Rafeeque @ Muhamed Rafeque v. T. Poulson and Oriental 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** **THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939** **MACA.No. 600 of 2012 ------------------------** **AGAINST THE JUDGMENT AND AWARD IN OP(MV).76/2010 of M.A.C.T. TIRUR DATED 28.1.2012** ## **APPELLANT/PETITIONER :** **------------------------** **RAFEEQUE @ MUHAMED RAFEQUE, AGED 40 YEARS S/O ALIKUTTY, ANTHOOR VALAPPIL HOUSE, KUTTIPPALA P.O CHITTEZHIKUNNU, NELLISSERI DESOM, PONNANI TALUK MALAPPURAM** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/RESPONDENTS :** **----------------------------** **1. T.D.POULSON, S/O DEVASSY, THEKKETHAIA HOUSE, KOOVAKKATTU KUNNU MELUR P.O, CHALAKKUDY, THRISSUR DISTRICT** **2. THE BRANCH MANAGER,** **ORIENTAL INSURANCE CO. LTD. CITY HEIGHTS BUILDING, 1ST FLOOR, SOUTH JUNCTION CHALAKKUDI P.O.** **R2 BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.600 of 2012 ----------------------------------------------Dated this the 3[rd] day of August, 2017** ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the Award passed by the Motor Accidents Claims Tribunal, Tirur, dated 28.1.2012 in O.P.(MV)No.76 of 2010, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 18.11.2009 while he was travelling as a pillion rider in a motorcycle bearing registration No.KL-54/6490. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-11/P-1063 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. As a result of the accident, he sustained serious injuries. Alleging that the accident occurred due the rash and negligent driving of the motor car by the 1[st] respondent owner cum driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,12,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant and the disability certificate issued by the M.A.C.A.No.600 of 2012 :-2-: District Medical Board was marked as Ext.C1. On the side of the respondents, Exts.B1 to B4 were marked. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the motor car by the 1[st] respondent driver and also that of the rider of the motor vehicle. Accordingly, the Tribunal held that both the 1[st] respondent driver and the rider of the motorcycle in which the appellant/claimant was travelling as a pillion rider have contributed equally to the cause of the accident. Under different heads, the Tribunal awarded a total compensation of Rs.1,05,696/-. On a finding that the rider of the motorcycle has contributed 50% to the cause of the accident, the Tribunal limited the liability of the 2[nd] respondent insurer to 50% of the amount awarded, i.e., only an amount of Rs.52,848/-,which was rounded to Rs.52,850/- and the 2[nd] respondent insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 20.1.2010 till realisation, with a cost of Rs.2,000/-. 4. Feeling aggrieved by the award passed by the Tribunal to M.A.C.A.No.600 of 2012 :-3-: the extent of limiting the compensation payable to 50% of the total amount awarded and also challenging the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 2[nd] respondent insurer. 6. First we shall deal with the question as to whether the appellant can be denied 50% of the compensation amount on the ground that the rider, owner and insurer of the motorcycle in which he was travelling as a pillion rider were not made parties before the Tribunal. The said issue is no more _res integra_ in view of the judgment of the Apex Court in **Khenyei v. New India Assurance Company Ltd. [(2015) 9 SCC 273]** , which was followed by the decision of a learned Single Judge of this Court in **Salam T.A. v. Shaji and others (2017 (3) KHC 324)** . 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 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 M.A.C.A.No.600 of 2012 :-4-: 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.” 7. In view of the law laid down in the decisions referred to _supra_ , the appellant is entitled for the entire amount awarded by the Tribunal from the 2[nd] respondent insurer and the remedy open to the said insurer to recover the said amount by proceeding against the owner/rider/insurer of the motorcycle. 8. Now we shall deal with the quantum of compensation awarded by the Tribunal under different heads. ## M.A.C.A.No.600 of 2012 :-5-: 9. The accident is of the year 2009 and at the time of the accident, the appellant was aged 40 years. He claimed a monthly income of Rs.9,000/- as a driver. However, no reliable materials were produced before the Tribunal in order to prove his monthly income, other than mere production of his driving licence, which was marked as Ext.A8. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal took the monthly income notionally as Rs.3,300/- for the purpose of assessing compensation under different heads. 10. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court re-fixed the notional 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 is of the year 2009 and at the time of the accident, the appellant was an able bodied person aged 40 years. Considering the economic conditions prevailing at the time of the accident, we deem it appropriate to re-fix the monthly income of the appellant notionally at Rs.7,000/- for the purpose of assessing compensation under different heads. 11. The injuries sustained by the appellant, as borne out from M.A.C.A.No.600 of 2012 :-6-: ## Ext.A2 wound certificate read thus ; “Lacerated wound 12x4x1 cm. on the posterior aspect of (R) ankle; extending anteriorly; lacerated wound 7x3x1 cm lateral aspect of (R) foot; lacerated wound 5x3x1 cm on the anterior aspect of (R) foot; (R) second and fifth toes nearly separated from foot; crush injury (R) foot-doubtful vascularity little toe; fracture neck third, fourth and fifth toe (R) and fracture P1 of greater toe (R).” As a result of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 5 days, which is evident from medical records. Ext.C1 is the disability certificate issued by the District Medical Board, wherein a permanent partial disability of 10% has been assessed. 12. The compensation awarded by the Tribunal under different ## heads reads thus ; |Sl.<br>No.|Head of claim|Amount<br>claimed (in<br>Rupees)|Amount<br>awarded<br>(in<br>Rupees)| |---|---|---|---| |1|Loss of earning (Total)|40,000/-|9,900/-| |2|Loss of earning (Partial)|40,000/-|Nil| |3|Medical<br>and<br>miscellaneous<br>expenses|50,000/-|22,646/-| |4|Bystander expenses|Nil|500/-| |5|Transportation expenses|5,000/-|2,000/-| |6|Extra nourishment|5,000/-|750/-| |7|Damage to clothing, etc.|2,000/-|500/-| M.A.C.A.No.600 of 2012 :-7-: |Sl.<br>No.|Head of claim|Amount<br>claimed (in<br>Rupees)|Amount<br>awarded<br>(in<br>Rupees)| |---|---|---|---| |8|Pain and suffering|40,000/-|10,000/-| |9|Compensation<br>towards<br>permanent partial disability|80,000/-|59,400/-| |10|Compensation<br>for<br>loss<br>of<br>amenities|Nil|Nil| |11|Any other heads<br>:-<br>loss of earning power|50,000/-|Nil| ||TOTAL|3,12,000/-|1,05,696/-| 13. Towards 'loss of earning', the Tribunal awarded a sum of Rs.9,900/-, taking the monthly income notionally as Rs.3,300/-, for a period of 3 months. Considering the nature of injuries sustained, which includes crush injury at the right foot, we deem it appropriate to grant loss of earning for a period of 5 months. Since we have already re-fixed the monthly income of the appellant notionally at Rs.7,000/-, the compensation under this head is re-fixed as Rs.35,000/- (7,000x5), resulting an additional compensation of **Rs.25,100/-** . 14. Towards 'medical expenses', the Tribunal awarded a sum of Rs.22,646/-, covered by Ext.A7 series of medical bills. The compensation awarded as above, represents just and reasonable compensation, which warrants no enhancement in this appeal. 15. Towards 'bystander expenses', the Tribunal awarded a sum M.A.C.A.No.600 of 2012 :-8-: of Rs.500/- and under the head 'extra nourishment' a further sum of Rs.750/- was awarded. Since the accident is of the year 2009, the appellant is entitled for bystander expenses at the rate of Rs.200/- per day and 'extra nourishment' at the rate of Rs.150/- per day, for a period of 5 days' of hospitalisation. In the result, the compensation under the head 'bystander expenses' is refixed as Rs.1,000/- (200x5), resulting an additional compensation of **Rs.500/-** . The compensation awarded under the head 'extra nourishment' warrants no interference. 16. Towards 'damage to clothing', the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2009, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . 17. Towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained, as borne out from medical records, which includes, crush injury, fracture of neck, etc., we deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.15,000/-** . 18. Towards compensation under the head 'permanent partial disability', the Tribunal awarded a sum of Rs.59,400/-, taking the monthly income as Rs.3,300/-, applying the multiplier of '15' applicable M.A.C.A.No.600 of 2012 :-9-: to the age group of the appellant and the percentage of disability as 10% as certified in Ext.C1. Since we have already re-fixed the monthly income of the appellant as Rs.7,000/-, the compensation under this head is re-worked as Rs.1,26,000/- (7,000x12x15x10/100), resulting an additional compensation of **Rs.66,600/-** . 19. Towards 'loss of amenities', no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the disability that has arisen therefrom, as certified in Ext.C1 disability certificate, we deem it appropriate to grant a sum of **Rs.15,000/-** under this head. 20. In the result, the appellant/claimant will be entitled for a total additional compensation of Rs. **1,22,700** /- (25,100 + 500 + 500 + 15,000 + 66,600 + 15,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. In addition to this, the appellant/claimant will also be entitled to 50% of the original compensation withheld, i.e., 52,850/-, which will carry interest at the rate of 7.5% from the date of petition till realisation. 21. Since the insurance coverage of the motor car driven by the 1[st] respondent is not in dispute, the 2[nd] respondent insurer shall deposit the said amount before the Tribunal within a period of 2 months from M.A.C.A.No.600 of 2012 :-10-: the date of receipt of a certified copy of this judgment. On making such deposit, it will be open to the 2[nd] respondent insurer to recover 50% of the total compensation with interest by proceeding against the owner/rider/insurer of the motorcycle, in view of the law laid down in the decisions in Khenyei's case and Salam's case referred to _supra_ . The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** ami/ //True copy// P.A.to Judge