IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 MACA.No. 2047 of 2007(F) ------------------------------ OPMV.303/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: ----------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOLLAM, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE,ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANTS 1 TO 4/RESPONDENTS 6 & 7: ------------------------------------------------------------------- 1. PONNAMMA, W/O. KRISHNANKUTTY, CHARUVILA PUTHEN VEEDU, THRIKKOVICKAL,YEROOR P.O., PATHANAPURAM TALUK. 2. R. SUDHA, WIDOW OF VISWANATHAN, VIMAL SADANAM, PANAYAM, YEROOR P.O. 3. V. VIMAL, S/O. VISHWANATHAN, RESIDING AT VIMAL SADANAM, PANAYAM, YEROOR P.O., MINOR, REPRESENTED BY HIS MOTHER 2ND RESPONDENT. 4. S. VIDHYA, D/O. VISHWANATHAN, RESIDING AT VIMAL SADANAM, PANAYAM, YEROOR P.O., MINOR, REPRESENTED BY HER MOTHER 2ND RESPONDENT. 5. KARNATAKA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR. C. R. MACA.2047/07 -2- 6. KRISHNANKUTTY, S/O. PARAMESWARAN ACHARY, VILASINI BHAVAN, EDAMULACKKAL, EDAMULACKKAL VILLAGE. ADV. SRI.SHEJI P.ABRAHAM FOR R.5 SRI.C.RAJENDRAN FOR R1 TO 4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2010, A/W MACA.2048/07 & CON. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ M. A. C. A. Nos.2047, 2048, 2049 of 2007 & W. P. C. No.35313 of 2007 ------------------------------------------------ Dated this the 7th day of December, 2010 JUDGMENT P. S. Gopinathan, J Oriental Insurance Company, the third respondent in O.P.(MV)Nos.303/02, 1107/02 and 1209/03, petitions under Section 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Punalur, is the appellant in all these three appeals. Original Petition was also filed by the very same company who was also the third respondent in O.P.(MV).1210/03. Hereinafter, the company is referred to as the appellant. By a common order dated 16/12/06 in O.P. (MV) Nos.303/02, 1107/02, 1209/03 and 1210/03, separate awards were passed by the Tribunal below against the appellant directing it to pay the compensation awarded in favour of the respective claimants. Assailing the above C. R. M. A. C. A. No.2047/07 & con. cases -2- common order and respective awards, these appeals and the Original Petition were filed. 2. The brief facts leading to the appeals and the Original Petition are as follows:- At 8.30 a.m. on 26/08/01 at Mukka along Mangalore-Udippi NH-47, a motor accident occurred involving a bus owned by the Karnataka State Road Transport Corporation (KSRTC) and a mini bus. As a result, four passengers travelling in the KSRTC Bus sustained injuries, to which Viswanathan and Babu Mohan succumbed. The legal heirs of Viswanathan and Babu Mohan are the claimants in OP(MV)303/02 and OP(MV).1107/02. The other two injured are the claimants in the other two petitions. The 2nd respondent in all the petitions before the Tribunal was driving one Asha bus bearing Registration No.KA/20/B/7227, from North to South. The KSRTC bus was behind Asha bus. The claimants alleged that, while so, the 2nd respondent applied sudden brake. Consequently, the M. A. C. A. No.2047/07 & con. cases -3- driver of the KSRTC Bus also applied brake. As an impact of the application of the brake, the rear side of the KSRTC Bus was tilted to the right. Thereupon, the mini Bus bearing Registration No.KA/19/C/5139 driven in the opposite direction hit on the rear side of the KSRTC bus and as a result, the passengers in the KSRTC bus sustained injuries. Attributing negligence against the second respondent, who was driving Asha bus, which was insured by the appellant, the claim petitions were filed before the Tribunal below. 3. The appellant filed written statements denying negligence on the part of the drivers of Asha bus and Mini bus and attributing negligence against the driver of the KSRTC Bus and contended that the claim made in all the petitions is exorbitant and that the appellant is not liable to compensate the claimants; and that the KSRTC and its driver are liable to compensate. Appellant admitted that it is the insurer of Asha bus and Mini bus. M. A. C. A. No.2047/07 & con. cases -4- 4. KSRTC, in its separate written statements attributed negligence against the second respondent and contended that its driver was not negligent and hence it cannot be held liable to compensate the claimants. 5. All the four petitions were tried jointly and the evidence was recorded in O.P.303/02. On the side of the claimants, PWs.1 to 4 were examined. Exts.A1 to A27, X1, X1(a) and X1(b) were marked on the side of the claimants. One witness was examined on the side of the appellant as RW1. The Tribunal below relying upon Ext.A1 First Information Report, Ext.A2 Scene Mahazar, Ext.A2(a) site plan and Ext.A5 Charge Sheet arrived at a finding that the second respondent who was driving Asha bus alone was negligent. In O.P.(MV).303/02 a sum of Rs.5,34,000/- was awarded as against the appellant. In other petitions, award for Rs.5,01,000/-, Rs.13,878/- and Rs.5,912/- respectively were passed. Since the award amount in O.P.(MV).1210/03 M. A. C. A. No.2047/07 & con. cases -5- is less than Rs.10,000/-, in view of sub clause (2) of Section 173 of the M.V. Act, no appeal was preferred. But, assailing the award, the Original Petition was preferred. 6. We heard Sri.George Cherian (Thiruvalla), the learned counsel appearing for the appellant, Sri.Shaji P. Abraham appearing for KSRTC and Sri.C.Rajendran appearing for the claimants; and perused the common order impugned as well as the documents. 7. The learned counsel for the appellant submitted that though he had also assailed the quantum of compensation awarded by the Tribunal, he is not pressing the appeals and the Original Petition regarding the quantum of compensation; and that he is only assailing the liability of the appellant. According to the learned counsel, this is a case in which KSRTC bus and mini bus alone were involved and no specific evidence was adduced by either party as to how exactly the accident occurred and since there was no M. A. C. A. No.2047/07 & con. cases -6- allegation of negligence against the driver of the mini bus, the Tribunal below ought to have found KSRTC and its driver alone liable. 8. In the light of the submission made by the learned counsel for the appellant, we do not propose to examine the correctness of the quantum of compensation. We are only examining as to whether the appellant alone can be held liable, or whether the liability is to be apportioned or not. Since the appellant had insured Asha bus and mini bus, the appellant is liable to the extent of contribution of negligence, if any, by the drivers of those buses. But, the appellant cannot be held liable for the negligence of the KSRTC driver. Therefore, the question germane before us is as to whether the driver of the KSRTC bus had contributed negligence; and if so, to what extent. 9. Though it is alleged in all the petitions before the Tribunal that the accident occurred only because of the rash M. A. C. A. No.2047/07 & con. cases -7- and negligent driving of Asha bus by the 2nd respondent, we notice that it was an ongoing bus. It did not hit against the KSRTC bus. Neither did it hit the mini bus which was driven in the opposite direction. Also no passenger in Asha bus sustained any injury. In the petition before the Tribunal, negligence was attributed against the 2nd respondent alone with a pleading that the accident occurred only because of his sudden application of the brake. Regarding the application of sudden brake by the 2nd respondent, there is no reliable evidence; but we find that the police after investigation, by Ext.A5 charge sheet had attributed negligence against the 2nd respondent alone for that reason. Having due regard to the facts and circumstances, we are in the dark as to how such a conclusion can be arrived at. However, we notice that there is little material on record to conclude that Asha bus had either gone to any of the sides or that the driver had lost control. Neither was it hit by the M. A. C. A. No.2047/07 & con. cases -8- KSRTC bus. In such a circumstance, we find some merit in the argument of the learned counsel for the appellant that the accident itself would not have occurred, if the KSRTC bus had been driven cautiously, at a controllable speed and had been keeping a safe distance from the ongoing bus. It cannot be ascertained from the evidence on record as to whether the rear side of the KSRTC bus was tilted to right because of the negligent driving of the KSRTC bus or whether it was because of the impact or force due to the sudden application of the brake. We also notice that the driver of the mini bus could also have averted the accident, had he been cautious enough either to stop or to drive the bus a little more towards the side of the road. While driving a motor vehicle along a public road, there may occur contingencies persuading the driver to apply brake suddenly, sometimes, in order to avoid greater risk(s) or casualties. In other words, sudden brake is usually applied M. A. C. A. No.2047/07 & con. cases -9- by a driver of a motor vehicle to avert a casualty; and such sudden application of brake cannot be branded as negligent or rash driving. In fact, such sudden application of brake could itself be an act of exercise of due care and caution while driving. Of course, signal has to be given. It is not in dispute that the mechanical signal system of Asha bus was in working condition. Therefore, it is to be presumed that the driver of the KSRTC bus was given signal on application of brake by the 2nd Respondent. It is the duty of the driver of the following vehicle not only to keep safe distance from the ongoing vehicle, but also to watch out for the signals. If the driver of the following vehicle drives with caution, at a controllable speed, at a safe distance, and watching out for signals, he would be able to safely stop his vehicle, even in a case where the ongoing vehicle is stopped all on a sudden. As stated above, there is no case that Asha bus went off the road or pushed aside or hit any object on any side. No M. A. C. A. No.2047/07 & con. cases -10- passenger in that bus sustained any injury or abrasion. In this view of the matter, we are not persuaded to conclude that the driver of the Asha bus had contributed any negligence. On the other hand, we find that there is negligence on the side of the KSRTC bus driver, because if the KSRTC bus had not been tilted to the right side, sometimes mini bus would not have hit against it. Probably, there might have been contribution of negligence on the side of the driver of the mini bus also. To put it briefly, as a general rule, no negligence can be attributed against a driver solely on an allegation that he applied brake suddenly. The driver of the following vehicle cannot take shelter against the allegation of negligence and claim for compensation for hitting against a third vehicle, by simply stating that the ongoing vehicle stopped, forcing him to brake suddenly and causing his vehicle to tilt to right and hit another vehicle which was coming across. M. A. C. A. No.2047/07 & con. cases -11- 10. The Tribunal should have independently assessed the pleadings and the available evidence and should have come to its own logical conclusion regarding the cause of the accident. Of course, final report of the police would be a relevant piece of evidence. The Tribunal should not have mechanically endorsed the police report. Here, the Tribunal should have noted that, as stated above, Asha bus had not hit any object at all. Though it is alleged that 2nd respondent had suddenly applied the brake, the bus did not deviate from the road. Neither did any passenger inside that bus sustain any injury. On the other hand, admittedly, the rear side of the KSRTC bus was tilted to right, allegedly on application of brake, and the mini bus from the opposite direction hit against the rear side of the KSRTC bus, as a result of which passengers in the KSRTC bus alone sustained injuries. When more than one vehicle is involved in an accident, it is the duty of Tribunal to assess the extent of M. A. C. A. No.2047/07 & con. cases -12- contribution of negligence and to apportion the compensation to the extent of negligence. Though no evidence is adduced to impeach or reject Ext.A5, in the given set of facts, we are unable to exonerate the other two drivers. The maxim “res ipsa loquitur” is squarely applicable here. The facts on record regarding the accident speak volumes about the negligence of the driver of the KSRTC bus. With the materials on record, we would be justified in concluding that the KSRTC bus was driven at breakneck speed, without keeping safe distance with the ongoing vehicle. Also, its driver did not care for vehicles coming from the opposite direction. That rashness and negligence had resulted in the accident. Driver of the mini bus also might have contributed negligence. On going through the entire evidence, including Ext.A5, we find that there is contribution of negligence on the part of all the three drivers. So the drivers and owners of the three buses are liable to M. A. C. A. No.2047/07 & con. cases -13- compensate the injured and the legal heirs of the deceased. Since the other two buses were admittedly insured by the appellant, its liability is statutorily extended to the extent of contribution of negligence by the two drivers. Since it is submitted that the KSRTC bus was not insured, KSRTC and its driver are liable to compensate the claimants to the extent of contribution of negligence by its driver. 11. Having regard to the entire facts and circumstances, we find that the appellant is liable for 2/3rd of the award amount as insurer of the two out of the three vehicles involved in the accident. KSRTC and its driver are jointly and severally liable for the remaining 1/3rd. The Tribunal below exonerated the KSRTC and its driver without properly analysing the pleadings and evidence leading to the accident, but mechanically relying on Ext.A5. The result is unlawful burden to the appellant and the KSRTC and its driver were unlawfully exonerated. We have no other go, M. A. C. A. No.2047/07 & con. cases -14- but to interfere with and rectify the impugned order and Awards. 12. In the result, all the appeals as well as the Original Petition would stand allowed in part. The liability of the appellant is limited to 2/3rd of the award amount in all the petitions before the Tribunal. KSRTC and its driver are jointly and severally liable for the remaining 1/3rd. Awards under challenge would stand modified to that extent. In the peculiar circumstance, we make no order as to costs. The appellant as well as the KSRTC shall deposit the due award amount in the above proportion within two months. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-