High Court of KeralaSingle Judge2021-03-30Appeal partly allowed; Tribunal’s 50% contribut...

M. Abdurahiman v. Hanees Babu, Thaj Nissar and United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.465 OF 2013

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-03-30
Court Decision / Holding: The appeal is allowed in part. The Tribunal’s 50% reduction for contributory negligence is set aside in light of Khenyei, and the damages are recalculated with notional income fixed at Rs.5,000 per month, resulting in higher awards for loss of earnings (Rs.15,000) and loss of earning power (Rs.51,000), enhanced pain and suffering (Rs.25,000), and other heads, leading to a total of Rs.1,05,180. The appellant is awarded an additional Rs.68,540 beyond the Tribunal award, with interest at 9% per annum from the date of petition to realization, excluding 438 days delay as previously ordered. The 3rd respondent shall deposit the enhanced amount before the Tribunal within two months from certified copy of this judgment, and the Tribunal shall disburse the enhanced compensation accordingly, with proportional costs.
Final Disposition: Appeal partly allowed; Tribunal’s 50% contributory negligence finding set aside; enhanced compensation awarded with revised heads; additional amount of Rs.68,540 to be deposited within two months; tribunal to disburse the enhanced amount with costs.

Parties to the Case

Appellants / Petitioners

M. Abdurahiman, S/o. Moosa, Mavungal House, Vellayoor Amsom, Karuthenii, P.O. Anchachavidi, Via Kalikavu, Malappuram District

Respondents

Hanees Babu K., S/o Mohammed Ali, Kottakodan House, Thrikalangode P.O., Manjeri, Malappuram District
Thaj Nissar, S/o Ahammedkutty, Nelliparamban House, Karakunnu P.O., Manjeri, Malappuram District
United India Insurance Co. Ltd., Divisional Office, Court Road, Manjeri-676121, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• Shri. P. Venugopal

Counsels for Respondents

• Sri. John Joseph Vettikkad

Case Synopsis & Summary

On 10 March 2005, the appellant, a coolie, was a passenger in an autorickshaw when it was struck by a bus driven rashly and negligently near Ancham Mile, causing serious head injuries and the death of a friend. The appellant claimed Rs 2 lakh as compensation, while the Motor Accidents Claims Tribunal, Manjeri, awarded Rs 36,640 with interest at 9% per annum and held the deceased autorickshaw driver partly negligent, resulting in 50% apportionment of liability. The 3rd respondent insurance company contended the accident resulted from the autorickshaw driver’s negligence, noting overload with passengers; it admitted the policy but disputed the quantum. The appellant argued that in composite negligence the claimant may recover the entire amount from any joint tortfeasor and that Khenyei prohibits apportionment. The tribunal’s approach, the appellant submitted, was inconsistent with Supreme Court precedent and Ext.A18; the High Court agreed, set aside the 50% apportionment, and recalculated damages by applying higher notional income (Rs 5,000 instead of Rs 3,000), extending the loss of earnings, increasing pain and suffering, and improving the loss of earning power, while disallowing the separate head of partial loss of earnings. Applying notional income and appropriate multiplier (Sarala Verma), the court increased the total to Rs 1,05,180, and allowed an additional Rs 68,540 beyond the Tribunal award, with interest at 9%. The 3rd respondent was directed to deposit the enhanced amount within two months, and the tribunal to disburse.

Legal Doctrines & Maxims

Composite negligence doctrine
Joint tortfeasors liable jointly and severally; apportionment not permissible in composite negligence (Khenyei)
Notional income standards for coolie workers (Ramachandrappa)
Multiplier method (Sarala Verma)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in holding contributory negligence by the deceased autorickshaw driver, relying on composite negligence principles. He submits that under Khenyei v. New India Assurance Co. Ltd., there can be no apportionment of liability between joint tortfeasors and the claimant may recover the entire amount from any single tortfeasor. Notional income should be fixed at Rs. 5,000 per month for a coolie worker, and the calculation should be adjusted for enhanced heads like pain and suffering and loss of earning power, with proper application of Sarala Verma’s multiplier. The Tribunal’s Ext.A18 contradicts its own finding and should be reconciled in his favour with updated damages and interest.

Contentions of Respondents

The respondents contend that the accident resulted from the negligence of the autorickshaw driver; the vehicle was overloaded; there was collusion between vehicles of dissimilar sizes, justifying apportionment of liability. The 3rd respondent insurance company admits the policy but disputes the quantum, arguing that liability should be shared with the deceased driver and that the trial court’s reduction to 50% is legally sound given the driver’s contributory negligence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Khenyei v. New India Assurance Co. Ltd. and Others	2015 (9) SCC 273	Positive	The court relies on Khenyei to reject apportionment of liability in a composite negligence setting, allowing the claimant to recover the whole amount from any joint tortfeasor.
Ramachandrappa v. Manager, Royal Sundaram Alliance (Insurance Co. Ltd.)	2011 (13) SCC 236	Positive	Used to justify notional income for coolie workers, supporting an increased notional income of Rs.5,000.
Sarala Verma v. Delhi Transport Corporation	2010 (2) KLT 802 SC	Positive	Applied for the multiplier rule to determine loss due to disability; adopts multiplier appropriate to the claimant’s age.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against M. Abdurahiman v. Hanees Babu, Thaj Nissar and United India Insurance Co. Ltd. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.465 OF 2013** **AGAINST THE AWARD IN OP(MV) 912/2006 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** **M.ABDRURAHIMAN, S/O.MOOSA, MAVUNGAL HOUSE, VELLAYOOR AMSOM, KARUTHENI, P.O.ANCHACHAVIDI, VIA KALIKAVU, MALAPPURAM DISTRICT.** **BY ADV. SHRI.P.VENUGOPAL** ## **RESPONDENTS/RESPONDENTS:** - **1 HANEES BABU.K, S/O.MOHAMMEDALI, KOTTAKODAN HOUSE, THRIKALANGODE P.O., MANJERI, MALAPPURAM DISTRICT-676121.** - **2 THAJ NISSAR, S/O.AHAMMEDKUTTY, NELLIPARAMBAN HOUSE, KARAKUNNU P.O., MANJERI, MALAPPURAM DISTRICT.** - **3 UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, COURT ROAD, MANJERI-676121, MALAPPURAM DISTRICT.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2021, THE COURT ON 30-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.465 OF 2013 2** ## **JUDGMENT** **Dated this the 30th day of March 2021** The appellant was the petitioner in OP(MV) No.912 of 2006 on the file of the MACT, Manjeri. The respondents in the appeal by the respondents in the claim petition. 2. The brief facts, for the determination of the appeal, in the claim petition are: on 10.3.2005 while the appellant was travelling in an autorickshaw bearing Reg.No.KL-10-K/6143 along from Pookottumpadam to Anchachavidi side, when the vehicle reached at Ancham Mile a bus bearing Reg.No.KL-10-L/6122 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner, hit the autorickshaw. The appellant sustained serious injuries and one of his friends namely; Riyaz passed away. The appellant was taken to the Medical College Hospital, Kozhikode and was admitted there as an inpatient from 10.3.2005 to ## **MACA.No.465 OF 2013 3** 28.3.2005. The appellant sustained head injury, comminuted fracture of ( R) temporal fossa region with underline haematoma, pheumouphalus Moss effect and mudline shift to left fracture right Zygoma fracture proximal phalanges of 2[nd] and 4[th] toe (Riggt). The appellant was a Coolie worker by profession and earning a monthly income of Rs.5,000/-. The accident occurred solely due to the negligence on the part of the 1[st] respondent. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The respondents are jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2/- lakh. 3. Although the respondents 1 and 2 entered appearance through counsel, they did not choose to file any written statement. 4. The 3[rd] respondent filed a written statement, inter alia, contending that the accident occurred solely due to the negligence on the part of the driver of the ## **MACA.No.465 OF 2013 4** Autorickshaw, who passed away in the accident. The autorickshaw was overload with 4 passengers and the appellant colluded with the legal heirs of the deceased driver and filed OP No.604 of 2005. Nevertheless, the 3[rd] respondent admitted that the offending vehicle had a valid insurance policy. 5. The appellant produced Exts.A1 to A19 in evidence. The report of the District Medical Board, District Hospital, Manjeri was marked as Ext.X1. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part by ordering that the appellant was entitled for a compensation of Rs.36,640/-with interest @ Rs.9% per annum from the date of petition till the date of realization. The 3[rd] respondent was directed to pay the compensation. The Tribunal however found that the deceased driver of the autorickshaw, in which the appellant was travelling, was guilty for contributory negligence. Therefore, the **MACA.No.465 OF 2013 5** Tribunal held that the appellant was only entitled for 50% of the total compensation amount. 7. Aggrieved and dissatisfied with the impugned award passed by the Tribunal, the petitioner is in appeal. 8. Heard Sri..P.Venugopal, the learned counsel appearing for the appellant/petitioner and Sri.John Joseph Vettikkad, the learned counsel appearing for the 3[rd] respondent/ Insurance Company. 9. The questions that emanates for consideration are (i) whether the impugned award holding that the total amount compensation awarded to the appellant has to be reduced by 50% in view of the contributory negligence on the part of the deceased driver of the autorickshaw in which the appellant was travelling is correct or not; (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. The Tribunal fixed contributory negligence on ## **MACA.No.465 OF 2013 6** the part of the driver of the autorickshaw for the reason that there was a collusion between two vehicles of dissimilar sizes. The Tribunal accepting the contention of the 3[rd] respondent that as the driver of the autorickshaw died in the accident, it is to be inferred that the accident occurred due to the negligence on the part of the deceased driver. Accordingly, the Tribunal felt that there should be an apportionment of compensation between the 2 vehicles. In such circumstances, the Tribunal reduced 50% of the compensation amount. 11. A three judge Bench of the Hon’ble Supreme Court in _**Khenyei v. New India Assurance Co. Ltd. and Others (2015 (9) SCC 273)**_ has held that in the case of composite negligence, the claimant is entitled to sue both or anyone of the joint tort feasors and to recover the entire compensation as liability from the joint tort feasors either jointly and severally. In the case of composite negligence, apportionment of **MACA.No.465 OF 2013 7** compensation between two tort feasors vis – a – vis the plaintiff/claimant is not permissible. It is up to the claimant at his option the whole damages from any of the joint tort feasors. 12. In view of the categorical declaration of law in _**Khenyei**_ (supra), I hold that the finding of the Tribunal that the 3[rd] respondent is only liable to pay 50% of the compensation is erroneous and unsustainable in law. Moreover, it is seen that the appellant had produced Ext.A18 award passed by the very same Tribunal in connection with the very same accident by another passenger in the same autorickshaw, wherein the Tribunal had not taken such an obstinate view, that the driver of the autorickshaw was guilty for contributory negligence. Therefore, the findings of the Tribunal in Ext.A18 is contradictory to the findings in the impugned award. Although the appellant had produced and marked Ext.A18 in evidence, the Tribunal did not render any finding with respect to Ext.A18 award. **MACA.No.465 OF 2013 8** Therefore, I set aside the finding of the Tribunal that the appellant is only entitled for 50% of the compensation amount. Hence, question No.(i) is answered in favour of the appellant. 13. Coming to question No.(ii) whether the compensation that has been awarded by the Tribunal is reasonable and just. 14. Admittedly, the appellant was referred to a competent Medical Board, which by Ext.X1 certificate has found that the appellant has a permanent disability of 5%. ## **Notional Income** 15. The appellant claimed to be a Coolie by profession and that he was earning a monthly income of Rs.5,000/-. However, the Tribunal fixed the notional income of the appellant is at Rs.3,000/-. 16. The Hon’ble Supreme Court _**in**_ _**Ramachandrappa v. Manager, Royal Sundaram Aliance (2011 13 SCC 236),**_ the Hon’ble Supreme **MACA.No.465 OF 2013 9** Court has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month. 17. Following the parameters in the aforecited decisions, I am of the considered opinion that the appellant’s notional income can safely be fixed at Rs.5000/- as claimed in the claim petition. ## **Loss of earnings** 18. It is proved by Ext.A12 discharge summary that the appellant was hospitalized for a period from 10.3.2005 to 28.3.2005, i.e., for a period of 18 days. He had sustained an head injury and four fractures. Therefore, necessarily he was incapacitated for a period of three months. In such circumstances, in view of the refixation of the notional income of the appellant, I am of the considered opinion that the compensation under the head of loss of earnings has to be fixed at Rs.15,000/- instead of Rs.9,000/- awarded by the Tribunal. ## **Pain and sufferings** **MACA.No.465 OF 2013 10** 19. As already observed, the appellant had an head injury and 4 fractures. He was hospitalized for a period of 18 days. Although, the appellant had claimed an amount of Rs.35,000/- for pain and sufferings, the Tribunal awarded only an amount of Rs.15,000/- under the said head. Hence, I enhance the compensation under the head 'pain and sufferings' at Rs.25,000/-. ## **Loss due to disability** 20. The appellant was aged 26 years at the time of accident. The relevant multiplier going by the decision in _**Sarala Verma v. Delhi Transport Corporation (2010 (2) KLT 802 SC)**_ is 17. The appellant was a Coolie worker and his notional income has been fixed at Rs.5,000/-. In the said circumstances, I am of the opinion that the appellant is entitled for compensation under the head loss due to disability at Rs.51,000/-, instead of Rs.30,600/- fixed by the Tribunal. ## **Partial loss of earnings** ## **MACA.No.465 OF 2013 11** 21. It is seen that the Tribunal has awarded an amount of Rs.4,500/- under the head partial loss of earnings. In view of the finding that the appellant was incapacitated for a period of three months, I am of the opinion that he is not entitled for any amount under the said head of account. Hence, I set aside the amount fixed by the Tribunal under the head partial loss of earnings. ## **Other heads of claim** 22. With respect to the other heads of claim namely; medical expenses, bystander expenses, damage to clothing, transportation, extra nourishment, disfiguration, I find that the Tribunal has awarded reasonable and just compensation. 23. On an over all reappreciation of the pleadings and materials on record and the law laid down by the aforecited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and ## **MACA.No.465 OF 2013 12** ## given in the table below for easy reference. |Head of claim|Amount awarded by the Tribunal|Amounts modified and recalculat ed by this Court| |---|---|---| |Loss of earnings|9,000/-|15,000/-| |Partial Loss ofearnings|4,500/-|Nil| |Bystander expenses|8,00/-|8,00/-| |Extra nourishmen t|2,50/-|2,50/-| |Medical expenses|7,130/-|7,130/-| |Pain and sufferings|15,000/-|25,000/-| |Damage to clothing|250/-|250/-| |Loss of earning power|30,600/-|51,000/-| |Loss due to disfiguratio n|5,000/-|5,000/-| |Transportat ion|750/-|750/-| |Total|73,280/- (reduced by 50% to 36,640/-)|1,05,180/-| **MACA.No.465 OF 2013 13** In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.68,540/- with interest at the rate of Rs.9% per annum on the enhanced compensation from the date of petition till the date of realisation excluding the period of delay of 438 days as ordered by this Court on 29.1.2018 in C.M.Appln.No.558 of 2013 along with proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant shall forward a certified copy of this judgment to the 3[rd] respondent by registered post. Tribunal shall disburse the additional compensation to the appellant in accordance with law. Sd/- ## **C.S.DIAS** ## **JUDGE** pm