IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 MACA.No. 25 of 2009() --------------------- OPMV.1094/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONER -------------- 1. HENCY BIJU,AGED 28,W/O.LATE BIJU ANTO, CHALLISSERY HOUSE, CHETTUPUZHA P.O.THRISSUR. 2. JOET AGED 8 YEARS, (MINOR) DATE OF BIRTH 13-6-2000. S/O.HENCY BIJU, REP.BY NEXT FRIEND AND MOTHER HENCY BIJU,-----DO---- BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): RESPONDENTS 1 AND 2 --------------- 1. MANAGING DIRECTOR,K.S.R.T.C. THIRUVANANTHAPURAM, PIN.695036. 2. THARUVAIKUTTY, S/O.ALI, ORUYOTH VEEDU, KIZHAKKONATH, NEAR CO-OPERATIVE BANK, KISHAKKONATH VILLAGE, KOZHIKKODE, PIN-673001. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2010 ALONG WITH MACA NO. 759 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.25 & 759 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of judgment and award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.1094/2003 dated August 8, 2008 awarding a compensation of Rs. 5,74,320/- for the loss caused to the claimants on account of the death of deceased Biju in a motor accident. 2. M.A.C.A.No.759/2009 is by the Managing Director, KSRTC, the owner of the offending vehicle ( first respondent in the O.P.) and M.A.C.A.No.25/2009 is by the claimants. 3. The facts leading to these appeals in brief are these : Deceased Biju was an Excise Guard in the Excise Circle Office, Irinjalakkuda and was drawing a salary of Rs.5065/- and was aged 29 at the time of his death. Deceased was riding his motor cycle bearing Reg.No.KL-8/V-7282 from Thrissur to Angamaly on February 5, 2003 at about 9.15 a.m. When he reached in front of Premier Cable MACA.No.759/2009 2 Company at Karukutty , a KSRTC bus bearing Reg.No. KL 15/4081 came at a high speed and dashed against the motor cycle of the deceased . Deceased sustained very serious injuries and he succumbed to the injuries sustained while undergoing treatment at the Little Flower Hospital, Angamaly. Claimants are the wife and minor child of deceased. According to them, the accident occurred due to the rash and negligent driving of bus by its driver, the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants. 4. Fourth respondent is the insurer of the motor cycle of the deceased. Respondents 1 and 2 filed written statements contending that the accident occurred due to the negligence on the part of the deceased, that deceased knocked down a pedestrian and the deceased fell down on the road and sustained injuries and that the bus did not hit the motor cycle. The third respondent, the insurer of the offending bus filed a written statement denying the liability. The fourth respondent, the insurer of the motor cycle of the deceased filed a written statement MACA.No.759/2009 3 admitting the policy, but contending that the accident occurred due to the negligence of the second respondent. 5. PWs 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the claimants. On the side of respondents 1 to 3, RW1 was examined. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the deceased as well as the second respondent and apportioned the liability to the extent of 25% and 75% respectively and assessed a compensation of Rs.7,65,760/-and after deducting 25%, awarded a compensation of Rs. 5,74,320/-. 6. First respondent in the O.P., the KSRTC filed the appeal MACA.No.759/2009 challenging the finding of the Tribunal regarding negligence. The claimants filed the appeal M.A.C.A.N.25/2009 mainly challenging the finding of the Tribunal regarding contributory negligence on the part of the deceased. 7. Heard the counsel for the appellants in both the appeals and the Insurance Company. MACA.No.759/2009 4 8. The following points arise for consideration : 1. Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the deceased as well as the second respondent can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? Point Nos. 1 and 2 9. Counsel for the appellant-KSRTC argued that no damage was caused to the bus as seen from the report of the MVI, Ext.A5 and also that RW1, the driver of the bus testified that the bus did not hit the motor cycle and that therefore Tribunal went wrong in holding that the accident occurred due to the negligence of the first respondent. We are unable to agree. Merely because there was no damage to the KSRTC, it does not ipso facto show that it did not hit the motor cycle. As correctly observed by the Tribunal that mere touching of the KSRTC bus would have caused the deceased to loose the control of the motor cycle. RW1, the driver of the KSRTC though would say that the bus did not hit the motor cycle, admitted that when he appeared before the MACA.No.759/2009 5 Criminal Court, he pleaded guilty and he was convicted therein. It is clear from the above that there was also negligence on his part. That apart, the motor cycle was seen on the middle of the road which shows that there was also negligence on the part of the deceased. That being so, the Tribunal is perfectly justified in finding that the accident occurred due to the negligence on the part of the deceased as well as the second respondent and apportioning the liability as 75% on the part of second respondent and 25% on the part of the deceased. 10. As regards the compensation awarded by the Tribunal, we find the same to be reasonable and therefore are not disturbing the same. That being so, both the appeals have to be dismissed. In the result, both the appeals are dismissed. Parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.759/2009 6 MACA.No.759/2009 7