Rajan and others v. Puliankodan Salam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938** **MACA.No. 2010 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 112/2000 of ADDL.MACT,THALASSERY DATED 24-05-2005** ## **APPELLANT/PETITIONER:** **---------------------------------** **RAJAN, S/O PARAMESWARAN THEKKUMALA HOUSE, P.O.CHERAL, AYYANKUNNU AMSOM AND DESOM, THALASSERY TALUK.** ## **ADDITIONAL APPELLANTS** **2. LEELA RAJAN W/O LATE RAJAN AGED 46 YEARS THEKKU MALYIL, P.O. CHARAL, IRITTY** **3. LIJA RAJAN THEKKUMALAYIL CHARAL (P.O.) IRITTY, KANNUR DISTRICT** **4. SANDYA RAJAN THEKKUMALAYIL CHARAL P.O. IRITTY, KANNUR DISTRICT** **5. RAJI T.RAJAN THEKKUMALAYIL CHARAL (P.O.), IRITTY KANNUR** **FIRST APPELLANT DIED AND ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS PER ORDER DATED 1.7.2015 IN I.A.NO.965/2015** **BY ADV. SRI.P.V.SURENDRANATH** **MACA NO.2010/2006** **2** ## **RESPONDENTS/RESPONDENTS:** **--------------** ## **1. PULIYANKODAN SALAM** **S/O.PULIYAN MOIDEEN, VILAMANA AMSOM,, KILIYANTHARA, THALASSERY TALUK, (DRIVER OF THE JEEP BEARING** **REG.NO.KL.13D/3040).** **2. N.PREMERAJAN,** **PREMALAYAM, KEEZHUR, IRITTY P.O.,, THALASSERY TALUK,, (OWNER OF THE JEEP BEARING REG.NO.KL.13D/3040).** **3. THE ORIENTAL INSURANCE CO. LTD.,** **CITY BRANCH OFFICE,, SOUTH BAZAR, KANNUR.** **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - **M.A.C.A.No.2010 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of July, 2016 ## **JUDGMENT** ## Ravikumar, J. Originally the appeal was filed by the injured petitioner seeking enhancement of the compensation granted by the Additional Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)No.112/2000. He sustained injuries in a motor vehicle accident that occurred on 10.09.1999 at about 6.30 p.m. He was then travelling in an autorickshaw bearing Reg.No.KL 13 D 8745 from Charal to Kuttupuzha. When the vehicle reached Valavupara, a jeep bearing Reg.No.KL 13 D 3040 driven by the first respondent, coming from the opposite direction, hit against the autorickshaw. Consequently, the appellant sustained injuries. He was taken to Thalassery Co-operative Hospital, where he had been inpatient for a period of 50 days. Going by Ext.A3 wound certificate and Ext.A9 discharge summary, the appellant sustained the following injuries : MACA No.2010/2006 2 1. Lacerated wound of 3 cm. X 1 cm. X 1 cm. Over the left side of the chin 2. Lacerated wound of 2 cm. X 1cm.x ½ cm. Little lateral to injury No.1. 3. Abrasion of 1 ½ cm. X ½ cm. Over the right leg, fracture shaft of left femur, condylar fracture of left tibia, posterior disloccation of left knee. 2. It is in the said circumstances that the filed the above mentioned claim petition seeking compensation of Rs.3 lakhs. The Tribunal considered the documentary evidence consisting of Exts.A1 to A10 and the oral testimony of the appellant as PW1 and assessed a total compensation of Rs.62,800/-. Though no evidence was adduced by the respondents, the Tribunal found that the accident occurred due to the composite negligence of the drivers of both the vehicles viz, the autorickshaw and the jeep. Based on the said finding, the Tribunal held that the claim petition is bad for non-joinder and consequently held that the appellant is entitled only to get 50% of the amount assessed. Consequently, the third respondent, insurer of the offending vehicle MACA No.2010/2006 3 was held liable to idemnify the second respondent, the insured owner of the jeep. In fact, the Tribunal furthr held : “ Therefore, I find that the 3[rd] respondent is liable only to the extent of 50% to indemnify the 2[nd] respondent for the vicarious liability of the negligence of the first respondent and the owner, driver and insurer, if any, of the autorickshaw are liable for the remaining extent of the liability at 50% for non-joinder. Issue is answered accordingly.” 3. The Tribunal after assessing the compensation payable as Rs.62,800/-, consequently passed the award as follows : “In the result, this petition is allowed and an award is passed allowing the petitioner to recover a sum of Rs.31,400/(Rupees thirty one thousand and four hundred only) with interest thereon @ 9% per annum from 21-1-2000, the date of application till the date of payment or realisation, from respondents 1 to 3 with proportionate cost.” 4. It is feeling aggrieved by the said judgment and award and seeking enhancement of the quantum of compensation that the MACA No.2010/2006 4 captioned appeal has been preferred. 5. We have heard the learned counsel on both sides. 6. The contention of the learned counsel for the appellant is that the Tribunal granted only inadequate compensation under all the heads and it is the erroneous fixation of amounts under different heads that resulted in deprivation of just compensation. The learned counsel for the appellant contended that the Tribunal had ignored the specific averments taken up in the claim petition regarding occupation and income. It is the submitted that in the claim petition it was specifically averred that the deceased was a construction worker and was earning Rs.4,500/- per month. Ignoring the said averments, the Tribunal fixed the notional monthly income at Rs.1,500/- for the purpose of calculating the compensation payable towards loss of earnings. It is the further contention that the Tribunal ought not to have declined to assess the permanent disability based on Ext.A10 disability certificate. The learned counsel submits that going by Ext.A10 disability certificate, the permanent disability of the deceased was assessed as 30%. Evidently, the Tribunal declined to accept the same and also to grant MACA No.2010/2006 5 compensation for disability on the ground that Ext.A10 disability certificate is not one issued by a duly constituted medical board and further that the Doctor who issued Ext.A10 disability certificate was not examined before the Tribunal. Evidently, as per Ex.A10 the permanent disability of the appellant was assessed as certified as 30%. When such higher percentage of disability was assessed and certified it is incumbent on the claimants to prove the same by examining the doctor who issued the same. Admittedly, in this case the appellants failed to get examined the Doctor who issued Ext.A10 disability certificate. Evidently, it is not a certificate issued by a duly constituted medical board. In such circumstances, we are of the view that the Tribunal cannot be said to have committed an error in declining to accept and act upon Ext.A10 disability certificate. 7. The learned counsel further contended that the Tribunal had not granted adequate compensation under the head 'pain and suffering' as also for 'loss of amenities'. It is the further contention that the Tribunal has unjustly effected deduction of compensation on the ground that the accident occurred due to the composite negligence of MACA No.2010/2006 6 the drivers of the autorickshaw and the jeep, the vehicles involved in the accident. 8. We will now, consider the question whether the Tribunal was justified in limiting the award to 50% of the amount assessed as compensation. A close scrutiny of the impugned judgment would reveal that virtually the finding of the Tribunal is to the effect that the third respondent being the insurer of the jeep belonging to the second respondent is liable to indemnify 50% of the compensation assessed i.e. Rs.31,400/- and that the owner, driver and insurer if any of the autorickshaw are liable for the remaining extent of liability. After having held so, the Tribunal awarded only an amount of Rs.31,400/-. The question is whether after assessing the compensation payable as Rs.62,800/- based on the finding of composite negligence as the cause of accident, the Tribunal is justified in limiting the award to 50% of the amount assessed. 9. In the contextual situation, it is relevant to refer to the decision of the Honourable Apex court in **Khenyei v. New India Assurance Co. Ltd. (2015 3 KHC 70 (SC))** . The Honourable Apex MACA No.2010/2006 7 Court held that even in a case where the accident is caused by composite negligence of drivers, it will be open to the claimant to recover the compensation from one of the joint tort feasors or from both. In the light of the said decision, the award to the extent it limits the compensation to Rs.31,400/- i.e. 50% of the amount assessed cannot be sustained. It is to be noted that the Hon'ble Apex Court had also considered the course open to the joint tort-feasor who was made to pay the entire compensation in such eventuality as against the other joint tort-feasor. At any rate, non-joining of one of the joint tortfeasors is not a ground to effect deduction of the compensation assessed as payable. In the result, the finding of the Tribunal that the appellant is entitled only to 50% of the compensation assessed is set aside and we hold that the appellant is entitled to get the entire amount of compensation recovered from respondents 1 to 3 and based on the findings of the Tribunal that the third respondent is liable to indemnify the second respondent, the amount is liable to be deposited by the third respondent. Needless to say that in such eventuality the third respondent would be entitled to take recourse to get recovered the MACA No.2010/2006 8 amount otherwise payable by the other joint tort-feasor in accordance with law, we are leaving open that question. 10. Now, the question to be decided is whether the appellants viz., the legal heirs of the original appellant are entitled to get enhanced compensation in this appeal. Evidently, the Tribunal fixed the monthly income of the appellant notionally at Rs.1,500/-. The appellant was aged 43 years on the date of the accident. The accident occurred on 10.09.1999. True that the appellant had not adduced any evidence to establish his averments regarding the occupation and income i.e. the averment that he was working as a construction worker and was earning Rs.4,500/- per month. Still we are of the view that the fixation of the monthly income notionally at Rs.1,500/- is too meagre and it is liable to be interfered with. We are fortified in our view by the decision of the Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. ( 2011(13) SCC 236).** True that in that case the accident occurred to a coolie in the year 2004. The Hon'ble Apex Court fixed the monthly income at Rs.4,500/- notionally. The accident in question occurred about 5 years prior to the said incident involved in MACA No.2010/2006 9 **Ramachandrappa's** case. Taking into account all such factors, we are of the view that it is only just and proper to fix the monthly income of the appellant at Rs.3,000/- for calculation purpose. The Tribunal took the period of loss of earnings as 11 months. Since we have modified the monthly income for the aforesaid period, the appellant will be entitled to get an amount of Rs.16,500/- more under that head. 11. Towards pain and suffering, the Tribunal granted an amount of Rs.18,000/-. We have already taken note of the injuries sustained by the appellant. It is discernible from the impugned judgment itself that the Tribunal arrived at the conclusion that to recover from the injuries atleast 11 months is required. Certainly that itself will speak about the nature of the injuries sustained by the injured. In such circumstances we are inclined to grant Rs.7,000/- more under the head pain and suffering. Towards discomfort and loss of amenities, the Tribunal granted an amount of Rs.10,000/-. During the pendency of the appeal, the injured claimant passed away. As noticed herein before at the time of the accident, he was only 43 years. It is thus evident that he died at the age of 54 years pending the appeal. We are of the view that in such MACA No.2010/2006 10 circumstances, it will be only just and proper to grant some amount towards shortening of longevity. In such circumstances, taking note of the said aspect, we are inclined to grant an amount of Rs.10,000/- more under the combined head of discomforts, loss of convenience and shortening of longevity. In the light of our findings as above that the appellants are entitled to get the entire amount of compensation assessed by the Tribunal i.e. Rs.62,800/-. In other words, they are entitled to get released Rs.31,400/- more which was withheld owing to the reason mentioned hereinbefore. In the result, the appellant would be entitled to get compensation of Rs.64,900/- which is rounded to Rs.65,000/- over and above Rs.31,400/- withheld under the impugned award. The amount granted under this judgment viz, Rs.65,000/- will carry interest @ 8% per annum from the date of petition till realization. Needless to say that Rs.31,400/- will carry interest as fixed by the Tribunal under the impugned award. The third respondent is directed to deposit the entire amount now become payable along with interest at the rate as mentioned above within a period of two months from the date of MACA No.2010/2006 11 receipt of a copy of this judgment. There will be no order as to costs. The amount shall be shared in between the additional appellants in the ratio of 70:10:10:10. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv. 13/07/2016