivers of the two buses which were involved in the accident. 2. Shorn of unnecessary details relevant facts which are necessary to answer the above question may be briefly noticed: 3. The victim of the accident, who was travelling in a stage carriage insured with respondent No.4 herein, suffered a grievous injury on his right hand which happened to be chopped off from the right shoulder joint when another bus coming from the opposite direction dashed against the side of the bus. From the pleadings it came out that the drivers of the two buses blamed each other and the two insurance companies with which the two vehicles were admittedly insured, also took the same stand. While considering the evidence available on record, the Tribunal noticed that the road on which the accident took place had a width of 8 meters with sufficient space on either side and M.A.C.A.NO.1996 OF 2009 2 that the mishap occurred when the vehicles crossed each other. It was also noticed by the Tribunal that the Police had registered charge against both drivers as revealed from Ext.A3 final report. 4. After noticing the above aspects, the tribunal observed thus: “This being a collision between two vehicles coming from the opposite direction and the accident having been happened in the middle of the road, normally blame should be apportioned equally among the drivers. But considering the facts and circumstances of the case, manner of accident and in the absence of explanation from the drivers justifying their respective conduct in not taking steps to avoid the accident despite the availability of space and attendant circumstances, culpability of the drivers is apportioned in the ratio of 40:60 in between respondent No.1 and respondent No.4.” 5. It may at once be noticed that both drivers did not bother to get themselves examined in the case. In fact the two drivers and the respective owners of the two stage carriages remained absent and they were set exparte. 6. As mentioned earlier, the Police had submitted A and B M.A.C.A.NO.1996 OF 2009 3 charges against the two drivers holding both of them responsible for the accident. In that view of the matter, we find considerable force in the contention raised by the learned senior counsel who appears for the appellant that the apportionment of culpability of the two drivers as 60 : 40 is wholly unjustifiable. Therefore, the finding of the Tribunal apportioning the culpability or percentage of negligent 60 : 40 is set aside. 7. In the facts and circumstances of the case, we have no hesitation to hold that the liability has to be fastened on the two drivers in the ratio of 50 : 50. Ordered accordingly. The award is modified to the above extent. In all other respects, the award passed by the tribunal shall remain intact. 8. The two insurance companies shall deposit their respective share of compensation in the ratio mentioned above within one month from the date of receipt of a copy of this judgment. This appeal is disposed as above. A.K.BASHEER,JUDGE. P.Q.BARKATH ALI,JUDGE. pm