IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 6^TH DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943 MACA NO. 639 OF 2011 OPMV 3682/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNA, THRISSUR APPELLANT/2ND RESPONDENT:

NATIONAL INSURANCE COMPANY LIMITED THRISSUR NOW REPRESENTED BY ITS MANAGER, KOCHI, REGIONAL OFFICE, OMANA BUILDING,, M.G.ROAD, KOCHI –

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ADV. MATHEWS JACOB RESPONDENT/PETITIONER:

SARAVANAN, S/O CHANDRAN, ODUVATHODY VEETTIL, PULAKOD, CHELAKKARA- 680586 ADV. SRI.RAJIT. R THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellant/insurer was the 2^nd respondent in OP(M.V) No.3682/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondent in the appeal was the petitioner before the Tribunal. The 1^st respondent before the Tribunal has not been impleaded as a party in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the status in the claim petition.

2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the injuries that he sustained in an accident on 04.10.2003. It was his case that while he was travelling in an autorickshaw bearing registration No. KL-8/Q-5452 (autorickshaw) from Thrissur to Shornur, when the autorickshaw reached Thiroor temple, a car bearing registration No. KL8/N 6345 (car), driven and owned by the 1^st respondent before the Tribunal, came from the opposite direction and hit the autorickshaw. The petitioner sustained injuries and was treated at the Aswani Hospital, Thrissur for a period of six months. The accident occurred due to the negligence of the driver of the car. The petitioner was a cook by profession earning a monthly income of Rs.4000/-. The petitioner claimed a compensation of Rs.90,000/- from the respondents.

3. The driver and other passengers in the autorickshaw also filed OP (M.V) Nos.410/2004, 3683/2004, 3685/2004 and 3691/2004 before the same Tribunal, seeking compensation from the respondents in the claim petitions.

4. The first respondent had filed a written statement in the leading case namely, O.P.(M.V) No. No.410/2004 contending that the car was covered by a valid insurance policy. The accident occurred due to the negligence of the driver of the autorickshaw, who was the 4^th respondent in O.P. (M.V.) No.410/2004 and the petitioner in O.P.(M.V) No.3685/2004. It was also contended that the autorickshaw belonged to the 3^rd respondent in O.P. (M.V) No.410/2004, but had no valid insurance coverage. The 1^st respondent prayed that the claim petition be dismissed.

5. The 2^nd respondent(appellant/insurer)

written statements in all the claim petitions, admitting that the car had a valid insurance coverage. The 2^nd respondent reiterated the contentions of the 1^st respondent that the accident occurred due to the negligence of the driver of the autorickshaw and that the autorickshaw had no valid insurance coverage. The autorickshaw was overloaded with seven passengers, which was the cause for the accident. Therefore, it was the owner of the autorickshaw who was vicariously liable for the negligence of his driver. The claim petition was bad for non-impleadment of the owner, driver and insurer of the autorickshaw. Hence, the claim petition be dismissed.

6. The Tribunal consolidated and jointly tried all the claim petitions. A witness was examined on behalf of the petitioner as PW1 and Exhibits A1 to A19 were marked in evidence. The 2^nd respondent produced the insurance policy and marked it as ‘B1’

in evidence.

7. The Tribunal by its common award allowed all the claim petitions finding that there was composite negligence on the part of the drivers of the autorickshaw and the car based on Exhibits A3 and A4 final reports and Exhibits A5 and A6 AMVI reports, which established damage to both the vehicles. The Tribunal directed the 2^nd resp