SHANMUGHANASSARI & ORS. v. JOSEPH CHACKOCHAN & ORS.

MACA NO. 2449 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943** ## **MACA NO. 2449 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 290/2003 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,TRIVANDRUM, THIRUVANANTHAPURAM APPELLANT/S:** 1 SHANMUGHANASSARI & ORS.AGED 77 YEARS FATHER OF DECEASED JAYAKUMAR, PARAYANVILAKATHU, PUTHEN VEEDU, IRUKUNNAM MANIKANTESWARAM P.O.,, THIRUVANANTHAPURAM. 2 KRISHNAMMA RESIDING AT DO.DO. 3 RAJAN OF DO. 4 USHA WO.PARAMESWARAN RESIDING AT DO. 5 SEETHALEKSHMI WO.MURUKAN OF DO. BY ADV SRI.R.T.PRADEEP ## **RESPONDENT/S:** 1 JOSEPH CHACKOCHAN & ORS. SHEENA MANZIL, K.P.XI/1527,, N.C.C.ROAD, KOWDIAR P.O., THIRUVANANTHAPURAM.695003 2 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LTD.,, PB NO.552, MULANKARA BUILDING, PALAYAM, THIRUVANANTHAPURAM.695146 3 JOHN ABRAHAM KP X/403 NCC GARDENS, NCC ROAD, AMBALAM JUNCTION,, MACA NO. 2449 OF 2010 2 ## THIRUVANANTHAPURAM.695001 4 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD.,, DIVISIONAL OFFICE NO.II, ST.MARY VILLA,, ULLOOR, THIRUVANANTHAPURAM.695011 BY ADVS. P.ANOOP (MULAVANA) PMM.NAJEEB KHAN NAGARAJ NARAYANAN VPK.PANICKER RAJAN VELLOTH SAIJO HASSAN PRATHAP PILLAI BENOJ C AUGUSTIN RAFEEK. V.K. SEBIN THOMAS PAUL ANTONY MANIAMKOT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2449 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.290/2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 163 A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Jayakumar (deceased), son of the appellants 1 and 2 and brother of the appellants 3 to 5. It was their case that, on 12.11.2002, while the deceased was traveling as pillion on a motor cycle bearing registration No.KCT-1588 (motor cycle), from Mannammoola to Peroorkada, when the vehicle reached the place of accident, it hit against the scooter bearing registration No.KL-01/T-9750 (scooter). The deceased sustained fatal injuries and lost his life. The deceased was a carpenter by profession and earning a monthly income of Rs.3,000/-. The 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the motor cycle. The 3[rd] respondent was the owner and the 4[th] respondent was the MACA NO. 2449 OF 2010 4 insurer of the scooter. The appellants contended that the accident occurred due to the negligence of the drivers of the two vehicles. Hence, the appellants claimed a compensation of Rs.5,55,000/- from the respondents, but the claim was limited to Rs.5,00,000/- 3. The rider of the scooter filed OP(MV) No.1330/2003 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation from the respondents. Similarly, a pedestrian, who was injured in the same accident filed OP(MV) No.1956/2003 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation from the respondents 1 and 2. 4. The 1[st] respondent had filed separate written statements in all the claim petitions, inter alia, contending that he had sold the motor cycle to one Arunkumar on 27.09.2001 and the said fact was intimated to the Regional Transport Officer on 19.10.2001. Therefore, on the date of accident i.e., 12.11.2002, he was not the owner of the motor cycle. 5. The 2[nd] respondent had filed written statements and additional written statements in all the claim petitions contending that the accident occurred due to the negligence of 5 MACA NO. 2449 OF 2010 the rider of the scooter. It was further contended that the deceased was a pillion rider – a gratuitous passenger, traveling on the motor cycle which was covered by an Act policy. Therefore, the 2[nd] respondent was not liable to indemnify the 1[st] respondent of his liability arising out of the accident. 6. The 3[rd] respondent had filed separate written statements in all the claim petitions contending that he was an unnecessary party to the litigation because it was the rider of the motor cycle, who hit against the scooter, and the accident occurred due to the negligence of the rider of the motor cycle. Hence, the 3[rd] respondent may be exonerated. 7. The 4[th] respondent had filed separate written statements in all the claim petitions contending that the claim petitions were bad for non-joinder of necessary parties, as the drivers of the two vehicles were not made parties in the proceedings. Similarly, it was contended that the accident occurred due to the negligence of the 2[nd] respondent, rider of the motor cycle. Therefore, the 4[th] respondent may be exonerated of his liability. 8. The Tribunal consolidated and jointly tried the three claim petitions. The petitioners in the three claim petitions MACA NO. 2449 OF 2010 6 produced and marked Exts.A1 to A16 in evidence. The 2[nd] respondent produced the insurance policy, which was marked as Ext.B1. 9. The Tribunal by its common award dismissed the captioned claim petition, but allowed OP(MV) No.1330/2003, by permitting the petitioner therein to recover compensation from the respondents 1, 2 and additional 5[th] respondent – subsequent owner of the motor cycle. OP(MV) No.1956/2003 was also allowed by the Tribunal, permitting the petitioner therein to recover the compensation amount from the respondents 1 and 2. 10. Aggrieved by the dismissal of OP(MV) No.290/2003, the petitioners are in appeal. 11. Heard; Sri. R.T. Pradeep, the learned counsel appearing for the appellants/petitioners, Sri. PMM. Najeeb Khan, the learned counsel appearing for the 2[nd] respondent/insurer of the motor cycle, Sri.Nagaraj Narayanan, the learned counsel appearing for the 3[rd] respondent and Sri.VPK.Panicker, the learned counsel appearing for the 4[th] respondent/insurer of the scooter. MACA NO. 2449 OF 2010 7 12. The question that arises for consideration in the claim petition is whether the dismissal of the claim petition by the Tribunal is sustainable in law or not. 13. The specific case of the appellants in the claim petition was that the accident occurred due to the negligence of the drivers of the motor cycle and the scooter. The appellants had impleaded the respondents 1 and 3 as the owners of the motor cycle and scooter, and the respondents 2 and 4 as the insurers of the motor cycle and the scooter, respectively. 14. The Police had filed Ext.A5 charge sheet, attributing negligence on the rider of the motor cycle for causing the accident. 15. In **United Insurance Company Ltd. vs. Sunilkumar** [2017 (4) KLT 1093 (SC)], the Honourable Supreme Court has categorically held that in a claim under Section 163A, proof of negligence is irrelevant and insignificant. 16. In the above legal matrix, what needs to be looked into is the pleadings and materials on record. 17. The definite case of the petitioners/appellants was that the accident occurred due to the negligence of the drivers of MACA NO. 2449 OF 2010 8 the two vehicles, who were said to be joint tortfeasers. Hence, the respondents 2 and 4 were impleaded as the insurers of the two vehicles, to indemnify the liability of the respondents 1 and 3. 18. The learned counsel appearing for the 4[th] respondent/insurer vehemently argued that the claim petition is bad for non-joinder of necessary parties because the riders of the vehicles were not impleaded as the parties in the claim petition. According to him, it is the riders of the two vehicles who are the joint tortfeasers, who have to necessarily be on the party array. 19. The above question is no longer res-integra in view of the declaration of law by this Court in **Anuradha Varma vs. State of Kerala** [1993 KHC 419], wherein a Division Bench of this Court placing reliance on an earlier Division Bench decision in **United India Assurance Company Ltd. Vs. Ratnamma** [(1988) 1 ACJ 435] and Section 7 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 has held, that there is no necessity to implead the drivers of the vehicles because the liability in a tort is joint and several. MACA NO. 2449 OF 2010 9 20. In the light of the ratio decidendi in **Anuradha Varma and Ratnamma** (supra), I hold that the non-impleadment of the riders of the two vehicles is not fatal to the appellants. 21. A three Judge Bench of the Honourable Supreme Court in **Khenyei vs. New India Assurance Co. Ltd. & others** [(2015) 9 SCC 273 has declared in paragraph 22 as follows: “22. What emerges from the aforesaid discussion is as follows: 22.1 In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2 In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3 In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint MACA NO. 2449 OF 2010 10 tortfeasor can recover the amount from the other in the execution proceedings. 22.4 It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award”. 22. In the case at hand, the specific contention of the appellants was that the respondents 1 and 3 were the owners of the two vehicles. Going by the law laid down in **Khenyei vs. New India Assurance Co. Ltd. & others** (supra) and on a reappreciation of the pleadings and materials on record, especially for want of material to the contrary, I hold that both the riders of the vehicles were negligent in causing the accident. Hence, contributory negligence has to be fixed in ratio of 50:50 and the compensation amount has to be paid by the owners of the two vehicles, namely the respondents 1 and 3 as pleaded in the claim petition. 23. However, in view of the fact that the motor cycle was only covered by an Act policy and that the deceased was a pillion rider, going by the ratio of this Court in **New India** MACA NO. 2449 OF 2010 11 **Assurance Company Ltd. Vs. Daisy Paul** [(2021) 2 KHC 449], following the decision of the Honourable Supreme Court in **New India Assurance Company Ltd. Vs. Asha Rani** [2003 (1) KLT 165 SC], that an insurance company is not liable to indemnify the gratuitous passenger traveling on a vehicle covered by an Act policy, I hold that the 2[nd] respondent is not liable to indemnify the 1[st] respondent for his liability arising out of the accident. 24. In the above circumstances, I hold that it is the 1[st] respondent/owner of the motor cycle, as can be gathered from the materials on record and the 1[st] respondent not contesting the proceedings before the Tribunal or this Court, and the 4[th] respondent insurer of the scooter, who are liable to pay the compensation amount in the ratio of 50:50. 25. The case of the appellants was that the deceased was a carpenter by profession and earning a monthly income of Rs.3,000/-. 26. Even though the appellants had not produced any materials to substantiate their assertion, going by the law laid down in **Ramachandrappa vs. Manager, Royal Sundaram** MACA NO. 2449 OF 2010 12 **Alliance Insurance Company Ltd. :** [(2011) 13 SCC 236], the notional monthly income of the deceased is fixed at Rs.3,000/as claimed in the claim petition, considering the fact that the accident occurred in the year 2002. 27. It is on record that the deceased was aged 28 years as on the date of accident. As the claim petition was filed under Section 163A, the compensation is to be awarded as per the structured formula in the Second Schedule of the Act. 28. In above circumstances, considering the monthly income of the deceased at Rs.3,000/- and his age falling within bracket of 25 to 30, an amount of Rs.6,12,000/- is to be awarded as compensation, but one third of the compensation has to be deducted towards the personal living expenses of the deceased as shown in the note below the Second Schedule. Likewise the appellants are also entitled to an amount of Rs.2,000/- towards 'funeral expenses' and Rs.2,500/- towards 'loss of estate' as provided in Column no.3 of the Second Schedule. Therefore, the appellants are entitled to a total amount of Rs.4,12,500/-. In the result, the appeal is allowed, by setting aside the impugned award passed by the Tribunal in OP(MV) MACA NO. 2449 OF 2010 13 No.290/2003 and the claim petition is allowed by permitting the appellants to recover from the respondents 1 and 4 in equal shares an amount of Rs.4,12,500/- with interest @7% per annum from the date of petition till the date of realization and cost of Rs.10,000/-. The respondents 1 and 4 are directed to pay the compensation amount in the ratio of 50:50. The compensation amount shall be disbursed to the appellants 1 and 2 in the ratio of 50:50. sd/- **C.S.DIAS, JUDGE** rkc