IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 MACA.No. 2134 of 2006() ----------------------- OPMV.849/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT/6TH RESPONDENT: ---------------------------------------------- THE ORIENTAL INSURANCE CO.LTD,KASARGOD, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE,ERNAKULAM NORTH,KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT: CLAIMANT:RESPONDENT/3RD RESPONDENT: ------------------------------------------------------------------------------------------- 1. SHELVARAJ.P., S/O.CHOORIKADAN KRISHNAN NAIR, RESIDING AT KARUVACHERI, NILESHWAR VILLAGE, HOSDURG TALUK. 2. NEW INDIA ASSURANCE CO.LTD, SILVER PLAZA BUILDING, T.B ROAD, CALICUT. BY ADV. SRI.M.THAMBAN - R1 SMT.T.SUDHAMANI - R1 SRI.KKM.SHERIF - R2 SRI.P.A.MOHAMMED ASHROF - R2 SRI.A.A.ZIYAD RAHMAN - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2008 ALONG WITH MACA NO. 2133 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2371/2006 IN M.A.C.A.NO.2134/2006 DISMISSED 24/06/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2133 OF 2006 AND M.A.C.A. NO. 2134 OF 2006 = = = = = = = = = = = = = = = Dated this the 24th day of June, 2008. J U D G M E N T These appeals are preferred against awards of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV) Nos.528/03 and 849/03.The claimant in O.P.(MV)Nos.528/03 is the driver of the ambassador car which was involved in the accident and the other claimant is the owner of the ambassador car which met with the accident. There was collision between the ambassador car and a lorry and the Tribunal found that the driver of the car as well as the driver of the lorry are equally negligent and therefore apportioned the negligence at 50% each. The Tribunal awarded a compensation and directed the insurance company of the lorry as well as the insurance company of the ambassador car to pay the amount equally towards satisfaction of the award. It is against that decision, present appeals are preferred. M.A.C.A. 2133 & 2134 OF 2006 -:2:- 2. Learned counsel for the appellant, insurance company would submit before me that when the Tribunal found that the accident took place on account of the negligence of the car driver to an extend of 50% it means that he had contributed to the accident, insurance company of the car cannot be saddled with the liability for the contributory negligence. He also contended that the other injured being the owner of the car is not covered by the policy of insurance of the ambassador car and therefore compensation also cannot be ordered to be paid by the insurance company. These contentions are legally correct and perfectly sustainable for the following reasons. 3. The person who has contributed to the accident by himself of his own negligence is not entitled to compensation from the insurer of his vehicle and similarly the owner of the car whose risk is not covered by the policy of insurance company of his car also is not entitled to compensation from the insurance company of the said car. So the finding of the Tribunal requires interference. M.A.C.A. 2133 & 2134 OF 2006 -:3:- 4. Next question to be considered is whether in these types of cases whether the drivers can be treated as joint tortfeasors and entitle the party to claim compensation from one of the tortfeasors. The position of law after the decision in National Insurance Co. Ltd. v. Sivasankara Pillay (1995 (1) KLT 51) is slightly different. When an accident took place on account of the composite negligence of two persons even for a third party one cannot describe the two drivers as joint tortfeasors but they can be classified only as several tortfeasors which means their liability is independent and individual. When it is so one cannot direct the entire compensation to be paid by one of the several tortfeasors. Here, unfortunately, the driver of the car and owner of the car cannot claim insurance coverage on account of the fact that one has contributed to the accident and the other is not covered by policy of insurance of his car. Therefore they have to be satisfied with 50% of the award amount which they are entitled to get from the insurance company of the lorry which also caused the accident. Therefore the appeals M.A.C.A. 2133 & 2134 OF 2006 -:4:- are partly allowed and it is held that the claimants are only entitled to get 50% of the amount from the insurance company of the lorry namely, the 3rd respondent in the claim petition and the insurance company of the car is exonerated from the liability. The MACAs are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-