ORIENTAL INSURANCE CO LTD Vs. THOMAS MATHEW

JUDGEMENT

(1.) All the captioned appeals arise from claim petitions that sprang from a single motor vehicle accident involving a collision between the bus bearing Reg.No.KL-3/9399 carrying a marriage party and a 'Push Pull' Railway Train, at an unmanned level cross on the public road leading from Mampra - Alummoodu Junction on NH-47, occurred at 1.22 p.m. on 14.5.1996. Consequently, 36 bus passengers and its driver died and eight other bus passengers sustained severe bodily injuries. The injured bus passengers and the legal heirs of the deceased passengers in the ill-fated bus, filed claim petitions under Section 166 of the Motor Vehicles Act (Act 59 of 1988). In fact, 35 claim petitions seeking compensation for death and eight claim petitions seeking compensation for bodily injuries were filed before the Motor Accidents Claims Tribunal, Mavelikkara. O.P.(M.V)No.1311 of 1996 was also filed before the said Tribunal by the Union of India and the Senior Divisional Safety Officer of Southern Railways, Thiruvananthapuram seeking compensation for the damage caused to the said 'Push Pull' train, from the insured owner and the insurer of the said bus involved in the accident. O.P.(M.V)No.1502 of 1998 was filed by the legal heirs of one of the deceased bus passengers, seeking compensation for death, under Section 166 of the Motor Vehicles Act (for short 'the Act') before the Motor Accident Claims Tribunal, Pathanamthitta. The Motor Accident Claims Tribunal, Mavelikkara as per common award dated 21.5.2007 awarded compensation in all the claim petitions filed by the injured passengers and the legal heirs of the deceased passengers travelled in the ill-fated bus. O.P.(M.V)No.1311 of 1996 filed by the Railways seeking compensation for property damage was dismissed by the said common award. The Claims Tribunal, Pathanamthitta also awarded compensation in O.P.(M.V)No.1502 of 1998 as per award dated 21.5.2007. Before both the Claims Tribunals the insured owner of the bus was arrayed as the first respondent. However, he remained ex parte. The Oriental Insurance Company Ltd., the insurer of the bus involved in the accident and Union of India represented by General Manager, Southern Railway had contested the matter after filing separate written statements in all the cases. The Claims Tribunal, Mavelikkara held that the Railways as also the deceased driver of the bus were equally responsible for the accident and consequently, made the Railways and the insurer of the bus equally liable to pay the compensation awarded in the claim petitions. The Claims Tribunal, Pathanamthitta held that the accident had occurred solely due to the negligence of the driver of the bus and consequently held the insured owner and insurer of the bus jointly and severally liable to pay the compensation and ultimately made the Insurance Company liable to indemnify the insured owner of the bus. Thus, it can be seen that the Claims Tribunals entered into divergent findings on the questions as to who is/are responsible for the accident and who is/are liable to pay compensation. In view of the aforesaid circumstances, we propose to dispose of all the captioned appeals by a single judgment.

(2.) The Oriental Insurance Company Ltd. which is the insurer of the bus involved in the accident filed appeals against all the awards passed by the Tribunals in the claim petitions holding that it is liable to indemnify the insured owner of the bus involved in the accident. Essentially, the contention is that the accident in question had occurred due to the exclusive negligence of the Railway Administration in discharging its common law duty of care. In such circumstances, in the appeals filed by the insurance company it inter alia challenged the awards to the extent it was made liable to indemnify the insured owner of the bus. Alternatively, it also seeks for liberty to recover the amount paid to satisfy the awards as the insurer of the offending bus from its owner owing to violation of policy condition. Union of India/Railways also filed appeals against almost all awards passed in the claim petitions referred above. At the same time, it is to be noted that for reasons best known to them they had not filed appeals against the judgment and award in O.P.(M.V)No.1311 of 1996 whereby its claim for compensation for property damage was dismissed and also against the award in O.P.(M.V)No.634 of 1997 and certain other awards in the claim petitions filed by the bus passengers. Feeling aggrieved by and dissatisfied with the quantum of compensation granted by the Tribunals certain claimants before the Tribunals have also preferred appeals seeking enhancement of the quantum of compensation. Thus, obviously, this bunch of appeals can be categorized into three namely, appeals preferred by the insurer of the bus involved in the accident, appeals filed by the Railways, both challenging the liability saddled against them and taking up the contention that the other ought to have been saddled with the exclusive liability to satisfy the awards and thirdly the appeals preferred by the claimants seeking enhancement of compensation awarded. In such circumstances, the fate of the appeals preferred by the Insurance Company and the Railways would depend upon the findings on the questions as to who is/are responsible for the accident and consequently who is/are liable to pay compensation. Irrespective of the nature of the answers to the said questions the entitlement of the appellants-claimants for enhanced compensation has to be decided separately in each case, on merits. For the sake of convenience, hereafter the parties are referred to in this judgment as 'petitioners', 'Insurance Company' and the 'Railways' respectively unless otherwise specifically mentioned.

(3.) We have heard the learned Senior Counsel Sri.George Cherian appearing for the 'Insurance Company', the learned Senior Counsel Smt.Sumathy Dandapani appearing for the 'Railways' and Adv.Sri.George Varghese (Perumpillykuttiyil) for the claimantsappellants in 21 appeals. None represented the appellants/claimants in the other appeals filed by the claimants seeking enhancement of compensation.