ORIENTAL INSURANCE CO. LTD Vs. MOHAMMED BASHEER

JUDGEMENT

(1.) THIS appeal is from an award passed by the M. A. C. Tribunal, Quilon in O. P. (M. V) No. 2004 of 1985. The appellant, third respondent in the petition, is the insurer of the vehicle involved in the accident which took place on 16.9.1984. The first respondent herein is the injured who sustained injuries in the accident while travelling in an ambassador can KLH 8874. While the car was trying to overtake a fast passenger bus going in front of it was hit by a fiat car KLT 5653 which was coming from the opposite direction. It is alleged that the accident was due to the rash and negligent driving of the second respondent herein who was driving the ambassador car in which the claimant was travelling. Third respondent herein is the owner of the said car. Fourth respondent was the driver of the fiat car and fifth respondent is its owner. Sixth respondent is the insurer of the fiat car. In the accident first respondent suffered injuries and he had undergone treatment under the District Medical Officer. Quilon and also under an ayurvedic physician. In view of the disability caused to the first respondent he filed an application before the Tribunal claiming compensation of Rs. 1 lakh. That application was resisted by the respondents by filing separate counter statements. The driver of the ambassador car contended that the accident was caused due to the rash and negligent driving of the driver of the fiat car which came from the opposite direction. The fourth respondent driver of the fiat car on the other hand denied that he was coming in a rash and negligent manner. The appellant denied its liability to pay compensation and contended that the driver of the fiat car was rash and negligent. Sixth respondent insurer of the fiat car contended that fourth respondent was not rash and negligent and at any rate its liability is limited to Rs. 50,000/-.

(2.) THE Tribunal after enquiry found that the accident occurred due to the composite negligence of the drivers of both the vehicles. Accordingly, liability of negligence was apportioned between the two drivers of the offending vehicles. The ambassador car was negligent to the extent of seventy five per cent and fiat car was negligent to the extent of twentyfive per cent. Ultimately the claimant was awarded a compensation of Rs. 33,500/- with interest at 6%. The Tribunal further held that 75% of the award amount would be paid by respondents 1 to 3 in the petition with execution first against the third respondent and 25% of the award amount would be paid by respondents 4 to 6 with execution first against sixth respondent. Being aggrieved by the above award, the present appeal has been filed by the third respondent insurer.

(3.) ON behalf of the appellant it was submitted that the ambassador car KLH 8874 was a private car and it was in respect of which Ext. R1 certificate of insurance was issued by the appellant. Ext. R1 is an act policy and the appellant is not liable to compensate the claimant who was only a gratuitous passenger in a private car. We do not see any such contention was pressed before the Tribunal and there was neither any issue nor was there any discussion on this question. Further the third respondent owner of the ambassador car does not appear to have taken any such contention before the Tribunal. That being so. we are not inclined to consider this question urged by the appellant. The result is that the apportionment of liability between the offending vehicles by the Tribunal is confirmed.