B.K. Sreekumar v. Geetha and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022/20TH KARTHIKA, 1944 ``` ## **`M.A.C.A. NO.782 OF 2012`** ``` (AGAINST THE ORDER/JUDGMENTOPMV 1065/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM) ``` ## **`APPELLANT/PETITIONER:`** ``` B.K.SREEKUMAR, S/O.BALAKRISHNAN NAIR, T.C.14/1722, KULATHINKARA VEEDU, FOREST OFFICE LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. ``` ``` BY ADV SRI.AJITH KRISHNAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1GEETHA, W/O. MOHANAN, VALIYA PARUTHIYAMVILA VEEDU, CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM 2THE NATIONAL INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS DIVISIONAL MANAGER. 3RAJAKESARI, KEEZHEKURIODE, VALIAVILA VEEDU, KOTTACKAL, THIRUVANANTHAPURAM-695 121. 4B.VIJAYAKUMAR, PLAVILA PUTHEN VEEDU, T.C.14/1151, PALAYAM, THIRUVANANTHAPURAM-695 033. 5THE NATIONAL INSURANCE CO. LTD., BRANCH NO.1, P.B.NO. 60, SOUNDARYA BUILDING, M.G.ROAD, THIRUVANANTHAPURAM-695 001. ADDL.R6NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY THE DIVISIONAL MANAGER. (IS IMPLEADED AS ADDL. 6TH RESPONDENT IN APPEAL VIDE ORDER DATED 08/03/2021 IN IA 506/2015 IN MACA 782/2012) BY ADVS. SMT.DEEPA GEORGE FOR R5 JESSY GEORGE FOR R6 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ``` ``` ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.782/2012 2 ## `JUDGMENT` ``` (Dated: 11[th] November, 2022) ``` ``` Aggrieved by the compensation awarded in O.P.(M.V.) No.1065 of 2004 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, the appellant/petitioner has filed this appeal, claiming enhancement of compensation. ``` ``` 2. Brief facts of the case are as follows: On 12.02.2004 at about 4.30 p.m., the appellant was travelling as a pillion rider in a motorcycle bearing Reg.No.KL-7A-919 from Kuttaicodu towards Thiruvananthapuram, through the Karakonam–Kunnathukal public road. The motorcycle was ridden by the 4[th] respondent. When the motorcycle reached Koonampana Junction, on Karakonam–Kunnathukal public road another motorcycle bearing Reg.No.KL-01/J-3407, ridden by the 3[rd] respondent from the opposite direction hit the motorcycle and as a result of the impact, the petitioner ``` MACA No.782/2012 3 ``` was thrown on the road. At this time, a lorry bearing Reg.No.KBV-801 driven by its driver in the very same direction ran over both the legs of the petitioner. The petitioner was taken to Medical College Hospital, Thiruvananthapuram where both legs were amputated. He was discharged from the hospital on 07.04.2004, after treatment as an inpatient for 54 days. The accident occurred due to the rash and negligent driving of the lorry bearing Reg.No.KBV-801 and the motorcycle bearing Reg.No.KL-01/J-3407. The petitioner claimed a compensation of Rs.10,00,000/-. ``` ``` 3. The 3[rd] respondent is the owner of the motorcycle bearing Reg.No.KL-01/J-3407 and the 1[st] respondent is the owner of the lorry bearing Reg.No.KBV-801. The 3[rd] respondent New India Assurance Company Ltd., wrongly shown as (National India Assurance Company Ltd.,) is the insurer of the lorry as well as the motorcycle bearing Reg.No.KL-01/J-3407. The appellant filed I.A.No.506 of 2015 to implead the New India Assurance Co. Ltd., represented by its Divisional Manager as additional 6[th] respondent and by ``` MACA No.782/2012 4 ``` order dated 08.03.2021 it was allowed and New India Assurance Company was impleaded as additional 6[th] respondent, who is the insurer of the lorry as well as the motorcycle bearing Reg.No.KL-01/J-3407. The 5[th] respondent is the insurer of the motorcycle in which the petitioner was a pillion rider. ``` ``` 4. Respondents No.2 and 5 filed written statements contending that the O.P. is not maintainable, either in law or on facts. The existence of the policy in respect of the lorry and the motorcycle were admitted. It was contended that the accident occurred solely due to the rash and negligent riding of the motorcycle by the 4[th] respondent. The accident occurred while the rider of the motorcycle was overtaking the lorry in a negligent manner. The 5[th] respondent already denied the existence of the insurance policy of the motorcycle bearing Reg.No.KL- 7/A-919. A petty case was registered against the 4[th] respondent as the vehicle did not have valid insurance coverage, therefore, the 5[th] respondent is not liable to indemnify the 4[th] respondent. The Tribunal by the ``` MACA No.782/2012 5 ``` impugned award relying on Ext.A1 to A23 awarded a total compensation of Rs.4,97,985/- with 7.5% interest per annum from the date of filing of the petition till realization from respondents 2 and 4 in the proportion of 90% and 10% respectively. O.P.(MV) No.1065 of 2004 was tried along with another O.P.(MV) No.1063 of 2004, wherein the 4[th] respondent was the claimant there. ``` `5. Heard counsel on both sides.` ``` 6. The counsel for the appellant ``` ``` Sri.Rajasekharan argues that the finding entered into by the Tribunal that there is contributory negligence on the part of the 4[th] respondent as well as the other two vehicles should not in any way affect the compensation payable to him, but the Tribunal on a wrong appreciation of facts and circumstances of the case and applying the principle of law, erroneously fixed the liability in the proportion of 90% on the 2[nd] respondent and 10% on the 4[th]respondent. Moreover, the compensation awarded under many of the heads is on the lower side and hence enhancement is sought for. ``` MACA No.782/2012 6 ``` 7. The learned counsel for the respondents Smt.Deepa George and Smt.Jessy George submits that the Tribunal is justified in fixing the proportion at 90% on the 2[nd] respondent and 10% on the 4[th] respondent, as the Tribunal has entered into a finding that there is contributory negligence on the part of the rider of the motorcycle in which the petitioner was a pillion rider and therefore the compensation at the rate of 10% was sought to be recovered from the 4[th] respondent. She further submitted that, just and fair compensation has been awarded taking into consideration the injury sustained and the amputation of the limbs, hence no interference is warranted. ``` ``` 8. One of the issues that arise for consideration is, whether the Tribunal has justified in after entering into a finding that there was contributory negligence of 10% on the part of the 4[th] respondent, who was the rider of the motorcycle in which the appellant was the pillion rider and if so the liability to the extent of 10% of the compensation can be directed to be paid by the 4[th] respondent. ``` MACA No.782/2012 7 ``` 9. In Sajad Saheer v. K. Rajeev and Others (2017(3) KHC 294), a Division Bench of this Court had an occasion similar to the facts and circumstances of this case, to decide an issue, whether, in a case of composite negligence of the pillion rider, compensation can be apportioned on the basis of the negligence attributed to the rider of the motorbike. The Division Bench held that, in a case of composite negligence, the claimant is entitled to proceed against any one of the tort-feasors or against all the tort-feasors, the claim of a pillion rider is on a different footing from the claim of the rider of the bike. “The claimant can proceed against all the tort feasors or any of them under Section 7(1) of the Kerala Torts (Miscellaneous Provisions) Act, 1976, thereafter held that the insurance company will be liable to pay the whole compensation assessed by the court and the finding entered by the Tribunal to the effect that 25% of the compensation has to be deducted from the total assessed compensation cannot, therefore, be sustained and it is hereby set aside”. ``` MACA No.782/2012 8 ``` 10. In Khenyei v. New India Assurance Co. Ltd and others (2015 (3) KHC 70), the apex court held as follows, in a similar case. ‘Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong-doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong-doer, is jointly and severally liable to the insured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong-doer separately. Thus, it can be concluded that the Tribunal was not justified in directing the 4[th] respondent to deposit 10% of the compensation and the balance 90% by the insurer. The liability is joint and several, and in such a situation the appellant can proceed against any one of the tort-feasor. The ``` MACA No.782/2012 9 ``` additional 6[th] respondent is directed to deposit the entire compensation awarded by the Tribunal and enhanced by this Court and liberty is given to the additional 6[th] respondent to recover the 10% of the compensation from the 4[th] respondent. ``` ``` 11. The next question to be decided is whether the enhancement is required on various heads. The petitioner was aged 30 years at the time of the accident and he was working as Manager-cum-supervisor of Sree Nandini Bakery and sweets stall in Thiruvananthapuram, earning Rs.7,000/- per month. The Tribunal took the monthly income at Rs.3,000/-, as there was no evidence to prove that he was earning Rs.7,000/- per month at the time of the accident. ``` ``` 12. Since the accident happened in the year 2004, going by the decision reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236, the monthly income is taken as Rs.4,500/-. For loss of earnings, the Tribunal has awarded Rs.9,000/- for three months taking the income ``` MACA No.782/2012 10 ``` as Rs.3,000/-. While the income is taken as Rs.4,500/- for three months, loss of earnings would come to Rs.4500 x 3 = 13,500/-. For extra nourishment, the appellant claimed Rs.10,000/-, but the Tribunal awarded only Rs.1,500/-. Taking note of the hospitalization, and the treatments undergone, sum of Rs.5,000/- more is awarded ``` ``` under the said head. For bystander’s expenses, it is seen that the appellant was undergoing treatment as inpatient for 54 days. The Tribunal has granted Rs.5,400/- for 54 days taking the daily wage as Rs.100/-. When the daily wage is taken as Rs.150/-, for 54 days, the bystander’s expense will come to Rs.8,100/-. ``` ``` 13. Towards the compensation for pain and suffering, against the claim of Rs.5,00,000/-, the Tribunal awarded Rs.25,000/-. Ext.A14 is the treatment certificate, which shows that he had crush injury on both lower limbs and traumatic amputation thigh high (Rt) and traumatic amputation through leg (Lt). He was admitted in Medical College Hospital, Thiruvananthapuram, as an inpatient on 12.02.2004 and ``` MACA No.782/2012 11 ``` surgery was done on the very same day and he was discharged on 07.04.2004. It is seen from the treatment record as well as Annexure-2 photographs produced before this court as additional document that; both the legs, one below thigh high and another leg below the knee were amputated. Taking into consideration the amputation as well as the treatment which he had to undergo for 54 days as an inpatient in Medical College ``` ``` Hospital and the sufferings he has to undergo throughout his life, I am inclined to award a sum of Rs.2,00,000/- under the head of compensation for pain and suffering. Towards the compensation for loss of earnings and for continuing permanent disability, against the claim of Rs.4,00,000/- the Tribunal has awarded Rs.3,36,600/-, taking the income as Rs.3,000/- ``` ``` and the multiplier 17, since he was between the age group of 26–30. The appellant has produced Annexure-A1 Standing Disability Assessment Board Certificate issued ``` ``` from the General Hospital, Thiruvananthapuram, as the additional document, which shows the disability assessed by the Board is 88%. There is no objection ``` MACA No.782/2012 12 ``` filed to the said document and hence the disability assessed by the Medical Board is taken as the disability. Before the Tribunal, two certificates were produced; one with a disability of 50% and another with 60%, and the Tribunal has taken the disability as 55%. Since Annexure-A1 dated 24.04.2015 is produced before this court as additional document and since it is later in time, I am inclined to accept the same and the disability is fixed at 88%. Since the permanent disability is more than 80%, future prospects have to be awarded as he has lost his avocation in life. Hence, the monthly income is fixed as Rs.4,500 + (40% of 4500) ``` ``` 1800 = 6300/-. Hence the compensation for loss of permanent disability is calculated as 6300 x 12 x 17 x 88 / 100 = 11,30,976/- ``` ``` 14. For loss of amenities in life against the claim of Rs.4,00,000/-; the Tribunal has awarded Rs.1,12,200/-. The appellant was aged 30 years at the time of the accident and he has lost so many amenities in life due to the amputation of both legs and he has to depend upon a third person to move about or at least ``` MACA No.782/2012 13 ``` a wheelchair, hence a sum of Rs.25,000/- more is awarded under the head compensation for amenities in life. ``` ``` 15. Though he claimed Rs.1,50,000/- for future treatment, no amounts were awarded. The counsel for the appellant submits that the appellant in order to move on needs an artificial limb, hence under the head of future treatments, the Tribunal ought to have awarded the entire amount because the artificial limb for two limbs will cost more than Rs.1,50,000/-. Taking into consideration the above aspects, and since it is a definite case that an artificial limb has to be fitted to the appellant if he wants to move about without the help of a third person, I am inclined to award a sum of Rs.1,50,000/- for future treatment. In this case, the amount enhanced by this court is greater than that of the amount claimed by the appellant/petitioner. As per the decision reported in Nagappa v. Gurudayal Singh (2003 KHC 15)there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claim amount. ``` MACA No.782/2012 14 ``` Accordingly, the following enhancements are made ``` ``` to the award passed by the Tribunal: ``` |`Sl.`<br>`No.`|`Head of Claim`|`Amt. Awarded by`<br>`Tribunal (Rs.)`|<br>`Amt.`<br>`Awarded`<br>`in`<br>`appeal`<br>`(Rs.)`| |---|---|---|---| |`1.`|`Loss of earning`|`9,000/-`|`13,500/-`| |`2.`|`Extra nourishment`|`1,500/-`|`6,500/-`| |`3.`|`Bystander`<br>`expenses`|`5,400/-`|`8,100/-`| |`4`|`Pain and`<br>`suffering`|`25,000/-`|`2,00,000/-`| |`5`|`Compensation for`<br>`permanent`<br>`disability`|`3,36,600/-`|`11,30,976/-`| |`6`|`Loss of amenities`|`1,12,200/-`|`1,37,200/-`| |`7`|`Future treatment`|`…………`|`1,50,000/-`| ||`Total`|`4,89,700/-`|`16,46,276/-`| ||`Amount enhanced is:16,46,276-4,89,700 = 11,56,576/-`||| ``` In the result, the appeal is allowed and the appellant is entitled to the enhanced compensation of Rs.11,56,576/- (Rupees Eleven lakh fifty six thousand five hundred and seventy six only) with 7.5% interest per annum (except for the amount of Rs.1,50,000/- ``` MACA No.782/2012 15 ``` awarded for future treatments) from the date of filing of the petition till realisation. The finding entered by the Tribunal that the 2[nd] respondent is directed to pay only 90% of the compensation and the 4[th] respondent is directed to pay 10% of the compensation is modified and held that the entire compensation has to be paid by the additional 6[th] respondent who is wrongly shown as 2[nd] respondent in this appeal and liberty is given to recover the 10% of the compensation from the 4[th] respondent. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants will have to pay court fee for the total amount awarded, which will be recovered by the Tribunal, before disbursing the amount deposited. The appellant shall 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 ``` MACA No.782/2012 16 ``` within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the ``` ``` Appeal allowed as above. ``` ``` Sd/- ``` ## **`BASANT BALAJI, JUDGE`** ss