IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 MACA.No. 199 of 2008() ---------------------- OPMV.852/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/3RD RESPONDENT -------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS 1& 2 AND RESPONDENTS 1, 2 & SUPPL.4TH RESPONDENT RESPECTIVELY --------------- 1. ANANYA SURESH, AGED ABOUT 11 YEARS (MINOR), D/O.SURESH KUMAR (LATE), REP. BY GUARDIAN LAKSHMI, W/O.LATE GOPALAN, PULARI THARAMAL (H), CHERUVANNOOR AMSOM, PAMPURI KUNNU DESOM, P.O.CHERUVANNOOR, VIA. MEPPAYOOR, KOYILANDY TALUK-673 524. 2. LAKSHMI, W/O.LATE GOPALAN, PULARI THARAMAL (H), CHERUVANNOOR AMSOM, PAMPURI KUNNU DESOM, P.O.CHERUVANNOOR, VIA. MEPPAYOOR, KOYILANDY TALUK-673 524. 3. A.P.HAMEED, S/O.ABU, AGED ABOUT 54 YEARS, KANDATHIL PARAYIL HOUSE, SIVAPURAM P.O., TELLICHERRY-670 702. 4. ABOOTTI VALIYANDI, AGED ABOUT 34 YEARS, K.P. HOUSE, URUVACHAL P.O., MATTANNOOR-670 702. 5. T.A.ABDUL RAHIMAN, HOUSE NO.1/239 A, JASMINE, THEKKI, CHATANCHAL, KASARAGOD. ADV. SRI.K.RAKESH ROSHAN FOR R4 SMT.THUSHARA.V FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010 ALONG WITH MACA.NO.913/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. Nos.199 & 913 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2010 JUDGMENT Barkath Ali, J. Both these appeals by the Insurance Company under Section 173 of Motor Vehicles Act arise out of a common award passed by the Motor Accidents Claims Tribunal, Vadakara in O.P.(MV)No.852/02 and in O.P.(MV)No.858/02 dated August 10, 2006. 2. The facts in brief are these : Deceased Suresh Kumar was driving his Maruthi Car bearing Reg.No. KL-10-E-4377 along Kozhikode-Vadakara National Highway on May 6,2002. His father Gopalan, daughter-in-law - Sajitha Kiran and grand child Akshara were also travelling in the car. When the car reached at Kottakkadavu, a lorry bearing Reg.No.KL-14-A-797 driven by the the second respondent came at a high speed and dashed against the car . All the four passengers of the car including Suresh Kumar died on the spot. Legal heirs of deceased Suresh Kumar i.e. his only child Anannya aged 7 and the mother of deceased Suresh Kumar filed O.P.(MV) No.852/2008 claiming compensation. O.P.(MV)NO.858/2002 was MACA.No.199/08 & 913/2008 Page numbers filed by the same child Anannnya Suresh as the legal heir of her mother Sajitha Kiran. Legal heirs of deceased Gopalan also filed O.P. (MV)NO.857/2002 before the Tribunal. All these claim petitions were jointly tried and common award was passed by the Tribunal. In O.P. (MV)No.852/2002 a compensation of Rs. 7,92,106/- was awarded and in O.P.(MV)No.858/2002 a compensation of Rs. 10,99,701/- was awarded by the Tribunal. 3. In all the above O.Ps., respondents 1 to 3 are the present owner , driver and insurer of the offending lorry and fourth respondent is the RC owner of the said lorry. Respondents 1 and 2 in the O.P. though entered appearance did not file written statement before the Tribunal. The third respondent insurer of the offending lorry filed written statement admitting the policy, but contending that the accident occurred due to the negligence of the driver of the car involved in the accident. 4. PW1 was examined and Exts.A1 to A9 were marked on the side of the claimants. No evidence was adduced by the contesting third respondent. 5. On an appreciation of evidence, the Tribunal awarded a MACA.No.199/08 & 913/2008 Page numbers compensation of Rs. 7,92106/- in O.P.(MV)No.852/2002 and in O.P.(MV)No.858/2002 a compensation of Rs. 10,99,701/- was awarded. The Tribunal has found that the accident occurred due to the negligence on the part of the second respondent, the driver of the offending lorry. The Insurance company in both these O.P.s have challenged the award of the Tribunal. 6. The accident is not disputed. It is admitted that the offending lorry is insured with the appellant Insurance Company by a valid policy. The Insurance Company has challenged the award mainly on the ground that there was also negligence on the part of the driver of the car involved in the accident, i.e. deceased Suresh Kumar, that therefore, the Tribunal went wrong in fixing the liability on the appellant alone, that in both the claim petitions, the claimants are the same and that therefore the Tribunal should have taken into consideration the compensation awarded in one case while awarding compensation in the other case. 7. Heard the counsel for the appellant Insurance Company . In both these appeals, the respondents, who are the claimants and respondents 1, 2 and 4 in the O.Ps. remained absent. MACA.No.199/08 & 913/2008 Page numbers 8. Therefore, the main question for consideration is whether the Tribunal is justified in fixing the liability on the appellant alone and whether the Tribunal should have taken into consideration the compensation awarded in one claim petition while awarding compensation in the other claim petition. 9. Admittedly, it is a head on collision. The counsel for the appellant would argue that this being a head on collision, the Tribunal should have found that the driver of the car was also negligent and should have apportioned the liability between the insurer of the car and that of the appellant. There is no merit in the above contention. No evidence was adduced by the appellant before the Tribunal to show that there was any negligence on the part of the driver of the car i.e. deceased Suresh Kumar . Police has also registered the case against the driver of the lorry as seen from Ext.A1, copy of the FIR. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the second respondent , the driver of the offending lorry. That being so, the above contention raised by the appellant has only to be rejected. 10. Learned counsel for the appellant would argue that in both MACA.No.199/08 & 913/2008 Page numbers the claim petitions, petitioners are the same and that therefore the Tribunal should have taken into consideration the compensation awarded in one case while awarding compensation in the other case. There is no substance in the above contention. O.P.(MV)No.852/02 was filed by the daughter and mother of deceased Suresh Kumar as his legal heirs. O.P.(MV)No.858/2002 was filed by th daughter of deceased Suresh Kumar as the legal heir of deceased Sajitha Kiran. Therefore, both these claims are separate claims. That being so, the compensation awarded in one case cannot be taken into consideration while awarding compensation in the other case. Therefore, the above contention raised by the appellant has also only to be rejected. No other point is argued before us. Thus, we find no merit in both these appeals and the same have to be dismissed. We do so. As the claimants did not appear in this case, no cost is awarded. In the result, both these Appeals are dismissed . No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.199/08 & 913/2008 Page numbers