IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1068 of 2009()
1. LATHIKA, W/O.SASI, KALAFOMKULATHU HOUSEK
... Petitioner
Vs
1. JIMMICHAN MATHEW, S/O.MATHEW,
... Respondent
2. THE ICICI LOMBARD CONORAL INSURANCE CO.
For Petitioner :SRI.K.A.HASHIM
For Respondent :SRI.M.D.SASIKUMARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/11/2009
O R D E R
M.N. KRISHNAN, J.
...........................................
M.A.C.A.No.1068 OF 2009
.............................................
Dated this the 5th day of November, 2009
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Pala in OP(MV)No.110/2007. The claimant, a
passenger in an auto rickshaw, sustained injuries when it
collided with a Maruti car. She had sustained injury on the
11th rib and other lacerated wounds. The Tribunal after
consideration of the materials found that the driver of the
auto rickshaw has contributed 75% to the accident and 25%
by the Maruti driver and so deducted 75% of the
compensation and awarded Rs.7,850/= as compensation. It
is against that decision, the claimant has come up in appeal.
2. It is true that the claimant was only a passenger.
Therefore, it cannot be held that she has contributed to the
accident. When two vehicles collide and it may be on
account of the negligence of both the drivers, the said
negligence is called composite negligence. In a case of
composite negligence, the drivers involved are not joint
tort feasors but they are several tort feasors; that means
: 2 :
M.A.C.A.No.1068 OF 2009
each of the driver is individually liable for the percentage of
negligence on his part. The question of joint tort feasors
which was a theory governing the field had been given a
go bye and in the decision reported in National Insurance
Co.Ltd. Sivasankara Pillay (1995 (1) KLT 51) it was held
that when an accident takes place on account of the
negligence of the two drivers, they are not joint tort feasors
but several tort feasors. When it is the legal position, then
both the tort feasors along with their owners and the
insurance company should be made liable and for that
purpose, they have to be impleaded as parties.
3. So far as this case is concerned, for the reasons
known to the claimant, neither the driver of the auto rickshaw
nor its owner had been impleaded as a party. Therefore,
though she is not contributory negligent to the accident
since she had claimed compensation only from the owner,
driver and the insurance company of the motor car only
that percentage of compensation of that negligence can be
awarded to her. The Tribunal found that the materials
available would indicate that the vehicle was being driven by
: 3 :
M.A.C.A.No.1068 OF 2009
Anilkumar and not by Binu as projected by the parties on
the basis of the F.I.Statement. Since the auto rickshaw owner
and the driver is not before me, a further adjudication in
the question does not arise.
4. Now, mainly to the question of negligence. The
learned Tribunal found that though a charge sheet is filed
against the driver of the Maruti car, the facts and
circumstances would indicate that the driver of the auto
rickshaw was responsible for the accident to a great extent.
For that purpose, it had relied on the statement given by
the injured wherein it was stated that auto rickshaw had
overtaken a parked bus and then hit on the Maruti car which
was coming from the opposite side. The learned Tribunal
also found that the nature of the damage sustained by the
auto rickshaw is on the side of its wheel which indicates that
it is not a hit direct. So the theory of the auto rickshaw
overtaking the bus and the Maruti car swerving the vehicle
and the Maruti car hitting on the side of the wheel of the
auto rickshaw appear to be more probable and acceptable
as found by the Tribunal. The Tribunal also has stated that
: 4 :
M.A.C.A.No.1068 OF 2009
if the Maruti car driver also had come at a reasonable
speed and as there was only parked vehicle on the other
side, if he had bestowed better attention and care, he could
have swerved the vehicle that side whereby the accident
could have avoided. The factum of negligence of the driver
of the auto rickshaw is there and there is negligence on the
driver of the car as well and therefore taking into
consideration all these aspects, I am inclined to fix the
negligence at 60% on the auto rickshaw driver and 40% on
the Maruti car driver or in other words, the claimant will
be entitled to 40% of the compensation awarded in the case.
5. Now turning to the quantum. It is true that when
there is actual loss of earnings, there is no point in deducting
one third of that for calculating the loss of earnings.
When it is so, the claimant will be entitled to Rs.2,000/= more
which makes the total compensation of Rs.33,400/=. Since
she is entitled to only 40% of the compensation, the total
amount which she is entitled will be Rs.10,360/=. The
Tribunal has already awarded a compensation of Rs.7,850/=.
So, the claimant will be entitled to an additional
: 5 :
M.A.C.A.No.1068 OF 2009
compensation of Rs.2,510/=.
6. In the result, the MACA is partly allowed and the
claimant is awarded an additional compensation of
Rs.2,510/= with 9% interest on the said sum from the date of
the petition till realisation and the respondent insurance
company is directed to deposit the said amount within a
period of 60 days from the date of receipt of a copy of this
judgment.
Disposed of accordingly.
M.N.KRISHNAN, JUDGE
cl