JAMAL C.S S/O.SULAIMAN v. The Distribution Co. Ltd Calicut and Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942 ## MACA.No.904 OF 2015(A) AGAINST THE AWARD IN OPMV NO.1545/2009 DATED 30-09-2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,PERUMBAVOOR ## APPELLANT/PETITIONER: JAMAL C.S S/O.SULAIMAN, CHIRAPPULLY HOUSE, W. VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.K.K.MOHAMMED RAVUF ## RESPONDENTS/RESPONDENTS: 1 THE DISTRIBUTION CO.LTD CALICUT, C/O.TATA MOTORS LTD, KSR CENTER, CALICUT, PIN - 673 529. 2 TUKARAM ALBAT S/O.RAGHU, A/P MOSHI, HAVELI TALUK, PUNE DISTRICT, MAHARASHTRA-400001 3 THE NEW INDIA ASSURANCE CO LTD. NEW INDIA ASSURANCE BUILDINGS, 87 M.G.ROAD, FORT MUMBAI - 400 023. ## R3 BY ADV. SRI.JOY JOSEPH (MANAYATHU) THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No. 904 of 2015 2 ## JUDGMENT Dated this the 18th day of March 2021 .. This is an appeal filed by the petitioner in OP(MV)No.1545 of 2009 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The claim petition was filed by him seeking compensation for the injuries sustained by him in a motor accident occurred on 7.9.2007. According to him, the accident occurred when the pickup van in which the appellant was travelling was hit by a mini lorry owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. According to the appellant, he was aged 24 years and was a Sub Contractor engaged in the work of mobile tower with an income of Rs.6,000/- per month. It was contended that, he sustained physical disablement due to the injuries sustained and M.A.C.A.No. 904 of 2015 3 the said disability was certified by the Medical Board as 5%. On the basis of the said claim, he claimed a total compensation of Rs.1,74,500/but limited to 50,000/-. 2. The said claim petition was tried along with O.P.(MV)Nos.1533 of 2009 and 1554 of 2009 which arose from the very same accident and a common award was passed. The evidence in this case consists of Exts.A1 to A19 from the side of the petitioner and X1 disability certificate. No evidence was adduced from the side of the respondents. 3. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence of both the drivers ie. the driver of the van, who is the petitioner in OP(MV)No.1533 of 2009 and the driver of the mini lorry who is the 2[nd] respondent in this appeal. The negligence was apportioned at a proportion M.A.C.A.No. 904 of 2015 4 of 60:40, that means 60% negligence was attributed to the driver of the pickup van and 40% of the negligence was attributed to the driver of the mini lorry, ie the 2[nd] respondent herein. The quantum of compensation awarded in the claim petition OP(MV)No.1545 of 2009 is Rs.1,91,629/- and an amount of Rs.76,652/- being 40% of the said amount originally fixed, was directed to be deposited by the 3[rd] respondent Insurance Company along with interest at the rate of 8% per annum. Challenging the finding on contributory negligence and also seeking enhancement of the compensation, this appeal is filed by the appellant. 4. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent, the Insurance Company. 5. The main contention put forward by the learned counsel for the appellant is that, the M.A.C.A.No. 904 of 2015 5 deduction of 60% compensation (confining the compensation to 40%) is unsustainable. It is evident from the records that, he was only a passenger in the pickup van and, therefore, under no circumstances, any deduction from the compensation could have been permitted. It was also pointed out that, being a passenger, he cannot be treated as a person contributed to the accident. While considering the above issue, it can be seen that, the Tribunal limited the compensation of the petitioner to 40%, on the basis of a finding that, the driver of the pickup van in which the appellant was travelling, was also responsible for the accident to some extent. However, in such circumstances, this case cannot be treated as a case of contributory negligence. On the other hand, it is a clear case of composite negligence where two sets of persons are responsible for M.A.C.A.No. 904 of 2015 6 the accident. Since the appellant was only a passenger in one of the said vehicle, even though there were two persons who might have contributed to the accident, no amount can be deducted from the compensation which he is legally entitled for. Apart from the above, this being a case of composite negligence, the liability of the tortfeasors are joint and several. Therefore, the appellant shall be entitled to realize the compensation from all of them or from any one of the tortfeasors according to his choice. It is true that, in this case, the owner and driver of the vehicle in which the appellant was travelling were not made as parties. Going by the principles laid down by the Hon’ble Supreme Court and also this Court in various judgments, it is not necessary for the appellant to implead all the tortfeasors in the party array because of the fact that the M.A.C.A.No. 904 of 2015 7 liability of the tortfeasors are joint and several. In order to establish the said contention, the learned counsel for the appellant relied upon a judgment of this Court reported in Salam T.A., v. Shaji and Others [2017(3) KLT 18]. The said judgment was rendered by this Court by relying upon the judgment of the Hon’ble Supreme Court reported in Khenyei v. New India Assurance Company Ltd. and Others [2015(3) KHC 70] . From the observations made by the Hon’ble Supreme Court and also by this Court in the above judgments, it is evident that, the appellant is entitled to realize the compensation receivable by him from one among the joint tortfeasors as the liability is joint and several. In the above circumstances, deduction made by the Tribunal at the rate of 60% from the total compensation receivable by the appellant was not proper and against the M.A.C.A.No. 904 of 2015 8 settled principles of law. Therefore, the finding in this regard made by the Tribunal is set aside and it is ordered that the petitioner shall be entitled for the entire compensation quantified in this claim. 6. The next aspect is relating to the quantum of compensation. According to the learned counsel for the appellant, the monthly income claimed by him is Rs.6,000/- whereas the income taken by the Tribunal is only Rs.4,500/-. Going by the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram alliance Insurance Company Limited [(2011)13 SCC 236] and in Syed Sadiq v. Divisional Manager, United India Insurance Company Limited [(2014)2 SCC 735], the said amount is on lower side. The monthly income claimed by the appellant is only Rs.6,000/- which is a reasonable and probable. In the facts and circumstances of this case the said amount can be accepted. Thus, the M.A.C.A.No. 904 of 2015 9 monthly income for the purpose of computing the compensation is re-fixed as Rs.6,000/-. 7. On account of the revision of the monthly income as above, the appellant will be entitled for a further sum of Rs.4,500/- under the head of loss of earnings [Rs.6,000x3-13,500]. It is seen from the records that, the Medical Board has certified his percentage of disability as 5%. On account of the revision of monthly income as Rs.6,000/-, the compensation under the head of disability has to be reworked. This Court is of the view that, except the revision of monthly income, the other criteria adopted by the Tribunal can be retained for the said purpose. If that be so, the compensation under the head of physical disability shall be Rs.64,800/- [Rs.6000x12x18/5]. The compensation awarded by the Tribunal under this head is Rs.48,600/- and after deducting the same, the appellant is entitled a further sum of Rs.16,200/under this head. The learned counsel for the appellant pointed out that, the amount awarded M.A.C.A.No. 904 of 2015 10 under the head of pain and suffering is Rs.15,000/and the amount granted under the head of loss of amenities is only Rs.10,000/- and both the said amounts are on lower side. Taking into consideration of the facts and circumstances of this case, this Court is of the opinion that, some additional amounts can be granted under these heads also. On an analysis of the date of accident, nature of injuries sustained by the appellant and also the avocation of the appellant, this Court is of the view that, a further amount of Rs.15,000/each can be granted under both these heads. Thus, the total additional compensation receivable by the appellant shall be Rs.50,700/- [Rs.4,500+16,200+15,000+15,000]. Since this Court has already found that, the deduction made by the Tribunal at the rate of 60% from the total compensation payable was not justified, the appellant is entitled to realise the entire amount of compensation as awarded by the Tribunal also. The 3[rd] respondent, the Insurance Company is M.A.C.A.No. 904 of 2015 11 directed to deposit the amounts mentioned above [after adjusting the amounts, if any, already paid to the appellant] with interest and proportionate costs at the same rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. The appeal is disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk