Balakrishnan.E v. The Manager, The Oriental Insurance Co.Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 MACA NO. 2681 OF 2010 ``` ``` AGAINST THE AWARD DATED 23.07.2010 IN OP(MV) NO.9/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANT/PETITIONER:`** ``` BALAKRISHNAN.E. AGED 48 YEARS S/O.KRISHNAN.E., MANOJ QUARTERS, HARITHAGIRI ROAD, EMILY, KALPETTA P.O., WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` THE MANAGER THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, 28, SALAM ROAD, COONOOR, 643 102, (INSURER KL-12A/9486). ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2681 OF 2010 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.9/2008 on the files of the Motor Accident Claims Tribunal, Kalpetta. 2. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 13.10.2007. According to him, the accident occurred when the car in which he was travelling from Bathery to Kalpetta, collided with a lorry bearing Registration No.KL 12 A 9486, coming from the opposite direction. According to the appellant, the accident occurred due to the negligence on the part of the driver of the lorry, the 1[st] respondent in the claim petition. The said vehicle was owned by the 2[nd] respondent in the claim petition and was insured with the respondent herein. According to him, he was aged 46 years at the time of the accident and working as an Electrician with a monthly income of Rs.3,000/-. Consequent to the injuries, he sustained physical disablement, which was certified as 4%. The ``` MACA NO. 2681 OF 2010 ``` ``` 3 ``` compensation was sought in such circumstances. 3. The respondent herein, the 3[rd] respondent in the claim petition alone, contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they contended that the accident occurred due to negligence on the part of the driver of the car, and therefore, they sought exoneration from the liability. They also disputed the quantum of compensation. 4. The evidence in this case consists of Ext.A1 to A10 and Ext.C1 Medical Board report from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of both the driver of the lorry and the driver of the car and, therefore, the liability was apportioned among them in equal proportions even though the owner, driver and insurer of the vehicle were not in the party array. Thus, the quantum of compensation was fixed as Rs.62,020/-, and the respondent ``` MACA NO. 2681 OF 2010 ``` ``` 4 ``` Insurance Company was directed to deposit 50% of the said compensation being their share, along with interest @ 7.5% per annum from the date of petition till realisation. This appeal is filed by the appellant, challenging the question of negligence and also the quantum of compensation. 5. Heard Smt.Celine Joseph, learned counsel appearing for the appellant and Smt.Latha Susan Cherian, learned counsel appearing for the respondent herein. 6. The first contention raised by the appellant is with regard to the apportionment of the liability. It was pointed out that the Tribunal arrived at the conclusion as to the negligence by relying on scene mahazar. The learned counsel also brought the attention of this Court to the final report submitted by the Kalpetta Police in Crime No.318/2007, wherein the driver of the lorry was held liable for the accident, and he was implicated as the accused. However, the said document was not produced before the Tribunal, and therefore, there was no occasion for the ``` MACA NO. 2681 OF 2010 ``` ``` 5 ``` Tribunal to consider the same. But, the crucial aspect to be noticed is that, since the Tribunal has found some liability upon the driver of the lorry, it was a case of composite negligence. As far as the appellant is concerned, he was only a passenger in one of the said vehicles and even as per the findings of the Tribunal, the accident occurred due to the negligence of two persons as joint tortfeasors. As far as the right of a person to claim compensation for a tortuous act in case of composite negligence is concerned, it shall be for him to claim the same from any one of the joint tortfeasors, either fully or partially. Therefore, the reduction of the compensation of 50% determined by the Tribunal in such circumstances was not at all justifiable. As the appellant was entitled to claim compensation in its entirety from the respondents in the claim petition, being the joint tortfeasors, no amount could be deducted from such compensation, particularly when it was found that it was a case of composite negligence. Therefore, the finding of the Tribunal, to that extent, is set aside by ``` MACA NO. 2681 OF 2010 ``` ``` 6 ``` holding that the appellant is entitled to recover the entire compensation from the respondent herein. 7. When moving on to the question of the quantum of compensation, the learned counsel for the appellant contends that the monthly income taken by the Tribunal is on the lower side. The learned counsel for the Insurance Company would point out that the Tribunal accepted Rs.3,000/- as monthly income, which is as per the claim petition. The crucial aspect to note in this regard is that the accident in this case occurred in 2007. As per the method of computation evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] even in the absence of any evidence, the monthly income of an ordinary employee without any skills can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. As per the consistent method of computation that this court is following, ``` MACA NO. 2681 OF 2010 ``` ``` 7 ``` the monthly income concerning the subsequent years is determined by adding Rs.500/- per year. If that method of computation is adopted, the monthly income, in this case, can be fixed as Rs.6,000/-. Of course, it is true that the monthly income claimed is lesser than this, but in **Minu Rout and another v. Satya Pradyumna Mohapatra and Others [2013 (10) SCC 695]** , the Honourable Supreme Court has taken the monthly income higher than what was claimed therein. Therefore, I do not find anything wrong in adopting a higher monthly income when the facts and circumstances of the case indicate that taking such a higher income is an absolute necessity to ensure ‘just compensation’ to the victim. Therefore, I deem it appropriate to fix it as Rs.6,000/-. As observed above, the percentage of disability is 4%, which was accepted by the Tribunal as well. Thus, while reassessing the compensation for disability with the revised monthly income and keeping the other parameters intact, the amount would come to Rs.37,440/- (6000 x 12 x 13 x 4/100) ``` MACA NO. 2681 OF 2010 ``` ``` 8 ``` and after deducting Rs.18,720/- which is already awarded by the Tribunal, the additional amount would come to Rs.18720/-. 8. Consequent to the revision of monthly income, the appellant would be entitled to get an additional amount under the head of loss of earnings as well. The Tribunal has calculated the compensation under the said head for a period of three months, which appears to be reasonable. Therefore, a further sum of Rs.9,000/- is awarded under the said head. When moving on to the other heads, it can be seen that the amount awarded towards pain and suffering is only Rs.10,000/- which appears to be on the lower side considering the nature of injuries sustained and the consequences arising therefrom. Therefore, a further sum of Rs.10,000/- is granted under the said head. No amount is seen awarded by the Tribunal towards loss of amenities. Considering the nature of injuries and the physical disability arising therefrom, particularly because the appellant was a ``` MACA NO. 2681 OF 2010 ``` ## **`9`** person working as an electrician, I am of the view that a reasonable amount ought to have been awarded by the Tribunal under this head. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.15,000/-. Thus, the total additional compensation is fixed as Rs.52,720/-. (18720 + 9,000 + 10,000 + 15,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 23.07.2010 in O.P. (M.V.) No.9/2008 passed by the Motor Accident Claims Tribunal, Kalpetta is hereby modified by setting aside the deduction of 50% made in the total compensation by holding that the 3[rd] respondent in the claim petition, the respondent herein, is liable to pay the entire compensation awarded. The total compensation receivable by the appellant is fixed as Rs.1,14,740/- (Rupees one lakh fourteen thousand seven hundred and forty only), and the said amount shall be recoverable by the appellant from the respondent herein, along with interest at the rate as ordered by the Tribunal with ``` MACA NO. 2681 OF 2010 ``` ``` 10 ``` proportionate cost. The said amount shall be deposited by the respondent herein, within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amounts already deposited by them. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs