Sunil v. Babu Varghese & Ors.

`MACA NO. 2657 OF 2012` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ## **`MACA NO. 2657 OF 2012`** ``` AGAINST THE AWARD DATED 08.08.2012 IN OP(MV)NO. 994/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` SUNIL, S/O.THARIYATH, KURUSSUNGAL HOUSE, MELOOR P.O.,MUKUNDAPURAM TALUK,THRISSUR DIST. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS / RESPONDENTS:`** |`1`|`BABU VARGHESE, S/O.VARGHESE, THEKKANPALLIPURAM`| |---|---| ||`HOUSE, MELOOR P.O,MUKUNDAPURAM TALUK-680311.`| |`2`|`ANOOP M A, S/O.ANTONY, MOONGELY`| ||`HOUSE,KUVVAKKATTUKUNNU, MELOOR P.O, TALUK-680311.`| |`3`|`UNITED INDIA ASSURANCE CO LTD`| ||`TANA , IRINJALAKUDA-680121`| |`4`|`V.R.PANKAJAKSHAN`| ||`S/O.RAMAN,VIYYATH HOUSE, PERINGOTTU KARA, THRISSUR-`| ||`680565`| |`5`|`JAMES GEOEGE`| ||`S/O.GEORGE,THAKARAPPILLY HOUSE,MANJERI MALAPPURAM`| ||`DIST-676121`| |`6`|`UNITED INDIA INSURANCE CO LTD`| ||`ARAFA BULDING, MANJERI-676121`| ||`BY ADVS.`| ||`SRI.P.P.BIJU`| ||`SMT.S.JAYASREE`| ||`SRI.C.V.SHAJU`| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 2657 OF 2012` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 2657 of 2012 th Dated this the 7 day of November, 2023 ## JUDGMENT The appellant is the petitioner in OP(MV)No.994/2005 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The said claim petition was submitted by him under Section 163A of the Motor Vehicles Act seeking compensation for the injuries sustained to him in a motor accident that occurred on 13.02.2005. According to him, the accident happened when the motorcycle bearing Registration No.KL7/2742, on which he was a pillion rider, collided with another motorcycle bearing registration No.KL-8/8246, which came from the opposite direction. The motorcycle on which the appellant was a pillion rider was ridden by the second respondent, owned by the first respondent, and insured by the third respondent. Similarly, the vehicle which collided with the appellant’s motorcycle was ridden by the fifth respondent. The said motorcycle was owned by the 4th respondent and was insured `MACA NO. 2657 OF 2012` 3 th by the 6 respondent. According to him, he was working as a welder at the relevant time and getting a monthly income of Rs.3300/-. He sustained permanent partial disability of 26%, as certified by the doctor. The claim petition was submitted in such circumstances, seeking a compensation of Rs.4,80,600/- 3. The third and sixth respondents filed a written statement. It was contended that the claim petition under Section 163 A of the Motor Vehicles Act is not maintainable. The third respondent admitted that the motorcycle on which the appellant was travelling was covered with an insurance policy, but it was an “Act only” policy which would not cover the risk of the pillion rider, and they sought exoneration from the th liability. The 6 respondent admitted the coverage of policy with respect to the motorcycle bearing Registration No.KL8/8246 collided with the motorcycle on which the appellant was a pillion rider. The quantum of compensation was also disputed by them. 4. The evidence in this consists of oral testimonies of `MACA NO. 2657 OF 2012` 4 PWs 1 and 2 and Exts.A1 to A13, which were marked from the side of the appellant. Exts.B1 and B2 were marked from the side of the respondents. 5. After the trial, the Tribunal came to the conclusion that the question of inter se negligence between the respondents cannot be decided, as it is a proceeding under Section 163A of the Motor Vehicles Act. Therefore, the award was passed, imposing liability on the first and sixth respondents in equal proportions. The third respondent was exonerated from the liability on the ground that the policy in respect of the motorcycle insured with them was covered with an “Act Only” policy, which did not cover the risk of the pillion rider. The quantum of compensation was fixed as Rs.1,52,320/- and the said amount was directed to be deposited with interest @ 7.5 % per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances, challenging the award and also seeking enhancement of compensation. `MACA NO. 2657 OF 2012` 5 6. Heard Sri.P.V.Baby, the learned counsel for the appellant, and Adv.Smt. S.Jayasree, the learned counsel appearing for R3 and R6 Insurance Company. 7. The first contention raised by the learned counsel is that the finding of the tribunal, not deciding the question as to who among the two drivers was negligent, for imposing the liability among the respondents was not proper, as the appellant had adduced adequate evidence to show that the th accident occurred due to the negligence on the part of the 5 respondent, the rider of the motorcycle which hit the motorcycle on which the appellant was a pillion rider. However, after considering the relevant materials and position of law in this regard, I am of the view that the aforesaid contention cannot be accepted. Essentially, to adjudicate the contention raised by the appellant, the question of inter se negligence between the respondents has to be decided based on the evidence adduced, which is an unwanted exercise as far as the proceedings under Section 163A of the Motor Vehicles Act is `MACA NO. 2657 OF 2012` 6 concerned. The said provision was incorporated to introduce a special procedure for adjudicating a claim in respect of certain classes of people without adjudicating the question of negligence. The only requirement for entertaining and awarding the compensation under Section 163A is that the claimant has to establish that he sustained injuries in an accident arising out of the use of the motor vehicle. Nothing beyond the same can be the subject matter of adjudication in such proceedings. The contention that is raised is for adjudication of the inter se liability between the tortfeasors, which is not at all warranted in a proceeding under Section 163A that was introduced to ensure speedy disposal of the claim petition, thereby ensuring compensation to the victim, calculated in a structured formula without taking the pain to adjudicate the question of negligence. Thus, if the Tribunal is compelled to venture into adjudicating the question of negligence, the purpose of introducing Section 163A itself would be defeated. The view taken above is fortified by the `MACA NO. 2657 OF 2012` 7 decision rendered by a Division Bench of this Court in New India Insurance Company v. Vappu (2007 (1) KLT 351) . Thus, the Tribunal rightly found that the evidence adduced by the appellant with regard to the negligence of one of the respondents was not necessarily to be considered, and hence, the same was in tune with the settled position of law in this regard. Therefore, I do not find any necessity to interfere with the said finding. 8. However, even while arriving at the conclusion that the necessity of deciding the negligence does not arise in a proceeding under Section 163A, it is also to be noted that the Tribunal could not have directed that the appellant could th recover only a portion of the compensation from the 5 respondent and the remaining amount has to be recovered from st the 1 respondent. Of course, the liability can be apportioned equally among the tortfeasors. However, that would not preclude the claimant from claiming/recovering the compensation from any of the parties, wholly or partially. This `MACA NO. 2657 OF 2012` 8 is particularly because, as far as a tortuous liability on account of an act committed by two persons jointly is concerned, the liability thereof is joint and several. Therefore, the injured persons shall have the right to recover the entire compensation from any one among the parties, as the claimant desires, entirely or partly or from all the parties. It is a right available to the claimant, and the same cannot be curtailed by the Tribunal by permitting recovery of a portion of the amount from one party only and to recover the same from the other party. Therefore, even if the liability is apportioned equally, that is only to enable the joint tortfeasor, who was compelled to pay the entire compensation, to recover the share of the other joint tortfeasor by invoking the legal means. Under no circumstances apportionment of liability in the award would curtail the right of the appellant/claimant in any manner to recover compensation in its entirety from any one of the joint tortfeasors. 9. In such circumstances, even though I do not interfere `MACA NO. 2657 OF 2012` 9 in the finding of the Tribunal that all the joint tortfeasors are jointly and severally liable, it is to be clarified that the appellant shall be entitled to execute the award against any one of the tortfeasors as per his choice. To be precise, such a right would include recovering the entire compensation from th any one of the joint tortfeasors or 6 respondent insurer as he chooses. However, in case any one of the joint tortfeasors or th 6 respondent was compelled to pay the entire compensation awarded, nothing would preclude the said joint tortfeasor or insurer, from recovering the share of other joint tortfeasor, by invoking the proceedings. Therefore, to that extent, the award passed by the Tribunal is modified. 10. Now, the next aspect to be considered is relating to the quantum of compensation. The learned counsel for the appellant points out that the monthly income taken by the Tribunal is only Rs.2,000/- whereas the claim in this regard was Rs.3,300/-. It was pointed out that, he was working as a welder and the accident occurred in the year 2005. It is to be `MACA NO. 2657 OF 2012` 10 noted in this regard that in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court has accepted the monthly income of an ordinary employer without any evidence as Rs.4,500/- in respect of an accident occurred in the year 2004. Since the accident in this case has occurred in the year 2005 the monthly income of Rs.3,300/- as claimed in the claim petition is reasonable and therefore the same can be accepted and it is ordered accordingly. 11. Regarding the percentage of physical disability, the relevant document is Ext.A9. PW2 is the doctor who issued the certificate. As per the said certificate, the appellant had sustained a permanent whole body disability of 26%, whereas, his functional disability was certified as 70%. The relevant observation made in the said certificate with regard to the functional disability is as follows: “By profession he was a welder as stated by him. His loss of earning capacity in every employment `MACA NO. 2657 OF 2012` 11 which he was capable of undertaking at the time of accident is assessed as 70% (seventy percent) as per “Explanation II of sub-clause (ii) of clause (I)(c) of Sec. 4 of the WC Act 1923”.” 12. Even when the cross-examination of PW2 was made, the said aspect was not seen seriously challenged as well. As per the Second Schedule of the Motor Vehicle Act, 1988, in the cases of permanent partial disablement, the assessment can be based on percentage of loss of earning capacity as per Schedule 1 under the Workmen’s Compensation Act, 1923. In this case, a Medical Practitioner has already certified the appellant’s functional disability as 70% based on the provisions of the Workmen’s Compensation Act, 1923 (now named the Employees Compensation Act), and he was cross-examined as well. In the said certificate, a detailed explanation has been offered by him as to the reasons on which he assessed the percentage of disability, and it appears to be convincing. Besides the same, he was examined as PW2 and reiterated the `MACA NO. 2657 OF 2012` 12 contents of the Ext.A9 certificate. Therefore, as functional disability is the relevant aspect to be taken into account as far as the loss of earning capacity is concerned, the percentage of disability as per the said certificate could be accepted. Thus, while reassessing the compensation, by fixing the monthly income of Rs.3,300/- and the percentage of disability as 70%, the amount would come to Rs.4,98,960/- (3,300 x 12 x 18 x 70/100). The amount already awarded by the Tribunal is Rs.1,12,320/-; therefore, the balance amount would come to Rs.3,86,640/-. 13. Consequent to the revision of monthly income, the appellant would also be entitled to additional compensation under the head of loss of earnings. As per the Second Schedule of the Motor Vehicles Act, the compensation can be granted under this head for a period of 52 weeks, which was accepted by the Tribunal as well. Therefore, the total compensation under this head would come to Rs.39,600/- and after deducting Rs.24,000/- the additional amount would come `MACA NO. 2657 OF 2012` 13 to Rs.15,600/-. Pain and suffering awarded by the Tribunal is only Rs.1,000/-. Considering the facts and circumstances of the case and the nature of the injuries sustained, I deem it appropriate to revise it to Rs.5,000/-, which is the maximum as per the Second Schedule of the Motor Vehicles Act. Thus, he is entitled to a further sum of Rs.4,000/- under this head. Thus, the total additional compensation comes to Rs.4,06,240/(386640 + 15600 + 4000) and the total compensation is refixed as Rs.5,58,560/- (4,06,240/- + 1,52,320). 14. In the light of the aforesaid observations and findings, this appeal is allowed with the following orders. a) The award dated 08.08.2012 passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.994/2005 is hereby modified by holding that it shall be open for the appellant to recover the entire compensation from anyone among R1 and R6 or from both. b) The quantum of compensation is re-fixed as Rs.5,58,560/-(Rupees five lakh fifty eight thousand, five hundred `MACA NO. 2657 OF 2012` 14 and sixty only), which shall be recoverable by the appellant from R1 and R6 who are liable to pay the same jointly and severally, along with interest @ 7.5% per annum from the date of petition till realisation and with proportionate cost. c) If anyone among the 1st and 6th respondents were compelled to pay the entire compensation, it shall be open for such person to recover the share of compensation from the other, as apportioned in the award passed by the Tribunal. sd/- ZIYAD RAHMAN A.A, JUDGE R.AV/scs