MACA No.1322 of 2004 (D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934** ## **MACA.No. 1322 of 2004 (D)** **------------------------OP(MV)NO.1722/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM -----------------------------------------------** ## **APPELLANT/PETITIONER::** **---------------------------------------** **T.R. SREEVALSALAN, S/O. RAJAPPAN, THAYYIL HOUSE, VELLOOR VILLAGE, MAVELLOOR P.O., KOTTAYAM.** **BY ADVS.SRI.MATHEW JOHN(K) SRI.SUJESH MENON V.B.** ## **RESPONDENT(S):** - **-----------------------------** **1. JAIMON. T. KURUVILLA, S/O. KURUVILLA, THOTTATHIL HOUSE, ONAMTHURUTHU P.O., KOTTAYAM.** **2. P.J. JAMES, S/O. P.K. JOSEPH,** - **PUTHENPURACKAL, NEENDOOR P.O., KOTTAYAM.** **3. ORIENTAL INSURANCE CO.LTD., KANJIKUZHY, KOTTAYAM.** **4. BABU, S/O. VASU, THAYYIL HOUSE, MEVELLOOR P.O., KOTTAYAM.** **5. V.N. RAMACHANDRAN, S/O. NARAYANAN, VAIPEL HOUSE, MEVELLOOR P.O., KOTTAYAM.** **6. ORIENTAL INSURANCE CO.LTD., THRIPPOONITHURA P.O., ERNAKULAM DISTRICT.** **R2 BY ADV. SRI.A.K.HARIDAS R3 & R6 BY ADV. SRI.V.P.K.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON 17-08-2012 DELIVERED THE FOLLOWING:** **sts** **C.R.** # **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** --------------------------------------------MACA No.1322 of 2004 --------------------------------------------Dated this the 17[th] day of August, 2012 ## **JUDGMENT** ## Ramakrishna Pillai, J The appellant, a 32 year old labourer approached the Motor Accidents Claims Tribunal claiming a sum of `3 lakhs as compensation on account of the injuries sustained by him in a road traffic accident occurred on 28.5.1996. 2. Allegedly, the appellant, who was a pillion passenger of a scooter met with an accident as the scooter collided with a lorry coming from the opposite direction. The first respondent was at the wheels of the lorry. It was insured with the third respondent Insurance Company. 3. Against the claim, the learned Tribunal awarded a sum of `65,580/- as compensation attributing negligence against the driver of the lorry and the rider of the scooter in the ratio 1:1. MACA No.1322 of 2004 2 4. In this appeal, the appellant is mainly challenging the adequacy of compensation awarded. In addition to that the appellant has taken a contention that the accident was due to the composite negligence of the driver of the lorry as well as the rider of the scooter and the appellant being a pillion rider, is only a third party and he be permitted to realise the compensation from the insurer of any one of the vehicles as the liability of driver, owner and insurer of both the vehicles are joint and several. 5. We have heard the learned counsel for the appellant and the learned counsel for the third respondent Insurance Company. The impugned award was perused. 6. Before going into the question of apportionment of the award amount, we will first consider the adequacy of compensation awarded by the learned Tribunal to the appellant. Ext.A5 is the wound certificate of the appellant which would go to show that he had sustained a lacerated wound on the scalp as well as lacerated wound on the left leg. There were multiple abrasions and swelling on the wrist. Ext.A7 is the discharge card issued by the Medical College Hospital where the appellant had undergone MACA No.1322 of 2004 3 treatment. It reveals that the appellant sustained a fracture to the left wrist coupled with a gallazzy fracture on the right. He was hospitalised for a period of 15 days. The learned Tribunal awarded a sum of `10,000/- as compensation for pain and suffering. Considering the nature of injuries and the period of hospitalisation, we are of the view that some more amount could have been awarded to the appellant towards compensation for pain and suffering. We award to the appellant an additional sum of ` **5,000/** - under that head. 7. Presumably, the appellant might have been compelled to take rest atleast for a few weeks and thus, he is entitled to get compensation for loss of amenities in life during the period of treatment and convalescence. We award ` **5,000/** - under that head, as no amount is seen awarded by the learned Tribunal. 8. According to the appellant, he was a headload worker and he was earning `2,500/- per month. The learned Tribunal fixed his monthly income at `1,500/-. The accident was in the year 1996. The appellant was aged 32 years at the time of the accident. So it is only reasonable to hold that the appellant might have been earning at least `2,000/- per MACA No.1322 of 2004 4 month, by engaging himself in any job. Presumably, he might not have been able to go for work at least for a period of three months. Hence, towards loss of earnings for three months, he is entitled to get `6,000/-. As the learned Tribunal has awarded only `3,400/- under that head, we award to the appellant an additional sum of ` **2,600/** - towards loss of earnings. 9. As the accident was in the year 1996, the appellant is entitled to get bystander's expenses during the period of hospitalisation at the rate of `150/- per day. As noticed above, he was hospitalised for 15 days. As the learned Tribunal has awarded only `1,000/-, we award to the appellant an additional sum of ` **1,250/-.** 10. The learned Tribunal has awarded a sum of `34,680/- towards permanent disability and `15,000/towards loss of earning power. As the appellant is a labourer, these two heads overlap. Hence, we reckon the aforesaid sum of `49,680/- towards compensation for residual disability affecting his earning power. Though a disability certificate was pressed into service, the learned Tribunal was not inclined to accept the same, as the same MACA No.1322 of 2004 5 did not inspire confidence due to the failure on the part of the appellant to prove the same. However, the learned Tribunal fixed the percentage of his disability at 10%. We feel that we would be justified in fixing the percentage of disability of the appellant at 12%, considering the nature of injury as well as his avocation. When the disability compensation is re-worked on the basis of the revised monthly income as well as the revised percentage of disability, it will come to `48,960/- only. As the learned Tribunal has awarded `49,680/-, which is more than what he is entitled to get, we are not awarding any additional sum towards permanent disability. Thus, the appellant becomes entitled to get a sum of ` **13,850/-** (Rupees Thirteen Thousand Eight Hundred and Fifty only), over and above what has been awarded by the Tribunal. 11. The learned Tribunal arrived at the conclusion that the accident had occurred due to the negligence of the driver of the lorry and the rider of the scooter. As the accident had occurred somewhere in the middle of the road which is evident from the scene mahazar, the learned Tribunal apportioned the blame among them in the ratio 1:1. MACA No.1322 of 2004 6 12. The argument advanced by the learned counsel for the appellant is that the appellant, being a pillion rider, was only a third party and, as the accident had occurred due to the composite negligence of the drivers of two vehicles, the appellant be permitted to realise the entire sum of compensation from the third respondent, as the liability is joint and several. In support of the argument, the learned counsel relied on two decisions. 13. The first decision relied on is **Anthony** v **Karvarnan** (2008 (3) KLT 431(SC) where the Apex Court had made a clear distinction between composite negligence and contributory negligence as under. “Composite negligence” refers to the negligence on the part of the two or more persons. Where a person is injured as a result of the 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 injured 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. On the other hand, where a person suffers injury partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence.” MACA No.1322 of 2004 7 14. The next decision relied on by the learned counsel for the appellant is **Sally Joseph** v **Jose V.Jose** (2002 (1) KLT 573). There, this Court observed, “Composite negligence is not a term defined or explained. It should ordinarily mean that both acts of negligence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. Principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the person wronged has a choice of proceeding against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is not otherwise made out. Primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negligence on his part, but as a result of the combined effect of the negligence of two or more other persons.” 15. What can be discerned from the decision cited above is that when the amount of fault of each wrong doer cannot be ascertained with reasonable certainty, an innocent claimant can claim compensation from anyone of them, without being driven to the risk of proving the role of each wrongdoer. 16. In this case, there was no act or omission on the MACA No.1322 of 2004 8 part of the appellant. Hence, we can identify this as a case of composite negligence of the driver of the lorry and the rider of the motor cycle. 17. In **Sally Joseph** v **Jose V.Jose** (supra) this Court went to the further extent of examining the scope and ambit of Section 110B of the Motor Vehicles Act, 1939 which corresponds to Section 168 of the Motor Vehicles Act,1988. It was held that while awarding the amount in a case of composite negligence, the Tribunal can direct payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay amounts to the claimant in proportion, as awarded by Tribunal, there is no problem for the claimant. But, if one of the parties liable does not want to honour the award of the Tribunal, it will be open to the claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other. Here, the appellant does not have a case that he is unable to recover 50% of the amount from the registered owner of the scooter. His case is that he is not in a position MACA No.1322 of 2004 9 to recover the amount from the insurer of the scooter as the policy in respect of the scooter was an 'Act only Policy' which did not extend to pillion rider. 18. The learned counsel for the third respondent insurance company invited our attention to the decisions of this Court in **National Insurance Company Limited** v **Sivasankara Pillay** (1995(1) KLT 51) and **National Insurance Company Ltd.** v **Yohannan** (1997(2) KLT 771) . The substance of these two decisions is that while determining the amount of compensation, the Tribunal is called upon to decide not only the compensation which confers to be just but the Tribunal shall also specify the persons to whom the compensation shall be paid and also specify the person who shall pay the said amount. It was further observed that there is specific bar of jurisdiction of civil courts under Section 110F of the Motor Vehicles Act 1939 which corresponds to S.175 of the Motor Vehicles Act, 1988 on the question relating to any claim for compensation which may be adjudicated upon by the Tribunal. 19. In the instant case, the owner, driver and insurer of both the vehicles involved in the accident were in the MACA No.1322 of 2004 10 party array. The learned Tribunal in exercise of the powers conferred upon it found that the driver of the lorry as well as the rider of the two wheeler were equally at default on the basis of the reliable evidence and apportioned the liability in the ratio 1:1. We do not see any reason to interfere with the said finding. It is true that, in a case of composite negligence where, it is extremely difficult to find out as to who was at fault, the claimant can proceed against the owner, driver and insurer of any one of the vehicles. In this case, on the basis of the available evidence, the learned Tribunal has found that the drivers of both the vehicles are liable in equal proportion. The challenge now raised by the appellant is only because the insurer of the scooter has disputed liability as the policy issued by them did not cover the risk of pillion riders as it was only an 'act only policy'. It has to be noted that the learned Tribunal has not found that the appellant would not get the full amount of compensation. It was apportioned among the owner, driver and insurer of both the vehicles in equal proportion. Hence, we see no force in the submission made by the learned counsel for the appellant that the appellant be permitted to realise the entire amount MACA No.1322 of 2004 11 from the third respondent. We uphold the finding of the learned Tribunal regarding apportionment. In the result, we allow the appeal only by enhancing the amount of compensation by `13,850/- as above with interest at the same rate specified in the impugned award. **Sd/- PIUS C.KURIAKOSE, JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ true copy P.S.TO JUDGE