P. Abdul Azeez & P. Kahadeja v. Padmanabhan Nair & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938** ## **MACA.No. 482 of 2009 ( )** **------------------------OP.MV.1998/2004 of THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE** **APPELLANT(S): ------------** **1. P.ABDUL AZEEZ, AGED 47 YEARS, SON OF HASSAN KUTTY, PERINKATAKATTUHOUSE, KOLATHARA POST, KOZHIKODE.** **2. P.KAHADEJA, WIFE OF P. ABDUL AZEEZ, PERINKATAKATTU HOUSE, KOLATHARA POST, KOZHIKODE.** **BY ADVS.SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH** **RESPONDENT(S):** ## **--------------** **1.PADMANABHAN NAIR, AGED 39 YEARS, SON OF KUNHIKRISHNAN NAIR, MELETH HOUSE, POITHACHI POST, KASARGOD.** **2.THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO LTD., PADMAVATHI COMPLEX, M.G. ROAD, KASARGODE.** **R2 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** C.K.ABDUL REHIM & SHIRCY V, JJ. ----------------------------------------------MACA.No. 482 of 2009 ----------------------------------------------Dated this the 24th day of January, 2017 JUDGMENT ## Abdul Rehim,J. Father and mother of a person aged 20 years who died in a motor vehicle accident occurred on 25.7.2004, who were claimants before the MACT, Kozhikode in OP(MV) 1998/2004, are in appeal challenging the Award. The accident occurred when a Jeep bearing No.KL.14-B 7696 hit against the Motor Cycle upon which the deceased was travelling as a Pillion Rider. The respondents before the Tribunal are the owner cum driver of the Jeep and the Insurer of the Jeep. The Tribunal awarded a total compensation of Rs.2 lakhs . But held that the claimants are entitled only to 50% of the compensation, finding that the rider of the motor cycle had also contributed negligence in causing the accident to the extent of 50%. The above MACA.482/2009 2 appeal is filed challenging the quantum of compensation awarded as well as challenging the reduction of 50% made by the Tribunal based on the finding of contributory negligence. 2. Heard; counsel for the appellant and Sri.P.V.Jyothi Prasad, Standing Counsel appearing for the 2[nd] respondent Insurance Company. 3. At the first instance we may deal with the challenge against the finding of the contributory negligence. Admittedly, the accident occurred when the Jeep and the Motor Cycle were collided. The deceased was the pillion rider on the Motor Cycle. The claim petition was filed alleging that the accident occurred solely due to the negligence of the 1[st] respondent, who was the driver of the Jeep. Before the Tribunal the appellants have produced Ext.A1, copy of the FIR. It would indicate that, with respect to the accident the appellants had registered a case against the 1[st] respondent. The appellants have not adduced any MACA.482/2009 3 oral evidence. Contention raised by the respondents before the Tribunal was that the rider of the Motor Cycle was solely negligent in causing the accident and that the FIR was registered by implicating the Driver of the Jeep as accused, only because the investigating agency was aware that no claim would be maintainable against the insurer of the motor vehicle. The Tribunal found that the FIR was registered at the instance of the person who has not witnessed the accident and he is the uncle of the deceased. Having found unable to fix the sole negligence on the part of the driver of the Jeep based on Ext.A1 FIR alone, the Tribunal apportioned the negligence between two vehicles at the ratio of 50% each., 4. Learned counsel for the appellants contended that, the Tribunal went highly erred in determining the contributory negligence and failed to appreciate that it is a case of composite negligence of both the drivers, who are joint tortfeasors. It is contended that the Tribunal missed MACA.482/2009 4 to take note of the settled legal position that, in the case of composite negligence it is the joint and several liability of the joint tortfeasors. The Tribunal should not have apportioned the liability; but should have held that both the owners are liable for the entire amount of compensation, jointly and severally. It is contended that in such cases, it is for the claimant to sue any one of the vehicles and the nonimpleadment of any of the vehicle will not defeat the claim. In support of the above said contention the appellants had cited a decision of the hon'ble Supreme Court in **T.O.Anthony vs. Karvarnan and others (2008 (3) SCC 748** ). The Hon'ble Supreme Court in the above said case observed that, when two vehicles are involved in an accident and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if MACA.482/2009 5 so whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore when the injured himself is partly liable, the principle of composite negligence will not apply, nor can there be an automatic inference that the negligence was 50:50. On the other hand, the apex court held that, the composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer 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 cases, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of MACA.482/2009 6 each wrongdoer 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. 5. The above principle is reiterated the subsequent decision in **Pawan Kumar and another vs. Harkishan Dass Mohan Lal and others (2014(3) SCC 590).** In a more recent decision, in **Khenyel vs. New India Assurance Company Limited and others (2015 (9) SCC 273)** it is held by the apex court that, when the accident occurred due to composite negligence of more than one person, they would be liable jointly and severally to pay the compensation, since they being the joint tortfeasors . In such cases, the victim is entitled to sue any of the joint tortfeasors or all of them for recovery of entire amount of compensation. The extent of liability of each of them MACA.482/2009 7 separately is neither required to be established by the victim/claimant, nor required to be determined by the court/Tribunal for the purpose of payment of compensation. Even if the claimant impleads all the joint tortfeasors and the court/Tribunal is able to determine their inter se liability, their liability would remain joint and several. Furthermore, the apportionment of compensation proportionate to the extent of negligence of each of the joint tortfeasors is not required for payment of compensation to the victim/claimant. Even if only one of the joint tortfeasors is implealded by the claimant, he would be obliged to make full payment of compensation. It is specifically found that non impleadment of other joint tortfeasors is not a defence to reduce the compensation payable to claimant. 6. Based on the settled legal precedents as mentioned above, we are of the opinion that the Tribunal went erred in reducing the compensation. Undoubtedly, it is proved MACA.482/2009 8 beyond doubt that the accident occurred while the Jeep and the Motor Cycle collided. Even assuming that the claimants failed to prove the sole negligence on the driver of the Jeep, it cannot be denied that he is one among the tortfeasors as held in Khenyei's case (Supra). The victim is entitled to sue any of the joint fortfeasors for recovery of the entire compensation . In such case the extent of liability is not required to be adjudicated by the Tribunal. Therefore we are of the opinion that the respondents herein are at liability to pay the entire compensation for which the appellants/claimants are entitled. 7. The next question is regarding the quantum of compensation. The deceased was a non earning member. The accident occurred in the year 2004. The Tribunal adopted the multiplier of 15 on the basis that his mother, one of the claimant, was aged 43 years. Learned counsel for the appellants contended that it is a wrong method of calculation, based on the dictum laid by the hon'ble MACA.482/2009 9 Supreme Court in **Sarala Varma vs. Delhi Transport Corporation (2010 (2) KLT 802(SC).** It is to be noted that based on the dictum laid in the said decision the multiplier need to be adopted should be based on the age of the deceased. It is not in dispute that the multiplier to be adopted considering the age of the deceased as 20 years, is 18. For the purpose of determining the loss of dependency the Tribunal had fixed the notional income of the deceased at Rs.18000/- per annum which in turn will work out to Rs. 1500/- per month. We are of the opinion that the amount fixed is highly inadequate. Considering the fact that the accident occurred in the year 2004 and also considering the future prospects of income which would have been derived by the deceased, had he been alive, we fix Rs.3000/- as monthly income of the deceased for the purpose of computation. Considering a deduction of ½ (one half) towards personal expenses, the compensation for loss of dependency would work out to Rs.3,24,000/- (3000 x 50% MACA.482/2009 10 x 12 x 18). Deducting the amount of Rs.1,80,000/- already awarded the appellants are entitled for an enhancement of Rs.1,44,000/- on that count. The Tribunal has awarded only a sum of Rs.10000/- towards loss of love and affection. Considering the fact that both the parents alone are the claimants, we are inclined to increase the said amount to Rs.1,00,000/-, thereby entitling the appellants for an enhancement of Rs.90,000/-. The amount of Rs.1000/awarded towards transportation expenses is on the lower side. We increase the same to Rs.4000/- which will entitle the appellants for an enhancement of Rs.3000/-. The Tribunal had awarded only a sum of Rs.2000/- towards funeral expenses which we are enhancing to Rs.15000/-, entitling for an addition of Rs.13,000/- on that count. We do not find any ground to interfere with the amounts awarded under other heads. 8. Thus the appellants are entitled to for a total enhancement of Rs.2,50,000/- over and above the amount MACA.482/2009 11 of Rs. 2 lakhs determined by the Tribunal. It is held that respondents herein are liable to pay the entire compensation of Rs.4,50,000/- awarded. The 2[nd] respondent being the insurer of the jeep is liable to make payment of the compensation. 9. In the result, the above appeal is allowed by setting aside the impugned Award to the extent it deducted 50% of the amount of compensation towards contributory negligence and also by enhancing the total compensation awarded by the Tribunal by a further sum of Rs.2,50000/-, making the total compensation for which the appellants are entitled as Rs.4,50,000/-. The total amount of compensation will carry interest @ 7.5 % p.a from the date of the claim petition till realisation. The 2[nd] respondent will make payment of the amount awarded as above, less amount if any already paid, within a period of two months from today. 10. On deposit of the amount, the appellants will be MACA.482/2009 12 entitled to approach the Tribunal seeking withdrawal, and the Tribunal shall pass appropriate orders considering the question of permitting withdrawal. C.K.ABDUL REHIM, JUDGE SHIRCY V, JUDGE Pmn/ MACA.482/2009 13