IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 25 of 2009()
1. HENCY BIJU,AGED 28,W/O.LATE HIJU ANTO,
... Petitioner
2. JOET AGED 8 YEARS, (MINOR) DATE OF
Vs
1. MANAGING DIRECTOR,K.S.R.T.C.
... Respondent
2. THARUVAIKUTTY, S/O.ALI, ORUYOTH VEEDU,
For Petitioner :SRI.V.K.GOPALAKRISHNA PILLAI
For Respondent :SHRI.JOHNSON P.JOHN, SC, KSRTC
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/05/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
M.A.C.A.Nos.25 & 759 OF 2009
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 26th day of May, 2010
JUDGMENT
Barkath Ali, J.
Both these appeals arise out of judgment and award of the Motor
Accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.1094/2003
dated August 8, 2008 awarding a compensation of Rs. 5,74,320/- for
the loss caused to the claimants on account of the death of deceased
Biju in a motor accident.
2. M.A.C.A.No.759/2009 is by the Managing Director,
KSRTC, the owner of the offending vehicle ( first respondent in the
O.P.) and M.A.C.A.No.25/2009 is by the claimants.
3. The facts leading to these appeals in brief are these :
Deceased Biju was an Excise Guard in the Excise Circle Office,
Irinjalakkuda and was drawing a salary of Rs.5065/- and was aged 29
at the time of his death. Deceased was riding his motor cycle bearing
Reg.No.KL-8/V-7282 from Thrissur to Angamaly on February 5, 2003
at about 9.15 a.m. When he reached in front of Premier Cable
MACA.No.759/2009 2
Company at Karukutty , a KSRTC bus bearing Reg.No. KL 15/4081
came at a high speed and dashed against the motor cycle of the
deceased . Deceased sustained very serious injuries and he succumbed
to the injuries sustained while undergoing treatment at the Little Flower
Hospital, Angamaly. Claimants are the wife and minor child of
deceased. According to them, the accident occurred due to the rash and
negligent driving of bus by its driver, the second respondent. First
respondent as the owner, second respondent as the driver and third
respondent as the insurer of the offending bus are jointly and severally
liable to pay compensation to the claimants.
4. Fourth respondent is the insurer of the motor cycle of the
deceased. Respondents 1 and 2 filed written statements contending that
the accident occurred due to the negligence on the part of the deceased,
that deceased knocked down a pedestrian and the deceased fell down
on the road and sustained injuries and that the bus did not hit the motor
cycle. The third respondent, the insurer of the offending bus filed a
written statement denying the liability. The fourth respondent, the
insurer of the motor cycle of the deceased filed a written statement
MACA.No.759/2009 3
admitting the policy, but contending that the accident occurred due to
the negligence of the second respondent.
5. PWs 1 and 2 were examined and Exts.A1 to A7 were
marked on the side of the claimants. On the side of respondents 1 to 3,
RW1 was examined. On an appreciation of evidence, the Tribunal
found that the accident occurred due to the negligence on the part of the
deceased as well as the second respondent and apportioned the liability
to the extent of 25% and 75% respectively and assessed a
compensation of Rs.7,65,760/-and after deducting 25%, awarded a
compensation of Rs. 5,74,320/-.
6. First respondent in the O.P., the KSRTC filed the appeal
MACA.No.759/2009 challenging the finding of the Tribunal regarding
negligence. The claimants filed the appeal M.A.C.A.N.25/2009 mainly
challenging the finding of the Tribunal regarding contributory
negligence on the part of the deceased.
7. Heard the counsel for the appellants in both the appeals and
the Insurance Company.
MACA.No.759/2009 4
8. The following points arise for consideration :
1. Whether the finding of the Tribunal that
the accident occurred due to the negligence on the part
of the deceased as well as the second respondent can
be sustained ?
2. Whether the claimants are entitled to any
enhanced compensation ?
Point Nos. 1 and 2
9. Counsel for the appellant-KSRTC argued that no damage
was caused to the bus as seen from the report of the MVI, Ext.A5 and
also that RW1, the driver of the bus testified that the bus did not hit the
motor cycle and that therefore Tribunal went wrong in holding that the
accident occurred due to the negligence of the first respondent. We are
unable to agree. Merely because there was no damage to the KSRTC,
it does not ipso facto show that it did not hit the motor cycle. As
correctly observed by the Tribunal that mere touching of the KSRTC
bus would have caused the deceased to loose the control of the motor
cycle. RW1, the driver of the KSRTC though would say that the bus
did not hit the motor cycle, admitted that when he appeared before the
MACA.No.759/2009 5
Criminal Court, he pleaded guilty and he was convicted therein. It is
clear from the above that there was also negligence on his part. That
apart, the motor cycle was seen on the middle of the road which shows
that there was also negligence on the part of the deceased. That being
so, the Tribunal is perfectly justified in finding that the accident
occurred due to the negligence on the part of the deceased as well as
the second respondent and apportioning the liability as 75% on the part
of second respondent and 25% on the part of the deceased.
10. As regards the compensation awarded by the Tribunal, we
find the same to be reasonable and therefore are not disturbing the
same. That being so, both the appeals have to be dismissed.
In the result, both the appeals are dismissed. Parties shall bear
their own costs.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.759/2009 6
MACA.No.759/2009 7