IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 MACA.No. 270 of 2003() ---------------------- OPMV.2590/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED KOTTAYAM NOW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT: PETITIONER: -------------------------------------------- RUBY MATHEW, W/O.MATHEW, KULAKKATTU HOUSE, VELIYANNOOR KARA, VELIYANNOOR VILLAGE. (NO RELIEFS ARE CLAIMED AGAINST THE RESPONDENTS 1 & 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THE THIS APPEAL) BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1000/2003 IN M.A.C.A.NO.270/2003 DISMISSED 4/06/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.N.KRISHNAN, J ===================== MACA No.270 OF 2003 ===================== Dated this the 4th day of June 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.2590 of 1994. The appellant is the 3rd respondent insurance company in the O.P. The Tribunal found that the accident had taken place on account of the negligence of the car driver and 25% negligence of the van driver. The appellant is the insurer of the van. The driver, owner and the insurance company of the car has not been impleaded as parties. The Tribunal found that the accident had taken place on account of the negligence of the car driver to the extent of 75% and 25% of the van driver. The Tribunal ultimately directed the 3rd respondent, viz; the insurer of the van to pay the entire compensation. It is against that decision the present appeal is filed. 2. The accident had taken place on account of the collision of two vehicles. So far as the claimant is concerned, it is a case of composite negligence. Now the settled position is that in a case of composite negligence, they are several tortfeasors and not joint tortfeasors. When it is MACA 270/2003 -:2:- so the liability has to be apportioned individually between those who had been responsible for the accident. Unfortunately in this case, the claimant has not chosen to implead the owner, driver and the insurer of the car and has also not claimed any compensation against them. Therefore one cannot affix the entire liability on the van driver and direct the the insurance company to pay the amount. Therefore the award requires modification and I hold that the appellant-insurance company is only liable to indemnify the owner of the van to an extent of 25% for which alone the owner is liable. The award of the Tribunal directing to pay the entire amount by the insurance company of the van is set aside. MACA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-