Biji v. Divisional Manager, National Insurance Company Ltd. and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939 MACA.No. 532 of 2013 () -----------------------AGAINST THE AWARD IN OPMV 1670/2007 of M.A.C.T.,KOLLAM DATED 30-10-2012 APPELLANT(S)/PETITIONER: ------------------------------ BIJI, AGED 24 YEARS W/O. SURESH, BIJU BHAVANAM, (CHARUVILA PUTHENVEEDU), VILAIOORKONAM, VELAMANOOR, KOLLAM DISTRICT. BY ADVS.SRI.V.A.AJIVAS SMT.M.MANJU (KADAKKAL) ## RESPONDENT(S):RESPONDENTS ----------------------------------- ## 1. THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD., PARAMESWARA PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM-691001. ## 2. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., BEACH ROAD, KOLLAM-690100. 3. RASEENA,W/O. HAKKEEM, 1/382, CHARUVILA PUTHEN VEEDU, ERATHINADU, KODUVAZHANOOR, THIRUVANANTHAPURAM-695612. 4. NISHAD,S/O. ABDUL HAKKEEM, 1/382, CHARUVILA PUTHEN VEEDU, ERATHINADU, KODUVAZHANOOR, THIRUVANANTHAPURAM-695612. 5. BIBIL BABU,S/O. BAHUM, CHARUVILA VEEDU, VELANANNOOR.P.O., PIN-695543. 6. BIJU,S/O. SUSEELAN, BIJU BHAVANANAM, CHARUVILA VEEDU, VELANANNOOR.P.O., PIN-695543. R2 BY ADV. SMT.RAJI T.BHASKAR R1 BY ADV. SMT.SARAH SALVY R1 BY ADV. SRI.M.A.GEORGE R2 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ==========================** ## **M.A.C.A. No.532 OF 2013** **==========================** Dated this the 11[th] day of October, 2017 ## **JUDGMENT** ## _Ravikumar, J._ The injured petitioner comes up in appeal raising grievance of inadequacy of the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Kollam as per judgment and award dated 30.10.2012 in O.P.(MV)No.1670 of 2007. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by the appellant in a motor vehicle accident which occurred on 5.6.2007. She was travelling as a pillion rider on the motor cycle bearing Reg.No.KL-2/Z 4019, ridden by the fifth respondent who is none other than her brother. At the place of accident, it was hit by another motor cycle bearing Reg.No. KL-16/D-3293, ridden by the second respondent. The claim petition **M.A.C.A.532/2013** 2 was filed alleging negligence against the second respondent, the rider of the motor cycle bearing Reg.No. KL-16/D-3293. The first respondent is the owner of the said vehicle and the third respondent is its insurer. Subsequently, the owner, rider and insurer of the motorcycle in which she was the pillion rider, were also impleaded in the claim petition as respondents 4 to 6. 2. Before the Tribunal, the appellant was examined as PW1 and Exts.A1 to A11 were got marked on her side. The respondents did not adduce any oral evidence and Ext.B1 was marked on the side of the second respondent. The evaluation of the evidence on record and appreciation of the rival contentions culminated in the impugned judgment. The Tribunal found that the negligence on the part of the riders of both the motor cycles had caused the accident. The Tribunal went on to apportion the degree of negligence amongst the riders of both the vehicles involved in the accident and held that both the second respondent and fifth respondent were equally negligent. At the same time, after arriving at such conclusion the Tribunal answered issue No.3 as hereunder:- **M.A.C.A.532/2013** 3 “Issue No.3: I have already found that the accident occurred due to the negligence of R2 also. R2 was responsible for the accident to the tune of 50%. Additional R5 was negligent and his share of the negligence was also found as 50%. Even though additional R4 to R6 were impleaded, no relief is claimed against additional R4 to R6. Therefore the petitioner is entitled to get 50% of the compensation arrived from R3. R1 is the owner of the vehicle. The insurance policy is admitted. R3 is liable to indemnify R1. So R3 shall pay 50% of the award amount, i.e., Rs.38,200/- rounded as Rs.38,500/-. Issue No.3 is answered accordingly.” 3. Heard the learned counsel for the appellant, learned counsel for the third respondent and also the learned counsel for the sixth respondent. 4. The main ground raised in the memorandum of appeal is that the Tribunal had gone wrong in finding negligence on both the riders of the vehicles based on Ext.B1 charge. According to the appellant, the Tribunal ought not have placed reliance at all on Ext.B1 as the investigating officer was not examined before the Tribunal. True that the appellant has also raised inter alia, a challenge against the finding of the Tribunal that the fifth respondent had also contributed to the **M.A.C.A.532/2013** 4 cause of accident and also against the consequential apportionment of negligence on his part as 50%. That apart, it is the contention of the appellant that the Tribunal had also gone wrong in the matter of fixation of the monthly income for calculation purpose as Rs.3,000/-. 5. We have already found that the Tribunal had arrived at a conclusion that composite negligence was the cause of the accident. It is also revealed from the impugned judgment that both the riders of the vehicles involved in the accident were arrayed as parties before the Tribunal and the Tribunal, upon finding composite negligence as the cause of the accident, apportioned it amongst the second respondent and fifth respondent equally. 6. Despite the receipt of notice in this proceedings, the fifth respondent has not chosen to enter appearance and to resist the appeal. True that in the appeal, the appellant has taken up the contention that the Tribunal had gone wrong in finding negligence on the part of the fifth respondent. At the same time, the fact is that despite being held as negligent as per the impugned judgment and consequential apportionment of negligence as 50% on his part, the fifth respondent **M.A.C.A.532/2013** 5 has not chosen to prefer any appeal. 7. On the side of the appellant, Ext.A5 which is the copy of the `A' charge in the crime registered in connection with the accident in question was produced. The very contention on the part of the appellant taken up before the Tribunal that Ext.A5 is `A' charge itself would undoubtedly indicate the existence of `B' charge. In fact, `B' charge was produced by the third respondent as Ext.B1 before the Tribunal. Ext.B1 is the charge sheet laid against the fifth respondent, rider of the motor cycle on which the appellant was travelling as pillion rider, at the time of the accident. `A' charge itself would go to show that the rider of the motor cycle on which she was travelling viz., the fifth respondent was also charge sheeted. It is nobody's case that respondents 4 to 6 were not served with notice. The fact that notice was issued to the respondents by the Tribunal is evident from paragraph 4 of the impugned judgment. In such circumstances, it can safely be concluded that despite being impleaded as fifth respondent and even after production of Ext.B1 charge, the fifth respondent had not chosen to adduce any evidence to dispute the attribution of **M.A.C.A.532/2013** 6 negligence on his part. Above all, in this proceedings notice was issued to respondents 4 to 6. Even after the receipt of notice none of them had cared to enter appearance and to contest the appeal. 8. In the contextual situation and also in view of the contentions of the appellant it is relevant to refer to a decision of the Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **2011 (3) KLT 648.** Going by the said judgment, in a claim petition filed under section 166 of the M.V.Act, production of a police charge is a sufficient prima facie evidence of negligence. In this case, the third respondent had produced Ext.B1 charge sheet and a reference about the same was made in Ext.A5 charge sheet itself. True that when production of a charge sheet is a sufficient prima facie evidence, it would be open to the party concerned to adduce rebuttal evidence. In this case, rebuttal evidence have been adduced by respondents 4 to 6, in accordance with law. Obviously, none of them adduced any rebuttal evidence despite being served with notice. Thus, it is clear that before the Tribunal Exts.A5 and B1 charge sheets were available and they are respectively the **M.A.C.A.532/2013** 7 copies of `A' and `B' charges laid respectively against the second and fifth respondents. In such circumstances, we do not find any error in the finding of the Tribunal that the cause of the accident is the composite negligence on the part of the riders of both the vehicles. Since all the tort-feasors were in the array of parties before the Tribunal its apportionment between the riders of both the vehicles also invites no interference, in the light of the decision of the Hon'ble Apex Court in **Khenyei v. New India Assurance Co. Ltd and others [2015 (3) KHC 70 (SC)].** In the said decision, the Hon'ble Apex Court reduced its findings as hereunder:- - (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 **M.A.C.A.532/2013** 8 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. 9. The decision in **Khenyei** 's case is bound to be followed as a precedent by virtue of Article 141 of the Constitution of India. Apex Court held therein that in a case of composite negligence, the claimant is entitled to sue both or any of the joint tort feasors and to recover the entire compensation because liability of joint tort feasors is joint and several. Going by the said decision, in case both the tort feasors are in the array of parties, it would be open to the Tribunal to determine the **M.A.C.A.532/2013** 9 _inter se_ extent of composite negligence of the riders of both the vehicles involved in the accident. 10. In the case on hand, obviously both the riders were in the array of parties before the Tribunal. That apart, the owners and insurers of both the vehicles are also in the array of parties. In such circumstances, we do not find any reason to hold that the Tribunal had committed an error in apportioning the degree of negligence amongst them. The extent of negligence on their part was rightly apportioned by the Tribunal equally. 11. Having upheld the aforesaid findings of the Tribunal we will proceed to consider the question whether the Tribunal had gone wrong in not granting the entire amount of compensation to the claimant and in limiting the award to 50% of the amount assessed as compensation, on the sole ground that no specific reliefs were sought against respondents 4 to 6. In the light of the decision of the Apex Court in **Khenyei** 's case (supra), when it is even permissible for the claimant to claim compensation from one of the tort feasors and in such eventuality, the Tribunal could saddle the liability on the said **M.A.C.A.532/2013** 10 joint tort-feasor to pay the entire amount of compensation, with liberty to the tort-feasor who was saddled with the liability to proceed against the other joint tort-feasor, in accordance with law, it can only be said that the Tribunal had clearly gone wrong in doing so. In this case, there is a clear finding to the effect that the fifth respondent who is the rider of the other motor cycle was also negligent and the Tribunal has also determined the degree of his negligence as 50%. When such an apportionment was effected in a case where all the joint tort feasors are in the array of parties, the Tribunal ought not to have assigned the reason that no specific relief was sought against respondents 4 to 6 who were respectively the owner, rider and insurer of the motorcyle in which the appellant-claimant was travelling. The award should not have been limited to 50% of the assessed amount. The long and short of the discussions is that the impugned judgment to the extent it limits the award to 50% of the amount assessed, is clearly a patent error and is therefore, liable to be interfered with. Consequently, respondents 4 to 6 are held jointly and severally liable to compensate the appellantpetitioner for the balance 50% of the assessed amount. Resultantly, it **M.A.C.A.532/2013** 11 is held that the appellant is entitled to get the entire amount of compensation assessed by the Tribunal viz., Rs.76,400/-. In terms of the judgment in **Khenyei** 's case (supra), respondents 4 to 6 are held jointly and severally liable to compensate the appellant to that extent and the 6[th] respondent being the insurer of the motorcycle bearing Reg.No.KL-2/Z 4019 is directed to deposit Rs.38,200/- with interest at the rate of 7.5% from the date of petition till realisation. 12. Now, we will consider the grievance of the appellant against the quantum of compensation. True that the appellant has raised grievances against the fixation of the monthly income as Rs.3,000/and the amount awarded towards expenses incurred for bystander's service. According to the appellant, the amounts granted under the head transportation expenses as also towards compensation for loss of earning are on the lower side. We are of the considered view that such contentions did not merit any consideration. In this context, it is to be noted that the appellant had claimed compensation for permanent disability and at the same time, no evidence whatsoever was adduced by the appellant to establish incurrence of any permanent **M.A.C.A.532/2013** 12 disability due to the injuries sustained in the accident in question. In the impugned judgment, reference was made about Ext.A7 discharge card. Going by the same, the appellant was conscious and had diffuse tenderness and hypochondria, blunt injury to the abdomen. Going by Ext.A8, she had blunt injury to the abdomen and peritoneum jejunal. In the decision in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620],** the Hon'ble Apex Court had held that the mere production of a disability certificate or a treatment certificate could not be taken as proof of evidence of sustainment of permanent disability unless the doctor who examined or treated and issued the certificate, was examined before the Tribunal. True that in the light of the said decision, if a certificate is issued by duly constituted medical board, in the absence of any doubt regarding its genuineness, it shall be acted upon. In this case, no disability certificate was produced. Even then the Tribunal had assessed 5% as the permanent disability and granted compensation for permanent disability. In such circumstances, we are persuaded to hold that if at all there is inadequate assessment of compensation under any other head, the compensation granted **M.A.C.A.532/2013** 13 towards permanent disability would compensate any such shortcoming in assessment of compensation. Moreover, on a perusal of the schedule of compensation given in the impugned judgment and going through the amount of compensation granted under different heads and the factors relevant for granting such compensation, we are of the view that the Tribunal had granted just compensation commensurating with the injuries sustained by the appellant. In such circumstances, no interference is required to enhance the quantum of compensation. The appeal is partly allowed as above. Sd/- **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **B.SUDHEENDRA KUMAR (JUDGE)** **spc/**