IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 MACA.No. 1362 of 2004() ----------------------- OPMV.167/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S)/3RD RESPONDENTS. ---------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., PALA NOW REP. BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI -11. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT(S): PETITIOENRS AND RESPONDENTS 4 AND 5. --------------------------------------------------- 1. JOSEPH, S./O.KURIEN, SOURIAMMAKKEL HOUSE, NELLAPPARA KARA, KARINKUNNAM VILLAGE, THODUPUZHA TALUK. 2. ROSA, W/O.JOSEPH, DO. DO. 3. K.J.REJI, ANAPPARA HOUSE, NELLAPPARA KARA, KARINKUNNAM VILLAGE, THODUPUZHA. 4. THE ORIENTAL INSURANCE COMPANY LTD., THODUPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008 ALONG WITH M.A.C.A. NO.1363 OF 2004 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NOS. 1362, 1363, 1364, , 1365, 1366, & 1367 OF 2004, 1383 & 1384 OF 2005 & W.P.(C) NO.31298 OF 2006 --------------------------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT Ramachandran Nair, J. These connected appeals and the Writ Petition are filed against the common award passed in eight claim petitions and another award passed in the case of a single claimant, all arising out of the same accident. The claimants are either the legal representatives of the deceased or the injured passengers of the jeep which collided against a bus insured by the appellant in all the cases. 2. The accident occurred at 8.30 p.m. on 1.3.1990 when the jeep in which the victims were travelling collided against a bus in the Pala- Thodupuzha road . Six persons including the driver of the jeep died and three sustained injuries. In the claim petitions filed , the Motor Accidents Claims Tribunal, Pala found that accident was on account of contributory negligence by both sides and 70% of the negligence was found attributable to the driver of the bus. Consequently, apportionment of M.A.CA. No.1362/2004 & Connected Cases. 2 compensation was awarded between the two Insurance Companies. Since the jeep was a goods vehicle, liability of the Insurance Company per passenger was limited to Rs.20,000/- 3. In the appeals, the contention of the insurer of the bus is that the accident is attributable to the negligence of the driver of the jeep and so much so, the company has no liability to pay compensation. Standing counsel appearing for the Insurance Company has mainly relied on the scene mahazar and contended that scene of occurrence which is only 1.74 metres from the western tar end of the road itself is sufficient to prove that the bus was in the correct track and the jeep went out to the wrong side and caused the accident. He also referred to the allegation of the claimants against the bus driver that he did not dim the headlight before giving side to the jeep. According to counsel for the appellants, failure to dim the light could not have caused the accident of the type happened in this case. He contended that the impact of the accident indicate high speed at which the jeep was driven at the time of the accident. On the other hand, counsel appearing for the respondents/claimants and counsel appearing for the insurer of the jeep contended that even after the head on collision, the bus dragged the jeep more than ten metres and the same indicates over speed of the bus. Therefore, according to them, not only the driver of the bus did M.A.CA. No.1362/2004 & Connected Cases. 3 not dim the light, the speed of the bus was exorbitant. 4. After hearing counsel appearing for the parties and after going through the records, we do not find any justification to deviate from the findings of the Tribunal. In the first place, it is proved beyond doubt that the accident was a result of contributory negligence by both the drivers. The condition of the road is such that the accident could have been avoided if both the drivers were careful. What remains is only the matter of apportionment of contributory negligence between the drivers and we have no material to deviate from the view taken by the Tribunal. Above all, it is a matter of sharing liability between the two Insurance Companies, both under Government control and ownership and, therefore, the issue is essentially a dispute of academic nature. We, therefore, dismiss the appeals. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.CA. No.1362/2004 & Connected Cases. 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NOS. 1362, 1363, 1364, 1365, 1366,& 1367 OF 2004, 1383 & 1384 OF 2005 & W.P.(C) NO.31298 OF/06 JUDGMENT 4th November, 2008 M.A.CA. No.1362/2004 & Connected Cases. 5