V.K. Hassankoya S/o Ali v. Raghunathan and United India Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939 MACA.No. 437 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 57/2010 of IST ADDL.M.A.C.T/I ADDL.DISTRICT JUDGE, KOZHIKODE APPELLANT(S)/PETITIONER: ----------------------------- V.K.HASSANKOYA S/O.ALI, EDAPARUTHI HOUSE, CHERUVANNUR AMSOM DESOM, P.O.KOLATHARA, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDEEN RESPONDENT(S):RESPONDENTS ------------------------------------- ## 1. RAGHUNATHAN S/O.KRISHNADAS, KATTIL PARAMBIL HOUSE, P.O.ARAKKINAR, BEYPORE, KOZHIKODE-673 028. 2. UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, SUBKA BUILDING, THAZHEPALAM, TIRUR-676 101. R2 BY ADV. SMT.D.GEETHA R2 BY ADV. SMT.K.SHERIN MOHAN R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.437 OF 2012** **==========================** Dated this the 22[nd] day of November, 2017 ## **JUDGMENT** _Ravikumar, J._ The judgment and award dated 3.11.2011 in O.P.(MV)No.57 of 2010 passed by the I Additional Motor Accidents Claims Tribunal/ I Additional District Judge, Kozhikode is under challenge in this appeal. The petitioner therein is the appellant. According to him, the quantum of compensation granted thereunder is inadequate. He filed the said claim petition under section 166 of the Motor Vehicles Act claiming a total compensation of Rs.3 lakhs for the injuries sustained by him in a motor vehicle accident that occurred on 12.6.2008 at 9.30 a.m. As per the impugned award, the Tribunal had assessed Rs.2,64,296/- as compensation. In view of the finding that composite negligence of the driver of the Trucker jeep bearing Reg.No.KRD **M.A.C.A.437/2012** 2 3825 and the driver of the autorickshaw bearing Reg.No.KL-10/E4513 in which the appellant was then travelling and consequential apportionment of the degree of negligence in between them as 50:50, the Tribunal had granted only 50% of the amount assessed as compensation, to the appellant. In other words, as per the impugned award, the Tribunal had granted only an amount of Rs.1,32,148/- as compensation after assessing the compensation as Rs.2,64,296/-, with interest at the rate of 8% per annum from the date of the petition till realisation along with a cost of Rs.4,000/-. It is in the said circumstances that the appellant preferred this appeal challenging the deduction made from the assessed compensation as also seeking for enhancement of the compensation. 2. We have heard the learned counsel for the appellant and the learned counsel for the second respondent. 3. A brief narration of the facts is required for proper disposal of this appeal. The appellant was a passenger in the autorickshaw bearing Reg.No.KL-10/E-4513 on 12.6.2008. At about 9.30 a.m on **M.A.C.A.437/2012** 3 that day, at the place of accident, it was hit by a Trucker jeep bearing Reg.No.KRD 3825, driven by the first respondent. On sustaining severe injuries, the appellant was initially taken to Koya's Hospital, Feroke and thereafter, he was referred to Medical College Hospital, Kozhikode. Altogether he remained as inpatient in connection with treatment for the injuries sustained in the accident, for 149 days. The injuries sustained by him resulted in permanent disability. It is in the said circumstances that he filed the above claim petition. 4. We will firstly consider the question whether the Tribunal was justified in deducting 50% of the compensation assessed on the ground of composite negligence of the drivers of the vehicles involved in the accident as the cause of the accident. It is not in dispute that the appellant was only a passenger in the autorickshaw bearing Reg.No.KL-10/E-4513, which is one of the vehicles involved in the accident. The Tribunal, after appreciating the evidence on record, entered into a finding that composite negligence of the drivers of the vehicles involved in the accident is the cause of the accident. **M.A.C.A.437/2012** 4 The question is whether such a finding could be a reason for effecting deduction from the compensation assessed as grantable to the injuredappellant when admittedly he was only a passenger in one of the vehicles involved in the accident. The said question is no more res integra in the light of the decision in **Khenyei v. New India Assurance Co. Ltd and others [2015 (3) KHC 70 (SC)].** In the said decision, the Apex Court held that in the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors to recover the entire compensation because liability of joint tort feasors is joint and several. In such circumstances, there can be no doubt with respect to the position that the Tribunal had committed an illegality in effecting deduction of 50% of the assessed compensation assigning the reason that the cause of the accident is the composite negligence of the drivers of the vehicles and that the appellant had not impleaded the rider, owner and insurer of one of the vehicles involved in the accident. In the said decision the Apex Court, after holding as aforesaid, held thus:- **M.A.C.A.437/2012** 5 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 in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. In this case, admittedly, two vehicles involved in the accident viz., Trucker jeep bearing Reg.No.KRD 3825 driven by the first respondent and the autorickshaw bearing Reg.No.KL-10/E-4513 in which the appellant was a passenger at the time of the accident. True that despite the involvement of the said vehicles in the accident, only the owner-cum-driver and insurer of the trucker jeep were made parties to the claim petition. The second respondent had filed a written statement before the Tribunal. Though they admitted the insurance coverage of the trucker jeep, they attributed collusion between the first respondent owner-cum-driver of the said jeep and the petitioner. It is a fact that all the joint tort feasors were not made parties to the claim petition and as noticed hereinbefore, only the **M.A.C.A.437/2012** 6 owner-cum-driver and the insurer of the trucker jeep were made parties in the claim petition. In other words, the driver, owner and insurer of the autorickshaw were not impleaded as parties to the claim petition. In the light of the decision in **Khenyei** 's case (supra), the option was with claimant to decide whether he should sue both or anyone of the joint tort feasors. Evidently, the appellant had opted only to sue the owner-cum-driver and insurer of the trucker jeep. In the claim petition itself, he had averred that the accident had occurred while he was travelling as a passenger in the autorickshaw when the aforesaid trucker jeep dashed against it. In the said circumstances, even in the absence of the joint tort feasors in the array of parties the Tribunal ought to have awarded the entire compensation assessed, to the appellant-petitioner in the light of the decision in **Khenyei** 's case (supra). In other words, there is absolutely no justification for effecting any deduction from the amount assessed as compensation, on the aforesaid ground. Consequently, it is held that the appellant is entitled to get the entire amount of compensation as assessed by the **M.A.C.A.437/2012** 7 Tribunal. 5. Then, the question to be considered is whether the Tribunal was justified in apportioning the degree of negligence among the drivers of the vehicles involved in the accident. In the light of the decision **Khenyei** 's case (supra), the Tribunal ought not have determined the extent of composite negligence between the drivers of the two vehicles in the absence of impleadment of other joint tort feasors. In short, the apportionment of the extent of composite negligence between the drivers of the vehicles involved in the accident was done in the absence of other joint tort feasors and therefore, the apportionment of the degree of composite negligence is liable to be interfered with. We do so. 6. We will now proceed to consider the question whether the appellant is entitled to get enhanced compensation. The learned counsel for the appellant contended that the Tribunal had fixed the monthly income disregarding the averments in the claim petition. In the claim petition, it was averred that the appellant was a coolie and **M.A.C.A.437/2012** 8 he was earning Rs.8,500/- per month. The appellant had not adduced any evidence to establish his occupation or income. Hence, we do not find any fault with the Tribunal in fixing the monthly income for calculation purpose, notionally. But, the question is whether fixation of the monthly income as Rs.3,300/- by the Tribunal invites interference. The accident involved in this case had occurred on 12.6.2008 and the appellant was then aged 54 years. In the light of the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** the said fixation can only be held as too low. In such circumstances, we are of the view that an amount of Rs.7,000/- can be notionally fixed as the monthly income of the appellant. It is accordingly, fixed as the monthly income of the appellant for calculation purpose. 7. We will now consider whether there is substance in the challenge against the assessment of permanent disability made by the Tribunal. Going by Ext.C1 disability certificate issued by the medical board, the appellant had incurred 24% disability due to the injuries **M.A.C.A.437/2012** 9 sustained in the accident. But the Tribunal had taken only 20% disability for calculation purpose. Though at the first blush, it would appear that the Tribunal had gone wrong in not accepting the entire extent of disability certified under Ext.C1, the reasoning given by the Tribunal in paragraph 13 of the impugned judgment persuade us to accept the assessment made by the Tribunal. The relevant recital in paragraph 13 reads thus:- “It is noted in the above certificate that the disability pointed out is temporary considering the present infection which can improve with treatment.” None of the respondents challenged the assessment of disability by the Tribunal even after taking note of the aforesaid aspect. In such circumstances, we do not find any reason to uphold the contention of the appellant against the assessment made by the Tribunal. In such circumstances, a re-assessment of the compensation payable for disability has to be made only by substituting the monthly income refixed by us. On such reassessment, the amount payable thereunder will be Rs.1,84,800/- (7000x12x11x20/100). The Tribunal had **M.A.C.A.437/2012** 10 already granted an amount of Rs.87,120/- under the said head. After deducting the said amount, the appellant is entitled to Rs.97,680/additionally as compensation for permanent disability. The Tribunal took one year as the period for granting compensation for loss of earnings. We do not propose to interfere with the said fixation. But at the same time, the appellant is entitled to get proportionate enhancement of compensation thereunder based on the re-fixation of the monthly income made by us. On such assessment, the appellant is entitled to get an amount of Rs.44,400/- as additional compensation thereunder. The appellant had been an inpatient for a period of 149 days. The Tribunal has granted bystander's expenses at the rate of Rs.150 per day. We are of the view that the rate ought to have been Rs.200/- per day taking into account the year of the accident and the economic situation prevalent at the relevant point of time. Consequently, the appellant will be entitled to get Rs.7,450/additionally thereunder. There was fracture on the shaft of left tibia and the same was later, infected. As noticed hereinbefore, the **M.A.C.A.437/2012** 11 appellant had been an inpatient for a period of 149 days. Taking note of the injuries and the period of hospitalisation, we are of the view that the sums of compensation granted by the Tribunal towards pain and suffering as also loss of amenities are on the lower side. Towards pain and suffering, the Tribunal had granted an amount of Rs.25,000/and towards loss of amenities, the Tribunal had granted only an amount of Rs.5,000/-. Taking note of the aforesaid aspects, we are of the view that an amount of Rs.10,000/- can be granted additionally towards pain and suffering and an amount of Rs.15,000/- can be granted additionally towards compensation for loss of amenities. In the light of the discussions as above, the appellant is entitled to get an additional compensation of Rs.1,74,530/-. It is granted. The said amount of additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The additional compensation along with interest shall be deposited by the second respondent, within a period of two months from the date of receipt of a copy of this judgment. In view of the fact that we have **M.A.C.A.437/2012** 12 interfered with the 50% deduction made by the Tribunal, the appellant is also entitled to get an amount of Rs.1,32,148/-, being the amount deducted assigning the aforesaid reason. The said amount will carry interest at the rate of 8% per annum as fixed by the Tribunal. The additional compensation granted by us and Rs.1,32,148/- deducted based on the aforesaid reason, shall be released to the appellant. In view of the interference with the apportionment of the extent of composite negligence between the drivers of the vehicles involved in the accident in the light of the decision in **Khenyei** 's case (supra), the second respondent is granted liberty to sue the other joint tort feasors, if it so desires, in independent proceedings after satisfying the award. Appeal is disposed of as above. No order as to costs. Sd/- ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **B.SUDHEENDRA KUMAR (JUDGE)** **spc/**