IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 MACA.No. 143 of 2005() ---------------------- OPMV.894/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM .................... APPELLANT/5TH RESPONDENT ----------------------------------- THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH,KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/ RESPONDENTS 1 & 2 ------------------------------------------ 1. P.NASEER, S/O.PHAKEER MOIDEEN, T.C.15/838, PRIYA, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. BASAVARAJU NANJAPPA, S/O.NANJUPPA, NO.689/I STAGE, INDIRA NAGAR, BANGALORE-38. 3. RAJESH, S/O.BABU, SAROJA NILAYAM, MANJAMKUZHI, NEAR AMARAVILA CHECK POST, AMARAVILA, NEYYATTINKARA. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.143/05 ORDER ON IA 235/05 IN MACA 143/05 DISMISSED 14.10.08 SD/- M.N.KRISHNAN, JUDGE. /TRUE COPY/ PA TO JUDGE M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 143 OF 2005 --------------------- Dated this the 14th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Thiruvananthapuram, in OP(MV) 894/99. The claimant sustained injuries in a road accident while he was travelling in an autorickshaw. The claim is filed against the rider and owner of the motor cycle as well as against the rider, owner and Insurance Company of the autorickshaw. So it is clear that there is no insurance for the motor cycle whereas the autorickshaw is covered by a valid policy. The Tribunal on consideration of the entire materials found that the rider of the motor cycle as well as the driver of the autorickshaw had equally contributed to the accident and therefore apportioned negligence at 50% each. Thereafter, the Tribunal proceeded to determine the compensation and arrived at a figure of Rs.60,150/- with 9% interest to the claimant. The Tribunal further held that since there was no valid badge for the driver of the autorickshaw there is breach of policy condition and so on payment, the Insurance Company is entitled to get reimbursement of the MACA No. 143/05 2 amount. The Tribunal also held that it can pay the amount due from respondents 1 and 2 in the claim petition and get it reimbursed. 2. So far as the finding of reimbursement from the owner of the autorickshaw is concerned, the said finding does not suffer from any infirmity for the reason that the driver of the autorickshaw did not have a valid driving licence to drive light transport vehicle. But the Tribunal's finding that the Insurance Company is bound to pay the amount due from the rider and owner of the motor cycle is without any basis and it requires to be interfered. When an accident took place on account of the composite negligence to two persons, they are called several tort feasors and therefore there cannot be a direction to pay the entire amount by one of the tort feasors. So the decision of the Tribunal directing the insurer of the autorickshaw to pay the amount due from the motor cyclist and its rider is against the provisions of law, which is liable to be interfered. Therefore, the appeal is partly allowed and the award passed by the Tribunal is modified whereby it is ordered that the claimant is entitled to get 50% of the compensation amount from the 5th respondent Insurance Company in the claim petition who on MACA No. 143/05 3 deposit of the same shall get it reimbursed from respondents 3 and 4 in the claim petition. So far as the balance 50% amount is concerned, the absolute liability is only on respondents 1 and 2 in the claim petition and they are jointly and severally liable to pay the same. If the Insurance Company has deposited the entire amount, then the Insurance Company can recover it from respondents 1 and 2 in the claim petition. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps MACA No. 143/05 4