Partly allowed

K.K.Sunil & Others v. the New India Assurance Company Ltd.

Kerala HC23 Sept 2021CO/2/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed appeals filed by the motorcycle insurer, exonerating it from liability for a stolen vehicle accident. The Court allowed cross-objections, directing the bus owner and driver to pay compensation with the rider bearing 50% contributory negligence. The Court also quashed a one-sided negligence finding.

What did the court decide?

Appeals allowed to exempt motorcycle insurer; cross-objections allowed to recover compensation from bus insurer and driver; 50:50 contributory negligence imposed on bus driver and motorcycle rider.

K.K.Sunil & Others Vs the New India Assurance Company… — Motor Accident Claims | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶4

WEDNESDAY, THE 23rd DAY OF SEPTEMBER 2021 / 1^st ASWINAM, 1943

¶5

MACA NO. 1093 OF 2007

¶6

AGAINST THE JUDGMENT IN OP(MV) 2916/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM

¶7

APPELLANT/ADDL.6TH RESPONDENT:

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THE NEW INDIA ASSURANCE COMPANY LTD. REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE,, M.G.ROAD, KOCHI-11.

¶9

BY ADV SMT.RAJI T.BHASKAR

¶10

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & ADDL. 4TH & 5TH

¶11

RESPONDENTS RESPECTIVELY:

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1 K.K.SUNIL, S/O.KUNJAPPAN, KATTAKKAKATH HOUSE, VADATTUPARA P.O., AREEKACITY, KOTHAMANGALAM.

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2 P.P.BABY PARAMALIL HOUSE, MULANTHURUTHY.

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3 UNNI, CHENGOLAPPADATHU HOUSE, LAKSHOM VEEDU COLONY, MULANTHURUTHY.

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4 THE NATIONAL INSURANCE CO. LTD. THRIPUNITHURA.

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5 MRS. G.GANALAKSHMY SAROJ, 28/2877, CHILAVANNOOR, KOCHI-20.

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6 SUBEESH MANIKANDAN THURUTHU HOUSE, KARITHALA,, ERNAKULAM DISTRICT.

¶18

BY ADVS. SMT.ANILA PETER SRI.P.G.GANAPPAN FOR R5 SRI.RAJAN P.KALIYATH FOR R4

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MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

¶20

¶21

SMT.K.N.RAJANI

¶22

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA NO. 1940/2007, CO.2/2008 & C.O 3/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

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¶25

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶26

PRESENT

¶27

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶28

WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943

¶29

MACA NO. 1940 OF 2007

¶30

AGAINST THE JUDGMENT IN OP(MV) 2409/1998 OF MOTOR ACCIDENT

¶31

CLAIMS TRIBUNAL ,ERNAKULAM

¶32

APPELLANT/ ADDL.6TH RESPONDENT:

¶33

THE NEW INDIA ASSURANCE COMPANY LTD REPRESENTED BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

¶34

BY ADV SMT.RAJI T.BHASKAR

¶35

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & ADDL. 4TH & 5TH

¶36

RESPONDENTS:

¶37

1 T.K.SURENDRAN, S/O.KARTHIKEYAN, VATTAKUNNEL HOUSE, OONNUKAL P.O., PUTHENCRUZ, KOTHAMANGALAM.

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2 P.P.BABY PARAMALIL HOUSE MULANTHURUTHY.

¶39

3 UNNI CHENGOLAPPADATHU HOUSE VEZHAPARAMBU, MULANTHURUTHY.

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4 THE NATIONAL INSURANCE CO. LTD. THRIPUNITHURA.

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5 MRS.G.GANALAKSHMY, SAROJ 28/2877, CHILAVANNOOR, KOCHI-20.

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6 SUBEESH, MANIKANDAN THURUTHU HOUSE•••••••••• KARITHALA, ERNAKULAM DIST.

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BY ADVS.

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SRI.P.G.GANAPPAN FOR R5

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MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

¶46

¶47

SMT.SARAH SALVY FOR R4

¶48

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA NO.1093/2007 AND C.Os 2 AND 3 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING

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MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 5

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶51

PRESENT

¶52

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶53

WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943

¶54

CO NO. 2 OF 2008

¶55

AGAINST THE COMMON AWARD DATED 12.5.2006 IN O.P(MV) NO.2916/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM

¶56

CROSS OBJECTOR/ RESPONDENT IN APPEAL:

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K.K.SUNIL, AGED 37 YEARS, S/O.KUNJAPPAN,KATTAKKAKATH HOUSE, VADATTUPARA P.O., AREEKACITY, KOTHAMANGALAM.

¶58

BY ADV SRI.ANIL S RAJ

¶59

RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6:

¶60

1.1.] THE NEW INDIA ASSURANCE COMPANY LTD REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. 1 1 . ROAD, KOCHI – 11.

¶61

P.P.BABY, PARAMALIL HOUSE, MULANTHURUTHY.

¶62

UNNI, CHENGOLAPPADATHU HOUSE, LAKSHOMVEEDU COLONY, 3. MULANTHURUTHY.

¶63

THE NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA. 4. MRS.G.GANALAKSHMY, SAROJ, 28/2877, CHILAVANNOOR, 5. KOCHI -20

¶64

SUBEESH, MANIKANTANTHURUTHU (H), KARITHALA, ERNAKULAM.

¶65

BY ADV

¶66

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

¶67

¶68

THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA.1093/2007, 1940/2007 AND C.O 3 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶69

¶70

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

¶71

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶72

PRESENT

¶73

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶74

WEDNESDAY, THE 23RDDAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943

¶75

CO NO. 3 OF 2008

¶76

AGAINST THE COMMON AWARD DATED 12.5.2006 IN O.P(MV) NO.2409/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM

¶77

CROSS OBJECTOR/1ST RESPONDENT IN APPEAL:

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T.K.SURENDRAN, AGED 38 YEARS, SON OF KARTHIKEYAN, VATTAKKUNNEL HOUSE, OONNUKAL P.O, PUTHENCRUZ, KOTHAMANGALAM.

¶79

BY ADV SRI.ANIL S RAJ.

¶80

RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6:

¶81

¶82

THE NEW INDIA ASSURANCE COMPANY LIMITED REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. ROAD, KOCHI – 11.

¶83

¶84

P.P.BABY, PARAMALIL HOUSE, MULANTHURUTHY.

¶85

UNNI, CHENGOLAPPADATHU HOUSE, LAKSHOMVEEDU COLONY, MULANTHURUTHY.

¶86

¶87

THE NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA.

¶88

MRS.G.GANALAKSHMY, SAROJ, 28/2877, CHILAVANNOOR, KOCHI-20.

¶89

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

¶90

¶91

SUBEESH, MANIKANTANTHURUTHU (H), KARITHALA, ERNAKULAM

¶92

BY ADV

¶93

THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA.1093/2007 1940/2007 AND C.O 2 OF

¶94

2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 9

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COMMON JUDGMENT

¶97

As these appeals and cross-objections arise out of the same common award in O.P (MV) Nos.2409/98 and 2916/98 of the Motor Accidents Claims Tribunal, Ernakulam, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to their status in the claim petitions.

¶98

The petitioners - K.K.Sunil and T.K.Surendran - had filed O.P (MV) Nos.2916/1998 and 2409/1998, respectively, before the Motor Accidents Claims Tribunal, Ernakulam, under Section 166 of the Motor Vehicles Act 1988, ( in short 'Act') claiming compensation on account of the injuries that they sustained in an accident on 27.6.1998. It was their common case in the claim petitions

¶99

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 10

¶100

that, both of them were riding pillion on a motorcycle bearing Reg. No.KL-7/G 1636 (motorcycle) ridden by one Subeesh – the 5^th respondent in the two claim petitions. When the motorcycle entered the Chittoor Road from S.R.V H. S Road junction, a bus bearing Reg. No.KCF- 4185 (bus), driven by the 2^nd respondent in a rash and negligent manner, hit the motorcycle. The petitioners fell down and sustained injuries. They were taken to the hospital and treated as inpatients. The bus was owned by the 1^st respondent and insured with the 3^rd respondent. The motorcycle was owned by the 4^th respondent and insured with the 6^th respondent. K.K.Sunil was a coolie by profession and was earning a monthly income of Rs.3,500/-. He claimed a compensation of Rs.2,67,000/from the respondents, but limited the claim to Rs.1,62,750/-. T.K.Surendran was a bar bender and was earning a monthly income of Rs.3,000/-. He claimed a

¶101

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 11

¶102

compensation of Rs.7,88,000/-, from the respondents, but

¶103

limited the claim to Rs.5,00,000/-.

¶104

The respondents 1 and 2 did not contest the proceedings.

¶105

The 3^rd respondent – the insurer of the bus – filed written statements contending that the accident occurred due to the negligence of the 5^th respondent; that the 5^th respondent did not have a valid driving licence on the date of the accident; that he was an accused in Crime No.97/1998 of the Ernakulam Town South Police Station for an offence under Section 379 of the Indian Penal Code; that the 4^th respondent had lodged a complaint before the Police for the theft of his motorcycle; that the amount claimed in the two claim petitions was excessive, therefore, the claim petitions may be dismissed.

¶106

The 4^th respondent – the owner of the motorcycle

¶107

had filed written statements stating that he was not in

¶108

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 12

¶109

control of the motorcycle, as his motorcycle was stolen prior to the date of the accident. The crime was pending investigation before the Police. Therefore, he was not liable to pay any compensation.

¶110

The 6^th respondent – the insurer of the motorcycle – had filed written statements asserting that as the motorcycle was not in the control of the 4^th respondent – insured, it was not liable to pay any compensation as the insured was absolved of his liability.

¶111

Sri.T.K.Surendran, the petitioner in O.P.2409/98, was examined as PW1 and Exts.A1 to A17 were marked in evidence· The respondents produced and marked Exts.B1 to B6 in evidence.

¶112

The Tribunal, after analysing the pleadings and materials on record , arrived at the conclusion that the accident occurred due to the negligence of the 5^th respondent – the rider of the motorcycle, who cut across

¶113

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 13

¶114

from the sub-road to the main road namely the S.R.V.H.S. Road to the Chittoor Road. The Tribunal, after finding that the motorcycle was stolen and not in control of the 4^th respondent, held that the 4^th respondent was not liable to pay the compensation amount, but directed the 6^th respondent – the insurer of the 4^th respondent -- to pay the compensation amount to the petitioners.

¶115

Aggrieved by the above direction, the 6^th respondent – insurer has filed the appeals. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have filed the cross-objections.

¶116

Heard; Smt. Raji.T.Bhaskar, the learned counsel appearing for the appellant in the two appeals/6^th respondent, Sri.Anil.S.Raj, the learned counsel appearing for the cross-objectors/petitioners, Sri.P.G.Ganappan, the learned counsel appearing for the 5^th respondent in both the appeals and Sri.Rajan P.Kalliath, the learned counsel

¶117

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 14

¶118

appearing for the 4^th respondent in MACA No.1093/2007 and Smt.Sarah Salvy, the learned counsel appearing for the 4^th respondent in MACA No.1940/2007.

¶119

Smt.Raji.T.Bhaskar contended that the Tribunal

¶120

has erroneously directed the insurer of the motorcycle to

¶121

pay the compensation, even after finding that the 4^th respondent was not in control of his vehicle, as the vehicle was stolen prior to the accident. She placed reliance on the decision of this Court in Oriental Insurance Co. Ltd v. Abdul Rasheed [2006 (1) KLT 589] and National Insurance Co.Ltd v. Abdul Latheef [ 2004 (1) KLT 747] to canvass the position that when a vehicle is stolen, it cannot be said to be in the control of the insured. So, the insured cannot be liable for the accident. If the owner is not liable, naturally, the insurer is also not liable to pay the compensation, because a contract of insurance is a contract of indemnity.

¶122

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 15

¶123

Sri.Rajan P. Kalliath and Smt.Sarah Salvy,

¶124

defended the impugned award passed by the Tribunal. They contended that the Tribunal has rightly fixed negligence on the 5^th respondent because he was riding the motorcycle with two pillions, that too on a stolen motorcycle, and had cut across from the sub-road to the main road. They also contended that the cross-objections are not maintainable at the instance of the petitioners in the light of the decision of this Court in Manojkumar v. Subramanian [2010 (2) KLT 893], wherein, this Court has held that if an appeal is filed by the insurer challenging the liability alone, then a cross-objection seeking enhancement of compensation is not maintainable. Hence, they prayed that the cross-objections be dismissed.

¶125

Sri.Anil.S.Raj, the learned counsel appearing for the cross-objectors/petitioners argued that the Tribunal has gone wrong in finding negligence only against the

¶126

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 16

¶127

rider of the motorcycle. When the charge-sheet clearly establishes that the negligence was on the part of the 2^nd respondent – the driver of the bus, the finding of the Tribunal attributing negligence against the 5^th respondent alone was wrong. The Tribunal ought to have accepted the charge-sheet and held the 2^nd respondent was negligent. Similarly, he argued that the cross-objections were sustainable in law, as the petitioners have questioned the findings of the Tribunal on the negligence and quantum aspects. Hence, he contended that the appeals may be dismissed and the cross-objections be allowed.

¶128

The questions that arise for consideration in the appeals and cross-objections are:

¶129

(i) Whether the direction of the Tribunal that the 6^th respondent is liable to pay the compensation amount is sustainable in law or not?

¶130

(ii) Whether the cross-objections filed by the

¶131

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 17

¶132

petitioners are maintainable in law?

¶133

(iii) Whether the finding of the Tribunal fixing

¶134

negligence against the 5^th respondent alone is correct or not? and

¶135

(iv) Whether the cross objectors/petitioners are entitled for enhancement of compensation?.

¶136

Question No.(i)

¶137

The 4^th respondent had lodged Ext.B6 complaint before the Station House Officer, Ernakulam South Police Station on 20.5.1998, stating that his motorcycle bearing Reg. No.KL7/G-1636 was stolen. The Police registered Ext.B1 F.I.R (Crime No.97/1998) for an offence punishable under Section 379 of the Indian Penal Code and commenced investigation.

¶138

Pursuant to the direction of this Court in the appeals, the Station House Officer has filed a statement reporting the final report was filed against one Ignatius

¶139

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 18

¶140

@ Chattan before the Additional Chief Judicial Magistrate (Economic Offence) Court, Ernakulam for an offence under Section 379 of the Indian Penal Code for stealing the motorcycle.

¶141

In view of the lodging of Ext.B6 complaint and the Police registering Ext.B1 FIR, the Tribunal has rightly arrived at the conclusion that the motorcycle was not in the control and possession of the 4^th respondent, and therefore, he was not liable to pay any amount as compensation.

¶142

Despite arriving at the above conclusion, the Tribunal has erred by directing the appellant - insurer of the motorcycle to pay the compensation amount.

¶143

The question whether the owner of a stolen vehicle is in control of the vehicle is no longer res integra in the light of the declaration of law by this Court in Abdul Rasheed (supra), wherein this Court has held that

¶144

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 19

¶145

when a vehicle is stolen from the owner and later the vehicle is involved in an accident while driven by another person, who is either a thief or a person in possession of the stolen vehicle, such person cannot be said to be the authorized driver/rider of the vehicle as per the conditions in the policy.

¶146

In Abdul Latheef (supra) this Court has held that when the insured is found not liable to pay compensation, the insurer cannot be directed to indemnify the insured. Hence, the insured/owner as well as the insurer cannot be mulcted with liability, if the vehicle is stolen and involved in an accident.

¶147

I am in complete agreement with the above legal propositions, which are squarely applicable to the facts and circumstances of the present case.

¶148

With the materials available on record, namely Ext.B6 complaint and Ext.B1 FIR, and the accident

¶149

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 20

¶150

happening on 27.6.1998, i.e, within a month after the vehicle was stolen and the crime was under investigation, I hold that the owner of the vehicle/insured was not liable to pay the compensation amount. As a corollary to the same, the insurer of the motorcycle cannot also be mulct with the liability because a contract of insurance is a contract of indemnity. Thus, if the owner is not liable, obviously the insurer is also not liable. Therefore, I set aside the direction of the Tribunal that the appellant - insurer has to pay the compensation amount to the petitioners. Accordingly, I answer question No.(i) in favour of the appellant – insurer.

¶151

Question No.(ii)

¶152

Sri.Rajan P.Kalliath and Smt.Sarah Salvy, placed reliance on the decision of this Court in Manojkumar (supra), wherein this Court has held that when an appeal is preferred by the insurer under the statutory grounds of

¶153

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 21

¶154

defence enumerated under Section 149 (2) of the Act, no cross-appeal will lie at the instance of the petitioners for enhancement of compensation. In other words, only if the insurer has filed the appeal on all grounds, by virtue of having obtained permission to have wider defence under Section 170 of the Act, or on the basis of the 'reservation clause' mentioned in the policy enabling to contest the matter on behalf of the insured as well, a 'cross objection/cross appeal can be entertained. In the present case, as the 6^th respondent has challenged only the liability part in the award, the cross-objections on the grounds of negligence and enhancement of compensation are not maintainable in law.

¶155

A three Judge Bench of the Hon'ble Supreme Court in Urmila Devi & Others v. Branch Manager, National Insurance Co.Ltd & Another [(2020) 11 SCC 316] has , inter alia, held as follows:

¶156

“23. When in an appeal the appellant could have

¶157

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 22

¶158

raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the MV Act; rule 249 of the Bihar Motor Vehicles Rules, 1992; and Order 41 Rule 22 CPC. ”

¶159

In view of the categoric declaration of law in Urmila Devi (supra), Manojkumar (supra) is no longer good law. Therefore, I hold that even though the appellant has preferred the appeals only challenging its liability, there is no legal impediment in the cross-objectors filing the appeal challenging the finding of negligence and seeking for enhancement of compensation. I answer Question No.(ii) in favour of the cross-objectors and hold that the cross-objections are maintainable in law.

¶160

Question No.(iii)

¶161

The specific case of the petitioners before the

¶162

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 23

¶163

Tribunal was that while they were riding pillion on the motorcycle ridden by the 5^th respondent, when they entered the Chittoor Road from the SRVHS road, the bus driven by the 2^nd respondent in a rash and negligent manner without sounding horn and plying at terrific speed, hit the motorcycle. The petitioners fell down and sustained serious injuries. The accident occurred due to the negligent act and commission of the 2^nd respondent. The 1^st respondent being the owner, the 2^nd respondent being the driver and the 3^rd respondent being the insurer of the bus were jointly and severally liable to pay compensation to the petitioners.

¶164

The petitioner in O.P (MV) No.2409/ 1998 examined himself as PW1 and marked Exts.A1 to A17 in evidence. He produced Ext.A5 charge-sheet filed by the City Traffic Police in Crime No.1245/1998, which establishes that the 2^nd respondent was negligent in

¶165

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 24

¶166

causing the accident. The respondents have not let in any contra evidence. Even though the 3^rd respondent had pleaded that the motorcycle was a stolen property and the 5^th respondent was a thief etc., they have not pursued the matter further by letting in any evidence to prove the same.

¶167

This Court has in New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648], has succinctly laid down the law that, as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept the chargesheet, the onus of proof is on such party to adduce oral evidence and discredit the charge-sheet. If the oral evidence is adduced by such party, then the charge-sheet

¶168

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 25

¶169

will fall into a pale of insignificance.

¶170

In the instant case, the Tribunal has totally disregarded the charge-sheet and arrived at the impugned conclusion for the sole reason that the 5^th respondent had cut-across from the sub road to the main road and the accident occurred at the junction.

¶171

On a perusal of Ext.A3 AMVI report and Ext.A4 scene mahazar, it is seen that both the bus and the motorcycle have got damaged and the accident occurred right in centre of the Chittoor Road junction. Therefore, I am of the opinion that both the 2^nd respondent and the 5^th respondent had to have exercised due care while dealing with junction areas. Hence both of them have contributed to the accident. The allegation that the motorcycle was stolen and the 5^th respondent was a thief etc., is irrelevant so far as the payment of compensation to the petitioners who got injured in the accident, are concerned. In fact in

¶172

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 26

¶173

Mohammed Siddique and another v. National

¶174

Insurance Co. Ltd [2020 KHC 6043] this Court has held that contributory negligence cannot be attributed merely because two pillion riders were riding on a two wheeler. Hence, it cannot be contended that the petitioners are disentitled to compensation dehors the negligence of the 2^nd respondent because they were travelling on a bike that was stolen. Hence, I fix the contributory negligence on the respondent Nos.2 and 5 in the ratio of 50:50.

¶175

As already found, the respondents have not let in any contra evidence to discredit the charge-sheet or that the accident was caused because the vehicle was stolen. In view of the enunciation of law in Pazhaniammal (supra) and the fact that the respondents have not let in any contra evidence., I am of the opinion that the finding that only the 5^th respondent was negligent in causing the accident is erroneous and wrong.

¶176

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 27

¶177

33 In view of the above findings, I hold that the respondents 1 to 3 and 5 are jointly and severally liable to pay the compensation amount. Since the 3^rd respondent has admitted the insurance policy of the bus and has not alleged any violation of policy conditions, the 3^rd respondent is to indemnify the liability of the 1^st respondent. Accordingly, I direct the respondent Nos.3 and 5 to pay the compensation amount. Question No.(iii) is answered accordingly.

¶178

Question No.(iv)

¶179

It is found that the petitioners had sought for an amount of Rs.1,62,750/- and amount of Rs.5,00,000/-, respectively, as compensation. Admittedly, both the petitioners have not sustained any permanent disability.

¶180

The Tribunal, after analysing the pleadings and materials on record have found that the petitioner in O.P

¶181

2409/1998 is entitled to a compensation of Rs.1,72,250/-

¶182

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 28

¶183

and the petitioner in O.P 2916/1998 is entitled to a compensation of Rs.38,250/-.

¶184

I have re-appreciated each head of claim and have found that the Tribunal has awarded reasonable and just compensation, particularly keeping in mind the fact that the accident occurred in the year 1998, i.e, about 23 years back. Hence, I hold that the petitioners are not entitled for further enhancement of compensation. I answer Question No.(iv) against the petitioners.

¶185

In the result, the appeals are allowed by exonerating the appellant/insurer of the motorcycle from indemnifying the 4^th respondent; and the cross-objections are allowed to the extent of permitting the cross-objectors/petitioners to realise the compensation amount awarded as per the impugned award from the respondent Nos.3 and 5/the insurer of the bus and the rider of the motorcycle. The respondents 3 and 5 are ordered to deposit the

¶186

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008 29

¶187

compensation amount awarded as per the impugned award with interest at the rate of 6% per annum from the date of petition till the date of deposit and costs of Rs.3,000/- each before the Tribunal within a period of 60

¶188

days from the date of receipt of a certified copy of the judgment. The Tribunal shall release the deposited amount to the cross-objectors/petitioners in accordance with law. The amount deposited by the appellant before the Tribunal, pursuant to the order dated 2.7.2007 of this Court in I.A 1238/2007 in MACA 1093/2007, shall be refunded to the appellant in accordance with law.

¶189

ma/24.9.2021

¶190

Sd/- C.S.DIAS, JUDGE

¶191

/True copy/

K.K.Sunil & Others v. the New India Assurance Company Ltd.

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K.K.Sunil & Others v. the New India Assurance Company Ltd.

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