MACA Nos. 1389/2011 and 1038/2011 (Sunil Kumar v. Sabu Varki & Others)

MACA.No.1038/2011, 1389/2011 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945_ ## _MACA NO. 1389 OF 2011_ _AGAINST THE ORDER/JUDGMENT OPMV 26/2001 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , THALASSERY_ ## _APPELLANT/PETITIONER:_ _SUNIL KUMAR, LAKSHMI NIVAS, NEAR SHIVA TEMPLE, TALIPARAMBA._ _BY ADVS. SRI.K.C.SANTHOSHKUMAR SRI.GOPAKUMAR G. ALUVA_ ## _RESPONDENTS/RESPONDENTS:_ - _1 SABU VARKI, S/O.VARKY, PALLIYATT HOUSE, POOLIKUTTY, THALASSERY-670 101._ - _2 GIREESHAN.M, S/O.KUMARAN, RAYAROTH HOUSE, P.O.MUNDERI, MOTTA, KANNUR-670 591._ - _3 ORIENTAL INSURANCE CO LTD REP.BY ITS DIVISIONAL MANAGER, KANNUR-670 001._ - _4 K.N.FAROOK, S/O.MAMMU, NAYAKKAN NADAKANDU HOUSE, P.O.CHIRAKKAL, KANNUR-670 011._ - _5 MS.UNITED INDIA INSURANCE CO LTD., REP.BY ITS DIVISIONAL MANAGER, KANNUR-670 001._ - _6 SHIVADASAN, S/O.MADHAVAN, ARMY MILK COLONY, UNIT NO.7, GEREGAON, MUMBAI-400 063._ MACA.No.1038/2011, 1389/2011 2 - _7 V.SUDHAKARAN, S/O.DAMODARAN, SANTHA NILAYAM, P.O.PALAYAD-670 661._ - _8 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, O.V.JUNCTION, ARBADI BUILDING, P.O.PONNANI, MALAPPURAM DISTRICT-679 577._ - _9 MANDERI SHIVADASAN, S/O.MADHAVAN, P.O.ALOOR, VIA-KALLETTUMKARA, TRICHUR DISTRICT-680 001._ _BY ADVS. SRI.A.AHZAR SMT.REKHA NAIR SRI.C.K.SREEJITH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, ALONG WITH MACA.1038/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1038/2011, 1389/2011 3 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945_ ## _MACA NO. 1038 OF 2011_ _AGAINST THE ORDER/JUDGMENT OPMV 107/2001 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , THALASSERY_ ## _APPELLANTS/PETITIONERS:_ - _1 VIJAYALAKSHMI K.P.V., W/O.NARAYANA MARAR (DIED)_ - _2 SATHEESH KUMAR, S/O NARAYANAN MARAR, LAKSHMI NIVAS, NERA SHIVA TEMPLE, TALIPARAMBA.P.O, TALIPARAMBA._ - _3 PRADEEP KUMAR, S/O -DO-_ - _4 SUNIL KUMAR, S/O -DO-_ - _5 PRAVEEN KUMAR, S/O -DO-_ - _6 SANDEEP KUMAR, S/O -DO-_ _BY ADVS. SRI.GOPAKUMAR G. (ALUVA) K.C.SANTHOSHKUMAR_ ## _RESPONDENTS/RESPONDENTS:_ - _1 SABU VARKI, PALLIYATT HOUSE, POOLIKUTTY, THALASSERY-670 101._ - _2 ORIENTAL INSURANCE CO.LTDREP.BY ITS DIVISIONAL MANAGER, KANNUR-670 001._ - _3 GIREESHAN.M, S/O.KUMARANRAYAROTH HOUSE,_ MACA.No.1038/2011, 1389/2011 4 - _P.O.MUNDERI, MOTTA, KANNUR-670 591._ - _4 N.N.FAROOK, S/O.MAMMU, NAYAKKAN NADUKANDU HOUSE, P.O.CHIRAKKAL, KANNUR-670 011._ - _5 M/S.UNITED INDIA INSURANCE CO.LTD., REP.BY ITS DIVISIONAL MANAGER, KANNUR-670 001._ - _6 SHIVADASAN S/O.MADHAVAN, ARMY MILK COLONY UNIT NO.7, GOREGAON, MUMBAI-400063._ - _7 V.SUDHAKARAN, S/O.DAMODARAN, SANTHA NILAYAM, P.O.PALAYAD-670 661._ - _8 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, O.V.JUNCTION, ARABADI BUILDING, P.O.PONNANI, MALAPPURAM DISTRICT-679 577._ - _9 MANDERI SHIVADASAN, S/O.MADHAVANP.O. ALOOR, VIA-KALLETTUMKARA, THRISSUR DISTRICT-680 001._ _BY ADVS. SRI.S.ARUN RAJ SRI.A.AHZAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, ALONG WITH MACA.1389/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1038/2011, 1389/2011 5 ## **JUDGMENT** ## **[MACA Nos.1389/2011, 1038/2011]** Both these appeals arose from a common award passed in O.P.(M.V.).No.107 of 2001, 26 of 2001 and other connected cases on the files of the Motor Accident Claims Tribunal, Thalassery. The appellants are the respective claimants in both the said claim petitions. M.A.C.A.No.1038 of 2011 is filed by the claimants in O.P. (M.V.). No.107 of 2001, whereas M.A.C.A.No.1389 of 2011 is filed by the claimant in O.P.(M.V.).No.26 of 2001. 2. The accident, in this case, occurred in the manner as follows: The appellant in M.A.C.A. No.1389 of 2011 was travelling with one Narayanan Marar and certain other persons in a jeep bearing Registration No.KL 13B 1988 through Taliparambu to Kannur, and when the jeep reached near Highway Junction at Valapattanam, due to the rash and negligence driving of the 2[nd] respondent, jeep driver, it hit against a goods autorickshaw driven by the 6[th] respondent and thereafter hit against a tourist bus driven by the 9[th] respondent. The 1st respondent owned the jeep, and it was insured with 3[rd] respondent. The goods autorickshaw MACA.No.1038/2011, 1389/2011 6 was owned by the 4[th] respondent and insured with the 5[th] respondent. The bus was owned by the 7[th] and insured with the 8[th] respondent. Due to the injuries sustained, Narayanan Marar died, and the appellant in M.A.C.A. No.1389 of 2011 sustained severe injuries. Seeking compensation for the death of the said person, his legal heirs submitted O.P.(M.V.) No.107 of 2001, whereas seeking compensation for the injuries sustained, the appellant in M.A.C.A. No.1389 of 2011 submitted O.P.(M.V.) No.26 of 2001. 3. The 3[rd] respondent/Insurance Company raised a contention that the jeep was issued with an “Act only” policy in which the coverage of the policy was not provided to the risks of the passengers carried in the said vehicle. The 5[th] and 8[th] respondents/insurance companies submitted written statements admitting the coverage of policy concerning the goods autorickshaw and the bus. However, they disputed the negligence on the part of the respective drivers. The quantum of compensation was also seriously disputed by them. The driver of the jeep, the owner of the autorickshaw and the owner of the bus have also filed written statements denying the negligence on their MACA.No.1038/2011, 1389/2011 7 part in driving their respective vehicles. They also disputed the quantum of compensation. 4. The evidence in these cases consists of oral testimonies of PWs 1 to 5 and documentary evidence in the form of Exts.A1 to A25, from the side of the claimants. From the side of respondents, Exts.B1 and B2 were marked. After the trial, the Tribunal arrived at the conclusion that the driver of the jeep was the person mainly responsible for the accident. Accordingly, 80% of the negligence was fixed upon him, whereas the drivers of the goods autorickshaw and the bus were imposed with the liability @ 10% each. As regards the quantum of compensation, in O.P.(M.V.) No.107 of 2001, Rs.1,05,400/- was awarded, whereas in O.P.(M.V.) No.26 of 2001, the quantum of compensation awarded was Rs.1,45,800/-. The said amount was permitted to be recovered in the proportion as referred to above, along with interest @ 7.5% per annum from the date of petition with Rs.1,000/- as cost. The Tribunal also found that as the policy issued by the 3[rd] respondent in respect of the jeep was an “Act only” policy and no additional premium was collected, the passengers carried in the said vehicle were not covered as per the policy. Therefore, the 3[rd] respondent Insurance MACA.No.1038/2011, 1389/2011 8 Company was exonerated from the liability. Thus, 80% of the contribution was directed to be recovered from respondents 1 and 2, and the remaining compensation was directed to be recovered from the 5[th] and 8[th] respondent Insurance Companies. These appeals are submitted by the respective claimants in such circumstances challenging the finding of the Tribunal on the question of negligence and also seeking enhancement of compensation. 5. Heard Sri.K.C.Santhosh Kumar, learned counsel appearing for the appellants, Smt.Rekha Nair, learned counsel appearing for the M/s.Oriental Insurance Company, the 2[nd] respondent in M.A.C.A. No.1038 of 2011 and the 3[rd] respondent in M.A.C.A. No.1389 of 2011 and Sri.S.Arun Raj, learned counsel appearing for the Insurer of the bus as well as the goods autorickshaw. 6. The first question to be considered relates to the finding of the Tribunal with regard to the negligence. It is discernible from the award that the Tribunal, after elaborately discussing the materials available on record and also taking note of the fact that the Police, after investigation, filed a charge sheet against the MACA.No.1038/2011, 1389/2011 9 driver of the jeep, arrived at the conclusion that the major contribution in the accident was from his part. After carefully going through the materials placed on record and the detailed analysis made by the Tribunal, I am of the view that there is no reasonable ground to interfere in the said contention. Moreover, the Tribunal entered the said finding in a common award where five claim petitions were disposed of and only in two of the same, appeals have been filed challenging the same. Therefore, I am of the view that the said finding need not be interfered with. 7. Of course, it is true that the said finding will disentitle the appellants herein to proceed against the 3[rd] respondent Insurance Company, the insurer of the jeep upon whom the main liability to the extent of 80% was imposed. However, the crucial aspect to be noticed in this regard is that, as far as the appellants in these claim petitions are concerned, nothing would preclude them from proceedings for recovering the compensation awarded by the Tribunal wholly or in part against anyone or all of the other respondents. This is particularly because, in the award, the Tribunal came to a definite conclusion that the drivers of all the vehicles contributed to the accident even though their respective MACA.No.1038/2011, 1389/2011 10 degree of contribution was different. This would make them joint tortfeasors, and their liability would be joint and several. Therefore, it is a case of composite negligence. The question as to the apportionment of liability and the recovery to be effected consequent to the award passed in such circumstances was a subject matter before the honourable Supreme Court in **Khenyei v. New India Insurance Co. Ltd. Others [(2015) 9 SCC 273].** After elaborate discussions, the Honourable Supreme Court summarized the conclusions in the manner as follows: “What emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/ claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant MACA.No.1038/2011, 1389/2011 11 to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/ tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.” 8. As per the observations made by the Honourable Supreme Court as above, in a case of composite negligence, the plaintiff/claimant shall be entitled to proceed against both or any one of the joint tortfeasors, and to recover the entire compensation as the liability of joint tortfeasors is joint and several. It is further observed that, in case all the joint tortfeasors have been impleaded and the Tribunal has determined the apportionment/extent of the negligence, one joint tortfeasor can recover the amount from the other in the execution proceeding in case he was compelled to pay the entire compensation. In the light of the categorical pronouncement of law on the question, I am of the view that, even though I am upholding the finding of negligence entered by the MACA.No.1038/2011, 1389/2011 12 Tribunal and the consequential apportionment arising therefrom, the same would not preclude the appellants herein in proceeding against any one of the respondents for realizing the same wholly or in part. This would mean that all the respondents except the 3rd respondent, the insurer of the Jeep, will be responsible for paying the compensation, and it shall be open for the appellants to proceed against any one or all of them. Therefore, to that extent, the award passed by the Tribunal, with regard to the question of negligence, shall stand modified. 9. Now, what remains relates to the quantum of compensation. ## **M.A.C.A. No.1038 of 2011** 10. This is a case in which the claim petition was submitted seeking compensation for the death of a person aged 70 years. He was a retired Teacher. For the purpose of awarding the compensation, even though an amount of Rs.3,000/- was claimed as monthly income, the Tribunal took the monthly income as Rs.2,000/- and calculated the compensation. Even though the learned counsel for the appellants points out that a monthly income of Rs.2,000/- is on the lower side, after examining the MACA.No.1038/2011, 1389/2011 13 materials placed on record, I am not inclined to accept the said contention. This is particularly because he was a person aged 70 years, and the accident occurred in the year 2000. Therefore, the amount of Rs.2,000/- appears to be reasonable. Hence, I do not find any scope for enhancement of compensation under the head of loss of dependency. However, while moving on to the other heads, it can be seen that the Tribunal has not awarded any compensation for loss of estate, whereas as per **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , the appellants are entitled to **Rs.15,000/-** as compensation under the said head and it is granted. Similarly, the Tribunal awarded only Rs.9,000/towards funeral expenses, whereas the actual entitlement would be Rs.15,000/-. Therefore, a further sum of **Rs.6,000/-** is granted under the said head. Another head which requires reconsideration is the loss of consortium. The appellants are wife and children of the deceased (total of five in number), and therefore, as per the principles laid down in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760]** and **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130]** all of them are entitled MACA.No.1038/2011, 1389/2011 14 for compensation for loss of consortium @ Rs.40,000/- each, thereby the total amount under the said head would come to Rs.2,40,000/-. The Tribunal has already awarded Rs.5,000/- under this head. However, a further sum of Rs.10,000/- was granted towards the loss of love and affection. In the light of **Satinder Kaur’s** case, if compensation is awarded for the loss of consortium, no separate amount needs to be granted for the loss of love and affection. Therefore, Rs.10,000/- already awarded by the Tribunal can be adjusted towards the amount now fixed by this Court towards loss of consortium. Thus, the additional amount payable under this head would come to **Rs.2,25,000/-** . Accordingly, the total additional compensation receivable by the appellants is determined as Rs.2,46,000/- [225000+6000+15000]. Thus, the total compensation in O.P.(M.V.) No.107/2001 is fixed as Rs.3,51,400/- (Rupees three lakh fifty one thousand and four hundred only) [246000+105400]. ## **M.A.C.A.No.1389 of 2011** 11. The appellant, in this case, was aged 33 years and was working as a salesman with a monthly income of Rs.3,000/-. According to him, he sustained severe injuries consequent to MACA.No.1038/2011, 1389/2011 15 which he suffered physical disablement as well. To substantiate the physical disability, he places reliance upon Ext.A12, which was issued by a private Doctor. The Tribunal accepted the monthly income of the appellant as Rs.3,000/-, which is in tune with the claim, and therefore, I do not find any scope for further enhancement as far as the monthly income is concerned. Ext.A10 is the wound certificate, and the injuries noted are as follows: “Fracture on clavicle right, pubic symphysis right, pubic ramus right with dislocation of C2 C3” 12. On the basis of the same, the Ext.A12 disability certificate was issued by a Doctor who certified the whole body disability as 20%. However, the Tribunal reduced the same and accepted only 12%. The learned counsel for the appellant would submit that the reasons cited by the Tribunal for lowering the percentage of disability were not proper, and the entire percentage of disability as certified therein has to be taken. However, the learned counsel for the Insurance Company opposes the said contention by pointing out that a reasonable assessment has been made, as it is pointed out that all the fractures were united. I have carefully gone through the Annexure-A12 document. It is seen that, even though the fractures were united, the Doctor noted the MACA.No.1038/2011, 1389/2011 16 restricted movements of the spine because of the injuries sustained to C2 and C3. On carefully going through the contents of the same, I could not find any discrepancy therein to discard the percentage of disability certified therein. In **Manikantan v. Janardhanan Nair [(2021) 6 KLT SN 32],** this Court specifically considered the acceptability of the medical certificate issued, and it was held that the Tribunal was not justified in simply scaling down the percentage of disability certified by the Doctor in the absence of specific discrepancies. It was also held that if the Tribunal was not satisfied with the percentage of disability, it ought to have referred the injured to the Medical Board to assess the disability. When considering Ext.A12 and the injuries as noted in Ext.A10, I do not find any justification for scaling down the percentage of disability certified, and therefore, I am inclined to take the physical disability as 20%. Another aspect to be noticed is that, even though the appellant's age reflected as per the Medical Record was 33 years, the Tribunal included him in the age group of 35-40 and applied a lessor multiplier. 13. The only reason mentioned is that he has to be included in 35-40 in the absence of solid evidence. After perusing the MACA.No.1038/2011, 1389/2011 17 records, I am not inclined to accept the same. Since in the medical records, including the wound certificate, which were prepared immediately after the accident, the age is mentioned as 33, I do not find any justifiable reason to suspect the age shown therein. Therefore, I am of the view that he can be included in the age group of 30-35 years, and thus, the multiplier applicable should be 16. While re-assessing the compensation with the revised criteria, the amount of compensation under the head disability is Rs.1,15,200 [3000 x 12 x 16 x 20/100]. The amount already awarded by the Tribunal is Rs.69,120/-. After deducting the said amount, the additional compensation would come to **Rs.46,080/** -. Moving on to the other heads, it can be seen that the Tribunal has awarded Rs.20,000/- under the head of pain and suffering, which appears to be on the lower side. Considering the nature of the injuries, which are very serious in nature, and the consequential disability thereof, a further sum of **Rs.10,000/-** has to be awarded under the said head. Similarly, no amount is awarded by the Tribunal for compensation for loss of amenities. Considering the serious nature of disability, I am of the view that an amount of **Rs.25,000/-** can be granted under the said head. Thus, the total MACA.No.1038/2011, 1389/2011 18 additional compensation would come to Rs.81,080/[46080+10000+25000], and the total compensation is re-fixed as Rs.2,26,880/- [145800+81080]. In the light of the aforesaid observations and findings, both these appeals are allowed. All the respondents except the third respondent, the insurer of the Jeep bearing registration No.KL-13 B 1988, are held liable to pay the compensation jointly and severally. The appellant shall be entitled to recover the compensation from all or any of them, wholly or in part. In the event of any one of the respondents is compelled to pay the entire compensation, it shall be open for them to recover the said compensation from the other respondents including respondents 1 and 2, the owner and driver of the jeep, except the 3[rd] respondent. The quantum of compensation in O.P.(MV).No.107 of 2001 is fixed as Rs.3,51,400/- (Rupees three lakh fifty one thousand and four hundred only), and in O.P.(MV).No.26 of 2001, the amount receivable by the appellant is fixed as Rs.2,26,880/- (Rupees two lakhs twenty six thousand eight hundred and eighty only). The said amounts could be recovered along with interest at the rate of 7.5% per annum and proportionate cost from the date of petition MACA.No.1038/2011, 1389/2011 19 till realization. The finding of exonerating the insurer of the jeep from the liability is confirmed. However, it is clarified that, as the appeal is filed with a petition to condone the delay of 249 days, the appellants shall not be entitled to the interest for the additional amount for the period of delay. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/Scs/5.12.2023