IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 MACA.No. 1324 of 2007(C) --------------------------------- OPMV.1227/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT : -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANT/4TH RESPONDENT : --------------------------------------------------------- 1. NAVAS P.K., S/O. HASSAN, PADIKATTUKUDY HOUSE, NELLIKUZHY P.O., KOTHAMANGALAM. 2. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2008 ALONG WITH MACA NO.1327/2007 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.1324/2007 ORDER ON I.A.NO.1563/2007 IN M.A.C.A.NO.1324/2007 DISMISSED 25.08.2008 SD/-, M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 1324, 1325, 1326, 1327, 1328, 1329 & 1330 OF 2007 --------------------- Dated this the 25th day of August, 2008 JUDGMENT These appeals are preferred against the award passed by the Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) Nos. 1227, 1449, 1553, 1559, 1620, 1621 & 1622 of 2003. 2. In OP(MV) No.1227/03 R1 to R3 are the owner, driver and Insurance Company of the private bus and R4 is the KSRTC. In OP(MV) No.1449/03 R1 & R2 are the managing director and driver of the KSRTC and R3 to R5 are the owner, driver and the Insurance Company of the private bus. In OP(MV) No.1553/03 only the managing director is impleaded and the others are the owner, driver and Insurance Company of the private bus. In OP(MV) No.1559/03 the driver of the KSRTC bus is the claimant and he has filed a case against R1 to R3 ie, the driver, owner and Insurance Company of the private bus. In OP(MV) No.1620/03 R1 & R2 are the driver and managing director of the KSRTC and R3 to R5 are the driver, owner and the Insurance Company of the private bus. In OP(MV) No.1621/03 the driver and managing director of the KSRTC and the MACA No. 1324/07 & Conn. Cases 2 owner, driver and Insurance Company of the private bus are impleaded. In OP(MV) No.1622/03 also the driver and managing director of the KSRTC and the owner of the private bus and others are impleaded. In other words, only in one case, the driver of the KSRTC is not impleaded as a party. 3. The common case advanced are that there was a collision between two buses, namely, the private bus bearing Reg. No.KL-7-H-8847 and the KSRTC bus bearing Reg. No.KL-15-4757. The case attempted to be projected is that the private bus was proceeding from west to east and the KSRTC from east to west. It is submitted that the KSRTC was overtaking a lorry loaded with bamboo and due to the rash and negligent driving of its driver, it came and hit on the private bus. The other contention is that it was on account of the rash and negligent driving of the private bus driver, the accident had taken place. The petitioner in OP(MV) 1449/03 had deposed before the Tribunal that the private bus on seeing the KSRTC bus had parked it on the side and it was on account of the fast and negligent driving of the bus by the KSRTC driver, the accident took place. RW1 is the driver of the KSRTC bus. He would depose that the private bus driver wanted to avert a hit on the motor MACA No. 1324/07 & Conn. Cases 3 bike and he swerved the vehicle and it was on account of his negligence, the accident took place. The case was registered against the KSRTC bus driver and later it was referred on the ground that it was a mistake of fact. The scene mahazar produced in the case namely Ext.A2 would reveal that the road was having a width of 7.60 metres and the accident had taken place about 4.40 metres south of the norther tar end. If it is so, it has to be stated that the correct side of the private bus was northern side and that of the KSRTC was southern side. The place of accident would indicate that the private bus had slightly transgressed into the wrong side. It is also made clear in the scene mahazar that the road is having a clear vision of 200 metres eastward and 100 metres westward. So there was clear visibility for both drivers at the place of accident. In this case the Sub Inspector of Police was examined as RW2 and he had prepared Exts.A2 and A5. He would say that the driver of the KSRTC bus was partly on the wrong side. But according to the Tribunal this is contradictory to Ext.A2. Whatever it may be, it can be held very safely that in the road, which was having a clear vision of 300 metres, if the drivers of both buses had bestowed their best attention and care, they could have averted the accident. The place MACA No. 1324/07 & Conn. Cases 4 of accident, if the scene mahazar is true, is almost on the middle of the road. The correct side of KSRTC bus was southern side and the accident had taken place, as per the scene mahazar, at 4.40 metres south of the northern tar end, i.e., slightly on the wrong side of the private bus. So this is not a case where one has to hold that one driver was totally negligent and the other driver was totally innocent. It is also a head on collision between two vehicles. It cannot be correct that it was on the process of overtaking the accident had taken place. If it was on the process of overtaking, the other vehicle also would have been involved in the accident. Therefore, this is a fit case where the negligence has to be apportioned. 4. What is the proportion is the next question that arises for determination. Atleast the driver of the KSRTC bus has mounted the box and gave evidence and the police had found that the registering of a crime against him is not correct and therefore has referred it. It has also to be remembered that there is a statement given by the driver of the KSRTC bus that the accident took place when the private bus driver attempted to swerve the vehicle to avoid an accident with an ongoing motor bike. 5. So taking into consideration the picture that is available MACA No. 1324/07 & Conn. Cases 5 before the court, I apportion the negligence at 60% on the private bus and 40% on the KSRTC driver. It is true that in one case the KSRTC driver is not a party and in another case he himself is the appellant. That is, in OP(MV) 1559/03 he will be entitled only to get 60% of the compensation and 40% has to be deducted for his contributory negligence. In all other cases compensation awarded is to be apportioned at 60% on the Insurance Company and 40% on the KSRTC driver. So without disturbing the amount awarded, the negligence is as per the apportionment of negligence. The award amount also has to be paid at the rate of 60% by the Insurance Company and 40% by the KSRTC driver. To this extent, the award passed by the Tribunal is modified. The appeals are disposed of accordingly. M.N.KRISHNAN, JUDGE vps MACA No. 1324/07 & Conn. Cases 6