The New India Assurance Company Ltd. v. M. Karunakaran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** ## **MACA.No. 678 of 2008** **AGAINST THE AWARD IN OPMV 472/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY DATED 05-07-2007** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LTD. REP. BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SMT.RAJI T.BHASKAR** ## **RESPONDENT/S:** |**1**|**M.KARUNAKARAN, AGED ABOUT 44 YEARS**| |---|---| ||**S/O.KUNHIKANNAN, PUTHIYA PUZHAKKARA,**| ||**THEYYEPRAM, KUNHIMANGALAM, KANNUR DIST.**| |**2**|**N.PRAMAOD, AGED ABOUT 29 YEARS**| ||**S/O.T.K.KRISHNAN, THEKKUMBAD,**| ||**P.O. KOVVAPPURAM, KUNHIMANGALAM.**| |**3**|**SAHADEVAN SO.P.NANU, MATTUMMAL HOUSE**| ||**THEKKUMBAD, PO KUNHIMANGALAM, KANNUR DIST.**| |**4**|**NOUSHAD SO.C.H.HAMZA 24 YEARS**| ||**THEKKE PARAMMAL HOUSE, THEKKUMBAD P.O.,**| ||**KUNHIMANGALAM.**| |**5**|**BINESH M.V., SO.K.C.NARAYANAN**| ||**NANDI VALAPPIL, THALAYI,**| ||**P.O.KUNHIMANGALAM, KANNUR DIST.**| ||**BY ADVS.**| ||**SRI.M.V.AMARESAN**| ||**SRI.V.N.RAMESAN NAMBISAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, ALONG WITH CO.81/2014, CO.82/2014, MACA.980/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 CO.No. 81 of 2014 IN MACA. 678/2008** **AGAINST THE AWARD IN OPMV 472/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY DATED 05-07-2007** ## **PETITIONER/S:** **M.KARUNAKARAN, AGED 50 YEARS S/O.KUNHIKANNAN, PUTHIYA PUZHAKKARA, THEYYEPRAM, KUNHIMANGALAM, KANNUR DIST.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT/S:** **THE NEW INDIA ASSURANCE COMPANY LTD. REP. BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SMT.RAJI T.BHASKAR** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, ALONG WITH CO.82/2014, MACA.980/2008, MACA.678/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 MACA.No. 980 of 2008** **AGAINST THE AWARD IN OPMV 468/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY DATED 05-07-2007** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LTD REP.BY THE ADMINISTRATIVE OFFICER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SMT.RAJI T.BHASKAR** ## **RESPONDENT/S:** **1 P.V.KANNAN, AGED ABOUT 57 YEARS S/O.KALLYANI, PUTHIYA VEETIL, THEKKUMBAD,, P.O.KOVVAPPRAM, KUNHIMANGALAM, KANNUR DIST. 2 N.PRAMOD AGED ABOUT 29 YEARS S/O.T.K.KRISHNAN, THEKKUMBAD, P.O.KOVVAPPURAM,, KUNHIMANGALAM. 3 SAHADEVAN SO.P.NANU MATTUMMAL HOUSE THEKKUMBAD, P.O., KUNHIMANGALAM, KANNUR DIST. 4 NOUSHAD, S/O.C.H.HAMZA 24 YEARS THEKKE PARAMMAL HOUSE, THEKKUMBAD P.O,, KUNHIMANGALAM. 5 BINESH M.V, S.O.K.C.NARAYANAN NANDI VALAPPIL, THALAYI, P.O. KUNHIMANGALAM,, KANNUR DIST. BY ADVS. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, ALONG WITH CO.82/2014, CO.81/2014, MACA.678/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 4 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** **CO.No. 82 of 2014 IN MACA. 980/2008** **AGAINST THE AWARD IN OPMV 468/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY DATED 05-07-2007** ## **PETITIONER/S:** **P.V.KANNAN AGED 63 YEARS S/O. KALLYANI, PUTHIYA VEETTIL, THEKUMBAD, P.O. KOVVAPURAM, KUNHIMANGALAM, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT/S:** **NEW INDIA INSURANCE COMPANY LTD REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADV. SMT.RAJI T.BHASKAR** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, ALONG WITH MACA.980/2008, CO.81/2014, MACA.678/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 5 ## **JUDGMENT** The appellant is the Insurance Company and the claimants have filed Cross Objections. 2. The learned Standing Counsel for the Insurance Company contended that the appeal of the Insurance Company only is against the contributory negligence, found on the driver of the vehicle, which was insured by the appellant. It is the specific case of the appellant that the vehicle, which was insured by the appellant was not at all involved in the accident. It is also submitted that the Cross Objection is not maintainable, for reason of the quantum having not been challenged in the appeal. ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 6 3. However, the learned counsel appearing for the Cross Objectors points out that Ground-I specifically challenged the quantum. In such circumstance, this Court finds that the Cross Objections are maintainable. The Cross objections have been filed with respective delay of 2223 and 2220 days. Obviously, if any enhancement is granted, the claimants would not be entitled to any interest for the said period. 4. First the appeal of the Insurance Company, with respect to negligence is considered. The accident occurred when the claimants were travelling in a scooter. The claimant in O.P(MV) No.472/2000 was the rider and the other claimant; the pillion. The accident occurred on 22.11.1999. The cause of accident is said to be the abrupt starting of the vehicle, driven by the 2[nd] ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 7 respondent and the entry into the road without looking for any vehicles on the road. Another autorickshaw coming from the opposite side is said to have severed, which then hit the scooter. 5. The driver and the owner of the autorickshaw, which is impleaded and which is insured by the appellant Insurance Company is the one; which is said to have been abruptly started and moved on to the road. The owner and driver of the other autorickshaw is impleaded, but there is no insurance policy for the other autorickshaw. 6. The claimants were examined as PWs 1 and 2. They categorically stated that while they were travelling on the road, an autorickshaw parked in front of the Society suddenly moved on to the road, which resulted in the autorickshaw coming from the ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 8 opposite side severing to the right side, thus hitting the scooter. Ext.A1 is the copy of the FIR, which specifically showed that the driver of the autorickshaw had abruptly, without proper care moved on to the road and hence was negligent. 7. The allegations in the FIR was only as against the 5[th] respondent; the autorickshaw, which hit on the scooter. However, in Ext.A6 charge sheet, after investigation both the drivers of the autorickshaws were charge sheeted. The Tribunal concluded that considering the facts and circumstances as also the deposition of PWs 1 and 2 as also that of RW1; that the accident happened due to the negligence of the 2[nd] respondent and the 5[th] respondent. But the liability was fixed only on the 2[nd] respondent. ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 9 8. The learned counsel for the Cross Objectors relied on a decision of the Hon'ble Supreme Court in _**Pawan Kumar and**_ _**another**_ v. _**Harkishan Dass Mohan Lal and**_ _**others [2014 ACJ 704]**_ and of this Court in _**Sulaiman C.M.**_ v. _**E.M. Varghese and Others**_ _**[2012 (2) KLJ 361]**_ . The two decisions dilated on the principles of composite negligence, which arises when the accident is caused by the negligence of more than one vehicle. In that event, the injured can realise the amount from one of the tortfeasors. 9. In the present case, the 2[nd] respondent, driver of the autorickshaw is one of the tortfeasors. In such circumstances, the 2[nd] respondent having been found to be one of the tortfeasors, the claimant can recover the compensation from ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 10 the Insurance Company of the vehicle, which was driven by the 2[nd] respondent in a negligent manner. 10. There is no apportionment of liability made by the Tribunal, nor is there any such contention taken by the Insurance Company in cross-examining any of the witnesses as to the specific percentage of negligence on either of the drivers. This Court does not find any reason to apportion the liability as in the case of contributory negligence. The award amounts, in the case of composite negligence can be recovered from one of the tortfeasors. . 11. The next question is with respect to the enhancement, which has to be considered independently. PW2 was the rider of the vehicle and PW1 was the pillion. The rider has filed Cross Objection in MACA ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 11 No.678/2008 and the pillion has filed Cross Objection in M.A.C.A No.980/2008. They are to be considered independently to assess the enhancement eligible to each of them. ## M.A.C.A 678/2008 12. Karunakaran, the rider of the vehicle had filed O.P.(MV) No.472/2000 and has examined himself as PW2. The right leg of PW2 was amputated and an artificial leg fixed. He claimed to have had an annual income of Rs.3,000/- per month before the accident. However, there was no evidence adduced to prove the annual income earned. In such circumstances, the Tribunal accepted a notional income of Rs.1,500/- per month. The Hon'ble Supreme Court in _**Ramachandrappa Vs. Manager Royal Sundaram Alliance Insurance Company Limited.**_ had adopted a monthly income of Rs.4,500/- for a coolie. ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 12 Hence the monthly income claimed by the appellant, who was 36 years old in the year 1999, Rs.2,500/- can be safely accepted. Ext.A8 is the discharge summary issued from the hospital, which shows the petitioner having been admitted for about 15 days. There was crush injury on the right foot, which resulted in the amputation. Ext.A9 is the disability certificate issued from City Hospital, Mangalore, evidencing the petitioner having carried out the amputation and the disability estimated at 40%. The Medical Board, constituted at the District Hospital, Kannur has also issued Ext.X2 disability certificate, which speaks of a permanent disability of 30%. The age of the injured was proved to be 36 years at the time of accident. The multiplier hence should be '15' while the Tribunal adopted ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** **==> picture [12 x 8] intentionally omitted <==** '16'. The multiplier has to be modified to '15'. The hospital charges were granted in full. 13. The following compensation is granted. |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the<br>Tribunal<br>`|Total amount<br>enhanced in<br>appeal<br>`| |---|---|---|---| |1|Medical expenses|21563|21563| |2|Transportation<br>charges|5000|5000| |3|Bystanders expense|2100|2100| |4|Extra nourishment|2000|3000| |5|Loss of earning|9000|15000| |6|Pain and suffering|25000|50000| |7|Loss due to<br>disability|86400|1,35,000<br>(2500x12x15x30/100)| |8|Loss of amenities||50000| ||**Total**|**1,48,100**|**2,81,663**| ## M.A.C.A No.980/2008 14. The pillion rider had filed O.P(MV)No.468/2000 and was examined as PW1. PW1 was also admitted to the City Hospital, ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 14 Mangalore and after six weeks the plaster was replaced. There was a steel rod put after six weeks and then it was removed. Ext.A3 series of discharge summary shows the PW1 having been hospitalised for a total of 29 days. The injuries suffered by him are the following: Comminuted fracture, proximal tibia right side and he had lacerated wound over right knee, tenderness over right patella, tenderness and abrasion abnormal mobility U/3[rd] area and swelling of right leg. The last discharge summary shows that the case was posted for ilizarov fixator removal. 15. The medical bills claimed were paid in full. PW1 asserted that he was an agriculturist and hence a notional income was fixed at Rs.1,500/-. As in the case of the other claimant, the income can be safely adopted at Rs.2,500/- per month. This injured was also assessed with a disability ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 15 of 14% by the Medical Board, constituted at the District Hospital, Kannur, PW1 was aged 52 years at the time of the accident and the multiplier applied was correctly at '11'. 16. The following enhancement is made. |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the<br>Tribunal<br>`|Total amount<br>enhanced in appeal<br>`| |---|---|---|---| |1|Medical expenses|37992|37992| |2|Transportation<br>charges|4000|4000| |3|Bystanders<br>expense|4350|4350| |4|Review|450|450| |5|Extra nourishment|2000|3000| |6|Loss of earning|9000|15000| |7|Pain and<br>suffering|20000|25000| |8|Loss due to<br>disability|27720|46200<br>(2500x12x11x14/100)| ||**Total**|**1,05,600**|**1,35,992**| 17. The learned counsel for the Insurance Company/appellant relies on _**Sally Joseph**_ v. _**Jose v. Jose [2002(1) KLT 573]**_ to argue that 50% of the awarded amounts may be permitted ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 16 to be recovered from the owner of the other vehicle, whose driver was also found to be negligent. The decision is an authority for the proposition that while awarding compensation, the Tribunal can direct apportionment of liability. In this case, it was specifically noticed that the Insurance Company has never raised a contention of apportionment of liability alleging specific percentage of negligence on either of the drivers in cross- examination of the driver or the injured before the Tribunal. In such circumstances, this Court does not find any reason to grant such liberty to the Insurance Company. 18. The amounts awarded as above, after deducting what has already been paid shall be paid within two months from the date of receipt of a certified copy of this judgment ## **MACA 678/2008 ,CO.81/2014 ,CO.82/2014 ,MACA.980/2008** 17 with interest from the date of application and cost, if any, as directed by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the Bank account in his name with copy of AADHAAR or other acceptable identification before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account, failing which, the applicant can approach the Tribunal. The Cross Objections are allowed. M.A.C.A No.678/2008 is partly allowed. M.A.C.A No.980/2008 is rejected. Parties to suffer their respective costs. ## **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** SB/08/02/2019