Varghese (S/o KuriaKose) v. B. D. Babu and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** **MACA.No.253 OF 2008** **AGAINST THE AWARD IN OP(MV) 155/2004 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD** ## **APPELLANT/PETITIONER:** **VARGHESE, S/O.KURIAKOSE, CHAKKALAKKAL HOUSE, PULPALLY, S.BATHERY, WAYANAD.** **BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH** ## **RESPONDENTS/RESPONDENTS:** **1 B.D.BABU, S/O.B.S.DHARMARAJ, DRIVER AND OWNER OF KA-208868 TATA 608 GOODS, CARRIER), MAHAVEERA ROAD, BELLUR, NAGAMANGALA TALUK, MANDYA DISTRICT, KARNATAKA STATE. 2 NATIONAL INSURANCE COMPANY LTD., UDUPPI DIVISIONAL OFFICE, SHANKAR BUILDINGS,, 1ST FLOOR, MOSQUE ROAD, P.B.NO.97, MANDYA,, KARNATAKA-576 101.** **R1 BY ADV. SRI.T.B.GAFOOR R1 BY ADV. SRI.E.M.JOSEPH R1 BY ADV. SRI.T.K.RADHAKRISHNAN R1 BY ADV. SMT.S.SREEDEVIALP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.253 OF 2008 2** ## **JUDGMENT** Dated this the 26th day of March 2021 The appellant was the petitioner in OP(MV) No.155 of 2004 on the file of the MACT, Wayanad. 2. The relevant facts in the claim petition, for the determination of the appeal, are: on 30.4.2002 while the appellant was travelling in a jeep bearing Reg.No.KL-12A 5166 from Meenangadi to Hassan in Karnataka, when the vehicle reached near Mangala service station at a mini Chennarayapatna, lorry bearing Reg.No.KL 20/8868 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the jeep. The appellant sustained serious injuries including a fracture on his left kneww-vertical of the lateral condyle of the left tibia and fracture of posterior aspect of tibia fracture of the neck of fibula. The appellant was hospitalized for a period of 4 days and he was incapacitated for a period of **MACA.No.253 OF 2008 3** three months. The appellant was an agriculturist by profession and earning a monthly income of Rs.7,500/-. The offending vehicle was insured with the 2[nd] respondent. The respondents 1 and 2 were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2,72,500/-. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2[nd] respondent filed a written statement admitting that the offending vehicle was insured at the time of accident. However, it was contended that the accident occurred solely due to the negligence of the driver of the jeep. The owner, driver and insurer of the jeep are necessary parties to the proceedings. Hence, the claim petition is bad for non joinder of necessary parties. The compensation claimed under the different heads are untenable in law. ## **MACA.No.253 OF 2008 4** 5. The appellant was examined as PW1 and Exts.A1 to A6 were marked in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, came to the conclusion that the accident occurred due to the rashness and negligence of the drivers of both the vehicles. It was held that the 1[st] respondent being the owner of the offending vehicle was vicariously liable along with the owner of the jeep. The 2[nd] respondent being the insurer of the offending vehicle was liable to pay 50% of the compensation amount to the appellant. Accordingly, the claim petition was allowed by directing the 2[nd] respondent to pay the appellant an amount of Rs.29,825/- along with the interest at 6% per annum from the date of filing of the petition till the date of payment and proportionate costs. 7. Aggrieved by the impugned award, the petitioner is in appeal. **MACA.No.253 OF 2008 5** 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2[nd] respondent/Insurance Company. 9. The learned counsel appearing for the appellant argued that the Tribunal has gone wrong in reducing the compensation by 50% for the reason that the appellant had not impleaded the driver, owner and the insurer of the jeep in which he was travelling. She relied on the decision of the Hon’ble Supreme Court in _**Khenyei v. New India Assurance Co. Ltd. and Others ( 2015 (9) SCC 273)**_ wherein the Hon,ble Supreme Court has held that in the case of composite negligence, the claimant is entitled to sue both or anyone of the joint tort feasors and to recover the entire compensation as liability from the joint feasors either jointly and severally. Similarly, she contended that the quantum of compensation awarded by the Tribunal under the various heads was inadequate and **MACA.No.253 OF 2008 6** not just compensation. Hence, she prayed that the appeal be allowed. 10. Per contra, the learned counsel appearing for the 2[nd] respondent argued that this Court had in _**United India Insurance Company Ltd., v. Mariayamma George (2010 (2) KLT 44)**_ has held that the case of composite negligent, the driver , owner and insurance company of both the vehicles have to be held liable to the extent of liability as fixed by the Tribunal. The case at hand, as the appellant had not impleaded the driver, owner and insurer of the jeep, there is no error in the award passed by the Tribunal. He also contended that the amount of compensation awarded by the Tribunal is reasonable and just. Hence, the appeal be dismissed. 11. The questions that emanate for consideration are (i) whether the claimant has to implead the driver, owner and insurer of both the vehicles in a case of ## **MACA.No.253 OF 2008 7** composite negligence (ii) whether the compensation awarded by the Tribunal is reasonable and just. 12. A three judge Bench of the Hon’ble Supreme Court has in paragraph 18 of _**Khenyei**_ (supra) categorically laid down the law as follows: (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis – a – vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors 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 tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been determined by the Court/Tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) 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 tort feasors. In such a case, impleaded joint tort feasor should be left, **MACA.No.253 OF 2008 8** in case he so desires to sue the other joint tort feasor in independent proceedings after passing of the decree or award. 13. In view of the above declaration of law by the Hon’ble Supreme Court, I hold that question No.1 is only to be answered in favour of the appellant. Therefore, I hold that it is not necessary for the appellant to implead both the alleged joint tort feasors . Hence, the deduction of compensation by 50% on the ground that the appellant had not impleaded the owner, driver and insurer of the jeep is erroneous and is set aside. 14. Coming to the question whether the Tribunal has awarded reasonable and just compensation. ## **Disability** 15. Even though the petitioner had produced Ext.A5 disability certificate, the Tribunal assessed and fixed the disability of the appellant at 8%. The Tribunal refused to accept Ext.A5 for the reason that the appellant had not sought the assistance of a medical board for evaluating ## **MACA.No.253 OF 2008 9** his disability. Moreover, the accident occurred on 30.4.2002, but the appellant got himself examined by the doctor, who issued Ext.A5, only on 7.12.2005. The doctor assessed the whole body disability at 16%. There is absolutely no explanation from the part of the appellant for the inordinate delay in getting himself examined by a doctor. Therefore, the finding of the Tribunal cannot be found fault. Hence, I fix the assessment of the disability of the appellant at 8% as found by the Tribunal. ## **Notional Income** 16. The appellant claimed to be an agriculturist by profession. He had stated in the claim petition that he was earning a monthly income of Rs.7,500/-. Nevertheless, the Tribunal fixed the notional income of the appellant is Rs.2,500/-. The Hon’ble Supreme Court _**in Ramachandrappa v. Manager, Royal Sundaram Aliance (2011 13 SCC 236)**_ has fixed the notional ## **MACA.No.253 OF 2008 10** income of a Coolie Worker in the year 2004 at Rs.4,500/per month. 17. Following the parameters in the aforecited decision, considering the fact that the appellant was an agriculturist by profession and that the accident occurred in the year 2002, I am of the considered opinion that the appellant’s notional income can safely be fixed at Rs.4,500/-. ## **Loss of Income** 18. It is on record that the appellant was treated as an inpatient for a period of 4 days. It is also substantiated by Ext.A2 wound certificate that the appellant had sustained left kneww – vertical fracture of lateral condyle of the left tibia and fracture of posterior aspect of the neck of fibula. In view of the aforesaid injuries sustained by the appellant, it is to be inferred that the appellant was incapacitated for a period of 3 ## **MACA.No.253 OF 2008 11** months. In such circumstances, due to the refixation of the notional income of the appellant and that he was incapacitated for a period of 3 months, I fix the loss of income of the appellant is Rs.13,500/-. ## **Medical Expenses** 19. It is seen that the appellant was treated as an inpatient at the Basappa Memorial Hospital, Mysore. Although the appellant had claimed and produced Ext.A4 inpatient bill, the Tribunal only awarded an amount of Rs.11,687/- towards the medical expenses. The Tribunal disallowed the appellant’s claim for consultation charges of an amount of Rs.5936/-. 20. On a re-appreciation of Ext.A4 inpatient bill, it is seen that the appellant had incurred an amount of Rs.17,623/- towards his treatment. Hence, I am of the firm opinion that the appellant is entitled for the entire amount that he had spent towards medical expenses. ## **MACA.No.253 OF 2008 12** Accordingly, I refix the compensation under the head medical expenses at Rs.17,623/-. ## **Loss due to disability** 21. The appellant was aged 35 years at the time of accident. His income has been refixed by this Court at Rs.4,500/-. The relevant multiplier going by the law laid down in _**National Insurance Company Ltd., v. Pranay Sethi (2017 16 SCC 680)**_ is 16. In view of the above said parameters, I hold that the appellant is entitled for compensation due to loss due to disability at Rs.69,160/in stead of Rs.38,400/- fixed by the Tribunal. ## **Other heads of claim** 22. With respect to the other heads of claim namely; Transport, bystander expenses, extra nourishment, pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation. 23. On an over all reappreciation of the pleadings ## **MACA.No.253 OF 2008 13** and materials on record and the law laid down in the aforecited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head<br>of<br>claim|Amount<br>awarded<br>by<br>the Tribunal|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---| |Loss<br>of<br>earnings|2,500/-|13,500/-| |Transport|7,00/-|7,00/-| |Bystander<br>expenses|5,00/-|5,00/-| |Extra<br>nourishmen<br>t|3,00/-|3,00/-| |Medical<br>expenses|12,000/-|17,623/-| |Pain<br>and<br>sufferings|5,000/-|5,000/-| |Loss due to<br>disability|38,400/-|69,120/-| |Total|59,400/-|1,06,743/-| In the result, the appeal is allowed in part, by ## **MACA.No.253 OF 2008 14** enhancing the compensation by a further amount of Rs.47,343/- with interest at the rate of Rs.6% per annum on the enhanced compensation from the date of petition till the date of realisation and proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the additional compensation to the appellant in accordance with law. The learned counsel appearing for the 2[nd] respondent contended that in view of the law laid down in paragraph 18 (iv) of _**Khenyei**_ (supra), the Hon’ble Supreme Court has granted liberty to the impleaded tort feasor to sue against the non-impleaded tort feasor for realisation of its proportionate share of compensation in the case of composite negligence. In light of the fact that ## **MACA.No.253 OF 2008 15** the Tribunal has already found that the accident occurred due to the negligence on the part of both the vehicles, I hold that the 2[nd] respondent is at liberty to institute independent proceedings as against the owner and insurer of the jeep bearing Reg.No.KL-12A 5166 for realisation of proportionate share of compensation amount as observed by the Tribunal in the impugned award. Sd/- ## C.S.DIAS ## JUDGE pm