IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 MACA.No. 978 of 2008() ---------------------- OPMV.79/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/ IST & 2ND RESPONDENT --------------------------------------------- 1. THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVT. SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU RESPONDENT(S): APPLICANT & RESPONDENT 3 & 4 -------------------------------------------- 1. REJI.K, JACOB, S/O.K.C.CHACKO, MADATHIL VEEDU, K.P.VII/177, MARYGIRI LANE, KUDAPPANAKKUNNU P.O,THIRUVANANTHAPURAM. 2. PRASAD, S/O.PARAMESWARAN, DRIVER, POLICE HEADQUARTERS, OFFICE OF THE DIRECTOR GENERAL OF POLICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. M/S.UNITED INDIA INSURANCE COMP.LTD, DIVISIONAL OFFICE, THIRUVANANTHAPURAM. ADV. SRI.K.T.SHYAMKUMAR FOR R1 SRI.R.NARENDRAN NAIR FOR R1 SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.978 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2010 JUDGMENT Basheer, J. This appeal is by the State of Kerala through its Chief Secretary and also by the Director General of Police, Police Head Quarters. They impugn the award passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram directing them to pay a sum of Rs. 1,09,250/- as compensation to respondent No.1/claimant as compensation with interest @ 9% per annum with effect from January 15, 1999 till the date of payment. 2. The case of respondent No.1/claimant was that while he was riding on a motor cycle as a pillion rider, the car belonging to the police department came in a rash and negligent manner and hit against the two wheeler resulting in the accident. He suffered serious injuries in the accident, and therefore claimed a total sum of Rs. 2,50,000/-. 3. The Tribunal after considering the oral and documentary evidence on record found that the accident took place because of the MACA.No.978/08 2 composite negligence on the part of the driver of the car belonging to the police department and also that of the rider of the two wheeler. The Insurance Company which had allegedly issued a valid insurance policy in respect of the car at the time of the accident was exonerated since no document was produced by the appellants to substantiate the same. The Tribunal therefore directed the appellants to pay the compensation in a sum of Rs. 1,09,250/- with interest thereon to the claimant. 4. This appeal has been filed with a delay of 1306 days contending inter alia that respondent No.3, Insurance Company, had in fact issued a valid insurance policy in respect of the vehicle. Having regard to the facts and circumstances, we have already condoned the delay. 5. Learned counsel for respondent No.3 now concedes after verification of the records that the company had in fact issued a valid insurance policy in respect of the vehicle. Therefore, it necessarily follows that the Insurance Company will be liable to indemnify the appellants. Ordered accordingly. MACA.No.978/08 3 6. However, now a question will arise as to whether the Insurance Company will be liable to indemnify the appellants for the whole amount now ordered to be paid to the claimants. Learned counsel for the Insurance Company points out that the Tribunal did in fact find that the collision of the two vehicles had occurred due to the rash and negligent driving of the car and the two wheeler by the respective drivers. Even though the Tribunal has not apportioned the percentage of negligence inter se, it is apparent that the Tribunal had found that the rider of the two wheeler was also equally responsible for the accident. 7. It is significant to note that the above finding has not challenged by the claimant before this court. Still further, the claimant had not chosen to implead the rider, owner and insurer of the two wheeler in the claim petition. Therefore it has to be necessarily held that respondent No.3, Insurance Company, can now be directed to pay only 50% of the amount of compensation ordered to be paid to the claimant. Therefore, the appeal is allowed. Respondent No.3, MACA.No.978/08 4 Insurance Company, is directed to pay 50% of the amount of Rs. 109250/- with 9% interest thereon from January 15, 1999. Since this appeal has been filed with an inordinate delay of 1306 days, appellants shall be liable to pay interest to the claimant for the period from July 1, 2004 till the date of filing the appeal viz. April 11, 2008. For the remaining period respondent No.3 shall pay interest. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.978/08 5