High Court of KeralaDivision BenchPartial allowance of appeal; award modified; li...

MFA No. 1007 of 2001 (OPMV 1741/1994, Motor Accident Claims Tribunal, Manjeri)

Case / Petition Number:MFA No. 1007 of 2001

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • J.B.KOSHY
  • K.HEMA
Judgment Date
2007-09-06
Court Decision / Holding
Appeal disposed; liability apportioned 50% to each driver (appellants) and 50% by insurer; the decree amount Rs. 62,000 shall be paid accordingly. The award of Rs. 62,000 is modified to reflect 50-50 liability between the two drivers and the insurer, with the insurer depositing the remaining 50%.
Final Disposition
Partial allowance of appeal; award modified; liability apportioned 50-50 between drivers and insurer.

Parties to the Case

Appellants / Petitioners

  • A.T. Pothappan
  • The General Manager, Saji Flight Services (P) Ltd.

Respondents

  • Pottammal Aminaumma
  • Siddique
  • Moideenkutt
  • Fathima
  • Khadeeja
  • Nafeesa
  • Janseena
  • M. Najmal
  • National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri P. Gopalakrishnan Nair
  • • Sri P.A. Ahamed

Counsels for Respondents

  • • Sri K.M. Sathyanatha Menon
  • • Sri Saju S.A

Case Synopsis & Summary

Veeramunni sustained fatal injuries in a road accident on 18.2.1994 when the Jeep No.KRM 1359, driven by the third respondent and insured by the fourth respondent, collided with another Jeep No.KRK 3009 driven by the first respondent. The deceased's wife and children filed for compensation before the Motor Accidents Claims Tribunal, Manjeri. The Tribunal held the accident occurred due to the negligence of the first respondent and found the second respondent vicariously liable as the owner, but held no valid proof of insurance for the offending vehicle, thereby restricting liability on the insurer. The total award by the Tribunal was Rs 62,000. The appellants submitted that only the first driver was negligent; the other driver’s role in causing the accident was not conclusively established, and there was no basis to hold sole negligence. They argued that in a head-on collision, in the absence of clear evidence, the negligence should be apportioned equally between the two drivers per the Supreme Court decision Bijoy Kumar Dugar. The respondents contended that the first driver’s negligence caused the crash and that the policy coverage should be used to satisfy the award. The Kerala High Court, after analyzing the evidence, held that where head-on collision occurs with no decisive evidence about fault, negligence should be apportioned equally between the two drivers, and the insurance company must share the liability. The appellate court thus modified the award: 50% liability for the two drivers together and 50% for the insurer.

Legal Doctrines & Maxims

  • Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors. (AIR 2006 SC 1255) doctrine: in head-on collision, in the absence of clear evidence, negligence can be apportioned equally between drivers.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the accident occurred due to the negligence of the first driver (R1). They argued there was no proven insurance coverage for the offending vehicle at the time of the accident and that the evidence (including the police charge sheet and criminal case) did not establish sole negligence of R1. Relying on Bijoy Kumar Dugar, they urged that in a head-on collision, where clear evidence of fault is lacking, negligence should be apportioned equally between the two drivers, with the insurer sharing liability, given the policy coverage. They asserted that the Tribunal erred by attributing sole negligence and by holding the insurer liable only after insurance was shown to be in effect. Respondents: The claimants argued that the first driver was negligent and that the owner was vicariously liable; they maintained the Tribunal’s findings to that effect and pressed for the original award to be paid by those responsible without inappropriate apportionment.

Contentions of Respondents

The respondents (claimants) argued that the negligence of the first driver caused the accident, with the second respondent (owner) vicariously liable due to lack of insurance coverage for the vehicle involved. They asserted that the Tribunal’s assessment should stand, resulting in the awarded compensation being payable by the responsible parties and insurer as applicable, rather than broad 50-50 apportionment unless supported by evidence.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors.AIR 2006 SC 1255PositiveCited to support the proposition that, in a head-on collision, where evidence of fault is not clear, negligence can be apportioned equally between drivers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MRS. JUSTICE K.HEMA** **THURSDAY, THE 6TH SEPTEMBER 2007 / 15TH BHADRA 1929** ## **MFA.No. 1007 of 2001(A)** **--------------------------OPMV.1741/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** **....................** ## **APPELLANTS: RESPONDENTS 1 & 2** **----------------** **1. A.T.POTHAPPAN, S/O. A.M.THOMAS, ARATTUMKULAM VEEDU, MARARIKULAM VADAK AMSOM, CHERTHALA, ALAPPUZHA DISTRICT (DRIVER).** **2. THE GENERAL MANAGER, SAJI FLIGHT SERVICES (P) LTD., AIRPORT, TRIVANDRUM (OWNER).** - **BY ADV. SRI.P.GOPALAKRISHNAN NAIR SRI.P.A.AHAMMED** ## **RESPONDENTS: PETITIONERS 1 TO 7 & RESPONDENTS 3 & 4.** **-----------------** **1. POTTAMMAL AMINAUMMA, W/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., (WIFE OF THE DECEASED).** **2. SIDDIQUE, S/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., (SON OF THE DECEASED).** **3. MOIDEENKUTTY, S/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., (SON OF THE DECEASED)** **tss** ## **M.F.A. NO.1007/2001** ## **4. FATHIMA, D/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., (DAUGHTER OF THE DECEASED).** **5. KHADEEJA, D/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., KONDOTTY (DAUGHTER OF THE DECEASED).** **6. NAFEESA, D/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE , THURAKKAL P.O., (DAUGHTER OF THE DECEASED)** **7. JANSEENA, D/O. VEERAMUNNI, PANAYAMPARAMBA HOUSE, THURAKKAL P.O., (DAUGHTER OF THE DECEASED).** **8. M.NAJMAL, S/O. UMMER, ROSHNI, PALLIKKAL, (DRIVER AND OWNER)** ## **9. NATIONAL INSURANCE COMPANY LIMITED, MANJERI.** **BY ADV. SRI.K.M.SATHYANATHA MENON SRI.SAJU.S.A** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **tss** ## **M.F.A. NO.1007/2001** ## **ORDER ON CMP. NO.7453/2001 IN MFA. 1007/2001** ## **DISMISSED** **06.09.2007 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE** **/TRUE COPY/ P.A. TO JUDGE** **tss** ## **J.B.KOSHY & K.HEMA, JJ.** -------------------------------------M.F.A.No.1007 OF 2001 ------------------------------------Dated 6[th] September, 2007 ## **JUDGMENT** ## **Koshy,J** . One Veeramunni sustained fatal injuries in an accident on 18.2.1994 at about 7.15 a.m. Subsequently he died due to the injuries. His wife, two sons and three daughters filed an application for compensation. While Veeramunni was travelling in a Jeep bearing registration No.KRM 1359 owned and driven by the third respondent and insured by the fourth respondent, another jeep bearing registration No.KRK 3009 driven by the first respondent (first appellant) and owned by the second respondent (second appellant) came with overspeed in a rash and negligent manner and dashed against the same. According to the claimants, both drivers were negligent. They claimed a compensation of Rs.2,00,000/=. Total compensation awarded by the Tribunal was only Rs.62,000/-. The owner and driver (appellants herein) of the Jeep bearing registration No.KRK 3009 were asked to pay the award amount as it was found by the Tribunal that the accident occurred due to the negligence of the first respondent driver of the Jeep which hit the Jeep in which Veeramunni was travelling and the second respondent who was the owner of the vehicle was found vicariously liable as there was no insurance coverage to the vehicle at the time of accident. No MFA.1007/2001 2 insurance policy was produced by the appellants regarding their jeep. Even in the appeal it is not stated that there was insurance coverage for the vehicle. 2. According to RW1, the driver of the Jeep (first respondent), while he was driving the Jeep, the tyre got punctured. He had stopped the vehicle in the right side of the road and when he was replacing the wheel, the jeep bearing registration No.KRM 1359 came from the opposite side driven in a rash and negligent manner dashed against his jeep. In cross examination RW1 admitted that he was on the wrong side. Even if his case is admitted, while driving the vehicle if tyre got punctured, if he was running in his correct side, it should have stopped in the left side. But, according to RW1, space was only in the right side and he has to replace the right tyre also. Ext.A4 charge sheet was issued against RW1 only. Police did not charge sheet the other driver. First respondent or none of the person filed any complaint before the police stating that the other driver was negligent. It is submitted that in another case filed by an injured who was travelling in the same jeep along with Veeramunni, the award was set aside and the matter was remanded. We have gone through the remand order passed by a learned single Judge of this court in M.F.A.No.1041 of 2001. In the award impugned in that case, MFA.1007/2001 3 negligence was not discussed and it was also not stated how the amount was arrived at. In this case, the matter was discussed in detail at paragraph 7 of the award and how the amount was arrived at was also discussed. It is submitted that in the criminal case the first first appellant was acquitted. Judgment in the criminal case was not produced before the Tribunal. However, we have perused the criminal court judgment also. That was dismissed only because the witnesses examined in that case were declared hostile and deposed that they have no idea about the reason for the accident and they have not seen the accident. That is not a reason for exonerating the appellants from liability in the Motor Accidents Claims Tribunal's case. The evidence required in the criminal case and Motor Accidents Claims Tribunal's case are different. Purpose to be achieved is also different. On the basis of the evidence adduced in this case, we agree with the Tribunal regarding finding of negligence. 3. Now the question to be considered is whether finding of negligence by the Tribunal solely on the first appellant is correct or not. No independent evidence was produced. PW1 did not see the accident and he has only hearsay information. RW1 came to the box and deposed that he was changing the tyre. When right side tyre was punctured, he moved the jeep to the right side as there was sufficient MFA.1007/2001 4 road margin on that side. Third respondent was driving the jeep in a rash and negligent manner. There is no counter evidence. Scene mahazar was not produced by the claimants to show that RW1 was negligent. Apart from the copy of the charge sheet and FIR, there is no evidence for attributing sole negligence on RW1. Third respondent, owner-cum-driver of the other jeep or fourth respondent, its insurance company, did not adduce any evidence to rebut the evidence adduced by RW1 that accident occurred due to the negligence of the third respondent. The police charge sheeted RW1 because passengers in the other jeep were injured. According to the charge sheet there was head-on-collision. RW1 was Acquitted. According to the claimants in the claim petition, both drivers were negligent. It was a head-on-collision. Hence, we are of the opinion that negligence has to be apportioned equally with the drivers. It was a straight road. If either of the drivers were vigilant, accident could have been averted. Apex Court in **Bijoy Kumar Dugar** v. **Bidyadhar Dutta & Ors.** (AIR 2006 SC 1255) held that in head on collision, in the absence of clear evidence, negligence can be apportioned equally on both drivers. Taking all these circumstances, we are of the opinion that liability to pay compensation also should be equally attributed on both drivers. The jeep driven by the third respondent was validly insured by the fourth respondent insurance MFA.1007/2001 5 company. Coverage of insurance was admitted in the written statement. Hence, R1 and R2 are liable to deposit 50% of the decreed amount by the Tribunal jointly and severally and R4 insurance company (9[th] respondent in the appeal) shall deposit the balance 50% on behalf of R3 (R8 in appeal). The award is modified accordingly. The appeal is disposed of as above. **J.B.KOSHY JUDGE** **K.HEMA JUDGE** tks