IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 MACA.No. 425 of 2005() -------------------------------- OPMV.1152/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/2ND RESPONDENT --------------------------------------------- THE ORIENTAL INSURANCE CO LTD., THIRUVANANTHAPURAM, REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/ CLAIMANT -------------------------------------- UDAYA KUMAR, S/O.KRISHNAN NAIR, VELIKUNNU VEEDU, CHOOZHAMPALAM, MUKKOLA P.O., THIRUVANANTHAPURAM. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.831/2005 IN MACA.NO.425/2005 DISMISSED 13/06/2008 SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 425 OF 2005 = = = = = = = = = = = = = = = Dated this the 13th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in O.P.(MV) 1152/00. The claimant was a pillion rider on a motorcycle and it met with an accident when it collided with a lorry. The claimant sustained fracture of the zygomatic arch and the Tribunal awarded a compensation of Rs.35,250/-. The Tribunal also found that the rider of the bike as well as the lorry have jointly contributed to the accident or in other words their liability is equal. The Tribunal held that “Hence I fixed the extent of the liability of the rider of the motor vehicle and the first respondent as equal and they have both contributed to the negligence.” The Tribunal had cast the liability on the insurance company of the lorry to pay the entire amount of compensation though its driver has only contributed 50% to the accident. When an accident takes place on account of the composite negligence of two drivers M.A.C.A. 425 OF 2005 -:2:- they independently contribute to the accident and it is their several act that results in the accident. Therefore in such cases they are several tortfeasors. When such is the situation a Division Bench of this Court in the decision reported in National Insurance Co. Ltd. v. Sivasankara Pillay (1995 (1) KLT 51) has held as follows. “Contributory negligence cannot be equated with joint tortfeasorship. In the case of contributory negligence the injured/claimant as well as the tortfeasor, both, should have contributed to the accident through each party's separate negligence. In such a case the liability of the tortfeasor gets slashed down in proportion to the negligence contributed by the claimant. But in the case of joint tortfeasors there is no contribution from the claimant in the tort. Separate act or acts done by separate tortfeasor must either have been in concert between each other or towards a common design resulting in the tort to make all of them joint tortfeasors. But in the case of several tortfeasors there is neither concert nor any common design though each person's independent wrongful act or omission M.A.C.A. 425 OF 2005 -:3:- would have resulted in one “damnum”. In a motor accident resulting from rash and negligent driving of more than one vehicle, the drivers of all the vehicles are several tortfeasors whose separate independent act of rash and negligent driving of the respective vehicles resulted in a common harm or injury.” in the light of the contentions raised in these appeals that the drivers of the treckker and lorry were several tortfeasors and not joint tortfeasors. That being so, we do not think that appellant can be made liable for the percentage of the negligence attributed to the driver of the trekker. Since the Tribunal has found that negligence on the part of the driver of the lorry is 75% the liability of the driver, owner and appellant insurance company has to be limited to that extent only of the total damages assessed by the Tribunal.” In the light of the above said decision since the driver of the lorry is only a several tortfeasor the insurance company need indemnify up to the percentage of 50% and as there is no claim against the owner of the motorcycle or the insurer is in the party array, the question of considering M.A.C.A. 425 OF 2005 -:4:- their liability does not arise. Therefore the award passed by the Tribunal is modified and it is made clear that appellant is are only liable to pay 50% of the amount awarded by the Tribunal with the interest thereon. M.N. KRISHNAN, JUDGE. ul/-