IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1315 of 2007()
1. THE ORIENTAL INSURANCE CO. LTD.,
... Petitioner
Vs
1. M.C.THANKAPPAN,S/O. MAKKI,
... Respondent
2. KERALA STATE ROAD TRANSPORT CORPORATION
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SHRI.JOHNSON P.JOHN, SC, KSRTC
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/11/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.1315/2007 & WP(C)Nos.26089,
26090, 26091, 26092 & 26105 OF 2007
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Dated this the 21st day of November 2008
JUDGMENT
M.A.C.A.No.1315/2007 is preferred against the award in O.P.(MV)
No.264/2003, W.P.(C)No.26089/2007 against O.P.(MV)No.624/2003,
W.P.(C)No.26090/2007 against O.P.(MV)No.512/2003, W.P.(C)
No.26191/2007 against O.P.(MV)No.677/2003, W.P.(C)No.26092/2007
against O.P.(MV)No.708/2003 and W.P.(C)No.26105 of 2007 against O.P.
(MV)No.641/2003 of the Motor Accidents Claims Tribunal, Muvattupuzha.
2. In all these cases by virtue of a common award the Tribunal found
that the private bus which collided with the KSRTC bus is totally
responsible for the accident. There were connected appeals of which one is
MACA.No.1316/2007. After considering the entire materials, this Court
held that the accident had taken place on account of the negligence of both
the drivers and apportioned the negligence at 60% on the private bus driver
and 40% on the KSRTC driver. The same has to be followed in all these
cases.
3. So far as the maintainability of the writ petitions are concerned,
MACA 1315/2007 & con. cases -:2:-
since the amount awarded is less than Rs.10,000/-, writ petitions are filed
and under ordinary circumstances, the court is not expected to entertain a
writ petition. But, it has to be stated that when there is a common order out
of which some are appealable and the other are non-appealable and as the
provision of Section 115 of the Code of Civil Procedure is not extended to
the Tribunals under Rule 395 of the Kerala Motor Vehicles Rules, 1989, the
extra ordinary jurisdiction under Article 227 of the Constitution of India
has to be exercised and it has been done by this Court in some cases as
well. Therefore I entertain all the writ petitions as well.
In the light of my finding in M.A.C.A.No.1316 of 2007 and
connected cases, the accident had taken place on account of the negligence
to a tune of 60% by the private bus driver and 40% by the KSRTC driver
the compensation awarded has to be apportioned and it has to be paid by
the KSRTC as well as the insurance company. Or, in other words, in all
these cases, 60% of the amount awarded with interest and 60% of the cost,
if any, is to be deposited by the Oriental Insurance company and 40% of the
amount awarded plus interest plus 40% of the cost be deposited by the
KSRTC.
MACA 1315/2007 & con. cases -:3:-
To this extent the appeal and the writ petitions are disposed of
accordingly.
M.N.KRISHNAN, JUDGE
Cdp/-