Sabu.C.S vs Saju George & Another
2021 Latest Caselaw 21571 Ker

MACA NO. 1886 OF 2009
                                  1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                        MACA NO. 1886 OF 2009
   AGAINST THE JUDGMENT IN OP(MV) 796/2004 OF MOTOR ACCIDENT
             CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR
APPELLANT/PETITIONER IN O.P (MV):

            SABU.C.S, S/O.CHAKKALAMATTATH SANI,
            CHEMBALOOR DESOM, KALLUR VADAKKUMMURI, VILLAGE,
            PALAYAMPARAMBU P.O. MUKUNDAPURAM TALUK, THRISSUR
            DISTRICT.

            BY ADVS.
            SRI.P.V.BABY
            SRI.A.N.SANTHOSH



RESPONDENT/RESPONDENTS IN o.p (MV):

    1       SAJU GEORGE,S/O.THAKKOLKARAN GEORGE
            PUTHENCHIRA EAST P.O.

    2       THE NEW INDIA ASSURANCE CO.LTD.
            BRANCH OFFICE, MAIN ROAD,, IRINJALAKUDA.

            BY ADV SRI.LAL GEORGE




     THIS   MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1886 OF 2009
                                2




                             JUDGMENT

The appellant was the petitioner in O.P(MV)

No.796/2004 on the file of the Motor Accidents Claims

Tribunal, Irinjalakudiiia. The respondents in the appeal

were the respondents before the Tribunal.

2. The appellant had filed the claim petition under

Section 166 of the Motor Vehicles Act,1988, claiming

compensation on account of the injuries that he sustained

in an accident on 27.5.2002. It was his case that, on the

abovesaid day, while he was travelling pillion on a

motorcycle bearing Reg.No.KL-8/P 908 (motorcycle)

driven by the 1st respondent through the Kuzhikattussery -

Ashtamichira road, when they reached a place named

'Kolkunnu', a Maruti car came from the opposite direction

and hit the motorcycle. The appellant sustained serious MACA NO. 1886 OF 2009

injuries including multiple fractures on his right lower

limp. He was treated at the Elite Mission Hospital,

Thrissur for a period of 37 days. The accident occurred

due to the negligence of the 1 st respondent - the rider of

the motorcycle. The 2nd respondent was the insurer of the

motorcycle. The appellant was a Police Constable in the

Kerala Police Department and was drawing a monthly

salary of Rs.6,478/-. The appellant became permanently

disabled due to the accident. Hence, the appellant claimed

a compensation of Rs.7,66,000/- from the respondents,

which was limited to Rs.4,00,000/-.

3. The 1st respondent did not contest the

proceedings and was set ex parte.

4. The 2nd respondent had filed a written

statement admitting that the motorcycle had a valid

insurance coverage. Nevertheless, it was contended that

since the appellant was a pillion rider, he was not covered

by the insurance policy and that it was the petitioner who MACA NO. 1886 OF 2009

rode the motorcycle, and the accident occurred due to his

own negligence. Therefore, the second respondent may

be exonerated of any liability.

5. The appellant examined himself as PW1 and

marked Exts.A1 to A13 in evidence. The 2 nd respondent

produced and marked Exts.B1 and B2 in evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition, in part, by

holding that, even though the appellant is entitled to a

compensation of Rs.1,82,400/-, only 50% of the

compensation amount can be recovered from the 2 nd

respondent, since there was contributory negligence on

the part of the rider of the motorcycle and the driver of the

car, but the appellant had failed to implead the driver and

owner of the car. Therefore, the appellant is only entitled

to recover half of the compensation amount from the 2 nd

respondent - insurer of the motorcycle. MACA NO. 1886 OF 2009

7. Aggrieved by the finding that the appellant is

only entitled to recover 50% of the compensation amount

from the 2nd respondent and dissatisfied with the quantum

of compensation awarded by the Tribunal, the petitioner is

in appeal.

8. Heard; Sri.P.V.Baby, the learned counsel

appearing for the appellant/petitioner and Sri.Lal George,

the learned counsel appearing for the 2 nd respondent-

insurer of the motorcycle.

9. The questions that arise for consideration in the

appeal are:

(i) whether the finding that the appellant is entitled to

recover only 50% of the compensation amount from the

2nd respondent, due to the non-impleadment of the owner

and insurer of the car, is sustainable in law; and

(ii) whether the quantum of compensation awarded by

the Tribunal is reasonable and just?

MACA NO. 1886 OF 2009

Question No.(i)

10. The definite case of the appellant in the claim

petition was that the accident occurred due to the

negligence of the 1st respondent - the owner-cum-rider of

the motorcycle. During the cross-examination of the

appellant, he testified that the accident occurred due to the

negligence of the 1st respondent as well as the driver of

the car. In Ext.A2 final report filed by the Mala Police in

Crime No.210/2002, the Police arrived at the conclusion

that the accident occurred due to the negligence of the

driver of the car. However, the Police held that the owner

and driver of the car could not be detected. Nevertheless,

the Tribunal, based on the materials on record, reached a

conclusion that there was contributory negligence on the

part of drivers of both vehicles, but since the appellant

had not impleaded the owner of the car, the appellant was

only entitled to realise 50% of the compensation amount

from the 2nd respondent/insurer of the motorcycle. MACA NO. 1886 OF 2009

11. In a case of identical nature, the Hon'ble Supreme

Court in Pawan Kumar and Another v. M/s. Harkishan

Dass Mohan Lal and Others [ 2014 KHC 4058] relying

on its earlier decision in T.O Antony v. Karvarnan and

Others [2008 (2)KHC 80] has held, in case of composite

negligence, each wrongdoer is jointly and severally liable

for payment of the entire damages to the injured, and the

injured person has the choice of proceeding against all or

any of them. In such a case, the injured need not establish

the extent of responsibility of each wrongdoer separately,

nor is it necessary for the Court to determine the extent of

liability of each wrongdoer.

12. In Khenyei v. New India Assurance Co.Ltd and

Others [2015 (3) KHC 70], a three Judge Bench of the

Hon'ble Supreme Court has in paragraph 18(iv) succinctly

held as follows: "it would not be appropriate for the

Tribunal to determine the extent of composite negligence

of the drivers of the two vehicles in the absence of MACA NO. 1886 OF 2009

impleadment of other joint tort feasor. In such a case,

impleaded joint tort feasor should be left, in case he so

desires, to sue the other joint tortfeasor in independent

proceedings after passing of the decree or award".

13. In the present case, the specific case of the

appellant during his cross-examination was that the

accident occurred due to the negligence of the 1 st

respondent and the driver of the car. However, the

appellant was unaware of the details of the car or its

owner or insurer. The Police in Ext.A2 final report

concluded that there was negligence on the part of the

driver of the car.

14. The appellant has only impleaded the rider and

insurer of the motorcycle, which is permissible in law in

view of Khenyei (supra). Therefore, going by the ratio in

the aforecited precedents, it is for the 2nd respondent, if

they so desire, after paying the compensation amount to

the appellant to move against the owner and/or the insurer MACA NO. 1886 OF 2009

of the car and get the extent of composite negligence

fixed, and realise the proportionate share of the

compensation amount from the owner and/or insurer of

the car. In the above legal and factual matrix, I hold that

the finding of the Tribunal that the appellant is only

entitled to get 50% of the compensation amount due to the

non-impleadment of the owner and insurer of the car is

erroneous and wrong and is against the ratio in Pawavan

Kumar and Khenyei (supra).

15. Hence, I set aside the finding and answer

Question No.(i) in favour of the appellant. I hold that the

appellant is entitled to realise the entire compensation

amount from the 2nd respondent/insurer of the motorcycle

because the 2nd respondent has admitted the insurance

policy of the motorcycle and has not proved that the 1 st

respondent has violated the insurance policy conditions.

Therefore, the 2nd respondent is to indemnify the 1st

respondent of its liability. Moreover, the motorcycle was MACA NO. 1886 OF 2009

covered by a 'Package Policy' and the appellant was the

pillion rider.

Question No.(ii)

16. The appellant was a Police Constable and was

working in the Mala Police Station under the Kerala Police

Department. He produced Ext.A7 salary certificate to

prove that he was drawing a monthly salary of Rs.6,478/-

which includes allowance. The Tribunal for the reason that

the appellant had not sustained any loss of income due to

the accident, fixed the notional annual income of the

appellant at Rs.18,000/-,adopted the multiplier of '17' and

awarded an amount of Rs.76,500/- as compensation for

'loss due to disability. The said course adopted by the

Tribunal is erroneous and not in consonance with the law

laid down by this Court in Oriental Insurance Company

Ltd. v. Valsa [2015 (1) KLT 781] and Kumaran v. Roy

Mathew [2017 (1) KLT 668].

17. The Hon'ble Supreme Court in Puttamma v. MACA NO. 1886 OF 2009

K.L.Narayana Reddy & another [2014 (1) KLT 738] and

in N.Jayasree & Others v. Cholamandalam MS

General Insurance Co. Ltd (Live law 2021 SC 588)

has held that the split multiplier method can be adopted, if

there are cogent reasons.

18. Admittedly, the appellant was in service even

after the accident. Although he had produced Ext.A6

disability certificate, it is proved that he had not suffered

loss of income due to the disability. In such circumstances,

I hold that there are cogent reasons to adopt the split

multiplier method in the present case. As the appellant

would have retired from service at the age of 56, I hold

that the multiplier of '9' has to be adopted.

19. As the appellant was a Police Constable and he

would draw pension after his retirement, I hold that his

post-retirement notional monthly income can be fixed at

Rs.3,500/-, following the ratio in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance MACA NO. 1886 OF 2009

Company Limited [(2011) 13 SCC 236]. Accordingly, I fix

the notional post-retirement monthly income of the

appellant at Rs.3,500/-.

Disability

20. The appellant had produced Ext.A6 disability

certificate, wherein it is certified that, the appellant has a

mal union of his right femur and shortening of his right

lower limps of 3 cm and he has limitation of right knee

and ankle movements. The Doctor has certified that the

appellant has a permanent disability of 25% as per Mc

Bride's scale of his right lower limb.

21. Taking into consideration the fact that the

appellant was a Police Constable and he would have got a

similar post retirement employment, I am convinced that

the appellant's functional disability can be fixed at 25%, as

certified in Ext.A6, following the ratio in Rajkumar v.

Ajaykumar [2011 (1) KLT 620 SC].

MACA NO. 1886 OF 2009

22. Taking into account the above-mentioned factors

namely, the post-retirement notional monthly income of

the appellant at Rs.3,500/-, his functional disability at

25%, and the multiplier at '9', I re-fix the compensation for

' loss due to disability at Rs.94,500/-.

Loss of earnings

23. It is proved as per Ext.A7 that the appellant was

on loss of pay for a period of 157 days. The Tribunal has

rightly awarded him compensation for loss of earnings at

Rs.33,900/-. I find that the assessment to be correct and I

confirm the same.

Loss of amenities

24. The appellant had claimed an amount of

Rs.50,000/- as compensation for 'loss of amenities'. The

Tribunal only awarded an amount of Rs.5,000/- under the

said head, which according to me is on the lower side. MACA NO. 1886 OF 2009

25. Keeping in mind the fact that the appellant was

treated as an inpatient for 37 days, that he was indisposed

for a period of 157 days and that he has a functional

disability of 25%, I hold that the appellant is entitled for

compensation for 'loss of amenities' at Rs.25,000/- instead

of Rs.5,000/- awarded by the Tribunal.

Other heads of compensation

26. With respect to the other heads of compensation,

I find that the Tribunal has awarded reasonable and just

compensation.

27. On an overall re-appreciation of the pleadings and

materials on record and the law referred to in the

aforecited decisions, I hold that the appellant/petitioner is

entitled for enhancement of compensation as modified and

re-calculated above and given in the table below for easy

reference.

MACA NO. 1886 OF 2009

SI Head of claim Amount awarded by the Amounts modified Tribunal (in rupees) and recalculated by .No this Court

1 Loss of earnings 33,900 33,900

2. Transport to hospital 2,000 2,000

3. Bystander expenses 3,700 3,700

4. Medical Expenses 36,300 36,300

5 Pain and suffering 25,000 25,000

6. Loss of amenities 5,000 25,000

7. Loss due to disability 76,500 94,500

Total 1,82,400 2,20,400

Accordingly, the compensation is enhanced by a further

amount of Rs.38,000/- than what is awarded by the

Tribunal.

In the result, the appeal is allowed, by ordering that

the appellant is entitled to a total compensation of

2,20,400/- with interest at the rate of 7% per annum from

the date of petition till the date of deposit and a cost of

Rs.10,000/-. The 2nd respondent is directed to deposit MACA NO. 1886 OF 2009

the compensation amount with interest and costs before

the Tribunal within a period of two months from the date

of receipt of a certified copy of the judgment. Needless to

mention that, if the 2nd respondent has already deposited

any amount pursuant to the impugned award, only the

balance amount need be deposited with interest and costs.

The 2nd respondent is reserved the liberty to proceed

against the owner and/or the insuer of the car as observed

in paragraph 18(iv) of Khenyei (supra) to realise its

proportionate share from the owner and/or the insurer of

the car. Immediately on the deposit being made by the 2 nd

respondent, the Tribunal shall disburse the same to the

appellant, in accordance with law.

ma/3.11.2021                      Sd/-   C.S.DIAS, JUDGE

                        /True copy/