VIMALA Vs. DEVADOSS

JUDGEMENT

(1.) THIS appeal is against the award of the Motor Accident Claims Tribunal Tirunelveli, in MCTOP No. 50 of 1989 granting compensation, of Rs. 45,000/- to the claimants, who are the respondents 1 to 3 herein, for the death of one Devi, (who is the widow of the first respondent herein and mother of the respondents 2 and 3 herein) in the motor accident that took place on 30.10.1988 at about 4 am. By the said award the said compensation is made payable by the appellants herein on the one hand and the fourth respondent Thiruvalluvar Transport Corporation Limited on the other hand, in the ratio of 50:50 Admittedly the bus TML 9935 of the fourth respondent herein, while it was going on the road, in its trip from Coimbatore to Nagercoil, hit the stationary lorry TNL 9198 which was parked on the road, and, as a result of the said accident, the abovesaid Devi, who was travelling in the bus, got injured and died in the hospital subsequently. The abovesaid lorry belongs to the first appellant herein and the insurer thereof is the second appellant. They were respectively respondents 2 and 3 in the Tribunal below while the fourth respondent herein was the first respondent in the Tribunal below. In view of the abovesaid accident and the resultant death, the abovesaid claimants filed the abovesaid MCTOP No. 50 of 1989 seeking a compensation of Rs. 1 lakh from the fourth respondent herein as well as the appellants herein.

(2.) THE only point argued by the learned counsel for the appellants is that the appellants should not have been fastened with any liability, that only the fourth respondent herein should have been made liable solely, and that at any rate, the apportionment of liability cannot be in the ratio of 50:50 but that it should be 75:25 between the fourth respondent and the appellants herein respectively. To substantiate this contention, the learned counsel drew our attention to the finding of the Tribunal below ho lding that the driver of the abovesaid bus, viz., R.W. 1 was negligent. THE relevant observation of the Tribunal below giving out the said finding is as follows:? Tamil However, after making the abovesaid statement, the Tribunal also makes the following statement: Tamil and thereby comes to the conclusion that the appellants are also liable along with the fourth respondent herein. THE learned counsel points out that after coming to the above-referred-to finding expressed in the first of the abovesaid two statements, the Tribunal below has no justification to hold the appellants also liable.

(3.) NO doubt the learned counsel for the corporation which owned the bus, has strenuously contended that the red light of the lorry at its rear side was not kept burning while it was parked on the road and so the driver of the lorry also was negligent and hence the owner of the lorry and the insurer thereof are also liable; and further, he argued that the apportionment of the liability between the appellants on the one hand and his client on the other hand, done by the Tribunal below is correct and the said apportionment should not be in any way disturbed. In this connection, he also drew our attention to the Rule 296(A) and Rule 296(c) of Tamil Nadu Motor Vehicles Rules, 1940 which prescribes that even when a Vehicle is parked in a road during night time, the red light in the rear side of the vehicle should be kept burning. The said learned counsel also brought to our notice that the appellants did not examine anybody on their side. He also brought to our notice the decision in Palghat-Coimbatore Transport Co. Ltd. v. Narayanan AIR 1939 Madras 261 = 48 L.W. 865 where it has been held that in a case of a composite negligence of two vehicles, both the owners of the vehicles are jointly and severally liable. He also drew our attention to decisions where in the case of a composite negligence equal apportionment of liability was resorted to. On the other hand, the learned counsel for the appellants drew our attention to Principal, Tamil Nadu Theological Seminary v. A. Saraswathi 1991 ACJ 310 = 1990-2-L.W. 75 where the apportionment was in the ratio of 75:25