Sajad Saheer vs K.Rajeev on 2 April, 2012

[Cites 2, Cited by 3]

Kerala High Court

Sajad Saheer vs K.Rajeev on 2 April, 2012

All these appeals are filed by the injured in a motor vehicle accident occurred on 21.07.2007 at Manjeri. They moved claim petitions before the Motor Accidents Claims Tribunal, Manjeri, which were disposed of by the Tribunal by a common judgment dated 2.4.2012.

2. M.A.C.A.No.1400/2012 is filed against the award in O.P. (MV)No.156/2009, M.A.C.A.No.1404/2012 is filed against the award in O.P.(MV)No.1259/2008 and M.A.C.A.No.1405/2002 is filed against the award in O.P.(MV)No.1260/2008 on the file of the Motor Accidents Claims Tribunal, Manjeri. The challenge is against the finding of the Tribunal regarding the cause of accident as well as the quantum of compensation. The relevant facts for consideration of these appeals are as follows :

MACA Nos.1400/2012 & connected cases 2 The appellant in M.A.C.A.No.1400/2012 was riding a motor cycle taking his two minor children as pillion riders. At that point of time, a car came from the opposite side and hit against the motor cycle. O.P.(MV)No.156/2009 was filed by the rider (father) in his individual capacity claiming compensation for the injuries sustained in the accident alleging negligence on the side of the driver of the car which came and hit against the motor cycle. O.P.(MV) No.1259/2008 and O.P.(MV)No.1260/2008 were filed by the minor children through said appellant in the capacity of next friend and guardian of the minor children. The common case of the appellants is that the negligence of the driver of the car caused the accident.

3. The appellant in M.A.C.A.No.1400/2012 was examined before the Tribunal as PW1 and further the FIR and the charge sheet filed by the Police against the driver of the car were marked. After appreciating the materials before the Tribunal, the Tribunal found that the accident occurred due to the composite negligence of the drivers of both the vehicles involved and apportioned the negligence as 25% that of the petitioner in O.P.(MV)No.156/2009 and 75% that MACA Nos.1400/2012 & connected cases 3 of the driver of the car and thereon compensation was assessed and proportionate deductions were made from the assessed compensation in respect of all the claims.

4. When the appeals came up for hearing, the learned counsel appearing for the appellants submitted before us that here is a case where an accident occurred involving a motor cycle and a car. The appellants/claimants produced the Police Charge which will indicate that after thorough investigation, Police found negligence of the driver of the car as the cause of accident and charge sheeted the driver of the offending vehicle, who was arrayed as respondent No.1 before the Tribunal. It is the case that when there is a police charge, the primary burden of the appellants is discharged by the production and marking of the same and the Tribunal should have found that the negligence was on the side of the driver of the car and full compensation should have been awarded. It is also submitted that taking his minor children as pillion riders ought not to have considered as a case of over loading. The learned counsel brought to our notice the decision of this court in Binoj Antony v. New MACA Nos.1400/2012 & connected cases 4 India Assurance Company Ltd. (2014 1 KLT 393), wherein it is categorically stated that it is the duty of the person who alleges that overloading is the cause of accident to prove that fact positively. It is the submission of the learned counsel that in all these cases, the appellants sustained fractures. All the claimants were examined by the Medical Board and in the case of the father i.e. the appellant in M.A.C.A.No.1400/2012, the Medical Board assessed a disability of 10%. In two other cases, the disability was assessed as 2% by the Medical Board and the documents are marked as Ext.X1, X2 and X3 respectively. It is the submission of the learned counsel that as per the dictum laid down by the Apex Court in Master Mallikarjun v. Divisional Manager, National Insurance Company Ltd. ( 2013 3 KLJ 815), atleast Rs.1,00,000/- should have been given to the appellants in M.A.C.A.Nos.1404/2012 and 1405/2012 towards disability compensation. It is also the submission that even though 10% was assessed by the Medical Board, in the case of the appellant in M.A.C.A.No.1400/2012, only a consolidated sum of Rs.40,000/- was granted towards loss of amenities. There is a further grievance MACA Nos.1400/2012 & connected cases 5 that for the assessment purpose, the Tribunal considered only a monthly income of Rs.3,500/-. It is also brought to our notice that in the case of a coolie who suffered an accident in the year 2004, the Apex Court in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. ( 2011(13) SCC 236 considered a monthly income of Rs.4,500/- notionally for calculation purpose. It is the further submission that, for granting compensation towards disability, the Tribunal considered the petitioner as a person belonging to blue collar category. If that be so, when a manual labourer was earning Rs.4,500/- in the year 2004, the Tribunal should have accepted the contention of the appellant that he was earning Rs.25,000/- from his job abroad i.e. when accepting the fact that he is a blue collar job holder, the income claimed also should have been accepted by the Tribunal.

5. The learned counsel appearing for the Insurance Company, vehemently submitted that the appellant in M.A.C.A.No.1400/2012 was riding the vehicle with two pillion riders i.e. the appellants in the other two appeals. It is also MACA Nos.1400/2012 & connected cases 6 submitted that PW1 was examined before the Tribunal. PW1 categorically admitted that one child was sitting in front of the seat or he was seated in front of the rider. It is also submitted that even though he got a case that he was licenced to drive, no licence was produced. It is also submitted that the positive case of the appellant in M.A.C.A.No.1400/2012 is that he was working in gulf countries and returned. That is an indication that at the time of the accident, he was an unemployed person and was not earning any amount and the court should have taken only notional income for calculation purpose. It is also the submission of the learned counsel that mere production of police charge will not be sufficient in a case like this, to prove negligence. When the driving licence of the petitioner is not produced and when there were admittedly, two pillion riders on the motor cycle in violation of Section 128 of the Motor Vehicles Act, the burden will still be the appellant to prove that these aspects had not contributed to the accident.

6. It is also submitted by the learned counsel for the Insurance Company that when these materials supportive of the case MACA Nos.1400/2012 & connected cases 7 of the insurer are available on record and when there is absence of any material to show how the accident actually took place except the interested version of PW1 to support the case of the appellants the conclusion arrived at by the Tribunal that the accident occurred due to 25% contributory negligence of the appellant in M.A.C.A.No.1400/2012 can only be taken as a rightful conclusion. As such an interference by this Court on this finding is not warranted. It is also the submission that a just compensation has been awarded by the Tribunal and an interference on the quantum is also not warranted.

7. After hearing the submissions and on a perusal of the award and documents, it can be seen that here is a case where the accident occurred involving a motor cycle and a car.

8. The contention of the rider of the bike is that accident occurred due to the sole negligence of the driver of the car, whereas the driver/respondent refuted the same and alleged that the accident occurred due to the sole negligence of the rider of the bike. The case of the pillion riders is that the accident occurred due to the MACA Nos.1400/2012 & connected cases 8 negligence of the driver of the car. But it is a fact that the finding upon the negligence aspect will not and cannot adversely affect the claim for compensation of the minor pillion riders, as long as it is found that it is a case of composite negligence or the exclusive negligence of the respondent driver.

9. We have perused Ext.A11, the police charge produced by the appellants. It is not explicitly stated therein in which directions the vehicles involved were moving. It is only stated in the said document that the accident occurred at a place about 2 metres east west from western tarred end. But at the same time, the police charge sheeted the driver of the car involved in the accident. It can also be seen that there were two pillion riders on the motor cycle, which is in violation of Section 128 of the Motor Vehicles Act. There is also evidence to show that one of the pillion riders was not, virtually, travelling on the pillion, but was sitting in front of the rider. The driving licence of the rider of the bike is also not seen produced. The case of PW1 was that he lost the same in the accident. The Tribunal pointed out while appreciating his evidence MACA Nos.1400/2012 & connected cases 9 that duplicate copy was not so far been obtained and produced despite the lapse of years since the filing of the claim petition and and disbelieved his evidence on this aspect. Thus, appreciating all these materials and further keeping in mind that the Insurance Company has not adduced any evidence, we feel that Tribunal came to a correct conclusion that the accident caused due to 25% negligence of the rider of the bike and 75% negligence of the driver of the car. There is no material before us to hold that the finding of the Tribunal that it was a case of composite negligence as also the apportionment of negligence, as perverse inviting interference.

10. We are also fully aware that in a case of composite negligence, the claimant is entitled to proceed against any one of the tort feasors or against all the fort feasors. In this case, the claims of pillion riders is on a different footing from the claim of the rider of the bike. It is true that the case of pillion riders is also tried along with the claim of the rider, who is none other than the joint fort feasor. It is also relevant to note that the claim of the minors were filed through the next friend and guardian who was the rider of the MACA Nos.1400/2012 & connected cases 10 bike. Though we have reservation regarding a joint tort-feasor himself representing the claimants taking into account the fact that no serious challenge was made on this aspect and the appellant in M.A.C.A.No.1400/2012 being the father of appellants in the other appeals only represented them in his capacity as their next friend and guardian, we do not think it necessary to consider that question any further. In a case of composite negligence, apportionment of negligence is not required in a claim where claimant had nothing to do with the accident. The claimant can proceed against all the tort fearos or any one of them. Section 7 of the Kerala Torts ( Miscellaneous Provisions) Act, 1976 is also relevant to be taken note of at this juncture. Thus, the Tribunals should be careful not to try jointly cases where there is a contention of contributory negligence and cases of claimants who had nothing to do with the causation of accident. When there is an apportioning of negligence, it may not be proper to direct one of the parties to satisfy the full amount when only one among the joint tort feasors is on the party array. Such matters can be disposed simultaneously to MACA Nos.1400/2012 & connected cases 11 avoid conflicting findings on issue of negligence arose from the very same accident. But here is a case where the two claimants are minors. The minors' interest has to be safe guarded by this court.

11. In respect of the quantum of compensation, on a perusal of the documents, it can be seen that some upward hike is necessary. Thus, in the case of M.A.C.A.No.1400/2012, the appellant sustained fracture of femur. He was treated as an inpatient for 14 days. His disability was assessed by the Medical Board as 10%. Even at the time of assessment, it can be seen that internal fixators were in situ. The Tribunal assessed a total compensation of Rs.1,17,510/- and deducted 25% out of the same towards contributory negligence. It is to be remembered that Rs.44,110/- was granted towards pecuniary loss i.e. reimbursement of medical expenses. In this case, it can be seen that the appellant was aged only 37 years. His case is that he was working in Soudi Arabia. Surely, no document except his passport was produced to substantiate the same. Passport will not be a substitute for proof of employment and income. But surely, the Apex Court in MACA Nos.1400/2012 & connected cases 12 Ramachadrappa's case (supra) considered an income of Rs.4,500/- in the case of a coolie in an accident occurred in the year 2004. Thus, considering the fact that in this case the accident occurred in the year 2007, it will be only just and proper to consider a notional income of Rs.5,000/- per month. Even though the Medical Board assessed the disability of the appellant as 10%, a careful examination of Ext.X1 revealed that it is only partial in nature. But at the very same time, considering the fact that fracture was sustained to femur bone, that also at the age of 37 and further keeping in mind the restrictions on movements and other aspects noted in the disability certificate, we feel that it will be only just and proper to consider 7% whole body functional disability for assessment purpose in this case. Thus, on this findings, the following assessment is made.

12. Towards disability, the appellant will be entitled to an amount of Rs.63,000/- ( 5000 x 12 x 15 x 7%). Considering the fact that the Tribunal has already awarded a sum of Rs.40,000/- towards disability, the appellant will be entitled to get an additional MACA Nos.1400/2012 & connected cases 13 compensation of Rs.23,000/-. Towards loss of earnings, the Tribunal awarded only a sum of Rs.21,000/-. Six months period was considered as treatment period for this assessment. Considering Rs.5,000/- as the monthly income, the appellant will be entitled to get an additional amount of Rs.9,000/- under this head.

13. This is a case of fracture of femur. There is also disability. Considering the age of the appellant, fracture site and disability caused, a sum of Rs.20,000/- is awarded under the head of loss of amenities. Towards damage to clothing, an additional amount of Rs.750/- is awarded. Towards bystander's expenses, Rs. 1,400/- alone is seen awarded. The accident occurred in the year 2007. If Rs.200/- per day is taken, the appellant will be entitled for an additional sum of Rs.1400/-. The said amount is awarded. Towards extranourishment, no amount is seen awarded. Rs.1,400/- is awarded on that head. Towards transportation expenses, only Rs.750/- is seen awarded. It is a case where fracture injury to femur sustained and treatment period of six months is also considered by the court. Thus, considering a reasonable amount towards MACA Nos.1400/2012 & connected cases 14 transportation expenses, an additional sum of Rs.1,250/- is awarded. As already mentioned, while considering the disability, it was seen that implantations are in situ and further surgery will be necessary to remove the same. Thus, considering all these facts, a sum of Rs.15,000/- is awarded towards future medical expenses. Towards, pain and suffering, the Tribunal has granted only an amount of Rs.10,000/-. Considering the fact that fracture is on the femur, an additional sum of Rs.10,000/- is awarded towards pain and suffering. Thus, the total enhanced compensation is assessed at Rs.81,800/-. 25% of the same has to be deducted. This amount shall be deducted towards contributory negligence as there is a finding that there is contributory negligence on the side of the appellant in causing the accident. Thus, the appellant will be entitled to get an enhanced compensation of Rs.61,350/-. The enhanced compensation will bear 8% interest per annum from the date of petition till realization.

M.A.C.A.No.1404/2012

14. This is a claim made by a minor. It is already found by MACA Nos.1400/2012 & connected cases 15 this Court that the accident occurred due to 25% negligence on the side of the rider of the motor cycle and 75% negligence on the side of the driver of the car. But at the same time, it can be further seen that the finding is to the effect that the accident occurred due to the composite negligence of the drivers of the vehicles. The appellant herein had nothing to do with the accident i.e. the appellant herein is not involved in the causation of the accident. Apportioning of the negligence by conducting a joint trial will not affect the right of these minor petitioners. Under such circumstances, even though there is a finding that the accident occurred due to the negligence of the drivers of the vehicles, by virtue of Section 7 of the Kerala Torts ( Miscellaneous Provisions ) Act, 1976, the Insurance Company will be liable to pay the whole compensation assessed by this Court i.e. a finding of the Tribunal to the effect that 25% of the compensation has to be deducted from the total assessed compensation cannot, therefore, be sustained and it is hereby set aside. The Insurance Company is directed to pay the whole compensation assessed by the Tribunal apart from the additional compensation we are going to MACA Nos.1400/2012 & connected cases 16 assess in this matter. In this case, the appellant/claimant was in the hospital for 11 days. The appellant minor claimant sustained fracture injury in the accident on the femur. At the time of the accident he was aged only three years. The main contention of the learned counsel for the appellant is that by virtue of the decision in Master Mallikarjun's case, in this case atleast Rs.1,00,000/- should have been awarded as compensation by the Tribunal. We have very carefully examined Ext.X2. Ext.X2 shows that there is only 2% disability. It is not stated as whole body disability. When it is pertaining to the particular limb alone, the permanent whole body disability will be much less. The tribunal opined that the disability noted will disappear by passage of time. The Tribunal had the opportunity to see the claimant. We are also agreeing with the finding of the tribunal on this aspect. The disability cannot be considered as a permanent in nature and when it cannot be considered as permanent disability, it will not come under the purview of the dictum laid down by the Apex Court in Master Mallikarjun's. case. Thus, this case also has to be considered as an MACA Nos.1400/2012 & connected cases 17 injury claim alone where there is no permanent disability which will bring the case under the purview of the dictum laid down in Master Mallikarjun's case. Thus in this case after going through the schedule attached to the award, the following enhancements are made.

15. Towards bystander's expenses, an additional sum of Rs.1,100/- is granted. Towards damage to clothing, an additional sum of Rs.750/- is awarded. Towards transportation expenses, an additional sum of Rs.750/- is awarded. Towards extranourishment, as no amount is seen awarded, Rs.1100/- is awarded . Here is a case where fracture is on the femur and that also to a boy aged 3 = years. Thus, towards pain and suffering, an additional sum of Rs.15,000/- is awarded. Here is a case where partial disability was assessed by the Medical Board. It can be seen that the amount awarded towards loss of amenities is on a lower side. Thus, an additional sum of Rs.10,000/- is awarded towards loss of amenities. Thus, the appellant will be entitled for an additional sum of Rs.28,700/- . As already found that the appellant will also be entitled to the entire MACA Nos.1400/2012 & connected cases 18 compensation awarded by the Tribunal. On the above said head, he will be entitled to 25% of the compensation assessed by the Tribunal i.e. Rs.5243/-. Thus, the compensation to be given by the Insurance Company over and above the amount awarded is Rs.33,943/- , which is rounded off to Rs.34,000/-. The said amount will bear interest @ 8% interest per annum from the date of petition till realization.

M.A.C.A.No.1405/2012

16. This is also a case where the appellant sustained fracture injury on the femur. The appellant is aged only 7 years and the appellant is a girl child. She was in the hospital for 11 days. After going through the schedule attached to the award, the following enhancement are awarded.

17. Towards bystander's expenses, an additional sum of Rs.1100/- is awarded. Towards damage to clothing, an additional sum of Rs.750/- is awarded. Towards transportation expenses, an additional sum of Rs.750/- is awarded. Towards extranourishment, as no amount is seen awarded, a sum of Rs.1100/- is awarded. MACA Nos.1400/2012 & connected cases 19 Towards pain and suffering, considering the fact that it is a fracture on the femur, an additional sum of Rs.15,000/- is awarded. The amount awarded towards loss of amenities also seems to be on a lower side. There is a shortening noted in the disability certificate, but the shortening is only = cm. It will not cause any permanent disability. The medical board assessed the disability as 2%. After perusing the disability certificate, it is seen that the same reason is stated as in the case of claimant in M.A.C.A.No.1404/2012. We consider that there is no permanent disability and the case will not come under the purview of the dictum laid down in Master Mallikarjun's. Case. Considering the fact that there may be some loss of amenities, all these aspects, an additional sum of Rs.10,000/- is awarded towards loss of amenities. Thus, the appellant/claimant will be entitled to an additional sum of Rs.28,700/-. Apart from the same, the appellant will be entitled to 25% of the amount awarded by the Tribunal i.e. the appellant will be entitled to an additional sum of Rs.7325/- on the said head. The total compensation over and above the amount awarded by the Tribunal entitled to the MACA Nos.1400/2012 & connected cases 20 appellant will be Rs.36,025/- which rounded off to Rs.36,100/-. The said amount will bear 8% interest per annum within two months from the date of receipt of a copy of this judgment.

The Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. There will be no order as to costs in these appeals.

C.T.RAVIKUMAR, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

18/08/2016

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