The court affirmed the tribunal's finding of composite negligence, obligating the insurer to pay and recover from another insurer, citing relevant legal precedents.

J U D G M E N T

This appeal is filed by the 5th respondent insurer in O.P.(MV) No.969 of 2012 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenging the finding of 50% composite negligence on the part of the appellant insurance company. The respondents herein were the claimants and first and second respondents before the tribunal.

2. Brief facts of the case are as follows: On 04.09.2012, at about 01.15 p.m., while the deceased was riding a motorcycle bearing registration No.KL-45-A-5548 from west to east direction through Tana-Bus stand, a Santro car bearing registration No.KL-08-AQ 2575 driven by the fourth respondent in a rash and negligent manner suddenly stopped and opened the driver side door and as a result, the deceased to avoid accident turned the motorcycle to the right side, and subsequently an innova car bearing reg. no. KL-45/F3553 driven by the first respondent in a rash and negligent manner hit down the deceased due to which the deceased sustained serious injuries and succumbed to the same on the same day. The claimants, who are the wife, parents and daughter, approached the tribunal claiming a total compensation of ₹25,00,000/-.

3. Respondents 1 & 2 were the owner cum driver and the insurer of the innova car and respondents 3, 4 and 5 were the owner, driver and insurer of the santro car respectively. The first respondent filed a written statement contending that the accident occured due to the fourth respondent and further contended that the amount claimed is excessive. The second respondent - insurer filed a written statement admitting the insurance policy, disputing the liability and quantum of compensation claimed. The third and fourth respondents filed separate written statements denying negligence and disputing the quantum of compensation claimed. The fifth respondent insurer filed a written statement admitting the insurance policy and disputing the quantum of compensation claimed. It was also contended that the negligence was caused by the first respondent alone. Before the tribunal, Exts.A1 to A9, and Ext.B1 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to the composite negligence on the part of the first and fourth respondents and the claimants were awarded a sum of ₹12,83,740/- as compensation under different heads with interest @ 8% per annum from the date of petition till realization with proportionate costs against the fifth respondent being the insurer of the Santro car and the insurer was entitled to recover 50% of the compensation from the second respondent insurer of the Innova car. Challenging the finding of 50% composite negligence on the part of the fourth respondent driver, the fifth respondent - insurance company, have come up in appeal.

4. The learned Standing Counsel for the appellant insurance company submits that they were the insurer of the Santro Car and the Tribunal had found composite negligence on the part of the driver of the Santro Car and on the driver of the Innova Car. However, the Tribunal directed the appellant herein to pay the entire amount and recover 50% of the said amount from the insurer of the Innova Car who is the 6th respondent in the appeal, which according to them is not proper.

5. I have considered the argument raised by the learned Standing Counsel for the appellant insurance company. The Tribunal followed the judgment of the Apex Court in Khenyei v. New India Assurance Co. Ltd. & Ors. [2015 (3) KHC 70] and rightly directed the appellant herein to pay the amount and then recover 50% of the amount from the 6th respondent in the appeal. I do not find any reason to interfere with the said finding. On a perusal of the award, it is seen that under two heads, the Tribunal had granted more