Court re-evaluated contributory negligence and compensation, allowing enhancement based on new findings on income and damages, establishing shared liability between drivers.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

Since these two appeals arise from the very same award dated 15.05.2017 in O.P(MV) No.742 of 2013 filed by the appellant/claimant on the file of the Motor Accidents Claims Tribunal, Tirur, the appeals are heard together and being disposed of by this common judgment. M.A.C.A.No.2937 of 2018 is filed by the appellant/claimant seeking enhancement of compensation granted by the Tribunal, whereas M.A.C.A.No.4078 of 2017 is filed by the Insurance Company challenging the finding of negligence on the part of the first respondent/driver of the mini bus (second respondent in the appeal) and also challenges quantum of compensation awarded by the Tribunal. The parties are hereinafter referred to as arrayed in the O.P.(MV).

2. According to the appellant/claimant, on 20.04.2013 at about 2.00 am, while he was travelling in a minibus bearing registration No.KL-9-Q-0281 along Kuttipuram – Edappal State Highway and when the vehicle reached at Kandanakam, the first respondent, the driver of the minibus negligently negotiated another vehicle and lost control over it and hit against another bus bearing registration No.KA-01-AB-4159 driven by the fourth respondent. Due to the accident, the appellant sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of Rs. 15,90,000/-, which is limited to Rs. 10,00,000/-.

3. The first and fourth respondents are the drivers of the mini bus and the offending vehicle, second and fifth respondents are the owners of the mini bus and the offending vehicle, the third and sixth respondents are the insurer of the mini bus and the offending vehicle respectively, before the Tribunal. Though notice was served on the respondents, the fourth and the fifth respondents were absent and were set ex parte. The third respondent - insurer of the mini bus filed a written statement, denying the negligence attributed on the part of the first respondent. They contended that neither the alleged accident is reported to the respondent nor vehicular documents, driving licence and badge were produced for due verification by the first and second respondents. The sixth respondent filed a written statement, admitting the insurance policy of the offending vehicle but disputing the negligence attributed on the part of the first respondent. Exts.A1 to A10 series were marked on the side of the appellant. Exts.B1 and B2 were marked on the side of the respondents. PW1 and RW1 were examined. Ext.C1 was marked as court exhibit. The Tribunal, after analysing the pleadings and materials on record, found that the negligence was on the part of the driver of the mini bus and awarded a sum of Rs. 4,75,251/- rounded to Rs. 4,75,300/- as compensation under different heads with interest @ 8% per annum from the date of petition till realization with proportionate costs from respondent-insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant has come up in appeal. Challenging the finding of negligence on the part of the driver of the mini bus the insurer has come up in appeal.

4. Heard the learned counsel for the claimant and the learned Standing Counsel for both the insurance companies.

5. The learned standing counsel appearing for the appellant insurer in MACA No.4078/2017 argued that though the charge was against the driver of the mini bus insured with the appellant insurer, in OP (MV) nos.774, 775, 782, 803 and 821 of 2013, the Tribunal relying on the scene mahazar and the deposition of the investigating officer found that the accident was not due to the negligence of the driver of the mini bus and those cases were dismissed. In the present case, the Tribunal has allowed the claim petition finding negligen