K.V. JOSE Vs. AMBUJAKSHI AND ORS.

JUDGEMENT

(1.) THE appellant is the 1st respondent in O.P.(MV) No. 2406/1997 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The above claim petition was filed by the respondents 1 to 5 herein under Sec. 166 of the Kerala Motor Vehicles Act, claiming compensation for the irretrievable loss suffered by them, by the death of Sri. Kunjappan, the husband of the 1st respondent and the father of the respondents 2 to 5. According to the respondents 1 to 5, on 27/9/1996, while the said Kunjappan was travelling along with goods in a tempo van bearing Registration No. KL7/E -3364 along the Vaikom -Tripunithura road from south to north, when reached near Udayamperoor Perumthrikkovil Temple, the tempo van dashed against the service bus bearing Registration No. KCE -2970 which came from the opposite direction and as a result of the hit, the said Kunjappan was thrown off the vehicle and at the nick of the moment, the right back wheel of the bus ran over his body causing him very serious injuries and on the way to the hospital, he died. At the time of accident, the tempo van was being driven by the 6th respondent, owned by the appellant and insured with the 7th respondent herein and the accident was caused by rash and negligent driving of the tempo van driven by the 6th respondent herein. The respondents 8 to 10 are the driver, owner and insurer of the bus at the time of accident. At the time of accident, the said Kunjappan was aged 54 years and he was travelling with the goods. The respondents 1 to 5 claimed an amount of Rs. 5 lakhs from the appellant and the respondents 6 and 7. No amount was claimed from the respondents 8 to 10 as the death was caused due to the rash and negligent driving of the tempo van alone.

(2.) TO substantiate the claim, the 1st respondent was examined as P.W.1 and Exts.A1 to A9 were marked. No evidence, either oral or documentary, was adduced by the appellant or the respondents 6 to 10 herein. After considering the evidence on record, the Tribunal passed the impugned award fixing the liability on the appellant and 6th respondent alone and directed them to pay an amount of Rs. 1,17,000/ - as compensation to the respondents 1 to 5. The 7th respondent insurer was absolved from the liability in the absence of policy coverage. Dissatisfied with the fixation of the liability on the appellant and the 6th respondent alone, this appeal is filed on various grounds. The respondents 1 to 5 filed a cross -objection on the ground that the quantum of compensation determined by the Tribunal is inadequate and unjust.

(3.) THE learned counsel for the appellant advanced arguments mainly canvassing two points. Firstly, according to the learned counsel, the Tribunal went wrong in completely absolving the insurer of the tempo van holding that the deceased was neither the owner; nor an authorized representative of the owner of the goods carrying in the tempo van at the time of accident. Secondly, it is contended that the rash and negligent driving of the bus also contributed to the cause of accident. So, the Tribunal ought to have proportionately fixed the liability on negligence contributed by both parties, the driver of the bus and the driver of the tempo van, as the immediate cause of death was running over the deceased by the bus. Thirdly, it is contended that the tempo van while proceeding from Vaikom to Tripunithura, when it reached at Udayamperoor, a scooter bearing Registration No. KBT 8559 had suddenly leaped into the road from the western side and in that circumstances, the driver of the tempo van was left with no alternative, other than to suddenly twist the vehicle to the eastern side, to save the life of the scooterist. It is also contended that the accident had occurred on the returned trip of the tempo van, after safely delivering the oven manufactured by 'Aluva Settlement Industries' to its customer at Vaikom for which the tempo van was hired by 'Aluva Settlement Industries' and the deceased was a worker of that company.