VELUNNI Vs. VELLAKUTTY

JUDGEMENT

(1.) Velunni, fourth respondent in M.A.C. No. 239 of 1981 and 242 of 1981 is the appellant in M.F.A. No. 601 of 1983 which is preferred against the judgment in M.A.C. No. 242 of 1981 filed by legal representatives of Mohandas. Legal representatives of Pangunni, petitioners in M.A.C. No. 239 of 1981 are the appellants in M.F.A. No. 638 of 1983. They are not parties to M.A.C. No. 242 of 1981 or M.F.A. No. 601 of 1983.

(2.) On 7-6-1981 at about 5.15 p.m. when Pangunni was driving from south to north motor cycle KLR 1736 with Mohandas on the pillion at Cherampadam in Kinassery amsom in Palghat taluk, stage carriage bus KLP 7933 came from the opposite direction and hit the motor cycle which along with the driver and the pillion rider was dragged over a distance. Both of them sustained fatal injuries and died. Owner, driver and insurer of the bus were impleaded as respondents 1 to 3 respectively in both the claim petitions. Velunni, owner of the motor cycle, and the insurer of the motor cycle were impleaded in both the claim petitions as respondents 4 and 5 respectively. Claimants contended that the occurrence was the result of rash and negligent driving by the driver of the stage carriage bus and, therefore, the owner, driver and the insurer were liable to pay compensation.

(3.) The owner and driver of the bus denied that bus was driven in a rash and negligent manner. According to them, a bus by name Babitha was coming from south to north and the motor cycle was coming behind the bus and Pangunni could not see bus KLP 7933 coming from north to south. Driver of Babitha bus took it to the extreme left side of the road, namely western side, to allow bus KLP 7933 to pass. Second respondent driver took his bus to his extreme left side, namely, eastern side. Pangunni, thinking that Babitha bus moved over to the western side to allow the motor cycle to overtake it, tried to overtake it at a high speed and in the process, motor cycle hit the bus coming from north to south. Rashness and negligence, if at all, was on the part of Pangunni. Insurer of the bus supported this contention and further contended that the insurer's liability was limited to Rs. 50,000/-. Insurer of the motor cycle contended that the motor cycle was insured only for third party risk and, therefore, the insurer was not liable. Pangunni, owner of the motor cycle remained ex parte.