NATIONAL INSURANCE COMPANY LIMITED Vs. BIJU A ANANDAN

JUDGEMENT

(1.) IN this appeal filed by the insurer, the award dated 31. 07. 2008 in O. P. (MV)No. 1489 of 2000 on the file of the Motor Accident Claims Tribunal, Attingal is challenged. The original petition filed by the sole respondent herein, was under Section 166 of the Motor Vehicles Act, 1988 ("the Act" for short) for the injuries sustained by him in a road traffic accident which took place on 18. 08. 1988. The respondent/claimant was riding his motorcycle bearing registration No. KL-01/k-4692 which collided with another motorcycle bearing registration No. KL-01/c 3439. The riders of both the motorcycles sustained injuries and the driver of the other motorcycle succumbed to the injuries. The respondent/claimant had sustained multiple fractures and the learned Tribunal after a careful evaluation of the oral and documentary evidence in the case, assessed the just compensation at Rs. 91,429/- payable with interest at the rate of 7. 5% per annum from the date of the application namely 25. 10. 2000 till the date of award and thereafter at the rate of 9%.

(2.) THE main contentions of the appellant/insurer are the following:-i. The dependents of the driver of the motorcycle bearing registration no. KL-01/c-3439 who succumbed to the injuries in the accident had lodged a claim as O. P. (M. V.) No. 1134 of 1998 in which they proceeded on the basis that the respondent herein was negligent. The said O. P ended in compromise awarding a huge amount to the claimants therein. Thereafter, the respondent herein was estopped from filing the present O. P on the footing that the accident took place on account of the negligence of the deceased. ii. The Mangalapuram police had charge sheeted the respondent/claimant as the person responsible for the rash and negligible driving resulting in the accident. It was on that basis that O. P (M. V) No. 1134 of 1998 came to be awarded against the respondent herein. Hence, the respondent was precluded from filing the present claim on the footing that the accident took place on account of the negligence of the deceased rider of the other motor cycle.

(3.) I am afraid that I find myself unable to agree with the above contentions. As per the impugned award, the respondent as well as the rider of the other motor cycle have been found responsible for the accident apportioning the liability between them in the ratio of 50:50. If so, merely because the claim was made against the respondent herein on the footing that he was negligent for the accident and that claim was finally settled awarding compensation to the dependents of the rider of the other vehicle, does not preclude the respondent herein from lodging a claim alleging negligence on the part of the rider of the other vehicle.