Negligence of the driver was upheld as the basis for liability in accident compensation claims.

JUDGMENT

These appeals arose from the impugned award dated

17.12.2012 in OP(MV) No. 663 of 2009 of the Addtitional Motor Accidents Claims Tribunal, Kottayam. MACA No. 468 of 2013 is filed by the claimant dissatisfied with the quantum of compensation awarded by the tribunal, whereas MACA No. 775 of 2013 is filed by the insurer challenging the liability as well as quantum of compensation.

2. Since the parties and the cause of action are the same, the appeals are heard together and are being disposed of by this judgment. For brevity, the parties are referred to as they are arrayed before the tribunal.

3. The case of the claimant is that on 30.12.2007, while he was travelling in a bus bearing Reg.No.KL-5/L-9508 driven by the first respondent in a rash and negligent manner, the first respondent lost control over the bus, whereby the hand of the claimant stretched out of the seat and hit an electric post resulting in causing grievous injuries. He approached the tribunal claiming compensation.

4. Respondents 1 and 2, who are the driver and owner of the offending vehicle, remained ex parte before the tribunal. The third respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, PW1 to PW3 & RW1 were examined and Exts.A1 to A17 & X1 were marked. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the driver of the offending vehicle and awarded a sum of ₹1,28,745/- rounded off to ₹1,29,000/- as compensation under different heads with interest @ 7.5% per annum from the date of petition till realization, against the third respondent being the insurer. Challenging the impugned award, the claimant as well as the insurer has come up in appeal.

5. I have heard the learned Standing Counsel for the insurer and the learned counsel for the claimant.

6. The learned counsel for the claimant submits that the claimant sustained injuries while he was travelling in the offending bus, however, the police referred the report as a false case. It is submitted that the accident occurred while the claimant was travelling in the offending vehicle, which was being driven at a high speed in a rash and negligent manner, and that the sudden application of brakes caused the driver to lose control of the bus, resulting in the claimant’s hand stretching out and striking an electric post. Though the negligence of the driver of the offending vehicle was not proved, the tribunal rightly found that the accident occurred due to the negligence of the driver of the offending vehicle and accordingly, awarded compensation. The learned counsel for the claimant also seeks for an enhancement of compensation, alleging that the compensation awarded by the tribunal is on the lower side.

7. The learned Standing Counsel for the insurer, per contra, submits that the tribunal went wrong in finding negligence on the part of the driver of the offending bus. It was submitted that the bus did not hit any road side electric post and therefore, the driver of the bus was not negligent. It was submitted that the claimant himself was negligent by keeping his hand outside the running bus.

8. I have considered the rival contentions raised on both sides. On a perusal of the impugned award, it is seen that the claimant mounted the box and was examined as PW2. PW3, who was travelling in the offending bus and who had witnessed the accident, deposed that the claimant sustained injuries when his hand struck an electric post as a result of the driver’s rash and negligent driving. However, RW1, who was the conductor of the offending vehicle, depose