IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 MACA.No. 1440 of 2006(F) ----------------------- OPMV.231/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT /PETITIONER IN OP(MV) ---------------------------------------- HASEENA, AGED 29 YEARS, S/O. N.MOIDEEN, MUNDAPILLY THOTTATHIL, THOTTUMUGHAM, ALUVA EAST VILLAGE. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENTS/ RESPONDENTS IN OP(MV): ---------------------------------------------- 1. S.RAJAMANI, S/O. SENIAPPA GOUNDER, 4/94A, NACHIMUTHU GOUNDANPUDUR, ELLIS NAGAR P.O., DHARAPURAM-638 656. 2. BALASUBRAMANIAM, S/O. RAMASWAMY, HOUSE NO.8/52, EDAYAM KINAR DESOM, THENIPPALAYAM P.O., TAMIL NADU, PIN-638 656. 3. NEW INDIA ASSURANCE CO. LTD., 453, BIG BAZAR STREET, DHARAPURAM-638 656. 4. SHAMEER, S/O. ALIYAR, MUNDAPILLY THOTTATHIL, THOTTUMUGHAM, ALUVA EAST, PIN-683 105. 5. UNITED INDIA INSURANCE CO. LTD., K.A.P., COMMERCIAL CENTRE, R.S.ROAD, ALUVA - 683 101. BY ADV. SRI.A.C.DEVY FOR R3 SRI.S.MAMMU FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2008 ALONG WITH MACA NO. 1979 OF 2006 & MACA NO.1560 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 1440, 1560 & 1979 OF 2006 --------------------- Dated this the 25th day of June, 2008 JUDGMENT These appeals are preferred against the award passed by the Motor Accident Claims Tribunal, Perumbavoor, in OP(MV) Nos.231/02, 233/02 & 234/02. The claimant in MACA No.1440/06 was a passenger in a tempo van and the claimant in MACA No.1560/06 is the driver of the tempo van. MACA No.1979/06 is filed by the owner of the tempo van for claiming damages sustained to the vehicle. 2. The Tribunal allowed the OP's and awarded Rs. 24,700/- in OP(MV) 231/02, Rs. 2,700/- in OP(MV) 233/02 and Rs. 17,910/- in OP(MV) 234/02. The 3rd respondent in OP(MV) 233 & 234/02 was directed to produce the cheque in the name of the respective petitioners in OP(MV) Nos.233/02 & 234/02 and the 4th respondent was directed to produce cheque in OP(MV) 231/02. The principle question argued before me is regarding the finding of negligence by the Tribunal to a tune of 50% each. 3. Heard the learned counsel for the appellants as well as the respondents. Admittedly, both the vehicles were proceeding in the very same direction. The lorry was proceeding in front of the tempo van. The case of the claimants is that when it reached near the place of accident, while the tempo van was in the process of overtaking the lorry, the driver of the lorry without showing any signal all on a sudden turned to the right MACA No.1440/06 & Conn. Cases 2 resulting in hitting the left side of the tempo van and on the right side of the lorry. The Tribunal found that both the drivers have contributed to the accident. It is seen that at the place of the accident there is a “U” turn and if the vehicle wants to take a turn necessarily, it has to slow down to the maximum possible extent. Being a lorry, it can only take a slow turn and not a fast turn. The tempo driver if had bestowed some attention, he would be able to understood the factum of the lorry driver's intention to turn to the right for the purpose of taking a “U” turn. If the accident had taken pace while the tempo van was overtaking and the lorry suddenly swerved to the right, then the nature of injuries and damages would be disastrous for the reason that a fast moving vehicle on the main road would have hit on a vehicle which was trying to turn right from the main road. Therefore, it is very clear that the lorry driver was in the process of turning and it was at that time the accident had taken place. The factum that the left side of the tempo van and the right side of the lorry were damaged is an indicative of the fact that the accident had taken place by a hit on the lorry, which was attempting to turn. The question is whether the lorry driver alone is negligent for the accident. It is submitted that no signal has been shown. But, it is a well settled principle that when there is a turn, the vehicle coming from behind is able to see the same and the driver is expected to take care and attention to see that the vehicle is slowed down in order to render safety to all. What had really transpired is that with or without signal MACA No.1440/06 & Conn. Cases 3 the lorry was turning and the driver of the tempo van who was coming from behind without taking proper care attempted to overtake the said lorry and in the process hit on the side portion of the lorry resulting in the accident. So, this is a clear case where the negligence can be attributed on both the drivers and therefore, I do not want to interfere with the finding of equal negligence on both the drivers. 4. The next question is with respect to the claim in OP(MV) 231/02. Admittedly the driver of the tempo van as well as the driver of the lorry has equally contributed to the accident. So far as 50% negligence is concerned, it is the lorry driver and for whom the claimant is a third party. Therefore, the Insurance Company of the lorry is bound to indemnify the owner of the accident by 50% of the compensation that is awarded to the claimant. So the direction given by the Tribunal to 4th respondent to produce cheque for the entire amount is incorrect. At the most, the owner of the tempo van can be directed to deposit 50% of the amount due to the claimant on account of the negligence of the tempo van driver and as the Insurance Company of the tempo van is not liable, the liability has to be apportioned between R1 to R3 and R4. In other words, R1 to R3 is liable to pay 50% of the amount and R4 is liable to pay the balance 50% of the amount. To this extent, the award requires modification. In the result, these appeals are disposed of conforming the finding on the question of contributory negligence and with a further MACA No.1440/06 & Conn. Cases 4 direction that respondents 1 to 3 in MACA Nos.1440/06 is bound to pay 50% of the amount for which the 3rd respondent has to produce a cheque in the name of the claimant and for the balance 50% of the amount, the 4th respondent is liable to pay the compensation to the claimant for which he is also directed to deposit the amount within 60 days. With respect to the claim OP(MV) 233 & 234/02 is concerned, finding of the Tribunal is confirmed. M.N.KRISHNAN, JUDGE vps MACA No.1440/06 & Conn. Cases 5 MACA No.1440/06 & Conn. Cases 6