Misssery, d/o Seithu Muhammed v Sulfikerali and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939** **MACA.No. 2541 of 2008 ( )** **-------------------------AGAINST THE AWARD IN OPMV 211/2003 of MACT, THODUPUZHA DATED 27-01-2007** **---------------------------------------------------** ## **APPELLANT(S)/PETITIONER :** **--------------------------------------------** **MISSERY, D/O.SEITHU MUHAMMED,R/AT. MATATHINGAL HOUSE, PUTHENGADY PO., ANGADIPPURAM, PERINTHALMANNA.** **BY ADVS.SRI.JOMY GEORGE SRI.LITHIN THOMAS** ## **RESPONDENT(S)/RESPONDENTS :** **---------------------------------------------------** ## **1. SULFIKERALI,** **KOTTAPARAMBAN HOUSE, THIROORKAD, ANGADIPURAM PO.,, VALAMBOOR VILLAGE, MALAPPURAM , (OWNER-CUM-DRIVER ON BUS, NOLKL-10'M-290)** ## **2. UNITED INDIA INSURANCE CO.LTD.** **REP. BY THE BRANCH MANAGER, MANCHERI,** **R,R1 BY ADV. SRI.DILIP MOHAN R,R3 BY ADV. SRI.P.SANKARANKUTTY NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.2541 of 2008** ## **============================ Dated this the 2[nd] day of August, 2017** ## **JUDGMENT** ## **Anil K.Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Thodupuzha dated 27.01.2007 in O.P. (MV)No.211/2003, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 27.12.2003 while she was travelling in an autorikshaw bearing Reg.No.KL-10/D-769. At the place of accident the autorikshaw was hit by a bus bearing Reg.No.KL-10/M-290 owned and driven by the first respondent and insured with the second respondent. As a result of the accident, she sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under different heads. Before the Tribunal the first respondent remained ex parte and the second respondent insurer of the bus filed written statement admitting insurance coverage of the offending bus. However they contended M.A.C.A.No.2541 of 2008 -2- that the accident occurred due to the rash and negligent driving of the autorikshaw by its rider and as such, they cannot be held liable to pay the amount of compensation. 2. Before the Tribunal Exts.A1 to A9 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the first respondent driver of the bus and also that of the driver of the autoriskhaw in which the appellant/claimant was traveling, and apportioned negligence between the driver of the bus and driver of the autorikshaw in the ratio 70:30. Under different heads, the Tribunal awarded a total compensation of Rs.73,384/-. Since the driver and owner of the autorikshaw are not made parties to the claim petition, the appellant/claimant was found entitled only to 70% of the amount so awarded. Accordingly, the second respondent insurer was directed to deposit a sum of Rs.51,380/towards 70% of the total amount of compensation awarded, together with interest at the rate of 6% per annum from the date of petition, i.e., from 02.04.2003 till realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and also challenging the M.A.C.A.No.2541 of 2008 -3- finding that the appellant/claimant is entitled for only 70% of the amount of compensation awarded, she is before this Court in this appeal. 5. Heard arguments. 6. The first issue that arises for consideration in this appeal is as to whether the Tribunal was justified in holding that the appellant/claimant is entitled for only 70% of the amount of compensation awarded, since the driver and owner of the autorikshaw were not made parties to the claim petition. 7. The above issue is no more _res integra_ in view of the law laid down by the Apex Court in **Khenyei v. New India Assurance Co. Ltd [(2015) 9 SCC 273]** , which was followed by a learned Judge of this Court in **Salam T.A. v. Shaji and others (2017 (3) KHC 324)** wherein it was held that, where a person is injured as a result of the negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of damages and the injured has the right to realise damages from all or any one of the wrongdoers. All wrongdoers need not even be made parties in such proceedings. Paragraph 3 of the said judgment reads thus; “3. Where a person is injured as a result of the negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of damages and the M.A.C.A.No.2541 of 2008 -4- injured has the right to realise damages from all or any one of the wrongdoers. All wrongdoers need not even be made parties in such proceedings. It is not necessary also for the injured to establish the extent of the negligence of each wrongdoer separately nor it is obligatory for the Court to determine the extent of the negligence of each wrongdoer in such cases, for the purpose of awarding damages to the injured. Even if all the wrongdoers are made parties to the proceedings and the Court renders a finding as to the extent of the negligence of each of the wrongdoers, their liability to the injured would remain joint and several. The question of apportionment of damages among the wrongdoers does not arise in such cases, for, the liability of the wrongdoers is joint and several and the injured has a corresponding right to realise the whole compensation from all or any one of them. The principle to be followed in such cases is that the insured shall be permitted to realise the compensation from the easiest/solvent wrongdoer. Determination of the extent of negligence between the wrongdoers even if made in such cases would be relevant only when one wrongdoer institutes proceedings against others for realisation of the damages paid by him over and above the damages which he is liable to pay. (See Khenyei v. New India Assurance Company Limited and others, 2015 (3) KHC 70 : 2015 (9) SCC 273 and Anthony v. Karvarnan, 2008 (2) KHC 80 : 2008 (3) SCC 748).” 8. In view of the law laid down in the decisions referred to supra, the appellant/claimant is entitled to realise the entire amount of compensation awarded by the Tribunal from the second respondent insurer and it will be open to the said respondent to institute proceedings against the owner, driver and insurer of the M.A.C.A.No.2541 of 2008 -5- autorikshaw for realisation of compensation over and above 70%, which they are liable to pay. It is ordered accordingly. 9. Now we shall deal with the quantum of compensation awarded by the Tribunal under different heads, in order to find out whether the appellant/claimant is entitled for enhancement of the compensation already awarded by the Tribunal. 10. The accident is of the year 2003 and at the time of accident the appellant/claimant was aged 48 years. She claimed a monthly income of Rs.4,000/- as a tailor. However no reliable materials were produced before the Tribunal in order to prove her monthly income. She has also not chosen to mount the box. It was in such circumstances that the Tribunal took the monthly income notionally at Rs.2,000/- for the purpose of assessing the compensation under different heads. 11. In **Ramachandrappa v. Manager Royal Sundaram Alliance Insurance Company Ltd [(2011) 13 SCC 236]** the Apex Court notionally re-fixed the monthly income of a Coolie, who met with a motor accident in the year 2004, at Rs.4,500/-. In the instant case, the accident occurred in December 2003 and at the time of accident the appellant/claimant was an able bodied person aged 48 years. Considering the economic conditions prevailing as on the date of accident, we deem it appropriate to take her monthly M.A.C.A.No.2541 of 2008 -6- income notionally as Rs.4,000/-, which is the monthly income claimed in the claim petition. 12. The injuries sustained by the appellant/claimant, as borne out from Ext.A4 Accident Register-cum-Wound Certificate, are (i) Clinically severe head injury, brain stem injury and diffuse brain injury; (ii) Lacerated wound on forehead 5x1x1 cm; (iii) Suspected fracture of shaft of humerus; (iv) Radial nerve palsy (right); (v) Lacerated wound upper leg below knee (right) 7x8 cm bone deep; and (vi) Loss of upper incisors. As a result of the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a total period of 87 days, which fact is not in serious dispute. After considering the nature of injuries sustained, as borne out from Ext.A8 discharge summary, the Tribunal took the percentage of disability as 10%. In the absence of any appeal filed by the second respondent insurer, the said finding in the impugned award has attained finality. 13. The compensation awarded by the Tribunal under different heads reads thus; |heads reads thus;|| |---|---| |Compensation awarded|In Rupees| |(1) Loss of earning|Rs.8,000/-| |(2) Transportation expenses|Rs.4,000/-| |(3) Extra nourishment|Rs.2,000/-| |(4) Bystander expenses|Rs.3,000/-| |(5) Treatment expenses|Rs.9,984/-| M.A.C.A.No.2541 of 2008 -7- |Compensation awarded|In Rupees| |---|---| |(6) Pain and suffering|Rs.25,000/-| |(7) Disability<br>(Rs.2000x12x11x10/100)|Rs.26,400/-| |Total|Rs.73,384/-| 14. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we find that the Tribunal is justified in awarding loss of earning for a period of 4 months. Since we have re-fixed her monthly income notionally at Rs.4,000/-, the compensation under this heads is reworked as Rs.16,000/-(4000x4) resulting an additional compensation of **Rs.8,000/-.** 15. Towards transportation expenses, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we find that the compensation already awarded by the Tribunal represents just and reasonable compensation under that head, which warrants no enhancement in this appeal. 16. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/- and a further sum of Rs.3,000/- was awarded under the head bystander expenses. Since the accident is of the year 2003, the appellant/claimant is entitled for payment of extra nourishment at the rate of Rs.100/- per day and that under the M.A.C.A.No.2541 of 2008 -8- head bystander expenses at the rate of Rs.150/- per day. Since she had undergone inpatient treatment for a period of 87 days, the compensation under the head extra nourishment is reworked as Rs.8,700/- (100x87), resulting an additional compensation of **Rs.6,700/-** . Similarly that under the head bystander expenses is reworked as Rs.13,050/- (150x87), resulting an additional compensation of **Rs.10,050/-** 17. Towards treatment expenses, the Tribunal awarded a sum of Rs.9,984/- covered by Ext.A9 series of medical bills, excluding the bills for purchase of food. Relying on Ext.A7 treatment certificate, the appellant/claimant claimed a further sum of Rs.43,694/- towards medical expenses. The Tribunal found that, as per Ext.A7 certificate, an amount of Rs.43,694/- is due as balance amount towards the total discharge bill. However, she has not produced the discharge bill of which reference is made in Ext.A7 certificate. It was in such circumstances that the Tribunal discarded the claim made on the strength of Ext.A7 certificate, which warrants no interference in this appeal. In the result, we find no reason to enhance the compensation awarded under the head treatment expenses. 18. Towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the M.A.C.A.No.2541 of 2008 -9- treatment the appellant had undergone, the compensation awarded as above represents just and reasonable compensation, which warrants no enhancement in this appeal. 19. Towards disability compensation, the Tribunal awarded a sum of Rs.26,400/- taking the notional monthly income as Rs.2,000/-, applying the multiplier of '11' and the percentage of disability as 10%. Since we have already re-fixed the notional monthly income of the appellant/claimant at Rs.4,000/-, the compensation under this head has to be reworked. Since she was aged 48 years at the time of accident, the proper multiplier applicable, going by the law laid down by the Apex Court in **Sarala** ## **Varma v. Delhi Transport Corporation [2010 (2) KLT 802** **(SC)]** is '13'. Therefore taking the notional monthly income as Rs.4,000/-, applying the multiplier of '13' and the percentage of disability as 10%, the compensation under the head disability is reworked as Rs.62,400/- (4,000x12x13x10/100) resulting an additional compensation of **Rs.36,000/-** . 20. The Tribunal awarded no amount under the head loss of amenities. Considering the nature of the injuries sustained and the disability that may arise therefrom, we deem it appropriate to grant a sum of **Rs.15,000/-** under this head as just and reasonable compensation. M.A.C.A.No.2541 of 2008 -10- 21. Towards damage to clothing no amount has been awarded by the Tribunal. Since the accident is of the year 2003, we deem it appropriate to grant a sum of **Rs.750/-** under this head. 22. In the result, the appellant/claimant will be entitled to an additional compensation of **Rs.76,500/-** (8,000 + 6,700 + 10,050 + 36,000 + 15,000 + 750) in this appeal, which will carry in interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 542 days in filing this appeal, which was condoned by the order dated 25.06.2012 in Crl.M.A.No.2613/2008, subject to the condition that in case enhanced compensation is awarded in this appeal, it which will not carry interest for the aforesaid period of delay. In addition to the said amount, the appellant/claimant will be entitled for a sum of **Rs.22,020/-** , towards 30% of the compensation withheld by the Tribunal, which will carry interest at the rate of **6%** per annum from the date of petition till realisation, as originally awarded by the Tribunal. 23. Since the insurance coverage of the offending bus is not in dispute, the second respondent shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. It will be open to the second respondent insurer to institute proceedings against the owner, M.A.C.A.No.2541 of 2008 -11- driver and insurer of the autorikshaw for realisation of the compensation paid over and above their liability, i.e., over and above 70%. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** VS /TRUE COPY/ PA TO JUDGE