Hareesan K.S. v. K.V. Gopalan, Sunilkumar V.K., and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939 MACA.No. 1025 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 10/2005 of M.A.C.T., THALASSERY DATED 19-02-2011 APPELLANT(S)/PETITIONER.: ---------------------------------- HAREESAN K.S., S/O.KUMARAN, AGED 45 YEARS, NAVANEETHAM, KOYYODE P.O., KANNUR DISTRICT. BY ADVS.SRI.A.K.SRINIVASAN SRI.A.S.BENOY SRI.JIMMY GEORGE RESPONDENT(S):RESPONDENTS ----------------------------------- 1. K.V.GOPALAN, S/O.APPUTTY, THADASSERY PARAMBIL HOUSE, P.O.PANTHEERAMKAVU, KOZHIKODE-673019 2. SUNILKUMAR V.K., S/O.BAPPUTTY, VALUTHADATH KANDIYIL MEETHAL HOUSE, PERUVAYAL P.O., KOZHIKODE-673024 3. THE ORIENTAL INSURANCE COMPANY LTD, KANNUR-670001 R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R1,2 BY ADV. SRI.E.NARAYANAN R1,2 BY ADV. SRI.SRINATH GIRISH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.1025 OF 2011 ==========================** Dated this the 20[th] day of July, 2017 ## **JUDGMENT** Ravikumar, J. The injured-petitioner is the appellant. He filed O.P. (MV).No.10 of 2005 before the Motor Accidents Claims Tribunal, Thalassery claiming compensation for the injuries sustained by him in a motor vehicle accident involving collision between the motor cycle bearing Reg.No.KL-13/H-6007 and the tipper van bearing Reg.No.KL-13/R-4546. It occurred on 5.7.2004. He was a pillion rider on the motor cycle. In the accident, he sustained severe injuries which resulted in permanent disability. He remained as an inpatient for a period of 29 days. It is in the said circumstances that the claim petition was filed seeking a total compensation of Rs.1,10,000/-. The Tribunal, as per the impugned award, granted a sum of Rs.2,84,800/- as compensation with interest at the rate of 7.5% per annum from the date of the petition till realisation. In the **M.A.C.A.1025/2011** 2 captioned appeal, the appellant claims enhancement of the quantum of compensation raising several grounds. 2. We have heard the learned counsel for the appellant and the learned counsel appearing for the third respondent. 3. The Tribunal held the cause of the accident as composite negligence on the part of the rider of the motor cycle and the driver of the tipper van, the second respondent and apportioned the degree of negligence in between them in the ratio 15:85. Though there is absolutely no case for any of the respondents that injured appellant had contributed to the accident, taking note of the fact that the rider of the motor cycle in which the appellant travelled as a pillion rider had contributed to the cause of the accident and pursuant to the apportionment of the negligence on his part as 15%, the Tribunal deducted 15% of the assessed amount while awarding compensation. The learned counsel for the appellant submitted that the deduction so effected by the Tribunal on that count, cannot be sustained. The other contention of the learned counsel for the appellant is that the Tribunal went wrong in not converting permanent disability into occupational disability, by **M.A.C.A.1025/2011** 3 taking into account the specific case of the appellant that he was a conductor by profession and the evidence let in by him as Ext.A7 which is the conductor's licence and badge. Yet another ground raised in support of the claim for enhancement of compensation is the alleged erroneous estimation of monthly income by the Tribunal. In the claim petition, it was specifically averred that he was working as a conductor at the relevant period and was earning Rs.4,484/- per month. To substantiate the said contention, Ext.A8 was produced. The Tribunal disregarded such averments and fixed the monthly income notionally at Rs.3,000/-. It is in the said circumstances that such a ground was raised. That apart, it is contended by the appellant that while ordering reimbursement of the transportation expenses, the Tribunal disregarded the fact that the accident occurred in Thalassery and the appellant underwent treatment in a hospital at Mangalore. Consequently, as against a claim of Rs.10,000/-, only an amount of Rs.4,000/was granted, it is submitted. Despite the production of Ext.A14 and Ext.X1 certificates, the Tribunal did not grant any amount towards loss of amenities and amount granted towards future **M.A.C.A.1025/2011** 4 treatment expenses is too meagre, are the further contentions advanced. 4. Per contra, the learned counsel for the third respondent submitted that a bare perusal of the schedule of compensation given in the impugned award itself would reveal that on all heads, the appellant was adequately compensated by the Tribunal. It is also contended by the learned counsel that the Tribunal went wrong in adopting the multiplier as '15' instead of '14'. 5. Having given our anxious consideration to the rival contentions, we are of the considered view that the impugned judgment did invite interference on certain counts. True that, as against a claim of Rs.1,10,000/-, the Tribunal has awarded a compensation which is much more than the amount claimed. Normally, under such circumstances, if the grievance of the appellant is confined only regarding the quantum of compensation, he ought ought not to have been treated as a 'aggrieved person' for the purpose of section 173 of the Motor Vehicles Act. However, in this case, the appellant has taken two legal contentions so as to establish that he is aggrieved by the **M.A.C.A.1025/2011** 5 impugned award. Evidently, those contentions are not feeble contentions. They would prima facie reveal that he is a person aggrieved by the award of the Claims Tribunal. Once it is found so, the appeal has to be considered on all legally permissible grounds. Therefore, we proceed to consider the appeal on merits. Firstly, it is contended that the Tribunal went wrong in deducting 15% from the amount assessed as compensation even in the absence of any attribution of contributory negligence against the appellant solely based on the fact that the rider of the motor cycle on which the appellant was a pillion rider, had contributed to the cause of the accident and the degree of negligence on his part was assessed as 15%. While appreciating the aforesaid contention, the distinction between 'composite negligence' and 'contributory negligence' has to be borne in mind. When injury is caused by the negligence of more than one person and it is not clear whose negligence was the cause of the damage or the damage was the cause of the combined negligence of more than one person, it is called composite negligence. The term 'contributory negligence' squarely and solely applies to the conduct of the claimant alone. In respect of **M.A.C.A.1025/2011** 6 a claim for compensation for personal injury, the said expression takes the meaning that the negligence on the part of the claimant contributed in part to his own harm and consequently, it should reduce the damages payable to him. In this case, the Tribunal arrived at the finding that it is the combined negligence on the part of the driver of the tipper van and the rider of the motorcycle that caused the accident. In short, there is no attribution and as such, no finding that the injured-claimant contributed in part to his own harm. 6. Though the Tribunal arrived at the conclusion that the cause of the accident is the combined effect of negligence of the rider as also the driver of the vehicles involved in the accident in question and consequently, apportioned the degree of negligence amongst them as 15:85, none of the respondents filed appeal against the judgment or even took up cross objection in this appeal against the said finding. True that in the above mentioned claim petition, the claimant/the appellant had not made the rider of the motorcycle a party on which he was then riding as pillion rider. So also, its insured and insurer were also made parties. But, it is to be noted that it cannot be a **M.A.C.A.1025/2011** 7 reason to defeat his claim as in a claim for compensation where the accident was caused by composite negligence of drivers it is open to a claimant to recover the entire compensation from one of the joint tort-feasors. See the decision of the Hon'ble Apex Court in **Khenyei v. New India Assurance Co. Ltd and others [2015 (3) KHC 70 (SC)]** . It is also to be noted that the impugned judgment is a common judgment and award and the other claim petition jointly enquired into, with the aforesaid claim petition, was the one filed by the rider of the motorcycle on which the appellant herein was then riding on pillion. Hence, we do not propose to look into the legality of the said conclusion and finding in this appeal and we will only consider whether that could be a reason for deducting any amount from the amount found payable to the appellant. 7. The appellant was only a pillion rider on the motorcycle involved in the accident. None of the respondents attributed contributory negligence on the part of the appellant. When there is total absence of any specific allegation that the appellant who was the pillion rider had contributed to the cause of the accident, there was absolutely no reason for effecting any **M.A.C.A.1025/2011** 8 deduction from the amount assessed as compensation payable to the appellant. As noticed hereinbefore, in a case of composite negligence, the claimant can proceed against any joint tortfeasor or against all of them as they are jointly and severally liable. This position has been settled by the Hon'ble Apex Court in the decision in **Khenyei** 's decision (supra). Going by the said decision, the claimant is entitled to get the full amount of compensation. The mere fact that the rider of the motorcycle on which the injured was travelling was also found negligent and the degree of negligence on his part was apportioned as 15% cannot be a reason at all for effecting any deduction for attributing contributory negligence on the part of the appellant and consequently, to make deduction from the amount assessed as compensation. In fact, the Tribunal had not arrived at a finding that the appellant had contributed to the accident owing to any other reason attributable to the injured-claimant. In the light of the discussions above, the finding of the Tribunal that the appellant is not entitled to the entire amount of compensation assessed as compensation and the consequential deduction from the amount are to be set aside. We do so. **M.A.C.A.1025/2011** 9 Consequently, the appellant would be entitled to get the entire amount assessed under the impugned judgment viz., Rs.2,84,800/- towards total compensation. As per the impugned award, the Tribunal has awarded only an amount of Rs.2,42,080/- after assessing the compensation as Rs.2,84,800/-. In short, the appellant is entitled to get the balance amount of Rs.42,720/-. 8. Now, we will consider the question whether the appellant is entitled to get enhancement of compensation under any other heads. The second ground raised by the appellant to assail the award is that the Tribunal went wrong in not assessing the occupational disability. The contention of the appellant is that while assessing the compensation for disability, the Tribunal has ignored the certification of the extent of disability under Exts.A14 and A15 certificates. It is the further submission that as per the said marked documents, the degree of disability of the appellant is 40%. Evidently, the Tribunal accepted and acted upon Ext.X1 disability certificate issued by the duly constituted Medical Board carrying the assessment of permanent disability of the appellant as 17%. According to the **M.A.C.A.1025/2011** 10 appellant, the Tribunal ought to have assessed the occupational disability of the appellant, taking into account Ext.A7. Essentially, the contention is that the disability incurred by the appellant would disable him from continuing in his occupation as conductor. At the first blush, the said contention appears to be attractive and acceptable. In principle, the loss of bodily integrity should give a right to damages to the injured even if there is no damage at all to the earning capacity or even to enjoyment of life. In this case, the claim of the appellant for compensation for loss of earning capacity is founded on Exts.A12 to A15 and to some extent on Ext.X1, as well. Ext.A12 is the attested copy of medical certificate dated 20.10.2005 issued from District Hospital, Kannur, wherein the percentage of disability was certified as 40%. Ext.A13 is a certified copy of certificate issued to the petitioner by Dr.P.Behirshan, who is an Orthopaedic Surgeon, then attached to General Hospital, Thalassery. It is dated 26.11.2005. What is certified thereunder is that the appellant 'could not travel without the assistance of an escort'. Ext.A14 is another certificate issued by the Medical Board, District Hospital, Kannur and it is dated 27.9.2006. **M.A.C.A.1025/2011** 11 Going by the same, the extent of his disability is 40%. Same is the degree of disability recorded in Ext.A15 which is the copy of the identity card issued by the Social Welfare Department to the appellant. It is based on these documents that the appellant claimed for assessment of his occupational disability as a Conductor as 100%. Exts.A12 to A15 are certificates issued during the period between 2005 and 2006. Ext.X1 is the disability certificate issued by the Medical Board, District Hospital, Kannur. It was issued much after Exts.A12 to A15 and it is dated 10.2.2010. Thus, it can be seen that the Medical Board, District Hospital, Kannur, which issued Ext.A14 had subsequently issued Ext.X1. The difference in the extent of disability as per Ext.A14 and Ext.C1 is 23%. It would definitely reveal that there was considerable progress in the loss of bodily integrity of the appellant and when he was examined in the year 2010, the extent of disability came down from 40% to 17%, as per Ext.C1. Ext.C1 is later in point of time and it was issued by a duly constituted Medical Board. In the light of Ext.X1, the certification of disability under Exts.A12 to A15 lost its significance and they cannot be said to be certificates reflecting the true extent of disability **M.A.C.A.1025/2011** 12 of the appellant. Nothing is on record to show that the appellant had taken steps to get him referred for further examination after raising objection against Ext.X1, appropriately. Hence, it cannot be said that the Tribunal had erred in accepting the assessment made under Ext.C1. In fact, the entire extent of disability certified under Ext.C1 was reckoned for the purpose of calculating compensation for disability, by the Tribunal. 9. It is also to be noted that the appellant was examined before the Tribunal as PW1. Even after seeing the appellant, the Tribunal had not formed an opinion that he was fully incapacitated to do any kind of work. The appellant also did not adduce medical evidence to establish that his earning capacity was completely lost or that it was affected badly by the injuries that resulted in disability to the tune of 17%. There is no evidence to conclude that the appellant's earning capacity was affected by the nature and impact of injuries sustained in the accident. At the same time, it is evident that he was compensated for disability, accepting the entire extent of disability mentioned in Ext.C1. 10. In the light of the decision of the Apex Court in **Raj** **M.A.C.A.1025/2011** 13 **Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]** , the mere fact that the disability incurred in a motor vehicle accident had resulted in permanent disability, the injured would not be justified in contending that he had lost his earning capacity and its extent must be assessed at a higher percentage than the certified percentage of disability in the disability certificate. In this context, it is to be noted that after assigning specific reasons in paragraph 23 of the impugned judgment, the Tribunal held that the claim of the appellant that he was a Conductor by profession could not be accepted though he was qualified for the same, going by Ext.A7. Going by Ext.C1, the disability of the appellant is shortening of right leg one and a half inches. Occupational disability was not assessed under Ext.C1 and it also contained nothing which would suggest that he had lost his earning capacity or it has affected adversely. The appellant is a Graduate in Commerce. He was aged only 40 years at the time of the accident. Paragraph 25 of the impugned judgment would indicate that even in the year 2011, the implant was in situ. Taking into account all such aspects and the extent of disability certified under Ext.C1 and also in the absence of evidence of **M.A.C.A.1025/2011** 14 loss of earning power, we are of the view that it cannot be said that the appellant, by virtue of the sustainment of the permanent disability, had lost his earning power. Even if his occupation is taken as Conductor, the said disability would not reduce his earning capacity. But at the same time, that cannot be a reason for not compensating the appellant for loss of his bodily integrity. In fact, the Tribunal considered that aspect and granted compensation for disability. Ext.X1 would reveal that owing to the injury sustained in the accident, the appellant had incurred 17% of permanent disability. The Tribunal has granted compensation for permanent disability and in that regard, admittedly, the entire extent of disability certified under Ext.X1 was taken into account. 11. It is submitted by the learned counsel for the 3[rd] respondent that the Tribunal has wrongly adopted the multiplier as '17' instead of '15'. True that a perusal of the schedule of compensation would reveal that the Tribunal had adopted '17' as the multiplier. But at the same time, paragraph 23 of the impugned judgment would reveal that actually only '15' was adopted as the multiplier. In fact, it is the correct multiplier **M.A.C.A.1025/2011** 15 applicable in this case with reference to the age of the appellant. But at the same time, we have noted that in paragraph 23, the compensation payable under the said head was assessed as Rs.91,800/- and the amount was wrongly entered in the schedule as Rs.91,200/-. There is a difference of Rs. **600** /-. We will take note of the said aspect while re-assessing the compensation under the aforesaid head. Yet another grievance of the appellant is that the Tribunal had erroneously estimated the monthly income. It was taken as Rs.3,000/- by the Tribunal. The accident had occurred on 5.7.2004. The appellant had produced Ext.A7 which would reveal that he was having a conductor's licence and paper badge. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** the Apex Court has fixed the monthly income of a coolie, who met with an accident in the year 2004, as Rs.4,500/-. If such an amount can be fixed notionally as the monthly income of a coolie in respect of an accident occurred in the year 2004, there is absolutely no reason to disbelieve the claim of the appellant that he was earning Rs.4,484/- taking into account the fact that he was then possessing a conductors **M.A.C.A.1025/2011** 16 licence and badge. In short, we fix the monthly income of the appellant as Rs.4,484/-. A re-assessment of the compensation for disability, by substituting the monthly income of the appellant as Rs.4,484/-, the amount payable thereunder will be Rs.1,37,210.40/-. The Tribunal has already granted an amount of Rs.91,200/- under that head after assessing the amount as Rs.91,800/-. After deducting the said amount of Rs.91,200/-, the appellant will be entitled to get an additional compensation of Rs. **46,010.40** /- under that head. The Tribunal took the period of loss of earning as 10 months. On retaining the said period, but calculating loss thereunder, based on the re-fixed monthly income, the appellant will be entitled to get an additional compensation of Rs. **14,840** /- (44,840-30,000) thereunder. It is awarded. No amount was granted by the Tribunal towards damage to clothing. The nature of the injuries sustained by the appellant in the accident which resulted in permanent disability would undoubtedly suggest that the dresses worn by him must have been spoiled. In such circumstances, we are inclined to grant the amount claimed by the appellant thereunder viz., Rs. **1,000** /-. **M.A.C.A.1025/2011** 17 12. When a person has lost his bodily integrity due to the permanent disability caused by the injuries sustained in the accident, certainly, the said person is entitled to get compensation towards 'loss of amenities'. In this case, as per Ext.X1, the Board assessed the permanent disability as 17%. It is evident from the impugned judgment itself that the Tribunal arrived at a conclusion that he could not earn anything for about a period of 10 months. Thus, it is evident that the appellant was deprived of enjoyment of life for quite a long time. In such circumstances, we are inclined to grant Rs. **25,000** /- towards 'loss of amenities'. Towards 'transportation expenses', the Tribunal has granted only Rs.4,000/- towards the claim of Rs.10,000/-. We have already noted that the accident occurred in Thalassery and after the initial admission in and discharge from, a hospital at Thalassery, he was taken to a hospital at Bangalore. He had subsequent reviews from there. In such circumstances, we are inclined to grant the entire amount claimed under the said head. In other words, the appellant is entitled to get Rs. **6,000** /- more towards transportation expenses. In the result, this appeal is allowed. The appellant will be **M.A.C.A.1025/2011** 18 entitled to get a total additional compensation of Rs. **92,850.40** /- (46,010.40+14,840+1,000+25,000+6,000). It is rounded off to Rs. **92,850** /-. It is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent shall deposit the said amount along with interest thereon within a period of 2 months from the date of receipt of certified copy of this judgment. We left open the right of the 3[rd] respondent to take steps for realising 15% of the amount of total compensation, in terms of **Khenyei** 's case (supra), if it so desires, in appropriate proceedings. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** ## **spc/ami** Continued at page No.19 **M.A.C.A.1025/2011** 19 The following corrections are made in the judgment dated 20/07/2017 in M.A.C.A.No.1025/2011 vide order dated 12/03/2018 in I.A.No.923/2018 in M.A.C.A.No.1025/2011:- 1. The observation made in paragraph 5, page No.4 that the appellant ought not to have been treated as an `aggrieved person' is deleted (3[rd] sentence in paragraph 5, page 4). 2. The figure of “ **Rs.1,10,000/-** ” occurring in paragraph 1, page No.1 and in paragraph 5, page No.4 is substituted as “ **Rs.7,50,000/-** ”. 3. The sentence **“So also, its insured and insurer were also made parties”** occurring in 10[th] and 11[th] lines of paragraph 6, page No.6 is corrected as **“So also, its insured and insurer were also not made parties.”** 4. The total additional compensation of **“Rs.92,850.40 (46,010.40+14,840+1,000+25,000+6,000)”** mentioned in page No.18 is corrected as **“Rs.1,35,570/(46,010.40+ 14,840+1,000+25,000+6,000+42,720)”** . Sd/- **Registrar (Judicial)**