Kerala High Court
The Oriental Insurance Co. Ltd vs Ali.K on 24 June, 2025
2025:KER:44609
MACA No.555/2013, 499/2013 & 825/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
MACA NO. 555 OF 2013
OPMV NO.9 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA
APPELLANT/6TH RESPONDENT:
THE ORIENTAL INSURANCE CO.LTD.
METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION,
ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENTS/RESPONDENTS:
1 FASEELA
AGED 21 YEARS
W/O.MUHAMMED , SHAMVEEL, KAMBA HOUSE, NALLOORNAD POST,
MANANTHAVADY TALUK, WAYANAD DISTRICT,670 645
2 ALI.K
AGED 47 YEARS
S/O.KADEESA, KAMBA HOUSE, PULIKKAD , NALLOORNAD POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT 670 645
3 JARARDH.T.J.
S/O.JOSEPH,H.NO.584/W NO.111,THADATHIL HOUSE,OONNUKAL
POST, NELLIMATTAM, (VIA), KOTHAMANGALAM, ERNAKULAM
DISTRICT 686 693
4 MS.NATIONAL INSURANCE CO.LTD.
REPRESENTED BY ITS BRANCH MANAGER, KALPETTA BRANCH ,
KALPANA SHOPPING COMPLEX, KALPETTA POST, WAYANAD
DISTRICT ,PIN 673 121.
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MACA No.555/2013, 499/2013 & 825/2013
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5 K.SATHYANARAYANA
S/O.KENNAYYA NAIDU, VITTAL RAO,PETROL PUMP, GANDHI
NAGAR, MYSORE 570 007.
6 K.V.MEENAKSHAAMMA
NO.403, AHIMSA MARG, SIDDHARATHA NAGARA, MYSORE ,PIN
570 011.
BY ADV SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.06.2025, ALONG WITH MACA.499/2013, 825/2013, THE
COURT ON 24.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44609
MACA No.555/2013, 499/2013 & 825/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
MACA NO. 499 OF 2013
OPMV NO.193 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/6TH RESPONDENT:
THE ORIENTAL INSURANCE CO.LTD
METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION,
ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENTS/PETITIONERS & RESPONDENTS 1-5:
1 FATHIMA, AGED 41 YEARS
W/O. CHAKKARA USMAN, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
2 NOUSHAD, AGED 25 YEARS
S/O. CHAKKARA USMAN, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
3 UMMUSALMA, AGED 22 YEARS
D/O. CHAKKARA USMAN, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
4 SUNEERA, AGED 20 YEARS
D/O. CHAKKARA USMAN, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
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MACA No.555/2013, 499/2013 & 825/2013
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5 NISAR, AGED 19 YEARS
S/O. CHAKKARA USMAN, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
6 MARIYAM, AGED 81 YEARS
W/O. SOOPPY, CHAKKARA HOUSE, THARUVANA POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
7 ALI K., AGED 47 YEARS
S/O. KADEESA, KAMBA HOUSE, PULIKKAD, NALLOORNAD POST,
PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD
DISTRICT.
8 JARARDH T.J., AGED 45 YEARS
S/O. JOSEPH, H.NO.584/W.NO.III, THADATHIL HOUSE,
OONNUKAL POST, NELLIMATTAM (VIA), KOTHAMANGALAM,
ERNAKULAM DISTRICT.
9 MS. NATIONAL INSURANCE CO. LTD.
REPRESENTED BY ITS BRANCH MANAGER, KALPETTA BRANCH,
KALPANA SHOPPING COMPLEX, KALPETTA POST, WAYANAD
DISTRICT-673 121.
*10 K.SATHYANARAYANA [DELETED]
S/O. KENNAYYA NAIDU, VITTAL RAO, PETROL PUMP, GANDHI
NAGAR, MYSORE-570 007.
11 K.V.MEENAKSHAAMMA, NO.403, AHIMSA MARG, SIDDARATHA
NAGARA, MYSORE, PIN-570 011.
*[RESPONDENT NO.10 IS DELETED FROM THE PARTY ARRAY AT
THE RISK OF APPELLANT AS PER ORDER DATED 24/01/2018 IN
IA 02/2018 IN MACA 499/2013]
BY ADV SMT.CELINE JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.06.2025, ALONG WITH MACA.555/2013 AND CONNECTED
CASES, THE COURT ON 24.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44609
MACA No.555/2013, 499/2013 & 825/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
MACA NO. 825 OF 2013
OPMV NO.30 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE CO. LTD.
METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION,
ERNAKULAM, REPRESENTED BY DULY AUTHORIZED OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENTS/PETITIONER & RESPONDENTS 1-5:
1 ALI.K., AGED 47 YEARS, S/O.KADEESA, KAMBA HOUSE, PULIKKAD,
NALLOORNAD POST, PORUNNANNOOR VILLAGE, MANANTHAVADY TALUK,
WAYANAD DISTRICT, PIN 670645.
2 K.SATHYANARAYANA, S/O.KENNAYYA NAIDU, VITTAL RAO, PETROL
PUMP, GANDHI NAGAR, MYSORE, PIN 670007.
3 K.V.MEENAKSHAAMMA, NO.403, AHIMSA MARG, SIDDHARATHA NAGAR,
MYSORE, PIN 570011.
4 JARARDH.T.J., AGED 45 YEARS
S/O.JOSEPH, H.NO.584/W.NO.III, THADATHIL HOUSE, OONNUKAL
POST, NELLIMATTAM (VIA), KOTHAMANGALAM, ERNAKULAM DISTRICT,
PIN 686691.
5 MS.NATIONAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH
MANAGER, KALPETTA BRANCH, KALPANA SHOPPING COMPLEX,
KALPETTA POST, WAYANAD DISTRICT, PIN 673121.
BY ADV.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON
04.06.2025, ALONG WITH MACA.555/2013 AND CONNECTED CASES, THE COURT ON
24.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals have been filed by the insurer, who was the
supplementary sixth respondent in OP(MV) Nos.193/2009 and 9/2010
as well as the third respondent in OP(MV) No.30/2010 on the files of
the Motor Accidents Claims Tribunal, Kalpetta, challenging the ratio
of contributory negligence attributed by the tribunal in causing the
accident.
2. The case of the claimants before the tribunal was
that on 09.08.2007, while the deceased in OP(MV) No.193/2009 and
the claimant in OP(MV) No.9/2010 were travelling in a Maruthi car
bearing Reg.No.KL-44/315 driven by the claimant in OP(MV)
No.30/2010 through the Bangalore-Mysore road, an Ambassador car
bearing Reg.No.MYM 5689 came from a pocket road in a rash and
negligent manner hit the Maruti car, whereby they sustained grievous
injuries. The deceased in OP(MV) No.193/2009 succumbed to the
injuries. The claimants in OP(MV) Nos.193/2009, 9/2010 and 30/2010
have approached the tribunal claiming a total compensation of
₹10,00,000/-, ₹8,00,000/- and ₹4,00,000/- respectively. The insurer of
the Ambassador car as well as the Maruthi car filed separate written
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statements, admitting the policy coverage for the offending vehicle,
but disputing the liability and quantum of compensation claimed.
Before the tribunal, PW1 was examined and Exts.A1 to A22 were
marked on the side of the claimants; and RW1 was examined and
Exts.B1 to B11 were marked on the side of the respondents. The
tribunal, after analysing the pleadings and materials on record, found
that there was negligence on the part of the driver of the Ambassador
car as well as the driver of the Maruthi car in the ratio of 70:30
respectively, and accordingly, awarded ₹4,19,000/- and ₹1,25,000/- in
OP(MV) Nos.193/2009 and 9/2010 respectively as total compensation
under different heads @ 7.5% per annum from the date of petition till
realization. On the finding of negligence on the part of the driver of
the Ambassador car as well as the driver of the Maruthi car in the
ratio of 70:30 respectively, the tribunal directed the insurer of the
Ambassador car as well as the Maruthi car to pay the compensation
amount in the ratio of 70:30 respectively. In OP(MV) No.30/2010, the
claimant, who was the driver of the Maruthi car, being the tortfeasor,
was awarded ₹67,410/-, i.e., 70% of the assessed compensation of
₹96,300/-, @ 7.5% per annum from the date of petition till realization,
against the insurer of the Ambassador car. Challenging the finding of
the tribunal attributing 70% negligence on the part of the driver of
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the Ambassador car, the appellant insurer has come up in appeal.
3. For brevity, the insurer of the Ambassador car is
referred to as "the appellant insurer" and the insurer of the Maruthi
car as "the respondent insurer".
4. Heard the learned Standing Counsel for the
appellant insurer, learned Standing Counsel for the respondent
insurer and the learned counsel for the claimants.
5. The learned Standing Counsel for the appellant
insurer submitted that the accident occurred due to the negligence on
the part of the driver of the Maruthi car, which was proceeding
through the Bangalore - Mysore National Highway. The learned
Standing Counsel for the respondent insurer, on the other hand,
submitted that though the Maruthi car was proceeding through the
Bangalore - Mysore National Highway, the Ambassador car had
effected an entry to the National Highway from a pocket road, which
resulted in hitting the Maruthi car. The learned Standing Counsel for
the appellant insurer pointed out that the charge was drawn against
the driver of the Maruthi car. However, the learned Standing Counsel
for the respondent insurer submitted that though charge was framed
against the driver of the Maruthi car, he was acquitted through the
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trial conducted by the criminal court and hence, the charge sheet
loses significance. RW1/driver of the Maruthi car mounted the box
and deposed that the Ambassador car came from the opposite
direction and took a diversion by crossing the National Highway and
hit the Maruthi car, which was moving along the Bangalore - Mysore
National Highway.
6. I have considered the rival contentions raised on
both sides. The tribunal, after an elaborate consideration of the issue,
found that the driver of the Ambassador car attributed more to the
accident and fixed negligence in the ratio of 70:30 against the driver
of the Ambassador car and the driver of the Maruthi car respectively.
Though a charge was drawn against the driver of the Maruthi car,
subsequently, the criminal court, after trial, acquitted the driver of the
Maruthi car and hence, the charge has no relevance. It is true that the
Maruthi car was moving through the Bangalore - Mysore National
Highway and the Ambassador car took a diversion by crossing the
National Highway. RW1, who was the driver of the Maruthi car,
deposed that the Ambassador car came from the opposite direction
and took a diversion by crossing the National Highway and hit the
Maruthi car, which was moving in the east-west direction. Rule 8 of
the Rules of the Road Regulations, 1989, (for short, "the Rules")
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stipulates that the driver of a motor vehicle shall slow down when
approaching a road intersection, a road junction, pedestrian crossing
or a road corner and shall not enter any such intersection, junction or
crossing until he has become aware that he may do so without
endangering the safety of persons thereon. Similarly, Rule 9 of the
Rules contemplates that the driver of a motor vehicle shall, on
entering a road intersection at which traffic has not been regulated, if
the road entered is a main road designated as such, give way to the
vehicles proceeding along that road, and in any other case, give way
to all traffic approaching the intersection on his right hand. RW1,
while giving evidence, has admitted that a sign board with respect to
the junction was brought to his notice at a distance of 50 metres.
Thus, after noticing the sign board regarding the junction, the driver
of the Maruthi car ought to have slowed down the vehicle to make
sure whether any vehicle was entering the intersection. Similarly, the
driver of the Ambassador, while taking a diversion by crossing the
National Highway, ought to have been careful and should have
allowed the vehicle proceeding through the main road and crossed the
road only if no vehicle was coming through the main road. Though a
charge sheet was drawn against the driver of the Maruthi car, since
the criminal court acquitted him, the significance of the charge sheet
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is lost.
7. The issue to be decided is, who contributed to the
accident. From the facts stated above, it is clear that as per the Rules,
the drivers of both vehicles ought to have been cautious enough while
entering a junction as well as while crossing an intersection in the
junction. That being so, it cannot be held that the driver of the
Ambassador car has contributed more to the accident and
accordingly, I hold that the drivers of both vehicles equally
contributed to the accident.
Accordingly, the appeals are allowed in part. The impugned
award is modified as follows:
a) The finding of the tribunal attributing negligence on the part of
the driver of the Ambassador car and the driver of the Maruthi
car in the ratio of 70:30 is modified as 50:50.
b) The appellant insurer and the respondent insurer are held liable
to pay the compensation awarded to the claimants in the ratio of
50:50. However, the claimant in OP(MV) No.30 of 2010, who is
the driver of the maruti car, being the tortfeasor, will only be
entitled to get 50% of the total compensation awarded.
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c) The respondent insurer shall pay the balance 20% of the
compensation amount, to be paid to the claimants in OP(MV)
Nos.193/2009 and 9/2010. It is made clear that the appellant
insurer will be at liberty to recover the compensation amount, if
any, paid in excess to the claimants in OP(MV) Nos.193/2009,
9/2010 and 30/2010.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
