IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S.

MONDAY, THE 9^TH DAY OF SEPTEMBER 2024 / 18TH BHADRA, 1946 MACA NO. 175 OF 2021 AGAINST THE AWARD DATED 04.10.2019 IN O.P.(M.V.) NO.311 OF

2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/2ND RESPONDENT IN O.P.(M.V.)NO.311/2010:

THE NATIONAL ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, ST. JOSEPH PRESS BUILDINGS, VAZHUTHACAUD, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM, PIN 695 010 REP.BY ITS MANAGER, REGIONAL OFFICE, OMANA BUILDINGS, M.G.ROAD, ERNAKULAM, COCHIN 682 016 BY ADV SEBASTIAN VARGHESE RESPONDENTS/PETITIONER & RESPONDENTS 1, 3, 4, 5 & 6 IN O.P.(M.V.)NO.311/2010:

1 VIDHYA B.S.

VIDHYA BHAVAN, 4/1075, B.T.R. NAGAR, A-4, NETTAYAM P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM, PIN 695 013

2 SAJIKUMAR K.

S/O.KUMARA PILLAI, 9/236, MELE AIKYAVILAKATHU VEEDU, KEEZHAROOR, ARAYANCODE, THIRUVANANTHAPURAM PIN 695 125

3 J.SIVAKUMAR S/O.JOSEPH, N.23/7, THOTTAVARAMBU, UNNAMALAKADAI P.O., KANYAKUMARI DISTRICT, TAMIL NADU, PIN 629 179

4 UNITED INDIA INSURANCE COMPANY LTD.

DIVISIONAL OFFICE, LMS COMPLEX, PALAYAM, THIRUVANANTHAPURAM PIN 695 033

5 AMBILY P.

S/O.PAULOSE, VIMALA VILASOM, PASUVANNARA, PASUVANNARA WARD, KEEZHAROOR, NEYYATTINKARA, THIRUVANANTHAPURAM PIN 695 125

6 VIJAYAN S/O.CHITHAMANY, ADICHAVILAKOM, MANKAD WARD, VILAVANCODE VILLAGE, THIRUVANANTHAPURAM PIN 695 502 BY ADVS.

SRI.K.T.SHYAMKUMAR R1 SRI.R.GOPAN SRI.RAJAN P.KALIYATH, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT The National Assurance Company Limited challenging the award dated 04.10.2019 passed in O.P. (M.V.) No.311 of 2010 on the files of Motor Accidents Claims Tribunal, Thiruvananthapuram on the prime ground that respondent No.4 – United India Insurance Company Limited should also have been found proportionally liable for the compensation awarded to the claimant.

2. The facts in brief are as follows:

The accident in question is not disputed. On 30.12.2009 when the petitioner was riding her Honda Activa Scooter bearing Registration No.KL-01/AW-30 through Karamana - Pravachambalam stretch of National Highway towards Neyyattinkara at about 9.15 a.m., an Omini Van bearing Registration No.KL-19/A-375 coming from the opposite direction in a rash and negligent manner hit on the right side of the petitioner’s scooter and as a result of the accident the petitioner fell on the road and in the meantime a lorry bearing Registration No.TN-74/B-3200 coming behind the Omini Van hit on the left leg of the petitioner.

3. The case of the appellant is that the Motor Accidents Claims Tribunal while awarding compensation ought to have found proportionate negligence on the part of the driver of the lorry which is insured under respondent No.4. According to the appellant in the absence of a safe distance maintained by the driver of the lorry, the driver of lorry has also contributed towards causing the accident and thus insurance company - 4^th respondent should also be directed to suffer the proportionate damages which was awarded as compensation. The Tribunal while considering the said plea found that there is no charge under Section 279 read with Section 337 of the erstwhile Indian Penal Code 1860 charged against the driver of the lorry bearing registration No.TN-74/B-3200 and therefore the insurance company cannot be made liable.

4. Heard Sri.Sebastian Varghese, learned counsel appearing for the appellant and Sri.Rajan P.Kaliyath, learned Standing Counsel appearing for respondent No.4 and also K.T.Shyamkumar, learned counsel appearing for respondent No.1.

5. Learned counsel for the appellant relied on the judgment of the Honourable Supreme Court in Nishan Singh and Others Vs. Oriental Insurance Company Limited [(2018) 6 SCC 765] to contend that in the absence of the same distance maintained by the lorry, the driver of the lorry should also be made liable for the compensation.

6. On the other hand learned counsel ap