IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 MFA.No. 388 of 2001() ------------------------------ OPMV.116/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT: PETITIONER ------------------ MANAGING PARTNER, M/S.THAMPI TRANSPORTS, SHORANUR. BY ADV. SMT.SUMATHY DANDAPANI RESPONDENTS: RESPONDENTS ----------------------- 1. SHRI M.MAMMU, RESIDING AT KANDANTHODY HOUSE, KALLADIPATTA, MULLOORKARA, PALAKKAD DISTRICT, OWNER OF JEEP, KL9/A 833). 2. SHRI. K.S.SAYED, S/O. MAMMU, RESIDING AT KADAMTHODI HOUSE, ONGALLUR (DRIVER OF JEEP, KL9/A.8433). 3. UNITED INDIA INSURANCE CO. LTD., OTTAPALAM (INSURER OF JEEP, KL9/A 8433- POLICY NO.101203/31/50/3546/94.) R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R1 BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28 /01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.388 OF 2001 ------------------------------------- Dated 28th January, 2008 JUDGMENT Koshy,J . This appeal is filed questioning the award of the Tribunal in dismissing the application filed by the appellant. Appellant is the owner of a bus bearing registration No.KLG 6401. According to the appellant, a Jeep bearing registration No.KL9A 8433 driven by the second respondent and owned by the first respondent hit the bus. Consequently, the bus caught fire and the bus was completely damaged. He claimed a compensation of Rs.3,07,878/=. Driver of the bus was examined as PW3. The owner of the bus was examined as PW1. Surveyor was examined as PW2. Police records like F.I.R., scene mahazar, Motor Vehicle Inspctor's report, survey report etc. were marked. Tribunal found that there is no direct evidence to show that the fire broke out due to the accident and, therefore, application was dismissed. After considering the scene mahazar, the Tribunal found that road at the place of accident lies in north-south direction with a sharp curve to the east from the northern end. The jeep came from north to south and almost completed negotiating the curve. Whereas the bus was about to negotiate the curve. The Tribunal further found as follows: MFA.388/2001 2 “The road at the point of accident possessed a width of 6.65 metres and road margins of 2 metres width on the eastern side and 1.5 metres width on the western side. The collision point is noted as 5.36metres towards west from the eastern fringe of tarred road. Exts.A3 and A3(a) are the MVI reports of vehicle involved in the accident. The jeep suffered damages on its front right side whereas the bus suffered heavy hit impact on the front side, and it was found in burnt state. The diesel tank portion was totally dented.” PW3 also stated that the jeep driver was rash and negligent and he turned the bus only to reduce the damages, but, it hit against the guard stones and thereby caused heavy damages to the front side also. The Tribunal from the above found as follows: “The scene mahazar facts would show that the jeep driver Sayed was negligent in causing the accident. He almost negotiated the curve and was coming down towards southern direction after crossing the midline of road. So it can very well to be found that the driver of jeep was totally negligent.” Tribunal also found that jeep hit at the rear belly portion of the bus, where the diesel tank was located. Consequently, the bus hit on the guard stones and the front side was also damaged. Therefore, it was not a head on collision. Immediately after the collision, the bus turned to the road margin where the guard stones were put up. Then the passengers got down which avoided human loss. By the time, the MFA.388/2001 3 bus caught fire. The Tribunal also found as follows: “25. So it follows that PW3 also was negligent in driving the bus while negotiating the curve towards the midline of road and then rashly drove it down to the eastern margin; where the guard stones are placed. 26. So it is found that PW3 was also equally negligent in causing the accident. His degree of negligence is assessed at 50%. Whereas the driver of jeep is totally negligent and he was 100% careless and negligent.” So, the finding of the Tribunal is that jeep driver was negligent by 100%, but, 50% negligence was attributed to the bus driver because he hit on the guard stones which was only a consequential hitting while trying to reduce the damages caused. But, on the assumption that there is no evidence to show that how fire occurred, the application was dismissed. We are of the opinion that fire occurred only due to the impact of the hit of the jeep and the jeep driver's negligence is very evident. In any case, at the maximum 25% negligence can be attributed to bus driver and fire occurred only because jeep hit on the rear belly portion where the diesel tank was located as found by the Tribunal. Jeep driver was negligent and consequently insurance company of the jeep is liable to pay 75% compensation as we apportion 75% 4negligence on the jeep driver. Bus was completely burnt. Surveyor has assessed an amount of MFA.388/2001 4 Rs.3,05,662/= as the damages caused. It is contended by the insurance company that the surveyor did not take into account the depreciation for finding out the amount due for the damages caused. The matter is remanded for assessing the damages. The Tribunal shall assess the damages caused to the appellant and then 75% of the same should be deposited by the insurance company which insured the jeep. Both parties are allowed to adduce further evidence before the Tribunal. Parties shall appear before the Tribunal on 1.04.2008. J.B.KOSHY JUDGE K.HEMA JUDGE tks