Kerala High Court
Ayana Unnikrishnan vs Sreejith on 30 May, 2019
Equivalent citations: AIRONLINE 2019 KER 423, (2019) 3 ACC 668 2020 (2) ALLMR (JS) 1, 2020 (2) ALLMR (JS) 1
Bench: C.T.Ravikumar, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
MACA.No. 1130 of 2012
AGAINST THE AWARD IN O.P(M.V)NO.817/2008 of MOTOR ACCIDENTS
CLAIMS TRIBUNAL, IRINJALAKUDA DATED 22-02-2012
APPELLANT/PETITIONER:
AYANA UNNIKRISHNAN,AGED 14 YEARS
(DATE OF BIRTH 22.01.1997), D/O.UNNIKRISHNAN,
PUTHUVALKAMDATHIL HOUSE, HOUSE NO.2/861,
P.O.AZHIKAL, MURUKKUMPADAM, VYPIN,
ERNAKULAM DISTRICT.(MINOR REPRESENTED BY
GUARDIAN FATHER UNNIKRISHNAN)
BY ADVS.SMT.JEENA JOSEPH
SRI.G.D.PANICKER
RESPONDENTS/RESPONDENTS:
1 SREEJITH, S/O.RAVEENDRAN, ALAYIL HOUSE,
P.O.KOTHAPARAMBIL, KODUNGALLUR, PIN-680 664.
2 RANJITH.K.A., S/O.ANANTHAN, KANKKASSERY HOUSE,
P.O.KAIPAMAMGALAM, KARADIVALAVU, PIN-680 681.
3 ORIENTAL INSURANCE COMPANY LIMITED
RAVIPURAM, M.G.ROAD, ERNAKULAM, PIN-682 016.
R3 BY ADV. SRI.M.JACOB MURICKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 30.05.2019, ALONG WITH MACA.1226/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1130 & 1226 of 2012 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
MACA.No. 1226 of 2012
AGAINST THE AWARD IN O.P(M.V)NO.816/2008 of MOTOR ACCIDENTS
CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/PETITIONER:
SHEEBA UNNIKRISHNAN, AGED 38 YEARS
W/O.UNNIKRISHNAN, PUTHUVALKAMDATHIL HOUSE,
HOUSE NO.2/861, P.O.AZHIKAL, MURUKKUMPADAM,
VYPIN, ERNAKULAM DISTRICT.
BY ADVS.SMT.JEENA JOSEPH
SRI.G.D.PANICKER
RESPONDENTS/RESPONDENTS:
1 SREEJITH, S/O.RAVEENDRAN, ALAYIL HOUSE,
P.O.KOTHAPARAMBIL, KODUNGALLUR, PIN-680 664.
2 RANJITH.K.A., S/O.ANANTHAN, KANAKKASSERY HOUSE,
P.O.KAIPAMAMGALAM, KARADIVALAVU, PIN-680681.
3 ORIENTAL INSURANCE COMPANY LIMITED
RAVIPURAM, M.G.ROAD, ERNAKULAM, PIN-682016.
R3 BY ADV.SRI.M.JACOB MURICKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 30.05.2019, ALONG WITH MACA.1130/2012, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1130 & 1226 of 2012 3
JUDGMENT
Ravikumar, J.
The captioned appeals are preferred against the common award passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(M.V)Nos.816 & 817 of 2008. The former appeal is directed against the judgment and award in O.P.(M.V)No.817 of 2008 and the latter appeal is directed against the judgment and award in O.P. (M.V)No.816 of 2008. The claim petitions from which they arose were filed under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained by the claimants in a motor vehicle accident occurred on 30.5.2008. They were pillion riders on the motor cycle ridden by one Unnikrishnan who is the husband of the appellant in the latter appeal and father of the appellant in the former appeal. On 30.5.2008 they were travelling through Triprayar-Kodungallur NH from east to west and when they reached near Vasudevavilasam Valavu, the offending vehicle, which is a bus bearing Reg.No.KL-9/J-1852 driven by the 2nd respondent, hit on the motor cycle. The appellants sustained injuries. Both of them remained in hospital as inpatients for a period of 29 days. The injuries sustained by them resulted in permanent disability. It is in the said circumstances that they preferred the above M.A.C.A.Nos.1130 & 1226 of 2012 4 mentioned claim petitions. As per the impugned common judgment and award the Tribunal assessed ₹ 1,45,871/- as compensation payable in O.P.(M.V)No.816 of 2008 and ₹2,10,344/- in O.P.(M.V)No.817 of 2008. Nonetheless, the Tribunal had granted only 75% of the amount assessed as compensation in both the cases based on its finding that the accident had occurred due to composite negligence and on its apportionment amongst the driver of the bus and the rider of the scooter respectively as 75% and 25%. It is aggrieved by and dissatisfied with the quantum of compensation assessed and awarded that the appellants have filed the above appeals.
2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the common third respondent- the insurance company.
3. Upon hearing both sides and perusing the records we are of the view that it is only appropriate to consider, firstly, the correctness of the finding of composite negligence as the cause of the accident and the consequential deduction of compensation assessed, based on the apportionment of composite negligence among the driver of the bus and the rider of the scooter in the aforementioned ratio. It is to be noted that the aforementioned claim petitions were jointly considered along with O.P.(M.V)No.815 of 2008, filed by the rider of the scooter. M.A.C.A.Nos.1130 & 1226 of 2012 5 Evidently, the Tribunal framed issue No.1 as common to all the claim petitions as hereunder:-
"Whether the accident occurred due to the negligence of the 2nd respondent ?"
4. The second respondent therein was the driver of the bus involved in the accident. Before the Tribunal, on behalf of the claimants PWs 1 to 3 were examined and Exts.A1 to A15 were got marked. In fact, the rider of the scooter who was the claimant in O.P.(M.V)No.815 of 2008, was examined as PW1. The respondents did not adduce any evidence, either oral or documentary. Obviously, after evaluating the evidence on record and appreciating the rival contentions the Tribunal had arrived at the conclusion that the cause of the accident was composite negligence on the part of the driver of the bus and the scooterist viz., the claimant in O.P.(M.V)No.815 of 2008 and apportioned the extent of composite negligence among them in the ratio 75:25 respectively. After assessing the compensation payable in the claim petitions as aforesaid the Tribunal found that each of the appellants are entitled only to 75% of the quantified compensation presumably, based on the apportionment of the composite negligence among the rider of the scooter and the driver of the bus. We will reveal the reason for using the expression `presumably', little later. M.A.C.A.Nos.1130 & 1226 of 2012 6 Despite the finding of composite negligence as the cause of the accident, apportionment of extent of composite negligence in the ratio 75:25 and making respondents 1 to 3 viz., the owner, the driver and insurer of the bus liable to compensate each of the appellants herein to the extent of 75% of the awarded amount, none of them has chosen to challenge the award independently. So also, none of them has preferred cross-objection in the appeals. It is also relevant to note that they got no case that the rider of the scooter, who was the applicant in the other claim petition jointly enquired, had challenged the finding of composite negligence. In such circumstances, the finding of composite negligence as the cause of the accident does not invite interference. Hence, we are only called upon to consider the question whether the Tribunal was justified in deducting 25% from the amount of compensation assessed in the claim petitions filed by the appellants herein based on the apportionment of contributory negligence, as aforesaid.
5. As noticed hereinbefore, the appellants herein were only pillion riders on the scooter involved in the accident. In fact, the appellant in the former appeal is the minor daughter (then aged about 10 years) and the appellant in the latter appeal is the wife, of the rider of the scooter. A scanning of the impugned judgment would reveal that M.A.C.A.Nos.1130 & 1226 of 2012 7 the Tribunal had assessed ₹1,45,871/- as compensation payable in O.P. (M.V)No.816 of 2008 and ₹2,10,344/- as compensation payable in O.P. (M.V)No.817 of 2008. At the same time, without any discussion whatsoever and more importantly, without assigning any reason at all, the Tribunal had ordered for deduction of 25% from the assessed compensation in both cases and granted them only 75% of it. It is in the said context that we used the expression `presumably' while searching for the reason for ordering such reduction taking note of the nature of direction as regards liability of respondents 1 to 3 and the entitlement of the appellants qua the amount assessed as compensation. While considering the correctness of the said deduction, presumably based on the finding of composite negligence of the driver of the bus and scooterist, the question is how any such deduction could be made from the compensation assessed as payable to the claimants without a finding of contributory negligence against them. It is relevant to note that no case based on the principle of `volenti non-fit injuria' was also raised against them. In fact, based on the evidence on record, the Tribunal found that composite negligence of the driver of the bus (the 2nd respondent) and the rider of the scooter was the cause of the accident. It is a fact that such a finding was entered into with both the drivers of both the vehicles involved in the accident viz., the M.A.C.A.Nos.1130 & 1226 of 2012 8 driver of the bus as the 2 nd respondent and the rider of the scooter in the array of parties. As regards the claim petitions from which the captioned appeals arose the rider of the scooter was examined as a witness (PW1), in the proceedings that culminated in the impugned awards. As stated earlier, the driver of the bus was arrayed as the 2 nd respondent in the said claim petitions. Hence, the finding on negligence cannot be said to be vitiated in view of the decision of the Hon'ble Apex Court in Machindranath Kernath Kasar v. D.S.Mylarappa and others reported in AIR 2008 SC 2545. In the circumstances thus obtained in the cases on hand in case they wanted to get rid of the findings recorded by the Tribunal that the cause of the accident was composite negligence of the driver of the bus and rider of the scooter they could have preferred appeals. Hence, as held hereinbefore, the finding that composite negligence caused the accident requires no interference. At any rate, as relates the appellants herein who were only pillion riders the finding that the cause of the accident was `composite negligence' can have no adverse impact. Nobody had a case before the Tribunal or before us that the appellants were guilty of contributory negligence and there is no such finding in the impugned awards. There is clear distinction between `contributory negligence' and `composite negligence'.
M.A.C.A.Nos.1130 & 1226 of 2012 9
6. The principle underlying in the doctrine of `contributory negligence' is based on the maxim `in pari delicto potior est conditio defendentis' means, when both parties are equally to blame, neither can hold the other liable. In the decision in Pramod Kumar Rasikbhal Thavery v. Karmasey Kunvargi Tak (AIR 2002 SC 2864) the Apex Court held thus:- "The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "Contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong". Thus, it is evident that, subject to non-requirement of the existence of duty, the question of contributory negligence of claimant is to be decided on the same principle on which the question of defendant's negligence is decided." The distinction between `composite negligence' and `contributory negligence' was considered by the Apex Court in the decision in T.O.Anthony v. Karvarnan & Others reported in (2008) 3 SCC 748. The Apex Court held thus:-
M.A.C.A.Nos.1130 & 1226 of 2012 10
"6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages 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 separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and party as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."
In the light of the aforesaid decisions it is evident that unless an allegation is raised that the claimant had suffered injury due to his own negligence, in other words, he had contributed to the cause of the accident and established, reduction in compensation in proportion to his contributory negligence is not permissible.
7. What is the act on the part of the pillion riders viz., the appellants herein to make them blameworthy of contributory negligence? We have already found that there is absolutely no such M.A.C.A.Nos.1130 & 1226 of 2012 11 case for the respondents and naturally, there is no finding based on materials that they were guilty of contributory negligence, in the impugned awards. The respondents also did not set up a case against the appellants based on the principle of `volenti non fit injuria' carrying the principle that `he who consents cannot receive an injury' or that to which a man consents cannot be considered as an injury. In the aforesaid circumstances, in the absence of finding of contributory negligence against the appellants the Tribunal was not justified in effecting reduction from the compensation assessed merely based on the finding of composite negligence as the cause of the accident. In short, the Tribunal had error in effecting reduction from the quantified amount of compensation without assigning any specific reason therefor or in doing so, even if the finding of composite negligence as the cause of the accident and its apportionment amongst the drivers of the vehicles are taken as the reason therefor.
8. In the contextual situation, it is also relevant to refer to the decision of the Hon'ble Apex Court in Khenyei v. New India Assurance Co. Ltd. & Others reported in 2015 (3) KHC 70 (SC). In the said case, the Apex Court considered the question whether in a case where an accident was caused by composite negligence of drivers of the vehicles involved, impleadment of both the joint tort-feasors is essential M.A.C.A.Nos.1130 & 1226 of 2012 12 and whether in such circumstances the claimant is entitled to sue any one of the joint tort- feasors and to recover the entire compensation ? After considering the said questions, in the light of various authorities on the issue, including the decisions referred supra, the Apex Court deduced the outcome of the discussion 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 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 tort feasor should be left, in case M.A.C.A.Nos.1130 & 1226 of 2012 13 he so desires, to sue the other joint tort- feasor in independent proceedings after passing of the decree or award."
9. The aforesaid decision would fortify our finding that there was absolutely no reason for the Tribunal to make deduction from the compensation assessed in both claim petitions on the ground of finding of composite negligence as the cause of the accident and also to confine the liability of respondents 1 to 3 only to 75% of the total amount of compensation assessed as payable, as the liability of joint tort-feasors is joint and several and the option was with the claimant to recover the whole damages from any one of them.
10. Having answered the aforesaid questions as above, we will now proceed to consider whether the appellants are entitled to get enhanced compensation.
M.A.C.A.No.1130 of 2012
11. This appeal arises from the judgment and award in O.P. (M.V)No.817 of 2008. The injured claimant was a minor, aged 10 years, at the time of accident. It is not in dispute that the injuries sustained in the accident resulted in permanent disability. The permanent disability incurred by her was assessed as 12% as per Ext.A13 disability certificate. PW3 was examined to prove the same. M.A.C.A.Nos.1130 & 1226 of 2012 14 In such circumstances, we are of the view that this is an eminently fit case for application of the dictum laid down by the Hon'ble Apex Court in Mallikarjun v. Divional Manager, National Insurance Co. Ltd. and another (2014) 14 SCC 396). In the said decision the Apex Court held thus:-
"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Court, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."
In such circumstances, towards compensation for loss of disability, the appellant is entitled to get ₹3,00,000/-. It is awarded. In the light of the said decision, over and above the said amount, the injured claimant is also entitled to get pecuniary losses. The Tribunal granted ₹1,32,204/- towards medical and miscellaneous expenses. Towards bystander's expenses, an amount of ₹2,900/- was granted. Only an amount of ₹500/- was granted towards the transportation expenses. Taking note of the fact that the injury includes Type II B compound fracture tibia M.A.C.A.Nos.1130 & 1226 of 2012 15 and fibula, there cannot be any doubt with respect to the fact that the appellant must have approached the hospital for further review. In such circumstances, we are inclined to grant ₹1,000/- more towards transportation expenses. Towards extra nourishment, the Tribunal granted an amount of ₹2,900/-. In the light of the said decision, the appellant is entitled to get the aforesaid actual pecuniary losses. In the said circumstances, the compensation payable in O.P.(M.V)No.817 of 2008 is assessed afresh and the total compensation payable to the appellant is fixed as ₹4,39,500/-. Since we interfered with the deduction of compensation assessed the appellant is entitled to get the full compensation as fixed above. The said amount of compensation will carry interest at the rate of 7.5% from the date of petition till realisation. The 3rd respondent insurer shall deposit the awarded amount under this judgment, within a period of two months from the date of receipt of a copy of this judgment.
M.A.C.A.No.1226 of 2012
12. Admittedly, the appellant is a housewife. She was aged 34 years at the time of the accident. Ext.A6 wound certificate would reveal that she sustained injuries such as fracture on the shaft of femur, undisplaced fracture on right tibial condyle, lacerated wound 10x2cm dorsum of right foot and split hand through 2 nd web space. Wound M.A.C.A.Nos.1130 & 1226 of 2012 16 debridement and interlocking nailing right femur. She was an inpatient for a period of about 29 days. As a result of the injuries sustained she had incurred 9% permanent disability and the same was proved through PW2. For the purpose of calculating compensation her monthly income as a housewife was notionally fixed as ₹3,000/-. The fixation of notional monthly income of the appellant as a housewife at ₹3,000/- is fully justified in view of the decision of the Hon'ble Apex Court in Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218) wherein the Apex Court held that the services of house-wives of the age group of 34-59 could be equated in terms of money as ₹3,000/-. The said decision was followed by a Division Bench decision of this Court in Krishnadas v. Henry Joseph (2011 (4) KLT 716). Following the decision in Lata Wadhwa's case the Division Bench, in respect of an accident occurred in 2002, fixed the monthly income of the appellant/claimant therein who was a housewife as ₹3,000/-. The accident in question occurred in the year 2008. The appellant was aged 34 years at the time of the accident. In such circumstances, following the decision in Lata Wadhwa's case (supra) the fixation of monthly income of the appellant for calculation purpose as ₹3,000/- invites no interference. In fact, it is not under challenge in these appeals. A perusal of the impugned award in O.P.(M.V) No.816 of 2008 would reveal that even after taking note of M.A.C.A.Nos.1130 & 1226 of 2012 17 the period which she spent as an inpatient and the nature of the injuries the Tribunal had not granted any amount towards compensation for loss of earning. True that, the appellant is only a housewife. But, at the same time, the nature of the injuries would reveal that certainly, the family must have deprived of her services for long time. We fix it as three months. In such circumstances, under that head we are inclined to grant an amount of ₹9,000/-. Towards bystander's expenses virtually, as reimbursement of the expenses, only an amount of ₹2,900/- was awarded. Taking into account the fact that the accident had occurred in the year 2008 we are inclined to grant ₹2,900/- additionally under that head. Towards transportation charges the appellant sought an amount of ₹1,500/- and the Tribunal had granted only ₹500/-. Taking the to and fro expenses under that head we are inclined to grant ₹1,000/- additionally under that head. Towards pain and suffering the appellant claimed ₹30,000/- and the Tribunal granted an amount of ₹20,000/-. We have already taken note of the injuries sustained by the appellant. The fact that the appellant had sustained very serious injuries it is evident that as a result of the same she had incurred 9% permanent disability. Taking into account such aspects we are inclined to grant ₹10,000/- more under that head. Towards damage to clothing an amount of ₹500/- was claimed and the M.A.C.A.Nos.1130 & 1226 of 2012 18 Tribunal did not grant any amount. The nature of the injuries would show that the dresses worn by her must have been spoiled. Hence, we are inclined to grant ₹500/- additionally under that head. Towards loss of amenities and conveniences, an amount of ₹30,000/- was sought for and the Tribunal had granted only an amount of ₹10,000/-. The nature of the injuries would suggest that she must have been deprived of enjoyment of life quite a long period. Hence, we are inclined to grant an amount of ₹10,000/- more under that head. Thus, the appellant is entitled to get an additional compensation of ₹33,400/-. In this case, as noticed hereinbefore, after assessing ₹1,45,871/- as compensation the Tribunal had awarded only an amount of ₹1,09,403/-, being 75% of the said amount as compensation along with interest at the rate of 7.5% per annum from the date of petition till realisation. In view of our interference with the finding of the Tribunal as aforesaid, the appellant is entitled to get the entire amount of compensation assessed by the Tribunal in addition to the aforesaid amount of ₹33,400/- awarded by this Court. In other words, the appellant would also be entitled to get ₹36,468/-, being the withheld amount of compensation. The said amount as also the additional amount granted in this appeal will carry interest at the rate of 7.5% from the date of petition till realisation. The 3rd respondent insurance company shall deposit the amount M.A.C.A.Nos.1130 & 1226 of 2012 19 awarded under this judgment as also the amount remaining to be paid based on the impugned award, within a period of two months from the date of receipt of a copy of this judgment.
Appeals are disposed of as above.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
DEVAN RAMACHANDRAN Judge TKS