The New India Assurance Company … vs Ruby Mathew on 4 June, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 270 of 2003()


1. THE NEW INDIA ASSURANCE COMPANY LIMITED
                      ...  Petitioner

                        Vs



1. RUBY MATHEW, W/O.MATHEW, KULAKKATTU
                       ...       Respondent

                For Petitioner  :SRI.MATHEWS JACOB (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :04/06/2008

 O R D E R
                           M.N.KRISHNAN, J
                       =====================
                         MACA No.270 OF 2003
                       =====================

                  Dated this the 4th day of June 2008

                                JUDGMENT

This appeal is preferred against the award of the Motor Accidents

Claims Tribunal, Kottayam in O.P.(MV)No.2590 of 1994. The appellant is

the 3rd respondent insurance company in the O.P. The Tribunal found that

the accident had taken place on account of the negligence of the car driver

and 25% negligence of the van driver. The appellant is the insurer of the

van. The driver, owner and the insurance company of the car has not been

impleaded as parties. The Tribunal found that the accident had taken place

on account of the negligence of the car driver to the extent of 75% and 25%

of the van driver. The Tribunal ultimately directed the 3rd respondent, viz;

the insurer of the van to pay the entire compensation. It is against that

decision the present appeal is filed.

2. The accident had taken place on account of the collision of two

vehicles. So far as the claimant is concerned, it is a case of composite

negligence. Now the settled position is that in a case of composite

negligence, they are several tortfeasors and not joint tortfeasors. When it is

MACA 270/2003 -:2:-

so the liability has to be apportioned individually between those who had

been responsible for the accident. Unfortunately in this case, the claimant

has not chosen to implead the owner, driver and the insurer of the car and

has also not claimed any compensation against them. Therefore one

cannot affix the entire liability on the van driver and direct the the insurance

company to pay the amount. Therefore the award requires modification and

I hold that the appellant-insurance company is only liable to indemnify the

owner of the van to an extent of 25% for which alone the owner is liable.

The award of the Tribunal directing to pay the entire amount by the

insurance company of the van is set aside.

MACA is disposed of accordingly.

M.N.KRISHNAN, JUDGE

Cdp/-