IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 388 of 2001()
1. MANAGING PARTNER,M/S.THAMPI TRANSPORTS
... Petitioner
Vs
1. SHRI.M.MAMMU
... Respondent
For Petitioner :SMT.SUMATHY DANDAPANI
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :28/01/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
--------------------------------------
M.F.A.No.388 OF 2001
-------------------------------------
Dated 28th January, 2008
JUDGMENT
Ko
shy,J.
This appeal is filed questioning the award of the Tribunal in
dismissing the application filed by the appellant. Appellant is the owner
of a bus bearing registration No.KLG 6401. According to the appellant,
a Jeep bearing registration No.KL9A 8433 driven by the second
respondent and owned by the first respondent hit the bus. Consequently,
the bus caught fire and the bus was completely damaged. He claimed a
compensation of Rs.3,07,878/=. Driver of the bus was examined as PW3.
The owner of the bus was examined as PW1. Surveyor was examined as
PW2. Police records like F.I.R., scene mahazar, Motor Vehicle Inspctor’s
report, survey report etc. were marked. Tribunal found that there is no
direct evidence to show that the fire broke out due to the accident and,
therefore, application was dismissed. After considering the scene
mahazar, the Tribunal found that road at the place of accident lies in
north-south direction with a sharp curve to the east from the northern
end. The jeep came from north to south and almost completed
negotiating the curve. Whereas the bus was about to negotiate the
curve. The Tribunal further found as follows:
MFA.388/2001 2
“The road at the point of accident possessed
a width of 6.65 metres and road margins of 2
metres width on the eastern side and 1.5 metres
width on the western side. The collision point is
noted as 5.36metres towards west from the
eastern fringe of tarred road. Exts.A3 and A3(a)
are the MVI reports of vehicle involved in the
accident. The jeep suffered damages on its front
right side whereas the bus suffered heavy hit
impact on the front side, and it was found in burnt
state. The diesel tank portion was totally dented.”
PW3 also stated that the jeep driver was rash and negligent and he
turned the bus only to reduce the damages, but, it hit against the
guard stones and thereby caused heavy damages to the front side
also. The Tribunal from the above found as follows:
“The scene mahazar facts would show that
the jeep driver Sayed was negligent in causing
the accident. He almost negotiated the curve and
was coming down towards southern direction
after crossing the midline of road. So it can very
well to be found that the driver of jeep was totally
negligent.”
Tribunal also found that jeep hit at the rear belly portion of the bus,
where the diesel tank was located. Consequently, the bus hit on the
guard stones and the front side was also damaged. Therefore, it was
not a head on collision. Immediately after the collision, the bus
turned to the road margin where the guard stones were put up. Then
the passengers got down which avoided human loss. By the time, the
MFA.388/2001 3
bus caught fire. The Tribunal also found as follows:
“25. So it follows that PW3 also was
negligent in driving the bus while negotiating the
curve towards the midline of road and then rashly
drove it down to the eastern margin; where the
guard stones are placed.
26. So it is found that PW3 was also equally
negligent in causing the accident. His degree of
negligence is assessed at 50%. Whereas the
driver of jeep is totally negligent and he was
100% careless and negligent.”
So, the finding of the Tribunal is that jeep driver was negligent by
100%, but, 50% negligence was attributed to the bus driver because
he hit on the guard stones which was only a consequential hitting
while trying to reduce the damages caused. But, on the assumption
that there is no evidence to show that how fire occurred, the
application was dismissed. We are of the opinion that fire occurred
only due to the impact of the hit of the jeep and the jeep driver’s
negligence is very evident. In any case, at the maximum 25%
negligence can be attributed to bus driver and fire occurred only
because jeep hit on the rear belly portion where the diesel tank was
located as found by the Tribunal. Jeep driver was negligent and
consequently insurance company of the jeep is liable to pay 75%
compensation as we apportion 75% 4negligence on the jeep driver.
Bus was completely burnt. Surveyor has assessed an amount of
MFA.388/2001 4
Rs.3,05,662/= as the damages caused. It is contended by the
insurance company that the surveyor did not take into account the
depreciation for finding out the amount due for the damages caused.
The matter is remanded for assessing the damages. The Tribunal
shall assess the damages caused to the appellant and then 75% of the
same should be deposited by the insurance company which insured
the jeep. Both parties are allowed to adduce further evidence before
the Tribunal. Parties shall appear before the Tribunal on 1.04.2008.
J.B.KOSHY
JUDGE
K.HEMA
JUDGE
tks