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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Dias, J.
United India Insurance Co. Ltd., Kochi – Appellant
Versus
Sarasu and ors. – Respondents
MACA.No.1442 OF 2006
Decided On : 03-03-2021
Motor Vehicles Act, 1988 - Section 166 - Motor Accident Claim – Death - Contributory negligence – Compensation Awarded – Liability of insurance company and Owner – Insurance Policy - Claim petition, which are relevant for determination of appeal, when deceased, a loading and unloading worker, was travelling in a lorry on road, a tempo van- offending vehicle driven by 1st respondent in a rash and negligent manner, came from opposite direction and hit lorry - Tribunal held that petitioners are entitled for a total compensation but held that as deceased was guilty for contributory negligence to extent of 25% and 6 th respondent - insurer of lorry - was liable to pay balance amount of compensation of 75% to petitioners with interest and costs – Appeal against - Whether tempo van or lorry is negligent to extent of 75% for causing accident .
Finding of the court: Production of insurance policy of the lorry, the respondents have not let in any contra evidence to disprove findings of Police in charge-sheet as per mandate in Pazhaniammal and Kolavan (supra) - Tribunal for lack of evidence to contrary to charge-sheet ought not to have found negligence on part of driver of lorry, which is unsustainable in law - Moreover, as seen from AMVI report, it was torn piece of tarpaulin sheet, which was used to cover tempo van, that hit the deceased and was cause of his death - Finding of Tribunal that, it was driver of lorry who was negligent in causing the accident and, therefore, the appellant/6th respondent is liable to pay compensation is set aside.
Result: Appeal is allowed
JUDGMENT :
The 6th respondent – United India Insurance Company Ltd -in O.P(MV) No.1528/1998 on the file of the Motor Accidents Claims Tribunal, Ernakulam is the appellant. The respondents 1 to 4 were the claimants in the claim petition and the respondents 5 to 10 were the respondents 1 to 7 in the claim petition. The respondents 11 to 18, the legal representatives of the deceased 4th respondent, were impleaded during the pendency of the appeal. The parties are for the sake of convenience, referred to as per their status in the claim petition.
2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) claiming compensation on account of the death of one Kunjan Bava – the husband of the 1st petitioner, the father of petitioners 2 and 3 and son of the 4th petitioner.
3. The concise background facts pleaded in the claim petition, which are relevant for the determination of the appeal, are: on 6.4.1998 when Kunjan Bava (deceased), a loading and unloading worker, was travelling in a lorry bearing Reg.No.KLG -2205 through the Madavana – Panangad road, a tempo van bearing Reg. No.KLB-9234 (offending vehicle) driven by the 1st respondent in a rash and negligent manner, came from the opposite direction and hit the lorry. In the impact the deceased fell down on the platform of the lorry. He was taken to the Ernakulam Medical Centre Hospital and, thereafter, shifted to the Medical Trust Hospital. He was treated as an inpatient, but he succumbed to the injuries on the following day evening. The petitioners, alleging that the 1st respondent -driver of the offending vehicle had caused the accident, sought compensation from the driver, the 2nd respondent - owner and the 3rd respondent – the insurer of the tempo van.
4. Subsequently, on an application filed by the petitioners, the driver, the owner and the insurer of the lorry were also impleaded as additional respondents 4 to 6 respectively, on the ground that if it was ultimately found that it was the driver of the lorry who was negligent in causing the accident, the respondents 4 to 6 are also liable to pay compensation. The 7th respondent is the subsequent insured of the tempo van.
5. The respondents 1, 3 and 6 i.e., the owner and the insurer of the tempo van and the insurer of the lorry had filed separate written statements.
6. The 1st respondent contended that he had sold the tempo van to the 7th respondent long before the accident and, therefore, he cannot be mulct with any liability.
7. The 3rd respondent filed a written statement refuting the allegations in the claim petition. It was contended that the tempo van did not hit the deceased and, therefore, the 3rd respondent cannot be saddled with any liability. It was also contended that the deceased had travelled in the lorry in a negligent manner and he sustained injuries due to his own fault and that the compensation claimed was exorbitant and excessive. The 3rd respondent prayed that the claim petition be dismissed.
8. The 6th respondent had filed a written statement admitting the insurance policy of the lorry, but contended that the accident occurred solely due to the negligence on the part of the driver of the tempo van. The Police after investigation had filed a charge-sheet finding that it was due to the negligence on the part of the driver of the tempo van that the accident occurred. The 6th respondent cannot be held liable to pay any amount as compensation. The 6th respondent also filed an additional written statement contending that the deceased was travelling outside the cabin of the lorry, which was a violation of policy condition and, therefore, the 6th respondent had to be exonerated.
9. Exts.A1 to A14 were marked in evidence on the sie of the petitioners and Ext.B1 Insurance Policy was marked in evidence on the side of the 6th respondent. Neither party adduced any oral evidence.
10. The Tribunal, after analysing the evidence and materials on record, by the imp
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