Sabu C.S. v. Saju George and The New India Assurance Co. Ltd.

**MACA NO. 1886 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943 MACA NO. 1886 OF 2009** **AGAINST THE JUDGMENT IN OP(MV) 796/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER IN O.P (MV):** SABU.C.S, S/O.CHAKKALAMATTATH SANI, CHEMBALOOR DESOM, KALLUR VADAKKUMMURI, VILLAGE, PALAYAMPARAMBU P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENT/RESPONDENTS IN o.p (MV):** 1 SAJU GEORGE,S/O.THAKKOLKARAN GEORGE PUTHENCHIRA EAST P.O. 2 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, MAIN ROAD,, IRINJALAKUDA. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1886 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.796/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakudiiia. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries that he sustained in an accident on 27.5.2002. It was his case that, on the abovesaid day, while he was travelling pillion on a motorcycle bearing Reg.No.KL-8/P 908 (motorcycle) driven by the 1[st] respondent through the Kuzhikattussery – Ashtamichira road, when they reached a place named 'Kolkunnu', a Maruti car came from the opposite direction and hit the motorcycle. The appellant sustained serious **MACA NO. 1886 OF 2009** **3** injuries including multiple fractures on his right lower limp. He was treated at the Elite Mission Hospital, Thrissur for a period of 37 days. The accident occurred due to the negligence of the 1[st] respondent – the rider of the motorcycle. The 2[nd] respondent was the insurer of the motorcycle. The appellant was a Police Constable in the Kerala Police Department and was drawing a monthly salary of Rs.6,478/-. The appellant became permanently disabled due to the accident. Hence, the appellant claimed a compensation of Rs.7,66,000/- from the respondents, which was limited to Rs.4,00,000/-. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2nd respondent had filed a written statement admitting that the motorcycle had a valid insurance coverage. Nevertheless, it was contended that since the appellant was a pillion rider, he was not covered by the insurance policy and that it was the petitioner who **MACA NO. 1886 OF 2009** **4** rode the motorcycle, and the accident occurred due to his own negligence. Therefore, the second respondent may be exonerated of any liability. 5. The appellant examined himself as PW1 and marked Exts.A1 to A13 in evidence. The 2[nd ] respondent produced and marked Exts.B1 and B2 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by holding that, even though the appellant is entitled to a compensation of Rs.1,82,400/-, only 50% of the compensation amount can be recovered from the 2[nd] respondent, since there was contributory negligence on the part of the rider of the motorcycle and the driver of the car, but the appellant had failed to implead the driver and owner of the car. Therefore, the appellant is only entitled to recover half of the compensation amount from the 2[nd] respondent – insurer of the motorcycle. **MACA NO. 1886 OF 2009** **5** 7. Aggrieved by the finding that the appellant is only entitled to recover 50% of the compensation amount from the 2[nd] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.P.V.Baby, the learned counsel appearing for the appellant/petitioner and Sri.Lal George, the learned counsel appearing for the 2[nd] respondentinsurer of the motorcycle. 9. The questions that arise for consideration in the appeal are: (i) whether the finding that the appellant is entitled to recover only 50% of the compensation amount from the 2[nd] respondent, due to the non-impleadment of the owner and insurer of the car, is sustainable in law; and - (ii) whether the quantum of compensation awarded by - the Tribunal is reasonable and just? **MACA NO. 1886 OF 2009** **6** ## **Question No.(i)** 10. The definite case of the appellant in the claim petition was that the accident occurred due to the negligence of the 1[st] respondent – the owner-cum-rider of the motorcycle. During the cross-examination of the appellant, he testified that the accident occurred due to the negligence of the 1[st] respondent as well as the driver of the car. In Ext.A2 final report filed by the Mala Police in Crime No.210/2002, the Police arrived at the conclusion that the accident occurred due to the negligence of the driver of the car. However, the Police held that the owner and driver of the car could not be detected. Nevertheless, the Tribunal, based on the materials on record, reached a conclusion that there was contributory negligence on the part of drivers of both vehicles, but since the appellant had not impleaded the owner of the car, the appellant was only entitled to realise 50% of the compensation amount from the 2[nd] respondent/insurer of the motorcycle. **MACA NO. 1886 OF 2009** **7** 11. In a case of identical nature, the Hon'ble Supreme Court in **Pawan Kumar and Another v. M/s. Harkishan Dass Mohan Lal and Others** [ 2014 KHC 4058] relying on its earlier decision in **T.O Antony v. Karvarnan and Others** [2008 (2)KHC 80] has held, in case of composite negligence, each wrongdoer is jointly and severally liable for payment of the entire damages to the injured, 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 wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrongdoer. 12. In **Khenyei v. New India Assurance Co.Ltd and Others** [2015 (3) KHC 70], a three Judge Bench of the Hon'ble Supreme Court has in paragraph 18(iv) succinctly held as follows: “it would not be appropriate for the Tribunal to determine the extent of composite negligence of the drivers of the two vehicles in the absence of **MACA NO. 1886 OF 2009** **8** impleadment of other joint tort feasor. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award”. 13. In the present case, the specific case of the appellant during his cross-examination was that the accident occurred due to the negligence of the 1[st] respondent and the driver of the car. However, the appellant was unaware of the details of the car or its owner or insurer. The Police in Ext.A2 final report concluded that there was negligence on the part of the driver of the car. 14. The appellant has only impleaded the rider and insurer of the motorcycle, which is permissible in law in view of **Khenyei** (supra). Therefore, going by the ratio in the aforecited precedents, it is for the 2[nd] respondent, if they so desire, after paying the compensation amount to the appellant to move against the owner and/or the insurer **MACA NO. 1886 OF 2009** **9** of the car and get the extent of composite negligence fixed, and realise the proportionate share of the compensation amount from the owner and/or insurer of the car. In the above legal and factual matrix, I hold that the finding of the Tribunal that the appellant is only entitled to get 50% of the compensation amount due to the non-impleadment of the owner and insurer of the car is erroneous and wrong and is against the ratio in **Pawavan Kumar** and **Khenyei** (supra). 15. Hence, I set aside the finding and answer Question No.(i) in favour of the appellant. I hold that the appellant is entitled to realise the entire compensation amount from the 2[nd] respondent/insurer of the motorcycle because the 2[nd] respondent has admitted the insurance policy of the motorcycle and has not proved that the 1[st] respondent has violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the 1[st] respondent of its liability. Moreover, the motorcycle was **MACA NO. 1886 OF 2009** **10** covered by a 'Package Policy' and the appellant was the pillion rider. ## **Question No.(ii)** 16. The appellant was a Police Constable and was working in the Mala Police Station under the Kerala Police Department. He produced Ext.A7 salary certificate to prove that he was drawing a monthly salary of Rs.6,478/which includes allowance. The Tribunal for the reason that the appellant had not sustained any loss of income due to the accident, fixed the notional annual income of the appellant at Rs.18,000/-,adopted the multiplier of '17' and awarded an amount of Rs.76,500/- as compensation for 'loss due to disability. The said course adopted by the Tribunal is erroneous and not in consonance with the law laid down by this Court in **Oriental Insurance Company Ltd. v. Valsa** [2015 (1) KLT 781] and **Kumaran v. Roy Mathew** [2017 (1) KLT 668]. 17. The Hon'ble Supreme Court in **Puttamma v.** **MACA NO. 1886 OF 2009** ## **11** **K.L.Narayana Reddy & another** [2014 (1) KLT 738] and in **N.Jayasree & Others v. Cholamandalam MS General Insurance Co. Ltd (Live law 2021 SC 588)** has held that the split multiplier method can be adopted, if there are cogent reasons. 18. Admittedly, the appellant was in service even after the accident. Although he had produced Ext.A6 disability certificate, it is proved that he had not suffered loss of income due to the disability. In such circumstances, I hold that there are cogent reasons to adopt the split multiplier method in the present case. As the appellant would have retired from service at the age of 56, I hold that the multiplier of '9' has to be adopted. 19. As the appellant was a Police Constable and he would draw pension after his retirement, I hold that his post-retirement notional monthly income can be fixed at Rs.3,500/-, following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance** **MACA NO. 1886 OF 2009** **12** **Company Limited** [(2011) 13 SCC 236]. Accordingly, I fix the notional post-retirement monthly income of the appellant at Rs.3,500/-. ## **Disability** 20. The appellant had produced Ext.A6 disability certificate, wherein it is certified that, the appellant has a mal union of his right femur and shortening of his right lower limps of 3 cm and he has limitation of right knee and ankle movements. The Doctor has certified that the appellant has a permanent disability of 25% as per Mc Bride's scale of his right lower limb. 21. Taking into consideration the fact that the appellant was a Police Constable and he would have got a similar post retirement employment, I am convinced that the appellant's functional disability can be fixed at 25%, as certified in Ext.A6, following the ratio in **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC]. **MACA NO. 1886 OF 2009** **13** 22. Taking into account the above-mentioned factors namely, the post-retirement notional monthly income of the appellant at Rs.3,500/-, his functional disability at 25%, and the multiplier at '9', I re-fix the compensation for ' loss due to disability at Rs.94,500/-. ## **Loss of earnings** 23. It is proved as per Ext.A7 that the appellant was on loss of pay for a period of 157 days. The Tribunal has rightly awarded him compensation for loss of earnings at Rs.33,900/-. I find that the assessment to be correct and I confirm the same. ## **Loss of amenities** 24. The appellant had claimed an amount of Rs.50,000/- as compensation for 'loss of amenities'. The Tribunal only awarded an amount of Rs.5,000/- under the said head, which according to me is on the lower side. **MACA NO. 1886 OF 2009** **14** 25. Keeping in mind the fact that the appellant was treated as an inpatient for 37 days, that he was indisposed for a period of 157 days and that he has a functional disability of 25%, I hold that the appellant is entitled for compensation for 'loss of amenities' at Rs.25,000/- instead of Rs.5,000/- awarded by the Tribunal. ## **Other heads of compensation** 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 1886 OF 2009** **15** **==> picture [473 x 329] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by the Amounts modified<br>Tribunal (in rupees) and recalculated by<br>.No this Court<br>1 Loss of earnings 33,900 33,900<br>2. Transport to hospital 2,000 2,000<br>3. Bystander expenses 3,700 3,700<br>4. Medical Expenses 36,300 36,300<br>5 Pain and suffering 25,000 25,000<br>6. Loss of amenities 5,000 25,000<br>7. Loss due to disability 76,500 94,500<br>Total 1,82,400 2,20,400<br>**----- End of picture text -----**<br> Accordingly, the compensation is enhanced by a further amount of Rs.38,000/- than what is awarded by the Tribunal. In the result, the appeal is allowed, by ordering that the appellant is entitled to a total compensation of 2,20,400/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 2nd respondent is directed to deposit **MACA NO. 1886 OF 2009** **16** the compensation amount with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Needless to mention that, if the 2[nd] respondent has already deposited any amount pursuant to the impugned award, only the balance amount need be deposited with interest and costs. The 2[nd] respondent is reserved the liberty to proceed against the owner and/or the insuer of the car as observed in paragraph 18(iv) of **Khenyei (supra)** to realise its proportionate share from the owner and/or the insurer of the car. Immediately on the deposit being made by the 2[nd] respondent, the Tribunal shall disburse the same to the appellant, in accordance with law. ma/3.11.2021 Sd/- **C.S.DIAS, JUDGE** **/True copy/**