Kerala High Court
P.S.Krishnan vs T.M.Joy on 4 April, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937
MACA.No.1069 of 2005 ( )
--------------------------
AGAINST THE AWARD IN OP(MV)NO.966/2003 of M.A.C.T
OTTAPPALAM, DATED 04-04-2005.
APPELLANT/PETITIONER :
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P.S.KRISHNAN, S/O.SANKARA NARAYANAN.P.K,
PUZHAVAKKATHU MADOM, KANNIYAMPURAM, OTTAPALAM TALUK.
BY ADVS.SRI.SANTHEEP ANKARATH
SRI.P.P.SURESHKUMAR
RESPONDENT(S):
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1. T.M.JOY, S/O.T.L.MARKOSE (*DIED),
PREM NIVAS, THAZHATHE HOUSE, MANJAKKAD,
SHORNUR, OTTAPALAM TALUK.
2. P.MURALIDHARAN, PUTHEN VEETTIL HOUSE,
MYLUMPURAM, THOTTAKKARA POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
3. A.S.SREEJITH, "SREE VILAS",
KANNIYAMPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
4. THE UNITED INDIA INSURANCE CO.LTD.,
FAIZAL BUILDING, MAIN ROAD, OTTAPALAM,
PALAKKAD DISTRICT.
(* ADDITIONAL RESPONDENTS 5 AND 6 ARE IMPLEADED)
R5. VALSA JOY, W/O.LATE T.M.JOY,
C/O.SUBRAMANIAN, C-38, 127, VADAKKEKARA HOUSE,
NEAR IMMANUEL MARTHOMA CHURCH & LEO ARTS & SPORTS CLUB,
CHOLAKULAM, SHORANUR - 679 121.
R6. SOLOMON, S/O.LATE T.M.JOY,
C/O.SUBRAMANIAN, C-38, 127, VADAKKEKARA HOUSE,
NEAR IMMANUEL MARTHOMA CHURCH & LEO ARTS & SPORTS CLUB,
CHOLAKULAM, SHORANUR - 679 121.
(WHO ARE THE LRs OF THE DECEASED RESPONDENT NO.1 ARE IMPLEADED
AS ADDITIONAL RESPONDENTS 5 AND 6 AS PER ORDER DATED
30.05.2012 IN I.A.NO.616/2012 IN MACA.No.1069/2005)
R1 BY ADV. SRI.PEEYUS A.KOTTAM
R4 BY ADV. SRI.M.A.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 09-02-2016 ALONG WITH MACA NO.1717/2005, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
ss
P.N.RAVINDRAN &
K.RAMAKRISHNAN, JJ.
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M.A.C.A. No.1069 of 2005
and M.A.C.A. No.1717 of 2005
--------------------------------------------------------------
Dated this the 9th day of February, 2016
JUDGMENT
K.RAMAKRISHNAN,J M.A.C.A.No.1069/2005 was filed by the petitioner, while M.A.C.A.No.1717/2005 was filed by the 4th respondent Insurance Company in one of the vehicle involved in the accident against the award passed in O.P.(MV)No.966/2003 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The claim petition was filed by the injured for compensation for the personal injuries sustained him in a motor vehicle accident occurred on 26.07.2002 at 9.00 a.m., at Kallipadam, while he was travelling in the maruti van with No.KL-9K/2482 owned by the 3rd respondent, driven by the M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 2 2nd respondent and insured with the 4th respondent, which collided with an ambassador car with No.KL-R/8099 owned and driven by the first respondent which came from the opposite direction. According to the petitioner in the claim petition, the accident occurred due to the negligence of both the drivers. He sustained severe injuries. He was working as a salesman in a shop and getting 4,000/- per month, who was aged only 47 years at that time and on account of the injury, he sustained permanent disability incapacitating from doing any work. So he claimed a total compensation of 4,00,000/- on various heads.
2. The first respondent entered appearance and filed counter admitting that he was the owner cum driver of the ambassador car involved in the accident, but denied negligence on his part. According to him he was proceeding from west to east and when the car reached place of occurrence, a dog suddenly crossed the road from south to M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 3 north and at that time, the maruti van coming from the opposite direction at high speed swerved to the right, and on seeing the same, he had to swerve his vehicle to his opposite side and at that process the maruti van hit against the ambassador car and there was no negligence on his part and the accident occurred due to the negligence of the 2nd respondent alone and he is not liable to pay any compensation.
3. Respondents 2 and 3 remained absent.
4. 4th respondent appeared and filed counter admitting the insurance of the maruti van, but denied the liability on the ground that there was no negligence on the part of the 2nd respondent and the accident occurred due to the sole negligence of the first respondent. He denied the employment and also questioned the quantum of compensation claimed and prayed for dismissal of the application.
M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 4
5. The petitioner was examined as PW1. The doctor who issued the disability certificate was examined as PW2 on the side of the petitioner and Exts.A1 to A12 were marked on his side. The first respondent was examined as RW1 and no documents were marked on his side. Ext.B1 to B4 were marked on the side of the 4th respondent on consent. After considering the evidence on record, court below found that the accident occurred due to composite negligence of both the drivers and on the basis of the evidence available apportioned the negligence between the driver of the ambassador car and the maruti van in the ratio 90%:10%. After considering the evidence the court below fixed the compensation as follows:
Sl.No. Head Amount awarded
1 Loss of earning 15000
2 Medical expenses 54650
3 Bystanders expenses 3000
4 Transportation expenses 2500
5 Extra nourishment 2500
M.A.C.A. No.1069 of 2005
and M.A.C.A. No.1717 of 2005
5
Sl.No. Head Amount awarded
6 Pain and suffering 25000
Loss of earning capacity (permanent
7 disability) 39000
Total 1,41,650
6. Court below also permitted the claimant to realise the amount jointly and severely from respondents 1 to 4 and permitted the 4th respondent to recover the excess amount of compensation payable by them, after deducting their liability from the first respondent. Aggrieved by the finding regarding negligence and quantum of compensation, the 4th respondent filed M.A.C.A.No.1717/2005 and dissatisfied with the quantum of compensation awarded, the claimant filed M.A.C.A.No.1069/2005. Since both these appeals arose out of the same award we are disposing both the appeals by a common judgment.
7. Heard Sri.A.R. George, counsel appearing for the appellant in M.A.C.A.No.1717/2005, Insurance Company M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 6 of the maruti van and Sri.Santheep Ankarath, counsel appearing for the appellant in M.A.C.A.No.1069/2005 and first respondent in M.A.C.A.No.1717/2005 and Sri.M.A.George, counsel appearing for the 4th respondent in M.A.C.A.No.1069/2005. During the pendency of the appeal, the first respondent in M.A.C.A.No.1069/2005 and 2nd respondent in M.A.C.A.No.1717/2005 (died) and his legal representatives were impleaded as additional respondents in both the cases and they were represented by Sri.Peeyus A.Kottam.
8. The counsel for the Insurance Company of the maruti van argued that, as per the police records the accident occurred on the extreme southern side of the road, which is the proper side of the maruti van and the police charge-sheeted only the driver of the ambassador car. So under such circumstances and in the absence of any evidence to prove any negligence on the part of the driver of M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 7 the maruti van, the court below was not justified in fixing the negligence at 10% on the driver of the maruti van and the liability to that extent imposed on the Insurance Company is liable to be set aside. He had also questioned the quantum of compensation awarded.
9. On the other hand, the counsel for the claimant in both the cases argued that as far as the claimant is concerned, he need not prove negligence as he was a passenger in one of the vehicles and as far as the passenger is concerned, both the drivers are joint tort feasors and they are jointly and severally liable to pay the compensation to him. The court below was not justified in apportioning the negligence between the drivers in the ratio mentioned above, as the evidence will go to show that both were equally responsible for the accident. So court below should have held that both were equally responsible and apportioned the negligence accordingly. He had also argued M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 8 that the claimant sustained severe injuries and he had claimed only 4,000/- per month as monthly income which is very reasonable during the year 2002 and court below has arbitrarily fixed the monthly income as 2,500/- which is not correct. Further court below was also not justified in reducing the percentage of disability for the purpose of assessing compensation under the head permanent disability. The quantum of compensation awarded under the head pain and suffering, transport to hospital, bystanders expenses, extra nourishment are all less. Further he was under treatment for nearly more than one year and the court below was not justified in fixing the period of loss of earning during the period of treatment as six months. No amount was awarded under the head loss of amenities in life. The counsel for the insurance company in both the appeals submitted that the compensation awarded by the court below itself is on the higher side and the claimant is M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 9 not entitled to get any enhancement.
10. The fact that the claimant was the travelling in the maruti van owned by the 3rd respondent, driven by 2nd respondent and insured with the 4th respondent in the lower court is not in dispute. It is also not in dispute that when the maruti van reached the place of occurrence, it collided with ambassador car with No.KL-R/8099 which came from the opposite direction and he sustained injuries in the accident. In the claim petition he had averred that the accident occurred due to the negligence of both the drivers and both were responsible for the accident. The first respondent in his counter statement stated that there was no negligence on his part as he had to swerve the vehicle to right side in order to avoid a major hit, a dog crossed the road and on seeing the maruti van turning to the right and in that process it happened to collide with the maruti van and there was no negligence on his part and the 2nd respondent was M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 10 negligent and the accident occurred due to his negligence. According to the 4th respondent there was no negligence on the part of the 2nd respondent and entire negligence was on the part of the first respondent. In order to prove the case of the claimant, the claimant himself had gone to the witness box. He had deposed that both the drivers were negligent and the van in which he was travelling and the car which came from the opposite direction were coming in a high speed and he denied the suggestion that there was a dog crossed the road. The evidence of RW1 was in tune with the contentions raised in his written statement, but he had admitted that he was charge-sheeted by the police for rash and negligent driving in respect of the accident evidenced by Ext.D4 charge-sheet and a crime was registered on the basis of the statement given by the present claimant which is evident from Exts.A1 and A2.
11. It is true that in Ext.A2 there was no M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 11 allegation made by PW1 against the driver of the maruti van, but no attempt was made on the side of the contesting respondents to put that statement on this aspect to contradict his version before the tribunal. If that statement was put to him and contradicted with that portion he may have some explanation for the same regarding the circumstances he was made to say so before the police. Merely because he had stated in Ext.A2 that the accident occurred due to the negligent driving of the driver of the car alone is not sufficient to come to the conclusion that there was no negligence on the part of the driver of the maruti van. It is true that in Ext.A3 scene mahazar, it was mentioned that the accident occurred on the southern side of the road, which is 1.5 meters north from the southern tar end and the road was having a width of six meters. But it will be seen from the report of the Motor Vehicle's Inspector and also the evidence of PW1 that the car happened to hit M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 12 on the left side of the maruti van. If the maruti van was going in the right side and the ambassador car came from the opposite direction through the wrong side and hit in the normal course, there was no possibility of any damage being caused on the left side of the maruti van. There is no explanation forthcoming from the side of the driver of the maruti van as to how this was happened as well. Though the police had charge-sheeted only one of the drivers of the vehicles involving in the incident, if there is other materials available on record for the tribunal to assess the negligence, the tribunal is entitled to use that material for apportioning the negligence between the drivers as per the recent decision of the Supreme Court reported in Khenyei v. New India Assurance Company Limited and Others (2015 (3) KHC 70). The three judges of the Supreme Court has considered the question regarding the liability of joint tort feasors in the case of composite negligence and contributory M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 13 negligence and the duty of the tribunal to apportion the negligence between them and held after considering all the decisions on this aspect, held as follows:
"What emerges from the aforesaid discussion is 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 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 impleaded and the apportionment/ extent of their negligence has 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 M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 14 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 of award."
12. So it is clear from the above judgment of the apex court that as regards the claimant is concerned, when more than one vehicles are involved, it has to be considered as both the drivers were equally responsible for the accident and the liability will have to be joint and several between the joint tort feasors. It is not even necessary for the court to apportion the negligence between the drivers of the vehicles involved in the accident. But if there are evidence available on record for the purpose of ascertaining the liability inter se between the contesting parties, court can apportion the negligence between them so as to enable the other party to realise the excess contribution made by them from the party who is more liable. Only to that extent, there is a duty cast on the tribunal to apportion the negligence between the drivers of the vehicles involved in the accident M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 15 or otherwise there is no duty cast on the tribunal to assess the liability or apportion the liability to make them liable to satisfy the compensation payable to the victim. In such circumstances, the court below was perfectly justified in coming to the conclusion that it cannot be said that the driver of the ambassador car alone was responsible for the accident, but considering the fact that the accident occurred on the extreme southern side of the road and also considering the fact that the damage caused to the left side of the maruti van and there was no explanation forthcoming from the side of the driver of the maruti van regarding this aspect, and the driver of the maruti van had not gone to the witness box to explain this fact, the tribunal was perfectly justified in coming to the conclusion that both the drivers were responsible for the accident and rightly apportioned the negligence between the driver of the ambassador car and the driver of the maruti van in the ratio 90%:10% M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 16 respectively and we do not find any reason to interfere with the finding of the tribunal on this aspect.
13. As regards the quantum of compensation is concerned, the claimant sustained comminuted fracture shaft of (L) femur, comminuted fracture both bones (L) leg with segmental fracture fibula, fracture lateral malleolus (L), fracture navicular bone and he was treated at Al-Shifa Hospital, Perinthalmanna originally from 26.07.2002 to 07.08.2002. He was discharged with plaster slab. He was treated with nailing and internal fixation for the fracture sustained. Thereafter he was again admitted on 23.11.2002 for the removal of the plates in the right leg as he was having infection. He was discharged on 29.11.2002. Thereafter he was given plaster cast for four months and he had started walking with weight bearing with crutches for eight months. The documents produced by him will go to show that he was undergoing treatment for nearly one year M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 17 and during that period he could not do any work. So fixing six months for the purpose of assessing compensation for loss of earning during the period of treatment by the tribunal appears to be on the lower side and the petitioner is entitled to get compensation for loss of earing at least for one year.
14. PW1 had deposed that he was working as a salesman on commission basis and he was getting an average income of 4,000/- per month, but he had not produced any document to prove this fact. Even in case where there was no document produced, court will have to do some guess work for the purpose of fixing the monthly income of the person. Legislature in 1994 fixed 1,250/- per month for a non-earning member for the purpose of awarding compensation. The incident occurred in the year 2002. Considering these facts we feels that he may be getting 3,500/- per month and we fixed his monthly M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 18 income as 3,500/- per month and award 42,000/- under the head loss of earning during the period of treatment instead of 15,000/- awarded by the court below and under that head he will be entitled to get 27,000/- more as enhanced compensation.
15. Considering the nature of injury sustained and also the period of treatment and nature of treatment undergone by him, we feel that the compensation awarded under the head pain and suffering is also in the lower side and we enhance the same to 30,000/- from 25,000/-. Ext.A7 disability certificate proved through PW2, the doctor who issued the same a Senior Lecturer in Orthopedic, Medical College Hospital, Thrissur, shows that he had sustained 15% disability and he is having shortening of 1" of the left leg and he is having limbing and difficulty in squatting and climbing steps and there is stiffness of right ankle and dorsification is closely restricted and there is M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 19 malunited fracture of both bones as well. So under the circumstances, it is likely to affect his earning capacity, as a salesman, he has to travel with this disability. So we take the entire 15% fixed by the doctor for this purpose instead of 10% taken by the court below. Court below had relying on the decision in Sarla Verma (Smt) & Others v. Delhi Transport Corporation & Another [(2009) 6 SCC 121], rightly took the multiplier as 13 as he was aged 47 years evidenced by the front page of the S.S.L.C Book produced and marked through him. On the basis of the income and the percentage of disability as assessed by this court, if a recalculation is made, the petitioner will be entitled to get 81,900/- (3,500x12x13x15%), instead of 39,000/- awarded by the court below under the head loss of earning capacity and we award that amount under that head and he will be entitled to get an additional compensation of 42,900/- under that head.
M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 20
16. No amount was awarded under the head loss of amenities in life. Though compensation is awarded under the head permanent disability and loss of earning capacity, court will have to assess some reasonable amount under the head loss of amenities in life for the inconvenience that will have to be suffered by the injured on account of the disability sustained by him for the remaining period of his life. He was aged only 47 years at the time of accident and he had 15% disability with limbing and deformity to his left limb. So considering this aspects, we award 25,000/- under the head loss of amenities in life. On all other heads, court below had considered all the aspects and awarded just and reasonable compensation and we do not find any reason to award any enhancement under those heads. In all, the claimant will be entitled to get 99,900/- as additional compensation which we round of to 1,00,000/- over and above the compensation awarded by the tribunal, which the M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 21 respondents are jointly and severally liable to pay and the apportionment has to be made in the ratio mentioned above namely 90%:10% between the driver cum owner of the ambassador car and driver, owner and insurer of the maruti van respectively. In view of the dictum laid down in the above decision mentioned above, the claimant is entitled to recover the entire compensation from any one of the four tort feasors and the tort feasor who is made to pay higher amount than the amount liable to be paid by them, is entitled to recover the balance amount from the other tort feasor by resorting to execution of this award through the execution court. The claimant is also entitled to recover the enhanced compensation with interest at the rate of 9% per annum from the date of petition till payment, which the respondents are liable to pay. Three months time is granted to the respondents in the lower to pay the amount.
With the above modification of the impugned M.A.C.A. No.1069 of 2005 and M.A.C.A. No.1717 of 2005 22 award M.A.C.A.No.1069/2005 is allowed in part and M.A.C.A.No.1717/2005 is dismissed. Parties are directed to bear their respective costs in the appeals.
Sd/-
P.N.RAVINDRAN JUDGE Sd/-
K.RAMAKRISHNAN JUDGE //True Copy// P.A. to Judge ss