MACA.No. 2344 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935** ## **MACA.No. 2344 of 2008** ## **-----------------------------------** ## **O.P(M.V)NO: 3301/2001 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE DISTRICT, DATED 22-01-2008.** ## **-----------------** ## **APPELLANT/PETITIONER IN OP(MV):** **------------------------------------------------------** *** SASIDHARAN, S/O.UNNIKRISHNAN NAIR, AGED 25 YEARS, RESIDING AT PUTHIYOTH HOUSE SOUTH KODUVALLY, KOZHKODE. (CORRECTED).** - **THE ADDRESS OF THE APPELLANT IS CORRECTED AS;** **“SASIDHARAN, S/O UNNIKRISHNAN NAIR, PUTHIYOTH HOUSE, POST. CHELAMBRA, MALAPPURAM DISTRICT.”** **AS PER ORDER DATED 13-08-2009 IN I.A.NO: 2248/09.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT(S)/RESPONDENTS IN OP(MV):** **-----------------------------------------------------------------** - **** 1. ABDUL SALAM, S/O.ASSAIN, PARAPPURATH HOUSE, SOUTH KODUVALLY.P.O, KODUVALLY KOZHIKODE.(DELETED)** ## **2. NEW INDIA ASSURANCE CO.LTD, THRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE.** - **** RESPONDENT NO:1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 27-11-2013 IN I.A NO: 3162/13 IN MACA NO:2344/08** **R2 BY ADV. SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 2344 OF 2008 ================== Dated this the 18[th] day of December, 2013 J U D G M E N T K.Ramakrishnan, J.: The claimant in O.P.(M.V).No.3301/2001 on the file of the Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of the lorry by its deriver owned by the 1[st] respondent and insured with the 2[nd] respondent. (1[st] respondent was deleted from the party array as per order in I.A.No.3162/2013 dated 27.11.2013 at the risk of the appellant in the appeal). After considering the evidence on record, the Tribunal found that the accident occurred due to the negligence of drivers of both the the vehicles involved in the accident and apportioned negligence between them in the ratio of 50:50 and assessed a total compensation of ` 13,400/- in the case of the appellant and awarded 50% of the same, since the owner driver and insurer of the jeep, in which, he was travelling were not made parties. Dissatisfied with the finding regarding negligence and deduction of the amount on account of the negligence on the part of the m.a.c.a.2344/08 - : 2 :- driver of the jeep and also quantum of compensation awarded, the appellant has filed this appeal seeking interference of this Court regarding the same. 2. Heard the learned counsel for the appellant and the learned counsel for the insurance company. 3. The learned counsel for the appellant submitted that since the appellant was only a passenger in the jeep and when an accident occurred involving two vehicles due to the composite negligence of the both drivers, he need only implead any one of the wrong doers and if the other party has got a case that the driver of the other vehicle also contributed to the accident, they will have to implead them and seek remedy against them, which was not done in this case. So the Tribunal was not justified in deducting 50% from the compensation on the ground that the driver of the jeep also contributed 50% of the accident and since they were not made parties to the proceedings, the appellant is entitled to get only 50% from the respondents, who alone were made parties in the proceedings, which is not correct. Further, the appellant was aged 25 years and he was a mason by profession and getting ` 6,000/- per month at the time of the accident. But the Tribunal has not even fixed the notional m.a.c.a.2344/08 - : 3 :- income, but arbitrarily awarded only ` 3,000/- under the head, 'loss of income' during the period of treatment. He was treated as inpatient for 10 days. But the Tribunal awarded only ` 1,000/under the head, 'incidental charges', which is also on the lower side. The amount awarded under the heads, 'pain and suffering', 'loss of amenities in life' etc. are also on the lower side. Therefore, the learned counsel of the appellant submitted that the appellant is entitled to enhancement on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the appellant has not produced the final report to show as against whom the police had laid charge in respect of the accident. They have also not produced scene mahazar to prove the place of occurrence to fix the negligence on either of the drivers. So under the circumstances, the Tribunal was perfectly justified in coming to the conclusion that the accident occurred due to the negligence of both the drivers and rightly apportioned the negligence between them in the ratio of 50:50. The total compensation awarded is also just and proper and no interference is called for at the hands of this Court. 5. We have considered the rival contentions of both m.a.c.a.2344/08 - : 4 :- parties in detail. 6. It is an admitted fact that the appellant was travelling in the jeep involved in the accident as a passenger. It is also an admitted fact that it was a case of collision between two vehicles. So under the circumstances, the injured need not prove negligence on either of the wrongdoers. He need only say that the accident occurred due to the negligence of the drivers of the vehicles and they can proceed against any one of the wrong doers and if the other party wanted to establish that there was no negligence on their part and the negligence is on the part of the other vehicle involved in the accident, it is for them to implead the owner, driver and insurer of the other vehicle involved and got a finding regarding negligence by adducing proper evidence. This was so held in the decision reported in **T.O.Antony v. Karvarnan and others** , (2008) 3 SCC 748. So the Tribunal was not justified in coming to the conclusion that since the appellant has not impleaded the owner, driver and insurer of the jeep in which he was travelling as a passenger, he is entitled to get only 50% of the amount assessed is not correct and the appellant is entitled to get the entire amount of compensation assessed as such, and it is for the respondents to m.a.c.a.2344/08 - : 5 :- proceed against the owner, driver and insurer of the other vehicle if they can able to establish that they have also contributed to the accident, by a separate proceeding. 7. As regards the compensation is concerned, though the appellant had a case that he was a mason by profession and getting ` 6,000/- per month, he had not produced any document to prove either his income or avocation. Considering the fact that he was aged 25 years at the time of the accident and he was a mason by profession, during 2001, a person of that status will be getting at least ` 2,000/- per month as his income. So, we fix his income as ` 2000/- per month. He has suffered fracture to his inferior pubic ramus and a lacerated wound on occipital region. There is no documents produced to show that he sustained any fracture to skull. No surgery was conducted and he was not treated with POP cast as well. Further considering the nature of injuries sustained, he could not have attended for his work for two months. So we award ` 4,000/- under the head, 'loss of earning' instead of ` 3,000/- awarded by the Tribunal. 8. It is seen from the documents produced that he was treated as inpatient for ten days. So, considering the nature of injuries and period of treatment undergone, the amount of m.a.c.a.2344/08 - : 6 :- ` 5,000/- awarded by the Tribunal under the head, 'pain and suffering' is also on the lower side and we enhance the same to ` 10,000/- from ` 5,000/-. The Tribunal has awarded only ` 1,000/- under the head, 'incidental charges'. Probably it was intended to provide compensation for bystander's expenses, extra nourishment etc. Considering the fact that he was treated as inpatient for ten days, the amount awarded appears to be on the lower side and we enhance the same to ` 3,000/- from ` 1,000/- under that head. Similarly, we are inclined to enhance the compensation for loss of amenities in life to ` 10,000/- from ` 2,000/-. Despite the persuasive arguments of the learned counsel for the appellant, we are unable to persuade ourselves to enhance compensation under the other heads. In all, the appellant would be entitled to get an additional compensation of ` 16,000/- over and above what has been awarded by the Tribunal, which the 2[nd] respondent-insurance company is liable to pay with 9% interest from the date of the claim petition till date of payment. The 2[nd] respondent-insurance company is also directed to pay the 50% deducted by the Tribunal for the negligence on the part of the driver of the jeep to the appellant with interest at the rate fixed by the Tribunal. Two months' time m.a.c.a.2344/08 - : 7 :- is granted to the insurance company to deposit this amount as well. Liberty is granted to the insurance company to proceed against the owner, driver and insurer of the jeep by initiating separate proceedings to recover the amount, if any, payable by them in respect of the accident in question by initiating appropriate proceedings. With above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge