Branch Manager, The National Insurance Company Ltd. v. Jasmi W/o Abbas and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937 MACA.No. 2673 of 2015 (D) ------------------------AGAINST THE AWARD IN OPMV 589/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL PALA DATED 12-02-2015 APPELLANT/3RD RESPONDENT IN OP (MV) NO.589/2012: --------------------------------------------------------------------------------- BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LTD. CHERUPUSHPAM BUILDINGS, PALAI REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD ERNAKULAM. ## BY ADV. SRI.LAL GEORGE RESPONDENT(S)/PETITIONERS 1 TO 4 AND ADDL.PETITIONERS RESPONDENTS 1, 2, 4 AND 5 IN MV(OP)No.589/2012: -------------------------------------------------------------------------------------------- 1. JASMI W/O.ABBAS, KUNNUMPURATH HOUSE, THALAPPALAM KARA ERATTUPETTA VILLAGE, PALAI, KOTTAYAM - 686 121. 2. AJAS (MINOR), S/O.ABBAS, REPRESENTED BY HIS MOTHER JASMI, KUNNUMPURATHU HOUSE, THALAPPALAM KARA ERATTUPETTA VILLAGE, PALAI, KOTTAYAM - 686 121. 3. FATHIMA (MINOR) D/O.ABBAS, REPRESENTED BY HER MOTHER JASMI, KUNNUMPURATH HOUSE, THALAPPALAM KARA ERATTUPETTA VILLAGE, PALAI, KOTTAYAM -686 121. 4. HASSIMKUNJU KUNNUMPURATHU HOUSE, THALAPPALAM KARA ERATTUPETTA VILLAGE, PALAI, KOTTAYAM 686 121. ## **5.*** SAITHU MUHAMMED **(DECEASED)** - S/O.HAMEED, KUNNUMPURATHU HOUSE, THALAPPALAMKARA ERATTUPETTA VILLAGE, PALAI, KOTTAYAM 686 121. ***** (It is declared that the legal heirs of the deceased 5[th] respondent (father of the deceased) need not be impleaded in the delay petition and appeal and the service of summons is complete in the delay petition and appeal as per order dated 5.1.2016 in I.A.14/16 in MACA.2673/15). 6. ABBAS S/O.MOHAMMED KUNJU MATTATHU HOUSE, PUTHENTHURA P.O. NEENDAKARA KOLLAM. PIN - 691 582. **MACA.No. 2673 of 2015** **-2-** 7. VAHID M. S/O.MUHAMMED KUNJU, MATTATHU HOUSE PUTHENTHURA P.O. NEENDAKARA, KOLLAM.PIN - 691 582. ## 8. PURUSHOTHAMAN S/O.AZHAKESOM, SREEJA BHAVAN, ARAMALLAMADOM THODIYOOR NORTH P.O. 690 523 KARUNAGAPPALLY, KOLLAM. ## 9. SANTHOSH S/O.SIVADAS ( **DIED** ) KAMBISSERILTHARAYIL HOUSE PERINAD, ELAPARA P.O. 685 501. R1,R4 BY ADV. SRI.P.C.HARIDAS R8 BY ADV. SRI.K.SIJU R8 BY ADV. SRI.A.MUHAMMED RAFFI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.2673 OF 2015** **-------------------------------------------------DATED THIS THE 14[th] DAY OF JANUARY, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . Insurer of the lorry bearing No.KL-23/A-4032 is stated as aggrieved of the verdict passed by the Tribunal in mulcting the entire liability upon the shoulders of the Insurance Company to meet the claim to an extent of 14,86,000/- in spite of the fact that₹ it was a case of composite negligence, where the negligence was because of the involvement of two different vehicles and the liability was fixed in respect of negligence to an extent of 50:50, without effecting any apportionment of the liability. 2. On 11.2.2012, the deceased was standing on the side of the road, when a motor cycle bearing No.KL-01/F-7371, owned by the 8[th] respondent herein and ridden by the 9[th] respondent herein (4[th] and 5[th] respondents respectively before the Tribunal) knocked him down. Immediately, the deceased was ran over by a lorry bearing No.KL-23/A-4032 owned, driven and insured by respondents 1 to 3 before the Tribunal, causing fatal injuries M.A.C.A.No.2673/15 -2- leading to his death. This led to the claim petition filed before the Tribunal by the legal heirs, who are the widow, two minor children, father and uncle of the deceased. 3. The evidence adduced before the Tribunal consists of the documents produced and marked as Exts.A1 to A6 and the oral deposition of PWs 1 and 2. Nobody was examined from the side of the respondents and no document was produced. After detailed discussion as to the facts and figures, the Tribunal arrived at a finding that the accident was due to the negligence on the part of the driver of the lorry and the rider of the motor cycle, in an equal proportion. After evaluating the relevant factors for awarding compensation, the total amount payable was fixed as 14,86,000/-, which was to carry interest at the rate 9% per₹ annum from the date of petition, i.e., 3.8.2012. By virtue of the existence of the policy issued by the appellant/insurer of the lorry and finding that it was a case of composite negligence, the due amount was directed to be satisfied within three months, failing which interest payable was ordered to be reckoned as 11%. This in turn is under challenge in this appeal preferred by the insurer M.A.C.A.No.2673/15 -3- of the lorry, stating that the extent of negligence having been apportioned as 50:50, only 50% of the liability ought to have been directed to be satisfied by the appellant/Insurance Company. 4. Heard the learned counsel for the appellant/Insurance Company, learned counsel for the claimants and also the learned counsel for the owner of the motor cycle. 5. The learned counsel for the owner of the motor cycle submits that the motor cycle had already been transferred by him much prior to the accident, to the 4[th] respondent before the Tribunal (8[th] respondent herein) and that, by virtue of the factual position as above, no liability could have been mulcted upon the owner of the motor cycle and the same, if at all any, could have been fixed upon the 'rider' of the motor cycle to an appropriate extent. 6. The learned counsel appearing for the claimants submits that the idea and understanding of the appellant is quite wrong and misconceived and that the award has been passed by the Tribunal fixing the entire liability upon the appellant/ M.A.C.A.No.2673/15 -4- Insurance Company, it being a case of composite negligence, unlike a case of contributory negligence. The deceased was a pedestrian, who was in no way liable to the accident and there was no contribution from his side. As discussed in the award, he was initially knocked down by the rash and negligent riding by the rider of the motor cycle and because of the rash and negligent driving of the lorry by the 7[th] respondent herein, who did not take the minimum care and caution to stop the vehicle on the spot, simply ran the vehicle over the deceased causing his death and as such, the claimants are entitled to get the due amount recovered from the parties of either vehicle and the liability is joint and several in all respects. The Tribunal has also made reference to the verdict passed by the Apex Court in **Pawan Kumar** v. **Harkishan Dass Mohan Lal [2014 (1) KLT 571 (SC)]** in support of the course pursued. 7. The learned counsel for the claimant seeks to place reliance on a subsequent decision as well, reported in **Khenyei** v. **New India Assurance Co.Ltd. (2015 (9) SCC 273)** that in the case of composite negligence, there is no apportionment of the M.A.C.A.No.2673/15 -5- liability, i.e., as to the quantum of compensation payable, but for the extent of fixation of negligence so as to enable the parties concerned to make rival claims among the respondents. The crux of the decision declared by the Apex Court in **Khenyei's** case (supra) as given in Paragraph Nos.20 and 21, reads thus: “ **20.** This Court in _Challa Upendra Rao &_ Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured. **21.** The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3[rd] and 1/3[rd] of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3[rd] . It would be open to the insurer being insurer of the bus after making payment to claimant to recover M.A.C.A.No.2673/15 -6- from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.” 8. It is true that the negligence on the part of the concerned driver/rider of the two vehicles has been fixed by the Tribunal in an equal proportion (para.13 of the award). At the same time, due amount has been directed to be satisfied by the appellant Insurance Company (insurer of the lorry), which is well within the four walls of law, being in conformity with the direction given by the Apex Court as to the declaration of law as given in the decision cited supra. The course open to the appellant Insurance Company is to get the due share recovered from the owner and rider of the motor cycle. 9. The delay in filing the appeals was condoned, after completing service of notice to all the respondents and we have M.A.C.A.No.2673/15 -7- heard the learned counsel for the owner of the motor cycle as well. Incidentally, it is to be noted that there is a contention for the owner of the motor cycle that he had already transferred the vehicle to the 9[th] respondent herein, who was the rider of the motor cycle, who also bid farewell to the world in the very same accident. It is also true that the word 'owner' has been defined under Section 2(30) of the Motor Vehicles Act, 1988 which includes, a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement and as such, he need not be the actual registered owner. But the scope of the said provision was considered by the Supreme Court in so far as the provisions of statutory coverage under the Motor Vehicles Act is concerned and it has been held by the Apex Court in the decision reported in **Pushpa v. Shakuntala [2011 (2) SCC 218 = 2011 (1) KLT SN 41 (C.No.52) SC]** that in so far as statutory duty cast upon M.A.C.A.No.2673/15 -8- the owner of the vehicle in causing the necessary entries to be corrected in the records of the Motor Vehicles Department as to the transfer, if any, the registered owner will have to bear the liability as far as the third party's rights and interests are concerned. This being the position, it is for the 8[th] respondent/registered owner of the motor cycle to have the respective share satisfied to the appellant herein. If the alleged transfer of the vehicle effected by the owner of the motor vehicle to the rider (9[th] respondent) of the vehicle is correct, it is always open for the 8[th] respondent to proceed with appropriate steps in accordance with law and in particular, if at all any properties have been inherited by the legal heirs from the deceased rider. Since the opportunity was not properly made use of by the owner of the motor cycle, even by attempting to mount the box and to put forth the version in tune with the pleadings in the written statement, we do not make any observations or declarations in this regard, but for observing that the appellant Insurance Company will be at liberty to proceed against the owner of the motor cycle to an extent of 50% of the liability based on the M.A.C.A.No.2673/15 -9- fixation of negligence by the Tribunal. 10. By virtue of the declaration of law, particularly, paragraph No.22.2 of **Khenyei's** case (supra), it is open for the appellant to approach the Tribunal by filing necessary execution petition for pursuing such rights. With the above observation, the appeal is disposed of. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge