IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 MACA.No. 1068 of 2009() ----------------------- OPMV.110/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): -------------- LATHIKA, W/O.SASI, KALAFAMKULATHU HOUSE KEZHUVEMKULAM P.O., KARA, PULIYANNOOR VILLAGE. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): RESPONDENT ------------------------- 1. JIMMICHAN MATHEW, S/O.MATHEW, KOLADY HOUSE, KEZHUVAMKULAM KARA, CHERPUNKAL P.O. 2. THE ICICI LOMBARD GENERAL INSURANCE CO. LTD, 3RD FLOOR, KANNANKERI ESTATE, MARINE DRIVE, SHANMUGHAM ROAD, KOCHI-31. ADV. SRI.M.D.SASIKUMARAN FOR R1 SRI.GEORGE MATHEW FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1068 OF 2009 ............................................. Dated this the 5th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pala in OP(MV)No.110/2007. The claimant, a passenger in an auto rickshaw, sustained injuries when it collided with a Maruti car. She had sustained injury on the 11th rib and other lacerated wounds. The Tribunal after consideration of the materials found that the driver of the auto rickshaw has contributed 75% to the accident and 25% by the Maruti driver and so deducted 75% of the compensation and awarded Rs.7,850/= as compensation. It is against that decision, the claimant has come up in appeal. 2. It is true that the claimant was only a passenger. Therefore, it cannot be held that she has contributed to the accident. When two vehicles collide and it may be on account of the negligence of both the drivers, the said negligence is called composite negligence. In a case of composite negligence, the drivers involved are not joint tort feasors but they are several tort feasors; that means : 2 : M.A.C.A.No.1068 OF 2009 each of the driver is individually liable for the percentage of negligence on his part. The question of joint tort feasors which was a theory governing the field had been given a go bye and in the decision reported in National Insurance Co.Ltd. Sivasankara Pillay (1995 (1) KLT 51) it was held that when an accident takes place on account of the negligence of the two drivers, they are not joint tort feasors but several tort feasors. When it is the legal position, then both the tort feasors along with their owners and the insurance company should be made liable and for that purpose, they have to be impleaded as parties. 3. So far as this case is concerned, for the reasons known to the claimant, neither the driver of the auto rickshaw nor its owner had been impleaded as a party. Therefore, though she is not contributory negligent to the accident since she had claimed compensation only from the owner, driver and the insurance company of the motor car only that percentage of compensation of that negligence can be awarded to her. The Tribunal found that the materials available would indicate that the vehicle was being driven by : 3 : M.A.C.A.No.1068 OF 2009 Anilkumar and not by Binu as projected by the parties on the basis of the F.I.Statement. Since the auto rickshaw owner and the driver is not before me, a further adjudication in the question does not arise. 4. Now, mainly to the question of negligence. The learned Tribunal found that though a charge sheet is filed against the driver of the Maruti car, the facts and circumstances would indicate that the driver of the auto rickshaw was responsible for the accident to a great extent. For that purpose, it had relied on the statement given by the injured wherein it was stated that auto rickshaw had overtaken a parked bus and then hit on the Maruti car which was coming from the opposite side. The learned Tribunal also found that the nature of the damage sustained by the auto rickshaw is on the side of its wheel which indicates that it is not a hit direct. So the theory of the auto rickshaw overtaking the bus and the Maruti car swerving the vehicle and the Maruti car hitting on the side of the wheel of the auto rickshaw appear to be more probable and acceptable as found by the Tribunal. The Tribunal also has stated that : 4 : M.A.C.A.No.1068 OF 2009 if the Maruti car driver also had come at a reasonable speed and as there was only parked vehicle on the other side, if he had bestowed better attention and care, he could have swerved the vehicle that side whereby the accident could have avoided. The factum of negligence of the driver of the auto rickshaw is there and there is negligence on the driver of the car as well and therefore taking into consideration all these aspects, I am inclined to fix the negligence at 60% on the auto rickshaw driver and 40% on the Maruti car driver or in other words, the claimant will be entitled to 40% of the compensation awarded in the case. 5. Now turning to the quantum. It is true that when there is actual loss of earnings, there is no point in deducting one third of that for calculating the loss of earnings. When it is so, the claimant will be entitled to Rs.2,000/= more which makes the total compensation of Rs.33,400/=. Since she is entitled to only 40% of the compensation, the total amount which she is entitled will be Rs.10,360/=. The Tribunal has already awarded a compensation of Rs.7,850/=. So, the claimant will be entitled to an additional : 5 : M.A.C.A.No.1068 OF 2009 compensation of Rs.2,510/=. 6. In the result, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.2,510/= with 9% interest on the said sum from the date of the petition till realisation and the respondent insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl The figure “Rs.10,360/=” occurring in line 7 of paragraph-5 and the figure “Rs.2,510/=” occurring in the last line of paragraph-5 and 3rd line of paragraph 6 of the judgment dated 5.11.2009 in M.A.C.A.No.1068/2009 are corrected as “Rs.13,360/=” and Rs.5,510/=” respectively vide order dated 9.12.2009 in I.A.No.3562/2009 in MACA.No.1068/2009. Sd/= Registrar (Judicial) : 6 : M.A.C.A.No.1068 OF 2009