IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 876 of 2009()
1. BENNY.K.V, S/O.VARGHESE,KONICKAL HOUSE,
... Petitioner
Vs
1. AMAL SIBI,S/O.SIBI, AGED 7 YEARS,
... Respondent
2. AMMAL @ AMMU, D/O.SIBI, AGED 2 YEARS,
3. SIBI.K.V,S/O.VARGHESE,KONICKAL HOUSE,
4. THE MANAGING DIRECTOR,KERALA STATE ROAD
5. M.V.SKARIA,MANDOTHIL HOUSE,ONNUKAL.PO,
6. THE NATIONAL INSURANCE CO.LTD,
7. MR.RAMESHAN,S/O.NARAYANAN,THURVACKAL
8. KURIACHEN, S/O.VARKEY,ERAPPIL HOUSE,
For Petitioner :SMT.LEELAMMA GEORGE ABRAHAM
For Respondent :SRI.VARGHESE JOHN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :19/10/2010
O R D E R
A.K.BASHEER & P.Q. BARKATH ALI, JJ.
=~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~==
M.A.C.A. No. 876 of 2009
=~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~==
Dated this the 19th day of October, 2010
JUDGMENT
Barkath Ali, J.
Appellant is the respondent No.2 in O.P.(MV) No. 839
of 2004 on the file of the Motor Accidents Claims Tribunal,
Thodupuzha. In this appeal he challenges the judgment and
award of the Tribunal dated January 25, 2008 awarding a
compensation of Rs.3,60,000 against respondents 1, 2 and 5
in the O.P. for the loss caused to the claimants on account
of death of one Jessi Sibi in a motor accident.
2. Claimants are the two minor children and husband
of deceased Jessi Sibi. The accident happened on May 16,
2004 at about 12 O’ Clock in the noon while deceased was
travelling in car bearing registration No.KET/5621 along
Kochi – Madurai National Highway. When they reached at
Thonnioka in Iykkaranadu Village a K.S..R.T.C. bus bearing
registration No.KL.15/1903 hit on the rear side of the car,
as a result of which, respondent No.2 who was driving the
car lost control and the car hit an auto-rickshaw bearing
MACA 876/2009 2
registration No.KL-7A/9348. She sustained serious injuries
and succumbed to the injuries sustained while undergoing
treatment in the hospital. Alleging negligence against the
driver of the above three vehicles, the claimants filed the
O.P. before the Tribunal claiming a compensation of Rs.6
lakhs.
3. Respondent No.1 in the O.P. is the Managing
Director of the K.S.R.T.C. and respondent No.2 is the
owner-cum-driver of the offending car. Respondent No.4 in
the O.P. is the insurer of the car and auto-rickshaw involved
in the accident and respondent No.3 is the owner of the
auto-rickshaw. Respondent Nos.5 and 6 in the O.P. are the
driver of the bus and driver of the auto-rickshaw
respectively.
4. Respondents Nos.1, 3 and 6 in the O.P. remained
absent before the Tribunal. Respondent No.2 filed a written
statement admitting the accident but attributed negligence
to the driver of the K.S.R.T.C. bus. Respondent No.5 driver
of the K.S.R.T.C. bus filed a written statement admitting the
accident but attributed negligence on the part of the driver
MACA 876/2009 3
of the car. Respondent No.4 Insurance Company admitted
the policy of the vehicles.
5. This petition was jointly tried along with another
O.P. filed by the injured daughter of the deceased and a
common award was passed. PWs.1 and 2 were examined
and Exts.A1 to A18 were marked on the side of the
claimants. RW1 was examined and Exts.B1 and B2 were
marked on the side of the respondents. On an appreciation
of the evidence, the Tribunal found that the accident
occurred due to negligence of respondents 5 and 2 in the
O.P., drivers of K.S.R.T.C. bus and car respectively, and
awarded a compensation of Rs.3,60,000/- with interest at
the rate of 8% p.a. from the date of petition till realization
and proportionate cost. The Tribunal exonerated
respondent No.4 Insurance Company from the liability as
the policy issued to the offending car was an Act only policy
and that therefore the risk of passengers in the car were not
covered by the said policy. Respondent No.2, the owner-
cum-driver of the car, has come up in appeal challenging
the said finding of the Tribunal.
MACA 876/2009 4
6. Heard the learned counsel for the appellant and
learned counsel for the third respondents 1 to 3/claimants
and that of the Insurance Company.
7. The following points arise for consideration:-
1) Whether the finding of the Tribunal that
respondent No.2, driver of the car, and
respondent No.5, driver of the K.S.R.T.C.
bus, are equally negligent in causing the
accident can be sustained?
2) Whether the finding of the Tribunal that the
risk of the passengers in the car is not
covered by the policy and thereby
exonerating the Insurance Company can be
sustained?
8. The Tribunal found that the accident occurred due
to negligence of the drivers of the bus and the car i.e.,
respondents 5 and 2 respectively. At the time of the
accident the car was overtaking the auto-rickshaw. The
K.S.R.T.C. bus hit the car from behind and the car hit the
auto-rickshaw. The place of incident is a curve. The F.I.R.
was registered against the driver of the bus, but the charge
was laid against the driver of the car. Taking into
consideration all these aspects, we are of the view that the
Tribunal is perfectly justified in holding that the accident
MACA 876/2009 5
occurred due to negligence of drivers of the car as well as
that of the bus and making them liable at the ratio of 50 :
50.
9. The next question to be considered is whether the
risk of the passengers travelling in the car is covered by the
policy. Admittedly the policy issued was an Act only policy,
which does not cover the risk of the passengers in the
vehicle. Therefore, the Tribunal is perfectly justified in
exonerating respondent No.4 Insurance company. For all
these reasons we find no merit in the appeal and the same
is liable to be dismissed.
In the result, the appeal is dismissed. No cost.
A.K.BASHEER,
JUDGE.
P.Q. BARKATH ALI,
JUDGE.
mn