UNITED INDIA INSURANCE CO LTD Vs. PREMAKUMARAN

JUDGEMENT

(1.) These appeals have been filed against the judgments in O. P. (MV) 10 of 1982 and connected cases. The details of these MFAs. are given in the Appendix.

(2.) Some of the Government servants working in Survey and Land Records Department of Tamilnadu State along with their dependants and others set out for a tour to visit some important places in Kerala. Their tour programme spread over a period of 11 days. They hired a bus bearing registration No. TNX 1755 belonging to Kartheepan Tourist Bus Service owned by 2nd respondent Arumughan. One Rajan was the Manager of tour programme. There was only one driver to cover the entire distance. After about 5 days of travel they reached Trivandrum, on 9-5-1979 and in the morning on the same day they left for Cochin. It would appear that there was some delay and they were behind schedule and some of the passengers were finding fault with the driver for that. This caused some misunderstanding and so the driver was not very much friendly with a section of the passengers. It is alleged that when some of the passengers teased the driver and he in turn told them that he would abandon the bus and leave the passengers in a forest. By noon they reached Cochin. They intended to visit Kalady and Guruvayoor, sad so proceeded to Kalady via Angamali. They had to pass through the railway level cross at Akaparamba to reach Kalady. The bus reached Akaparamba level cross at about 3 p. m. It was an unmanned level cross without any stile, hand rail or gate. There was not even a proper caution board. The caution board which was already there was moth-eaten and the writings thereon could not have been deciphered by any one. The driver of the bus drove the vehicle right up to the railway track. Passengers in the bus saw the oncoming train. They shouted and cried in panic to take the vehicle away from the track. The bus remained in the track. Jayanthi Janatha Express coming from the southern side rammed into the bus. The bus was pushed off and it whirled and got entangled and was carried along with the train. The bus and the mutilated human bodies were dragged to a distance of 500 metres by the locomotive engine. Several passengers in the bus were battered into pieces. Those who survived this ghastly accident lost either their limbs or other vital organs.-About 40 passengers and the driver died and some miraculously escaped with serious injuries.

(3.) Altogether 52 claim petitions were filed before the Motor Accidents Claims Tribunal, Ernakulam under S.110A of the Motor Vehicles Act (hereinafter referred to as the Act) for compensation. 23 claim petitions were filed by the dependants of those who lost their lives in the accident and 9 petitions were filed by injured persons. Two cases namely M. V. O. P. 10/82 and 1371 of 1980 were dealt with separately and disposed of by a common judgment dated 27th day of September, 1985, In those two cases the Union of India represented by the General Manager of Southern Railway, Madras was impleaded as the additional 3rd respondent (hereinafter referred to as the railway). The Tribunal found that the negligence of the driver of the bus as well as the Southern Railway management caused the accident and they were held to be liable to pay compensation. MFA No. 260 of 1985 and 265 of 1985 are the two appeals filed by the Railway challenging the finding of the Tribunal in those two claim petitions. MFA No. 235 of 1985 and 248 of 1985 are the appeals filed against the very same judgment by the 3rd respondent, United India Fire and General Insurance Company (hereinafter referred to as the Insurance Company).