ABOOBACKER v. JEFFY MARTIN & ORS

MACA.No.2516/2009 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022/28TH ASHADHA, 1944 ``` ## **`M.A.C.A. NO.2516 OF 2009`** ``` OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR) ``` ## **`APPELLANT/PETITIONER:`** ``` ABOOBACKER, S/O.MOHAMMED, CHENAKKARA HOUSE, THEVAKKAL, V.K.COLONY, KALAMASSERY PO. ``` ``` BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.K.S.SALEESH ``` ## **`RESPONDENT/S:`** ``` 1JEFFY MARTIN, KURUSINGAL HOUSE, ELAMAKKARA PO, KOCHI-682 026. 2SUNIL KUMAR, S/O SOMAN NAIR, VATTIKUDY HOUSE, THANIMOODU BHAGOM, IRUMPAYAM KARA, NEDUMANGADU VILLAGE (DELETED) (THE NAME OF SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 30/9/19 IN IA 1/19 IN MACA 2516/09) 3UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, KOCHI. 4THE NEW INDIA ASSURANCE CO.LTD., KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, P.B.NO.108, ALUVA. ``` MACA.No.2516/2009 2 ``` THE ORDER DATED 30/09/2019 IN I.A. 1/2019 IN MACA 2516/09 (DELETION OF R2) IS RECALLED VIDE ORDER DATED 04/03/2020 IN I.A 1/20 IN MACA 2516/09. BY ADVS. SRI.M.HARISHARMA SRI.SAIGI JACOB PALATTY SRI.THOMAS MATHEW NELLIMOOTTIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA.No.2516/2009 3 ## **JUDGMENT** (Dated: 19[th] July, 2022) Aggrieved by the quantum of compensation awarded in O.P.(M.V.) No.1206 of 2004 by the Motor Accidents Claims Tribunal, Perumbavoor, the appellant/petitioner has filed this appeal (the parties are referred to as they are arrayed in the petition). 2. The original petition was filed under Section 166 of the M.V. Act, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 03.03.2004 at about 07.00 a.m, while the petitioner was traveling in a goods auto rickshaw bearing Reg. No.KL7/K-6247 from north to south through Aluva-Ernakulam NH road and when the auto-rickshaw reached near Pulinchodu Junction, Aluva, a car bearing Reg. No.KL- MACA.No.2516/2009 4 7/AM-9670 driven by the 2[nd] respondent in a rash and negligent manner from south to north through the same road hit against the auto-rickshaw, in which the petitioner was travelling and as a result of which he sustained severe injuries. He was immediately taken to Karothukuzhi Hospital, Aluva, and treated from 03.03.2004 to 14.04.2004. The accident happened due to the rash and negligent driving of the car by the 2[nd] respondent. The 3[rd] respondent is the insurer of the car. The insurer of the autorickshaw is impleaded as 4[th] respondent. All the respondents are jointly and severally liable to pay the compensation. 3. The 1[st] respondent filed a written statement contending that the monthly income of the petitioner and the compensation sought under various heads are highly exaggerated and excessive. It was admitted that the 1[st] MACA.No.2516/2009 **==> picture [9 x 8] intentionally omitted <==** respondent was the owner and the 2[nd] respondent was the driver of the offending car. According to the respondent, when the car reached Pulinchodu Junction the goods auto rickshaw came from the left side of the road and suddenly crossed the road without caring about the traffic rules. The 2[nd] respondent suddenly turned his car to the left side of the road to avoid the accident. The accident occurred only due to negligence on the part of the driver of the goods autorickshaw. The car was insured by the 3[rd] respondent at the time of the accident and hence any compensation if any awarded by the Tribunal is to be paid by the respondent’s insurance company. The 3[rd] respondent also filed a written statement admitting the insurance policy during the alleged accident. It was contended that the accident happened due to negligence on the part of the driver of the auto-rickshaw and the petitioner is an unauthorized MACA.No.2516/2009 6 passenger in the goods auto-rickshaw and has no right to claim compensation. The claim sought is exorbitant and cannot be allowed. 4. The 4[th] respondent also filed a written statement contending that the charge-sheet is filed against the driver of the car which was insured at the time of the accident. The respondent is not liable to pay any compensation to the petitioner. The auto-rickshaw is validly insured with the respondent for the period from 20.02.2004 to 19.02.2005 in the name of one Thomas Joseph. There was no rash and negligence on the part of the driver of the auto-rickshaw and the accident solely happened due to the negligence of the driver of the car, hence he prayed for dismissal of the petition as against the 4[th] respondent. 5. The Tribunal came to the definite finding that the accident happened due to the contributory negligence of the MACA.No.2516/2009 **==> picture [9 x 8] intentionally omitted <==** goods auto-rickshaw as well as the driver of the car in the proportion of 50:50. Hence the amount of compensation awarded to the petitioner was reduced by 50% and an amount of Rs.44,280/- was awarded as compensation. Aggrieved by the said award, the appellant/petitioner has filed this appeal. 6. The main contention raised by the counsel for the appellant is that the finding of the Tribunal is that 50% negligence is imposed on the driver of the goods autorickshaw, since the petitioner has not impleaded the owner and driver of the goods auto-rickshaw in the claim petition and the petitioner is not entitled to claim any amount from the 4[th] respondent is bad in law. She relies on the decision of the Apex Court in _**Khenyei v. New India Assurance Co. Ltd. and Others (2015 (3) KHC 70)** ,_ wherein the Apex Court held that: MACA.No.2516/2009 8 _“(i) In the case of composite negligence, plaintiff claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several._ _(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/ claimant is not permissible. He can recover at his option whole damages from any of them._ _(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the Court / Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff / claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings._ _(iv) It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”_ 7. In view of the judgment of the Apex Court, it can be safely concluded that the Tribunal was wrong in reducing the amount of compensation by 50%, for the reason that the owner and driver of the auto-rickshaw were not made the MACA.No.2516/2009 **==> picture [9 x 8] intentionally omitted <==** respondent in the claim petition. Hence the said finding is set aside. 8. The counsel for the appellant submitted that the disability was assessed by a Medical Board of the Medical College Hospital, Kottayam at 20%. The disability is to his left foot. The Tribunal held that since the whole-body disability is not mentioned in the disability certificate, it cannot be said that due to the permanent disability, there is a loss of income as he is doing a fish business. His little toe was amputated and that will not impair him from continuing with his business. The Tribunal, therefore, re-fixed the percentage of disability at 4%. Ext.X1 disability certificate is issued by the Medical Board. The members of the Medical Board have examined the appellant and were convinced that there is a permanent disability of 20% and issued a certificate. It is true that his left little toe was amputated and the injuries are on the metatarsal of his MACA.No.2516/2009 **==> picture [14 x 8] intentionally omitted <==** foot and 20% disability is not the functional disability of the appellant. The functional disability may be more or less than what is stated by the Medical Board in each case taking into consideration of the acovation in life. The appellant herein is doing fish business, it cannot be said that there is a functional disability of 20%, but at the same time, fixing the percentage of permanent disability at 4% is also on the lower side. Hence, I am inclined to take the percentage of permanent disability as 12%. The counsel for the petitioner has stated that the petitioner has a monthly income of Rs.3,500/-, but there is no evidence to prove the same. The Tribunal took the monthly notional income as Rs.2,500/-. Going by the decision reported in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ _**[(2011) 13 SCC 236]**_ , for an accident which happened in the year 2004, the monthly income to be taken is Rs.4,500/-. MACA.No.2516/2009 **==> picture [14 x 8] intentionally omitted <==** If Rs.4,500/- is taken as the monthly income, the disability compensation can be worked out as 4500x12x17x12/100 = Rs.1,10,160/-. 9. Regarding the loss of earnings, Rs.4,500/- is taken as monthly notional income and there was a loss of business for three months, on that head, he is entitled for an amount of Rs.4500x3 = 13500 – 7500 (already been awarded by the Tribunal) = 6,000/-. 10. As far as pain and suffering, he claimed Rs.50,000/- and an amount of Rs.20,000/- awarded by the Tribunal, which according to me is just and reasonable. Hence, the judgment of the Tribunal is set aside to the extent of reducing the amount of compensation by 50% for the reason that the petitioner has not impleaded the driver and owner of the goods auto-rickshaw. It is declared that the claimant is entitled to the entire compensation. The MACA.No.2516/2009 12 petitioner is entitled to enhanced compensation of Rs.1,15,760/- with 8% interest from the date of the petition. ## Accordingly, the following enhancements are made to the ## award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by<br>Tribunal<br>(Rs.)|Amt.<br>Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of earnings|7,500/-|13,500/-| |2.|Compensation<br>for<br>permanent disability|20,400/-|1,10,160/-| ||Total|27,900/-|1,43,660/-| ||Amount enhanced : 1,43,660 - 27,900 = 1,15,760/-||| In the result, the appeal is allowed, and the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of the petition. If any amounts have already been paid, the same shall be granted set off. The appellant/petitioner shall MACA.No.2516/2009 **==> picture [14 x 8] intentionally omitted <==** produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this ## Court. _Sd/-_ ## **BASANT BALAJI, JUDGE** ss The judgment dated 19/07/2022 in MACA No.2516/2009 stands corrected as follows as per order dated 25.11.2022 in I.A.No.1/2022 in MACA No.2516/2009. “The figure Rs.1,43,660/- appearing in tabular column at page No.12 of the judgment dated 19.07.2022 in MACA MACA.No.2516/2009 **==> picture [14 x 8] intentionally omitted <==** No.2516/2009 is replaced with Rs.1,23,660/- and Rs.1,15,760/in the tabular column as well as in 2[nd] line of page 12 with Rs.95,760/-“. _Sd/-_ Joint Registrar