IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 MACA.No. 1162 of 2007() ------------------------------------ OPMV.1249/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): 5TH RESPONDENT ----------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE,M.G.ROAD, KOCHI-11. BY ADV. MR.RAJAN P.KALIYATH RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 4 RESPECTIVELY --------------------------- 1. KUNJUKRISHNAN PILLAI, S/O RAGHAVAN PILLAI DHARSANA BHAVAN, NEAR N.S.S.KARAYOGAM, KUZHIYAM SOUTH, CHANDANATHOPPE P.O., KOLLAM. 2. L.RESHMI, W/O JAYAKUMAR, RAJANI NIVAS, CHEMMAKKAD P.O., PERINAD. 3. JAYAKUMAR, S/O VISWANATHAN NAIR, THIRUVATHIRA, NEAR N.S.S.KARAYOGAM, KUZHIYAM SOUTH, CHANDANTHOPE P.O., KOLLAM. 4. DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., CHINNAKKADA, KOLLAM. 5. SHAJI G., S/O GOPALAN, KADAPPATHU VEEDU, KADUVAYIL ATTINGAL. R4 BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, ALONG WITH MACA NO. 1362 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1895/2008 IN MACA. NO.1162/2007 DISMISSED 29/09/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1162 & 1362 OF 2007 = = = = = = = = = = = = = = = Dated this the 29th day of September, 2009. J U D G M E N T These two appeals are preferred by the New India Assurance Company against the common award passed by the Motor Accidents Claims Tribunal, Kollam in O.P.(MV) 1249/01 and 1250/01. The claimants in these cases were passengers in an auto rickshaw bearing Reg.No.KL-2/H-6031 which was proceeding from west to east. When it reached the place of accident the auto rickshaw bearing Reg.No.KL- 01/K-5284 which came from the opposite direction hit and as a result of which the claimants sustained injuries. The Tribunal on a consideration of the materials found that the New India Assurance Company which is the insurer of the auto rickshaw bearing Reg.No.KL-01/K-5284 is liable to pay the amount. It is against that decision the New India Assurance Company has come up in appeal. Really the crux of the issue is regarding the finding on negligence. If there is composite negligence, then there is a duty cast upon to M.A.C.A. NOs. 1162 & 1362 OF 2007 -:2:- apportion the compensation between the insurance companies. As stated by me the auto rickshaw insured by the Oriental Insurance Company was proceeding from west to east and its correct side was northern side. The other auto rickshaw insured by the New India Assurance Company was proceeding from east to west and its correct side was the southern side. From the scene mahazar it can be seen that the width of the road at the place of accident is 6.60 mtrs. The accident had taken place 3.15 mtrs. south of the northern tarred end. It can be said that the accident had taken place approximately on the middle of the road and if at all there is any transgression to the wrong side it is of 6 inches or 15 cms. Thus it was a head on collision. The road was having considerable width. If both the drivers had been careful and conscious there was an opportunity to avert the accident. The Apex Court has held in very many decision that if there is a head on collision between two vehicles and when it had taken place exactly or almost on the middle of the road negligence has to be apportioned equally on them, M.A.C.A. NOs. 1162 & 1362 OF 2007 -:3:- i.e. 50%, therefore I think negligence can be attributed on both the drivers equally, i.e. 50%. There is no dispute regarding the claim of other aspects and therefore the awards passed by the Tribunal in both these cases are modified to the limited extend that the New India Assurance Company and the Oriental insurance company shall deposit 50% of the amount each with interest and costs to the claimants in the case. If one of the companies had already deposited the entire amount, then the other company shall reimburse that amount to that company so that no hardship is caused to them. MACAs. are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-