Raju @ Ouseph Pukayilakkaran v. Biju Devassy and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 MACA NO. 2281 OF 2009** **AGAINST THE JUDGMENT dated 28.02.2009 IN OPMV 17/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER IN O.P(M.V):** RAJU @ OUSEPH PUKAYILAKKARAN HOUSE, VAZHIYAMBALAM DESOM,, KODAKARA VILLAGE, MANAKULANGARA.P.O.,, MUKUNDAPURAM TALUK, THRISSUR DIST. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN O.P(MV):** 1 BIJU DEVASSY S/O.DEVASSYIKUTTY, KAVUNGAL HOUSE, MANAKULANGARA.P.O. 2 THE ORIENTAL INSURANCE CO. LTD. SOUTH JUNCTION, CHALAKUDY. BY ADV SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2281/2009 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.2281 of 2009 ---------------------------------------------------------Dated this the 8[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.17/2004 on the file of Motor Accidents Claims Tribunal, Irinjalakkda (in short 'Tribunal') for the injuries sustained by the appellant/claimant in a motor accident occurred on 29.07.2003 while travelling as pillion rider of motorcycle bearing Reg.No.KL-14D/3008 ridden by the first respondent. The claim petition has been filed under Section 163A of the Motor Vehicles Act, 1988 (in short 'the Act'). Total claim of Rs.3,18,000/- was made. 2. 1[st] respondent remained ex parte. 2[nd] respondent/insurer filed written statement contending that the appellant is not entitled to get compensation under Section 163A. M.A.C.A.No.2281/2009 3 It is also contended that the accident occurred due to the rash and negligent driving of driver of lorry and police charge has been registered against the lorry driver was later referred as undetected. 3. Exts.A1 to A7 marked from the side of the appellant/claimant and there was no oral evidence from either side. 4. Tribunal, on evaluating the pleadings as well as documents found that the annual income of the claimant exceeds the amount prescribed and there was no permanent disablement as defined under the provisions of Workmen's Compensation Act read with Section 163A of the Act. It is also found that the police charge and other documents produced from the side of the appellant/claimant would go to show that the case was registered against the driver of an unidentified lorry and later the crime was referred as undetected. The first information statement given by the claimant is also attributing negligence against the lorry driver but disowning the statement in the F.I.S he made an allegation of negligence against the first respondent in the claim petition in M.A.C.A.No.2281/2009 4 order to claim compensation under Section 163 A of the Act. Ultimately finding that there is no evidence to prove that the appellant sustained any permanent disablement and his income claimed exceeds the prescribed limit for bringing the claim under Section 163A of the Act, the claim petition was dismissed. 5. Aggrieved by the dismissal of the claim petition, the appellant approaches this Court in appeal. 6. Learned Standing Counsel Sri.V.P.K.Panicker appeared on behalf of the second respondent/insurer. Though notice was duly served upon the first respondent, there is no appearance on behalf of him. Heard learned counsel for the appellant as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused. 7. According to the learned counsel for the appellant, the appellant was the pillion rider in a motorcycle ridden by the first respondent and the accident occurred due to collision between the lorry and the motorcycle and hence this is a case of composite negligence and hence the liability of the rider of the motorcycle as well as that of the lorry driver is joint and several M.A.C.A.No.2281/2009 5 being joint tort-feasers and hence he can claim against either of them. So, even though the claim petition is not maintainable under Section 163A of the Act, it ought to have been considered as a petition under Section 166 and the dismissal of the claim petition as such is illegal and unsustainable. 8. Learned Standing Counsel, on the other hand, would contend that the award passed by the Tribunal itself would reveal that inspite of giving opportunities till the date of trial, the appellant did not care to opt to claim under Section 166 of the Act and hence rightly the Tribunal has dismissed the claim petition. It is also his contention that appeal arise out of an accident occurred on 29.07.2003 and claim petition is of the year 2004. Inspite of giving repeated opportunities by the Tribunal for opting to claim under Section 166 of the Act the appellant failed to opt the claim under S.166 of the Act. Hence if at all the case is remanded the insurance company is to be exonerated from payment of interest ultimately if award is passed in favour of the appellant. 9. The case records, i.e. Ext.A1 F.I.R and Ext.A2 M.A.C.A.No.2281/2009 6 chargesheet would reveal that the police case was that the accident happened due to the rash and negligent driving of lorry by the driver. The F.I.R has been registered in pursuance of the F.I.S given by the appellant in which there is specific allegation against the rashness and negligence on the part of the driver of lorry and no negligence was attributed against the 1[st] respondent/rider of the motorcycle. Ext.A2 final report also would go to show that the charges was against the driver of the lorry. Refer charge was filed since the driver of the lorry as well as the lorry involved in the accident could not be detected. However, in the claim petition, the claimant has specifically attributed negligence against the rider of the motorcycle. Tribunal had made a specific finding that the appellant raised allegation of rashness and negligence against the first respondent but his first complaint was against the lorry driver and since the lorry and driver could not be detected as a shortcut and for the purpose of claiming compensation, he developed a case against rider of the motorcycle but failed to prove the case alleged by adducing evidence. So, in effect, there is no finding regarding the M.A.C.A.No.2281/2009 7 rashness and negligence on the part of the first respondent by the Tribunal. 10. Now, I will come to the contention of the learned counsel for the appellant with regard to his claim for compensation in view of the allegation of composite negligence on the part of the rider of the motorcycle as well as the driver of the lorry **.** 11. In this context, Chapter IX of the Law of Torts by Ratanlal and Dheerajlal updated 26[th] Edition by Justice G.P.Singh dealing with Joint and Several Tort-Feasors is relevant to be extracted: _“All persons who aid, or counsel, or direct or join in the committal of a wrongful act, are joint tortfeasors. Persons are not joint tort-feasors merel because their independent wrongful acts have resulted in one damnum. To constitute a joint liability the act complained of must be joint and not separate. The joint liability arises under three circumstances:-_ _(i) Agency, when one person employs another to do an act which turns out to be a tort._ _(ii) Vicarious liability, i.e. the liability arising from relations, such as master and servant, principal_ M.A.C.A.No.2281/2009 8 _and agent, guardian and ward etc., which is discussed in Chapter VIII._ _(iii) Joint action – where two or more persons combine together to commit an act which amounts to a tort._ _When persons, not acting in concert, by their wrongful acts, committed substantially contemporaneously, cause damage to another person, they are not joint tort-feasors but several or concurrent tort-feasors. The damage caused by several tortfeasors may be the same or indivisible or it may be distinct referable to each tort-feasor. In case where the damage caused by each of the several tort-feasors is distinct, each of them is liable only for the damage attributable to his own act. The legal position in respect of several tort-feasors causing the same or indivisible damage is now nearly the same as in respect of joint tort-feasors_ . ## Chapter II of Law of Torts by John Salmond dealt with Joint Wrongdoers as follows: _“Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and even in this latter case the_ M.A.C.A.No.2281/2009 9 _judgment so obtained against all of them may be executed in full against any one of them (h). How far there is any right of contribution or indemnity as between the wrongdoers themselves we shall consider later._ _2. Persons are to be deemed joint wrongdoers within the meaning of this rule whenever they are responsible for the same tort-that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases-namely, agency, vicarious liability, and common action._ 12. In this context, **T.O.Anthony v. Karvarnan and others : Manu/SC/7181/2008 : 2008(3) KLT 431 : (2008)** **3 SCC 748** , a two Judge Bench of the Apex Court while dealing with Sections 166 and 168 of the Act discussed the distinction between composite negligence and contributory negligence. Paragraph 6 of such decision is relevant in this context to extract which reads thus: _“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-_ M.A.C.A.No.2281/2009 10 _doers. In such a case, each wrong doer, 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 a case, 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 each wrong-doer 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 of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.”_ 13. Learned counsel in this context placed reliance on **APSRTC and Another v. Hemalatha and others : (2008) 6 SCC 767 : AIR 2008 SC 2851 : 2008 KHC 6510** . Paragraphs 7 and 10 of the judgment are relevant in this context, which is extracted below: M.A.C.A.No.2281/2009 11 _“7. To determine the question as to who contributed to the happening of the accident, it become relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless._ _Xxxxxx_ _10. '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 and severally liable to the injured for payment of the entire damages and the injured person has the_ M.A.C.A.No.2281/2009 12 _choice of proceeding against all or any of them. In such a case, 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 each wrong doer 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. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recovered by him in respect of the injuries stands reduced in proportion to his contributory negligence.”_ 14. In **Khenyei v. New India Assurance Co.Ltd and Ors : MANU/SC/0582/2015 : 2015(2) KLJ 593** , a three Judge Bench of the Apex Court dealt with composite negligence in cases of compensation under the Act. In that case, the injuries were sustained by the claimant when two vehicles, that is bus and Trailor Truck collided with each other. It was a case of composite negligence where injuries have been caused to the complainant by combined act of joint tort-feasors. It was held by M.A.C.A.No.2281/2009 13 the Apex Court that in a case of accident caused by negligence of joint tort-feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act are liable. In such case, the liability is always joint and several and the extent of negligence of joint tort-feasors in such a case is immaterial for satisfaction of the claim of the plantiff/claimant and need not be determined by the court and if in a case all the joint tort-feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort-feasor vis-a-vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In a case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. 15. In **Sreevalsalan T.R. v. Jaimon T.Kuruvila : 2012(4) KLJ 104 : 2012 KHC 734** the Division Bench of this Court held that claimant can claim compensation from anyone of M.A.C.A.No.2281/2009 14 the wrong doers when the amount of fault of each wrong doer cannot be ascertained with reasonable certainty an innocent claimant can claim compensation from anyone of them. 16. **Pawan Kumar and Another v. M/s.Harikishan Dass Mohan Lal and Others : 2014 (1) KLT 571 : 2014 ACJ 704 : (2014) 3 SCC 590 : 2014 KHC 4058** arise out of a case of collision between a jeep and truck, fled from the spot and could not be traced. The Tribunal disallowed the claim for the reason that the truck could not be traced. In appeal, High Court found that both vehicles are equally responsible for the accident and ordered apportionment of compensation. When the matter came up before the Apex Court, it was held that the High Court was not correct in apportioning the liability of the accident between the drivers/owners of the two vehicles when both vehicles were equally liable for the accident and accordingly it was held that entire compensation can ordered to be paid by the drivers/owners of either of the vehicles since it was a case of composite negligence. M.A.C.A.No.2281/2009 15 17. In the present case, police charge was laid against the driver of the lorry which fled from the scene and refer charge was filed as 'undetected' since the lorry driver and the lorry involved could not be traced out. The F.I.R was registered on the basis of F.I.S given by the appellant attributing negligence solely against the driver of the lorry. Whereas in the claim petition appellant attributed negligence against the rider of the motorcycle and the claim petition was filed under Section 163A of the Act. But, the monthly income claimed was Rs.4,500/-. In **Deepal Girishbhai Soni v. United India Insurance Co.Ltd. : 2004 (2) KLT 395** **(SC)** , a three-Judge Bench of the Apex Court has laid down the law that Section 163A applies only to those whose actual income is upto Rs.40,000/-. It is also held that claimant cannot pursue the remedies under Sections 163A and 166 of the Act simultaneously and he has to opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act. 18. In **National Insurance Co.Ltd., Kottayam v. Aravindakshan and Another : 2016(3) KHC 78 : 2016(2) KLT 711 : 2016 ACJ 2849** , a Division Bench of this Court also M.A.C.A.No.2281/2009 16 held that Section 163A is applicable to only those whose annual income is upto Rs.40,000/-. It is also held that in a case where annual income of the claimant exceeds the prescribed amount, Tribunal cannot seek to fix a cap or ceiling to the monthly income so as to bring it down to dealt with under Section 163A of the Act. 19. In this case, admittedly, the monthly income claimed is Rs.4,500/- and resultantly the annual income would be Rs.54,000/- and it exceeds the limit. So also, though the appellant pleaded in the claim petition that the accident happened due to the negligence of the rider of the motorcycle of which he was travelling as pillion rider, the police charge produced from his side is against the driver of the lorry and the F.I.S lodged by him is also to the effect that the accident happened due to the rash and negligent driving of the lorry driver. But, he failed to mount the box and explain the inconsistencies and discrepancies in the pleadings and the documents produced before the Tribunal. So also, there is no averment of negligence as such against the lorry driver in the M.A.C.A.No.2281/2009 17 claim petition. Evaluating all those factors and further that there is no permanent disablement as contemplated under the Workmen Compensation Act, 1923 or Section 163A of the Act, Tribunal ultimately dismissed the claim petition. Attempt was made by the learned counsel to persuade to consider this appeal by this Court as a petition under Section 166 of the Act placing reliance on **United India Insurance Company Ltd. v. M. Usman Haji and Others : 2013(1) KHC 347 : 2013 (1) KLJ 167** wherein, in a claim petition filed under Section 163A of the Act, the Tribunal awarded compensation taking monthly income as Rs.6,000/- and insurer challenged the award on the ground that Section 163A would be applicable only if the annual income does not exceed Rs.40,000/-. In that context, this Court held that though the petition was filed under Section 163A of the Act, in order to do justice it can be taken as one filed under Section 166 of the Act when it is pleaded and proved that there is negligence on the part of the driver of the offending vehicle. In that case, the claimant was examined as PW1 and gave evidence that the accident occurred because of the rash and negligent M.A.C.A.No.2281/2009 18 driving of the third respondent in that case and that evidence was not assailed in cross-examination and it was not in dispute with the final report filed by the police after investigation. It is alleged that the accident occurred because of the rash and negligent driving of the van by the 8[th] respondent and he was accused of the charges under Sections 279 and 304 I.P.C. Therefore, though the claim petition was filed under Section 163A, in fact, the sum and substance of the petition is a claim with plea of negligence against the driver. In that circumstances, in the light of the decision in **Ningamma v. United India Insurance Co.Ltd : 2009 (13) SCC 710** it has been found that the petition before the Tribunal which has been treated as one under Section 166 of the Act and to be disposed of for doing justice to the claimant. 20. In **Abdul Khader B.C and Others v. M.P.Moideenkutty and Others : 2017 KHC 244** , a Division Bench of this Court held that a claim petition filed under Section 163A of the Act would be applicable only in cases where annual income is lesser than Rs.40,000/- and the Tribunal has no power M.A.C.A.No.2281/2009 19 to reduce the income of the deceased to bring the case within the purview of Section 163A of the Act. In that decision, **United India Insurance Company Ltd. v. Akbar Shihab : 2012 (2) KLT 242** has been quoted wherein it has been held that the claimant has to exercise the option to proceed either under Section 163A or under Section 166 of the Act before the commencement of trial so as to avoid prejudice to the opposite party. It is also held that Section 163A and 166 of the Act are mutually exclusive and independent of each other and they envisage two different situations and therefore the Tribunal cannot suo motu convert the claim petition filed under Section 166 of the Act to one under Section 163A. It is also held that in a case where averment regarding negligence which is sine qua non for making an application under Section 166 of the Act is there in an application filed originally under Section 163A of the Act and it is found that it is maintainable solely for the reason that the annual income of the deceased or the injured claimant exceeds the permissible limit of Rs.40,000/-, taking into account the fact that the provision for granting compensation under the M.A.C.A.No.2281/2009 20 Act which is a social welfare legislation, the application could not be rejected and in fact, it has to be proceeded with treating it as a petition under Section 166 of the Act. It is also found by the Division Bench that on analysing the evidence on record, a positive finding regarding negligence has been arrived at by the Tribunal and such other details required for considering the compensation payable under Section 166 of the Act, the question of just compensation to which the appellants are entitled can be decided in that appeal itself. 21. But, in this case, as discussed earlier, the police charge is against the lorry driver which fled from the scene and the case was referred as undetected. F.I.S was lodged and crime was registered at the instance of the appellant himself attributing negligence against the driver of the lorry. Though the appellant pleaded in the claim petition that the accident happened due to the negligence of the rider of the motorcycle he did not adduce any evidence to substantiate that fact especially because the police charge is against the driver of the lorry. M.A.C.A.No.2281/2009 21 ## 22. In **New India Assurance Co.Ltd v.** **Pazhaniammal : 2011(3) KLT 648,** a Division Bench of this Court held that when charge sheet is produced it will follow that the negligence is on the part of the person against whom the charge has been laid. The parties who wanted to object that has to adduce evidence to disprove the same. It is also held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. 23. So, it cannot be said in this case that there is evidence to prove negligence against the rider of the motorcycle and hence this Court also is not in a position to take the claim petition as one under Section 166 of the Act. 24. In the above backdrop, the impugned award passed by the Tribunal is set aside and the case is remanded to the Tribunal for enabling the appellant/claimant to take necessary steps for opting the claim petition as one under Section 166 of the Act and to prove the claim thereunder. The contention of the learned counsel for the insurer that the appellant/claimant is not entitled M.A.C.A.No.2281/2009 22 for claiming interest is left open to be raised before the Tribunal. The appeal is disposed of accordingly. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge