K.K.Sunil & Others vs The New India Assurance Company ...
2021 Latest Caselaw 19749 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 23rd DAY OF SEPTEMBER 2021 / 1st ASWINAM, 1943
                        MACA NO. 1093 OF 2007
  AGAINST THE JUDGMENT IN OP(MV) 2916/1998 OF MOTOR ACCIDENT CLAIMS
                         TRIBUNAL,ERNAKULAM
APPELLANT/ADDL.6TH RESPONDENT:

THE NEW INDIA ASSURANCE COMPANY LTD.

REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE,, M.G.ROAD, KOCHI-11.

BY ADV SMT.RAJI T.BHASKAR

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & ADDL. 4TH & 5TH RESPONDENTS RESPECTIVELY:

1 K.K.SUNIL, S/O.KUNJAPPAN, KATTAKKAKATH HOUSE, VADATTUPARA P.O., AREEKACITY, KOTHAMANGALAM.

     2     P.P.BABY
           PARAMALIL HOUSE, MULANTHURUTHY.

     3     UNNI,

CHENGOLAPPADATHU HOUSE, LAKSHOM VEEDU COLONY, MULANTHURUTHY.

     4     THE NATIONAL INSURANCE CO. LTD.
           THRIPUNITHURA.

     5     MRS. G.GANALAKSHMY

SAROJ, 28/2877, CHILAVANNOOR, KOCHI-20.

6 SUBEESH MANIKANDAN THURUTHU HOUSE, KARITHALA,, ERNAKULAM DISTRICT.

BY ADVS.

SMT.ANILA PETER SRI.P.G.GANAPPAN FOR R5 SRI.RAJAN P.KALIYATH FOR R4 MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

SMT.K.N.RAJANI

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA NO. 1940/2007, CO.2/2008 & C.O 3/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943 MACA NO. 1940 OF 2007 AGAINST THE JUDGMENT IN OP(MV) 2409/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANT/ ADDL.6TH RESPONDENT:

THE NEW INDIA ASSURANCE COMPANY LTD REPRESENTED BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

BY ADV SMT.RAJI T.BHASKAR

RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & ADDL. 4TH & 5TH RESPONDENTS:

1 T.K.SURENDRAN, S/O.KARTHIKEYAN, VATTAKUNNEL HOUSE, OONNUKAL P.O., PUTHENCRUZ, KOTHAMANGALAM.

    2     P.P.BABY PARAMALIL HOUSE
          MULANTHURUTHY.

    3     UNNI CHENGOLAPPADATHU HOUSE
          VEZHAPARAMBU, MULANTHURUTHY.

    4     THE NATIONAL INSURANCE CO. LTD.
          THRIPUNITHURA.

    5     MRS.G.GANALAKSHMY, SAROJ 28/2877,
          CHILAVANNOOR, KOCHI-20.

    6     SUBEESH, MANIKANDAN THURUTHU HOUSE••••••••••
          KARITHALA, ERNAKULAM DIST.

          BY ADVS.
          SRI.P.G.GANAPPAN FOR R5

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

SMT.SARAH SALVY FOR R4

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA NO.1093/2007 AND C.Os 2 AND 3 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943 CO NO. 2 OF 2008 AGAINST THE COMMON AWARD DATED 12.5.2006 IN O.P(MV) NO.2916/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM

CROSS OBJECTOR/ RESPONDENT IN APPEAL:

K.K.SUNIL, AGED 37 YEARS, S/O.KUNJAPPAN,KATTAKKAKATH HOUSE, VADATTUPARA P.O., AREEKACITY, KOTHAMANGALAM.

BY ADV SRI.ANIL S RAJ

RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6:

THE NEW INDIA ASSURANCE COMPANY LTD REPRESENTED BY 1.1.]

THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. 11 1. ROAD, KOCHI - 11.

2. P.P.BABY, PARAMALIL HOUSE, MULANTHURUTHY.

UNNI, CHENGOLAPPADATHU HOUSE, LAKSHOMVEEDU COLONY,

3. MULANTHURUTHY.

THE NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA.

4. MRS.G.GANALAKSHMY, SAROJ, 28/2877, CHILAVANNOOR,

5. KOCHI -20

6. SUBEESH, MANIKANTANTHURUTHU (H), KARITHALA, ERNAKULAM.

BY ADV MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA.1093/2007, 1940/2007 AND C.O 3 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23RDDAY OF SEPTEMBER 2021 / 1ST ASWINAM, 1943 CO NO. 3 OF 2008 AGAINST THE COMMON AWARD DATED 12.5.2006 IN O.P(MV) NO.2409/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM

CROSS OBJECTOR/1ST RESPONDENT IN APPEAL:

T.K.SURENDRAN, AGED 38 YEARS, SON OF KARTHIKEYAN, VATTAKKUNNEL HOUSE, OONNUKAL P.O, PUTHENCRUZ, KOTHAMANGALAM.

BY ADV SRI.ANIL S RAJ.

RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6:

1. THE NEW INDIA ASSURANCE COMPANY LIMITED REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. ROAD, KOCHI - 11.

2. P.P.BABY, PARAMALIL HOUSE, MULANTHURUTHY.

3. UNNI, CHENGOLAPPADATHU HOUSE, LAKSHOMVEEDU COLONY, MULANTHURUTHY.

4. THE NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA.

5. MRS.G.GANALAKSHMY, SAROJ, 28/2877, CHILAVANNOOR, KOCHI-20.

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

6. SUBEESH, MANIKANTANTHURUTHU (H), KARITHALA, ERNAKULAM

BY ADV

THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH MACA.1093/2007 1940/2007 AND C.O 2 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

COMMON JUDGMENT

As these appeals and cross-objections arise out of the

same common award in O.P (MV) Nos.2409/98 and

2916/98 of the Motor Accidents Claims Tribunal,

Ernakulam, they are being disposed of by this common

judgment. The parties are, for the sake of convenience,

referred to their status in the claim petitions.

2. The petitioners - K.K.Sunil and T.K.Surendran -

had filed O.P (MV) Nos.2916/1998 and 2409/1998,

respectively, before the Motor Accidents Claims Tribunal,

Ernakulam, under Section 166 of the Motor Vehicles Act

1988, ( in short 'Act') claiming compensation on account of

the injuries that they sustained in an accident on

27.6.1998. It was their common case in the claim petitions MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

that, both of them were riding pillion on a motorcycle

bearing Reg. No.KL-7/G 1636 (motorcycle) ridden by one

Subeesh - the 5th respondent in the two claim petitions.

When the motorcycle entered the Chittoor Road from

S.R.V H. S Road junction, a bus bearing Reg. No.KCF- 4185

(bus), driven by the 2nd respondent in a rash and negligent

manner, hit the motorcycle. The petitioners fell down and

sustained injuries. They were taken to the hospital and

treated as inpatients. The bus was owned by the 1 st

respondent and insured with the 3 rd respondent. The

motorcycle was owned by the 4th respondent and insured

with the 6th respondent. K.K.Sunil was a coolie by

profession and was earning a monthly income of

Rs.3,500/-. He claimed a compensation of Rs.2,67,000/-

from the respondents, but limited the claim to

Rs.1,62,750/-. T.K.Surendran was a bar bender and was

earning a monthly income of Rs.3,000/-. He claimed a MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

compensation of Rs.7,88,000/-, from the respondents, but

limited the claim to Rs.5,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings.

4. The 3rd respondent - the insurer of the bus -

filed written statements contending that the accident

occurred due to the negligence of the 5th respondent; that

the 5th respondent did not have a valid driving licence on

the date of the accident; that he was an accused in

Crime No.97/1998 of the Ernakulam Town South Police

Station for an offence under Section 379 of the Indian

Penal Code; that the 4th respondent had lodged a complaint

before the Police for the theft of his motorcycle; that the

amount claimed in the two claim petitions was excessive,

therefore, the claim petitions may be dismissed.

5. The 4th respondent - the owner of the motorcycle

- had filed written statements stating that he was not in MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

control of the motorcycle, as his motorcycle was stolen

prior to the date of the accident. The crime was pending

investigation before the Police. Therefore, he was not

liable to pay any compensation.

6. The 6th respondent - the insurer of the

motorcycle - had filed written statements asserting

that as the motorcycle was not in the control of the 4 th

respondent - insured, it was not liable to pay any

compensation as the insured was absolved of his liability.

7. Sri.T.K.Surendran, the petitioner in O.P.2409/98,

was examined as PW1 and Exts.A1 to A17 were marked in

evidence· The respondents produced and marked Exts.B1

to B6 in evidence.

8. The Tribunal, after analysing the pleadings and

materials on record , arrived at the conclusion that the

accident occurred due to the negligence of the 5 th

respondent - the rider of the motorcycle, who cut across MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

from the sub-road to the main road namely the S.R.V.H.S.

Road to the Chittoor Road. The Tribunal, after finding

that the motorcycle was stolen and not in control of the

4th respondent, held that the 4th respondent was not liable

to pay the compensation amount, but directed the 6 th

respondent - the insurer of the 4th respondent -- to pay the

compensation amount to the petitioners.

9. Aggrieved by the above direction, the 6th

respondent - insurer has filed the appeals. Dissatisfied

with the quantum of compensation awarded by the

Tribunal, the petitioners have filed the cross-objections.

10. Heard; Smt. Raji.T.Bhaskar, the learned counsel

appearing for the appellant in the two appeals/6 th

respondent, Sri.Anil.S.Raj, the learned counsel appearing

for the cross-objectors/petitioners, Sri.P.G.Ganappan, the

learned counsel appearing for the 5 th respondent in both

the appeals and Sri.Rajan P.Kalliath, the learned counsel MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

appearing for the 4th respondent in MACA No.1093/2007

and Smt.Sarah Salvy, the learned counsel appearing for the

4th respondent in MACA No.1940/2007.

11. Smt.Raji.T.Bhaskar contended that the Tribunal

has erroneously directed the insurer of the motorcycle to

pay the compensation, even after finding that the 4 th

respondent was not in control of his vehicle, as the vehicle

was stolen prior to the accident. She placed reliance on

the decision of this Court in Oriental Insurance Co. Ltd

v. Abdul Rasheed [2006 (1) KLT 589] and National

Insurance Co.Ltd v. Abdul Latheef [ 2004 (1) KLT 747]

to canvass the position that when a vehicle is stolen, it

cannot be said to be in the control of the insured. So, the

insured cannot be liable for the accident. If the owner is

not liable, naturally, the insurer is also not liable to pay the

compensation, because a contract of insurance is a

contract of indemnity.

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

12. Sri.Rajan P. Kalliath and Smt.Sarah Salvy,

defended the impugned award passed by the Tribunal.

They contended that the Tribunal has rightly fixed

negligence on the 5th respondent because he was riding the

motorcycle with two pillions, that too on a stolen

motorcycle, and had cut across from the sub-road to the

main road. They also contended that the cross-objections

are not maintainable at the instance of the petitioners in

the light of the decision of this Court in Manojkumar v.

Subramanian [2010 (2) KLT 893], wherein, this Court has

held that if an appeal is filed by the insurer challenging the

liability alone, then a cross-objection seeking

enhancement of compensation is not maintainable. Hence,

they prayed that the cross-objections be dismissed.

13. Sri.Anil.S.Raj, the learned counsel appearing for

the cross-objectors/petitioners argued that the Tribunal

has gone wrong in finding negligence only against the MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

rider of the motorcycle. When the charge-sheet clearly

establishes that the negligence was on the part of the 2 nd

respondent - the driver of the bus, the finding of the

Tribunal attributing negligence against the 5 th respondent

alone was wrong. The Tribunal ought to have accepted the

charge-sheet and held the 2nd respondent was negligent.

Similarly, he argued that the cross-objections were

sustainable in law, as the petitioners have questioned the

findings of the Tribunal on the negligence and quantum

aspects. Hence, he contended that the appeals may be

dismissed and the cross-objections be allowed.

14. The questions that arise for consideration in the

appeals and cross-objections are:

(i) Whether the direction of the Tribunal that the 6 th

respondent is liable to pay the compensation amount is

sustainable in law or not?

(ii) Whether the cross-objections filed by the MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

petitioners are maintainable in law?

(iii) Whether the finding of the Tribunal fixing

negligence against the 5th respondent alone is correct or

not? and

(iv) Whether the cross objectors/petitioners are

entitled for enhancement of compensation?.

Question No.(i)

15. The 4th respondent had lodged Ext.B6 complaint

before the Station House Officer, Ernakulam South Police

Station on 20.5.1998, stating that his motorcycle bearing

Reg. No.KL7/G-1636 was stolen. The Police registered

Ext.B1 F.I.R (Crime No.97/1998) for an offence punishable

under Section 379 of the Indian Penal Code and

commenced investigation.

16. Pursuant to the direction of this Court in the

appeals, the Station House Officer has filed a statement

reporting the final report was filed against one Ignatius MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

@ Chattan before the Additional Chief Judicial Magistrate

(Economic Offence) Court, Ernakulam for an offence under

Section 379 of the Indian Penal Code for stealing the

motorcycle.

17. In view of the lodging of Ext.B6 complaint and the

Police registering Ext.B1 FIR, the Tribunal has rightly

arrived at the conclusion that the motorcycle was not in

the control and possession of the 4th respondent, and

therefore, he was not liable to pay any amount as

compensation.

18. Despite arriving at the above conclusion, the

Tribunal has erred by directing the appellant - insurer of

the motorcycle to pay the compensation amount.

19. The question whether the owner of a stolen

vehicle is in control of the vehicle is no longer res integra

in the light of the declaration of law by this Court in

Abdul Rasheed (supra), wherein this Court has held that MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

when a vehicle is stolen from the owner and later the

vehicle is involved in an accident while driven by another

person, who is either a thief or a person in possession of

the stolen vehicle, such person cannot be said to be the

authorized driver/rider of the vehicle as per the conditions

in the policy.

20. In Abdul Latheef (supra) this Court has held

that when the insured is found not liable to pay

compensation, the insurer cannot be directed to indemnify

the insured. Hence, the insured/owner as well as the

insurer cannot be mulcted with liability, if the vehicle is

stolen and involved in an accident.

21. I am in complete agreement with the above

legal propositions, which are squarely applicable to the

facts and circumstances of the present case.

22. With the materials available on record, namely

Ext.B6 complaint and Ext.B1 FIR, and the accident MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

happening on 27.6.1998, i.e, within a month after the

vehicle was stolen and the crime was under investigation, I

hold that the owner of the vehicle/insured was not liable to

pay the compensation amount. As a corollary to the

same, the insurer of the motorcycle cannot also be mulct

with the liability because a contract of insurance is a

contract of indemnity. Thus, if the owner is not liable,

obviously the insurer is also not liable. Therefore, I set

aside the direction of the Tribunal that the appellant -

insurer has to pay the compensation amount to the

petitioners. Accordingly, I answer question No.(i) in

favour of the appellant - insurer.

Question No.(ii)

24. Sri.Rajan P.Kalliath and Smt.Sarah Salvy, placed

reliance on the decision of this Court in Manojkumar

(supra), wherein this Court has held that when an appeal is

preferred by the insurer under the statutory grounds of MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

defence enumerated under Section 149 (2) of the Act, no

cross-appeal will lie at the instance of the petitioners for

enhancement of compensation. In other words, only if the

insurer has filed the appeal on all grounds, by virtue of

having obtained permission to have wider defence under

Section 170 of the Act, or on the basis of the 'reservation

clause' mentioned in the policy enabling to contest the

matter on behalf of the insured as well, a 'cross

objection/cross appeal can be entertained. In the present

case, as the 6th respondent has challenged only the liability

part in the award, the cross-objections on the grounds of

negligence and enhancement of compensation are not

maintainable in law.

25. A three Judge Bench of the Hon'ble Supreme

Court in Urmila Devi & Others v. Branch Manager,

National Insurance Co.Ltd & Another [(2020) 11 SCC

316] has , inter alia, held as follows:

"23. When in an appeal the appellant could have MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the MV Act; rule 249 of the Bihar Motor Vehicles Rules, 1992; and Order 41 Rule 22 CPC."

26. In view of the categoric declaration of law in

Urmila Devi (supra), Manojkumar (supra) is no longer

good law. Therefore, I hold that even though the appellant

has preferred the appeals only challenging its liability,

there is no legal impediment in the cross-objectors filing

the appeal challenging the finding of negligence and

seeking for enhancement of compensation. I answer

Question No.(ii) in favour of the cross-objectors and hold

that the cross-objections are maintainable in law.

Question No.(iii)

27. The specific case of the petitioners before the MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

Tribunal was that while they were riding pillion on the

motorcycle ridden by the 5 th respondent, when they

entered the Chittoor Road from the SRVHS road, the bus

driven by the 2nd respondent in a rash and negligent

manner without sounding horn and plying at terrific

speed, hit the motorcycle. The petitioners fell down and

sustained serious injuries. The accident occurred due to

the negligent act and commission of the 2 nd respondent.

The 1st respondent being the owner, the 2nd respondent

being the driver and the 3rd respondent being the insurer

of the bus were jointly and severally liable to pay

compensation to the petitioners.

28. The petitioner in O.P (MV) No.2409/ 1998

examined himself as PW1 and marked Exts.A1 to A17 in

evidence. He produced Ext.A5 charge-sheet filed by the

City Traffic Police in Crime No.1245/1998, which

establishes that the 2nd respondent was negligent in MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

causing the accident. The respondents have not let in any

contra evidence. Even though the 3 rd respondent had

pleaded that the motorcycle was a stolen property and the

5th respondent was a thief etc., they have not pursued the

matter further by letting in any evidence to prove the

same.

29. This Court has in New India Assurance Co. Ltd

v. Pazhaniammal [2011 (3) KLT 648], has succinctly laid

down the law that, as a general rule, the production of the

charge-sheet is prima facie sufficient evidence of

negligence for the purpose of a claim filed under Section

166 of the Motor Vehicles Act. The charge-sheet can be

accepted as evidence of negligence against the accused

driver. If any of the parties do not accept the charge-

sheet, the onus of proof is on such party to adduce oral

evidence and discredit the charge-sheet. If the oral

evidence is adduced by such party, then the charge-sheet MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

will fall into a pale of insignificance.

30. In the instant case, the Tribunal has totally

disregarded the charge-sheet and arrived at the

impugned conclusion for the sole reason that the 5 th

respondent had cut-across from the sub road to the main

road and the accident occurred at the junction.

31. On a perusal of Ext.A3 AMVI report and Ext.A4

scene mahazar, it is seen that both the bus and the

motorcycle have got damaged and the accident occurred

right in centre of the Chittoor Road junction. Therefore, I

am of the opinion that both the 2 nd respondent and the 5th

respondent had to have exercised due care while dealing

with junction areas. Hence both of them have contributed

to the accident. The allegation that the motorcycle was

stolen and the 5th respondent was a thief etc., is irrelevant

so far as the payment of compensation to the petitioners

who got injured in the accident, are concerned. In fact in MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

Mohammed Siddique and another v. National

Insurance Co. Ltd [2020 KHC 6043] this Court has held

that contributory negligence cannot be attributed merely

because two pillion riders were riding on a two wheeler.

Hence, it cannot be contended that the petitioners are dis-

entitled to compensation dehors the negligence of the 2 nd

respondent because they were travelling on a bike that

was stolen. Hence, I fix the contributory negligence on

the respondent Nos.2 and 5 in the ratio of 50:50.

32. As already found, the respondents have not let in

any contra evidence to discredit the charge-sheet or that

the accident was caused because the vehicle was stolen.

In view of the enunciation of law in Pazhaniammal

(supra) and the fact that the respondents have not let in

any contra evidence., I am of the opinion that the finding

that only the 5th respondent was negligent in causing the

accident is erroneous and wrong.

MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

33 In view of the above findings, I hold that the

respondents 1 to 3 and 5 are jointly and severally liable

to pay the compensation amount. Since the 3rd respondent

has admitted the insurance policy of the bus and has not

alleged any violation of policy conditions, the 3 rd

respondent is to indemnify the liability of the 1 st

respondent. Accordingly, I direct the respondent Nos.3

and 5 to pay the compensation amount. Question No.(iii) is

answered accordingly.

Question No.(iv)

34. It is found that the petitioners had sought for an

amount of Rs.1,62,750/- and amount of Rs.5,00,000/-,

respectively, as compensation. Admittedly, both the

petitioners have not sustained any permanent disability.

35. The Tribunal, after analysing the pleadings and

materials on record have found that the petitioner in O.P

2409/1998 is entitled to a compensation of Rs.1,72,250/- MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

and the petitioner in O.P 2916/1998 is entitled to a

compensation of Rs.38,250/-.

36. I have re-appreciated each head of claim and

have found that the Tribunal has awarded reasonable and

just compensation, particularly keeping in mind the fact

that the accident occurred in the year 1998, i.e, about 23

years back. Hence, I hold that the petitioners are not

entitled for further enhancement of compensation. I

answer Question No.(iv) against the petitioners.

In the result, the appeals are allowed by exonerating

the appellant/insurer of the motorcycle from indemnifying

the 4th respondent; and the cross-objections are allowed to

the extent of permitting the cross-objectors/petitioners to

realise the compensation amount awarded as per the

impugned award from the respondent Nos.3 and 5/the

insurer of the bus and the rider of the motorcycle. The

respondents 3 and 5 are ordered to deposit the MACA NOS.,1093/2007, 1940/2007 & C.O. Nos2&3 of 2008

compensation amount awarded as per the impugned

award with interest at the rate of 6% per annum from the

date of petition till the date of deposit and costs of

Rs.3,000/- each before the Tribunal within a period of 60

days from the date of receipt of a certified copy of the

judgment. The Tribunal shall release the deposited

amount to the cross-objectors/petitioners in accordance

with law. The amount deposited by the appellant before

the Tribunal, pursuant to the order dated 2.7.2007 of this

Court in I.A 1238/2007 in MACA 1093/2007, shall be

refunded to the appellant in accordance with law.

ma/24.9.2021                       Sd/- C.S.DIAS, JUDGE

                         /True copy/