Saleena Mathew v. Nisha Cyril and Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 ``` ## **`MACA NO. 1572 OF 2011`** ``` AGAINST THE AWARD DATED 28.04.2011 IN OP(MV) 4010/2004 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` SALEENA MATHEW W/O MATHEW, NADATHUMPADY HOUSE, THELAPPILLY, P.O.MADAYIKONAM, VIA. IRINJALAKUDA, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1NISHA CYRIL W/O K.V. CYRIL KUMBALAPARAMBIL HOUSE, NEAR CHRIST COLLEGE, IRINJALAKUDA, THRISSUR DISTRICT, PIN – 680121 2SUBASH P.V. S/O. VELUKUTTY PARAYATHUPARAMBIL HOUSE, KARAVANNUR, THRISSUR DISTRICT, PIN 680121. 3THE ORIENTAL INSURANCE CO. LTD. MAHESWARI BUILDING, M.G.ROAD, THRISSUR, PIN 680001 BY ADVS. ANWIN JOHN ANTONY(K/995/2016) SMT.LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1572 OF 2011 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.4010/2004 on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by her seeking compensation for the injuries sustained in a motor accident that occurred on 09.01.2003. 2. According to the appellant, the accident occurred when the Tempo Traveller in which the appellant was travelling collided with a lorry due to the rash and negligent driving of the Tempo Traveller by the 2nd respondent. The 1st respondent was the owner of the said vehicle and it was insured with the 3rd respondent. According to the appellant, she was employed at Thalappilly Tile Works, Thalappilly, with a monthly income of Rs.3,500/- and was 45 years old at the time of the accident. The claim petition was submitted in such circumstances. 3. The 1st and 2nd respondents filed a joint written statement disputing the accident. They also contended that the vehicle was validly insured with the 3rd respondent and the 2nd respondent was duly licensed as well. ``` MACA NO. 1572 OF 2011 ``` ``` 3 ``` 4. The 3rd respondent filed a written statement admitting the insurance coverage for the Tempo Traveller. However, they disputed the negligence on the part of the 2nd respondent. The quantum of compensation was also disputed by them. The evidence in this case consists of oral testimony of PW1, the appellant herself and as documentary evidence, Ext.A1 to A9 were marked. No evidence was adduced from the side of the respondents. 5. After the trial, the Tribunal came to the conclusion that the liability of the 2nd respondent was limited to the extent of 50%, and the 3rd respondent was held liable to pay only 50% of the compensation determined. The quantum of compensation was fixed as Rs.59,700/- and the 3rd respondent was directed to deposit 50% of the said amount with interest @ 8% per annum from the date of petition till realization with proportionate costs. This appeal is submitted by the appellant in such circumstances, challenging the finding of the Tribunal on the question of negligence and also seeking enhancement of compensation. 6. Heard Sri.P.V. Chandramohan, learned counsel ``` MACA NO. 1572 OF 2011 ``` ``` 4 ``` appearing for the appellant, Sri.Anwin John Antony, learned counsel appearing for the 1st respondent and Smt.Latha Susan Cherian, learned counsel appearing for the 3rd respondent Insurance Company. 7. The first contention to be considered is with regard to the finding of the Tribunal on the question of negligence. Even though two vehicles were involved in the accident, the whereabouts of the lorry, which hit the Tempo Traveller in which the appellant was travelling, was not known, and the driver, owner and the insurer of the said lorry were not in the party array. The Tribunal, after examining the materials placed on record, came to the conclusion that the contribution of the 2nd respondent in causing the accident was limited to 50%. Therefore, they were directed to satisfy the liability to that extent only. However, it is evident from the records that the Tribunal found the 2nd respondent also liable for causing the accident. Since the driver and owner of the lorry which collided with the Tempo Traveller were not in the party array, it may not be possible to adjudicate upon the question of negligence effectively. But, the crucial aspect ``` MACA NO. 1572 OF 2011 ``` ``` 5 ``` which was omitted to be notced by the Tribunal was that, since this is a case of composite negligence, the liability of all the tortfeasors were joint and several. The honourable Supreme Court in **Khenyei v. New India Insurance Company Ltd and Others [2015 (9) SCC 273]** categorically observed that, in a case of composite negligence, the victim of the accident is entitled to seek compensation from all the joint tortfeasors or anyone among the joint tortfeasors for the entire compensation or in part. Therefore, even if it is found that the contribution of the 2nd respondent in causing the accident was limited to 50% alone, nothing would preclude the appellant from seeking the entire compensation from the respondents herein, who are the owner, driver and insurer of one of the vehicles involved in the accident. Therefore, the finding of the Tribunal limiting the liability of the 3rd respondent insurer in satisfying the award to 50% was not at all proper. Thus, it is held that the 3rd respondent shall be liable to pay the entire compensation as the 2nd respondent was one of the joint tortfeasors, and this is a case of composite negligence. The said question is answered accordingly. ``` MACA NO. 1572 OF 2011 ``` ``` 6 ``` 8. The next aspect relates to the quantum of compensation. According to the appellant, she was working at Thalappilly Tile Works, Thalappilly, with Rs.3,500/-. But the Tribunal took the monthly income as Rs.2,500/-. Considering the fact that the accident occurred in the year 2003, the amount of Rs.3,500/- as claimed by the appellant appears to be reasonable. In this regard, it is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the honourable Supreme Court was pleased to take the monthly income of an ordinary worker even without any evidence as Rs.4,500/- for an accident occurred in the year 2004. Therefore, the monthly income is fixed as Rs.3,500/-. 9. The next element to be considered for assessing the compensation is the disability suffered by the appellant. To substantiate the extent of disability, the appellant produced an Ext.A5 disability certificate, wherein it was certified as 15%. The said certificate was issued by Associate Professor, Orthopedic Surgeon, Medical College Hospital, Thrissur. A detailed discussion of the nature of injuries sustained by the appellant has been made ``` MACA NO. 1572 OF 2011 ``` ``` 7 ``` in Ext.A5. It includes partial ankylosis, hypertrophic callus, and Anteromedial instability of the left knee. On carefully going through the contents of Ext.A5, the extent of permanent disability occurring as certified in the said certificate is highly probable. In the award passed by the Tribunal, the percentage of disability was reduced without specifically mentioning any discrepancies in the disability certificate as well. The other medical records produced before the Tribunal i.e., Exts.A3 and A4, also indicate the nature of injuries as shown in Ext.A5 as well. In such circumstances, I am of the view that the reduction of the percentage of disability as certified in Ext.A5 was not warranted as apparently there are no serious discrepancies in the Ext.A5 certificate in assessing the extent of disability. Therefore, I am inclined to accept the percentage of disability certified in Ext.A5. Thus, while reassessing the compensation for disability with the monthly income as Rs.3,500/- and the percentage of disability as 15%,, the amount would come to Rs.88,200/- (3,500 x 12 x 14 x 15/100). The amount awarded by the Tribunal was Rs.13,500/- and accordingly, the additional amount would come to Rs.74,700/-. ``` MACA NO. 1572 OF 2011 ``` ``` 8 ``` 10. The next head to be considered is loss of earnings. The Tribunal awarded compensation under this head for three months. On going through the nature of injuries and the nature of treatment availed by her, it is evident that, in all probabilities, she must have prevented from pursuing her employment for at least a period of four months. Therefore, I deem it appropriate to grant compensation for four months under the said head with the revised monthly income of Rs.3,500/-. Thus, the additional compensation under the said head would come to Rs.6,500/[(3,500 x 4) – 7,500]. 11. The amount awarded towards pain and suffering by the Tribunal is Rs.15,000/- which appears to be on the lower side. Considering the serious nature of the injuries, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head. Similarly, no amount is seen awarded towards the loss of amenities. It is evident from the records that she sustained serious injuries, and it resulted in physical disablement to the extent of 15% as well. She has to live with that disability throughout her life. Therefore, she is entitled for a reasonable compensation for loss ``` MACA NO. 1572 OF 2011 ``` ``` 9 ``` of amenities as well. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.20,000/-. Thus, the total additional compensation is determined as Rs.1,11,200/- (Rupees one lakh eleven thousand and two hundred only). In the light of the aforesaid observations and findings, the following orders are passed: - i The award dated 28.04.2011 passed by the Motor Accident Claims Tribunal, Thrissur, in O.P.(M.V.) No.4010/2004 to the extent it limited the liability of the respondents herein to 50% of the compensation is set aside. It is held that being a case of composite negligence, the liability of joint tortfeasors are joint and several and therefore, the appellant is entitled to realize the entire compensation from the respondents herein. Since the vehicle was covered with a valid insurance policy issued by the 3rd respondent, they are liable to pay the entire compensation awarded. ii The quantum of compensation is refixed as Rs.1,70,900/- (Rupees one lakh seventy thousand and ``` MACA NO. 1572 OF 2011 ``` ``` 10 ``` nine hundred only) (1,11,200 + 59,700) and the said amount shall be deposited by the 3rd respondent Insurance Company along with interest at the rate as ordered by the Tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs