P. Afnas v. Jaison Thomas & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935 MACA.No. 1183 of 2010 ( ) -------------------------OPMV 1271/2004 of M.A.C.T., THALASSERY DATED 3/10/09 ## APPELLANT(S)/PETITIONER.: -------------------------------- P.AFNAS, S/O. RASHEED, RASEENA MANZIL, KEEZHUR AMSOM, PAYANCHERY DESOM P.O.IRITTY, KANNUR DISTRICT. ## BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S)/RESPONDENTS.: ------------------------------------- 1. JAISON THOMAS, S/O. THOMAS, 30 YEARS, KOTTOOR HOUSE, P.O.KANCHIRAKKOLLI, PAYYAVOOR AMSOM KANCHIRAKKOLLI DESOM, KANNUR DISTRICT. 2. SUDHEESH K.B., S/O. BALAN, KOCHUVEZHAYAL HOUSE, P.O.KANCHIRAKKOLLI PAYYAVOOR AMSOM, KANNUR DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., ARISTO COMPLEX, MAIN ROAD, MAHE. R3 BY ADV. SRI.A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: uj. ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------- ## M.A.C.A. No.1183 of 2010 ----------------------------------------------------------------Dated this the 24[th] day of October, 2013 ## J U D G M E N T ## S. Siri Jagan, J The claimant in O.P.(M.V.).No.1271/2004 before the Motor Accidents Claims Tribunal, Thalassery, is the appellant herein. He filed the O.P., claiming compensation for the injuries suffered by him in a motor vehicle accident. He was travelling as a pillion rider in a motor cycle. The motor cycle collided with a jeep, which was owned by the first respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent causing and accident resulting in injuries to him. He filed the O.P., claiming compensation from the respondents for the injuries, on the ground that the accident occurred because of the negligence of the driver of the jeep. The tribunal, after considering the evidence adduced, came to the conclusion that both the 2[nd] respondent as well as the M.A.C.A. No.1183 of 2010 2 rider of the motor cycle were equally negligent in causing the accident and apportioned the negligence between the rider of the motor cycle and the driver of the jeep in the ratio 40:60. Thereafter, the tribunal assessed compensation due to the appellant under various heads as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Medical expense|16, 100| |2|Pain and sufferings|18, 000| |3|Transport to hospital|2, 000| |4|Extra nourishment and review|5, 000| |5|Disability income|15, 360| |6|Loss of amenities and others|20, 000| |7|Bystander's expense|1, 000| ||Total|77, 460| From the compensation assessed 60% was ordered to be paid to the appellant by the 3[rd] respondent insurance company, after deducting 40% for the contributory negligence of the rider of the motor vehicle, whose owner and insurer were not impleaded in the O.P. 2. The appellant challenges the findings of the tribunal, on both the questions of negligence as well M.A.C.A. No.1183 of 2010 3 as the quantum of compensation. According to the appellant, the negligence was solely on the driver of the jeep and there was no negligence on the part of the driver of the motor cycle. It is further contended that, even assuming that, the rider of the motor cycle was also negligent, that cannot result in any reduction of compensation due to the appellant, insofar as, under law, it is perfectly open to the appellant to proceed against either or both of the two tort-feasors. As such, if the respondents wanted to cast liability on the owner and driver of the motor cycle, it was for them to proceed appropriately. Therefore, the appellant submits that on both counts the tribunal went wrong in apportioning the liability for directing payment of compensation to the appellant. 3. Regarding the quantum of compensation, it is submitted that the compensation awarded by the tribunal is not commensurate with the injuries suffered by the appellant. It is also submitted that, the accident M.A.C.A. No.1183 of 2010 4 was on 02.08.2004 and the appellant was 16 years old at the time of the accident. The tribunal fixed a notional income of 2,000/-, which is on the lower side. Further₹ it is submitted that instead of 18, the tribunal adopted the applicable multiplier as only 16 for assessing loss of earning capacity. It is further submitted that the compensation for loss of amenities and other heads, are also on the lower side. 4. We have heard the learned counsel for the 3[rd] respondent insurance company as well. 5. On going through the award, we find that the tribunal has examined the evidence available very meticulously and has given elaborate reasons for arriving at the conclusion that both the drivers were negligent in causing the accident. The tribunal, relied on the scene mahazar prepared by the police, wherein, the spot of accident is 1.45 centimeters north from the central dividing line of the road where the accident occurred. The appellant was riding as a pillion rider in a motor M.A.C.A. No.1183 of 2010 5 cycle from east to west. If that be so, the motor cycle was on its wrong side on the spot of accident. But the tribunal considered the oral evidence as well as the position of the vehicles after the accident, to come to the conclusion that, both drivers were negligent, which resulted in the accident. We do not find any infirmity in the reasoning and conclusion arrived at by the tribunal. 6. But that does not mean that, the appellant can be deprived of any part of the compensation, on the ground that the deceased rider of the motor cycle was negligent and the appellant had not chosen to implied the rider, owner and insurance company of the motor cycle insofar as, the appellant has not in anyway contributed to the accident by his conduct. In the decision of the Supreme Court in **Anthony v. Karvarnan 2008 (3) KLT** **431 (SC)** , the Supreme Court has held that: “'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 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 M.A.C.A. No.1183 of 2010 6 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” The ratio of that decision is directly applicable to the appellant's case, insofar as the appellant was only a pillion rider in a motor cycle, the rider of which only contributed to the accident by his negligence along with the 2[nd] respondent, although, the appellant has proceeded only against the owner, driver and insurance company of the jeep. Therefore, the appellant cannot be denied the any part of the compensation because of the contributory negligence on the part of the rider of the motor cycle, in which the appellant was a pillion rider, in view of the decision of the Supreme Court in Anthony's case (supra). Consequently, we hold that, despite the finding regarding negligence on the part of the rider of the motor cycle, the appellant is entitled to recover the entire compensation from the respondents herein and it is for the respondents to proceed against the legal heirs of the rider (who is no more), driver and insurance M.A.C.A. No.1183 of 2010 7 company of the other vehicle for recovery of that part of the compensation attributable to the negligence of the rider of the motor cycle. We hold so. As far as the quantum of compensation is concerned, the appellant would contend that, he has suffered fracture to his lower radius as is clear from Ext.X1 disability certificate. But that injury was not mentioned in Ext.A8 wound certificate. Of course, the fracture of the mandible was mentioned in the wound certificate. In any event, Ext.X1 disability certificate certified only 4% disability, because of the difficulty in opening of his mouth fully. Therefore, we are not inclined to interfere with the percentage of disability since the wound certificate had mentioned only multiple abrasions on the right and left leg and right big toe medial aspect, and it is not very clear as whether the disability is on account of the injuries caused in the accident. Therefore, we are not interfering with the compensation assessed for loss of earning power, despite the fact that, the M.A.C.A. No.1183 of 2010 8 multiplier adopted is only 16 instead of 18. 7. On going through the assessment of compensation by the tribunal under other heads, we feel that just and proper compensation has been awarded under all heads. Therefore, we are not inclined to enhance the quantum of compensation despite the contentions raised by the counsel for the appellant. But we set aside the finding that, the 3[rd] respondent insurance company is liable to pay only 60% of the compensation assessed. Accordingly, we hold that the appellant is entitled to the entire amount of 77,460/-₹ assessed by the tribunal, as compensation due to the appellant with interest and costs as fixed by the tribunal, disbursement of which shall also be in accordance with the proportion fixed by the tribunal for disbursement and depositing in the Bank. With the above modification of the impugned award, the appeal is disposed of. However, we leave open the right of the 3[rd] respondent to recover the 40% due to the M.A.C.A. No.1183 of 2010 9 contributory negligence of the rider of the motor cycle from the legal heirs of the rider of the motor cycle, owner and the insurance company, if any. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss