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2025 DIGILAW 2415 (KER)

Sanal Kumar P. K. v. Saiju T. Babu

2025-09-10

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. 1. This appeal is filed by the claimant in O.P (MV) No.193 of 2006 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents herein were the respondents before the tribunal. 2. According to the claimant, on 29.10.2005, the petitioner was walking along Kunnamthanam-Mallappally road when an Ambassador car bearing Registration No. KEO/12, driven by the fourth respondent owner-cum-driver, struck a motorcycle bearing Registration No. KL-03-M-9439 ridden by the first respondent travelling on the same road. As a result, the claimant sustained injuries in the accident. The appellant approached the tribunal claiming compensation of Rs.5,20,250/- limited to Rs.2,20,250/- . 3. The respondents 1 to 3 were the rider, owner and insurer of the motorcycle and the respondents 4 and 5 were the owner-cum-driver and insurer of the car respectively. Only the 3 rd and 5 th respondents/insurers contested while others remained ex-parte before the tribunal. The 3 rd respondent/insurer of the motorcycle contended that the accident was the result of owner-cum-driver of the car and therefore not liable for any compensation. The 5 th respondent/insurer of the car, levelled allegations of negligence against the motorcyclist and denied the allegation against the owner-cum-driver of the car and also denied the existence of policy covering the accident. Before the tribunal, Exts.A1 to A14 were marked. PW1 was examined. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.1,98,344/- with interest @9% per annum as compensation under different heads against the 4th respondent owner cum driver of the car. The claimant filed the appeal mainly challenging the finding of negligence on the part of the driver of the car which did not have a valid policy at the time of accident and also dissatisfied with the quantum of compensation awarded by the tribunal. 4. The learned counsel appearing for the appellant submits that, it was his specific case that the motorcycle which was ridden in a rash and negligent manner hit on the appellant, who was a pedestrian and due to the hit he sustained injuries. The learned counsel further submitted that in the claim petition also, he has alleged negligence on the part of the rider of the motorcycle and not against the driver of the car. The learned counsel further submitted that in the claim petition also, he has alleged negligence on the part of the rider of the motorcycle and not against the driver of the car. Since the car hit the motorcycle and the motorcyclist in turn hit the appellant and he sustained injuries, the negligence was composite negligence on the part of the driver of the car and the rider of the motorcycle. According to the appellant, the negligence was composite negligence and the finding of the tribunal that the negligence was solely on the part of the driver of the car is not correct. The learned standing counsel appearing for the insurance company on the other hand submits that the charge sheet was drawn against the driver of the car. Since the driver of the car moved to his wrong side and hit the motorcycle, the tribunal found that negligence was on the part of the driver of the car and not on the rider of the motorcycle. 5. I have considered the rival contentions raised by both sides. 6. On a perusal of the award as well as the documents produced, it is seen that admittedly, the charge sheet was drawn against the driver of the car. But the accident occurred when the car hit the motorcycle and thereby the motorcycle hit the pedestrian. In this case, the rider of the motorcycle also sustained injuries and he had filed a claim petition before the Motor Accidents Claims Tribunal and the tribunal found negligence on the part of the driver of the car and awarded compensation. The insurance company, however, was exonerated since there was no valid policy for the car at the time of accident. However, as far as the appellant claimant is concerned, the hit on the appellant was by the motorcycle and not by the car. The fact that the car came and hit the motorcycle and the motorcycle had hit the pedestrian is not disputed. The tribunal ought to have found composite negligence instead of negligence solely on the part of the driver of the car as far as the claimant is concerned. The fact that the car came and hit the motorcycle and the motorcycle had hit the pedestrian is not disputed. The tribunal ought to have found composite negligence instead of negligence solely on the part of the driver of the car as far as the claimant is concerned. Admittedly, the claimant, herein, was a pedestrian and he sustained injuries since due to the hit by the motorcycle.Though no charge sheet was drawn against the rider of the motorcycle, it is clear that the negligence was composite as far as the claimant, who was a third party, is concerned. 7. The learned counsel appearing for the claimant also relied on the judgment of the apex court in T.O. Anthony v. Karvarnan and Others, (2008) 3 SCC 748 , wherein it is held by the apex court that in an accident involved by two or more vehicles where a third party claims damages for loss of injuries it is said that the compensation is payable in respect of the composite negligence of the drivers of those vehicles. The learned counsel for the insurer relied on the judgment of the Apex Court in Khenyei v. New India Assurance Co. Ltd. and Others, 2015 (3) KHC 70 , wherein it was held that “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.” In the present case, though no charge sheet was drawn against the rider of the motorcycle, the injuries sustained to the claimant was by the hit by the motorcycle. If due care and caution was taken by the rider of the motorcycle, the accident could have also been avoided. If due care and caution was taken by the rider of the motorcycle, the accident could have also been avoided. I find that there was composite negligence on the part of the rider of the motorcycle as well as the driver of the car and they are jointly and severally liable to compensate the claimant and the ratio of negligence is fixed at 50:50 ie; 50% on the part of the rider of the motorcycle. The finding of the tribunal that the negligence was on the part of the driver of the car alone is hereby set aside and I hold that the rider of the motorcycle and the driver of the car being joint toreasors, would be liable jointly as well as severally to pay compensation. As per the settled position of law as held in Khenyei (supra), the claimant will be entitled to recover the amount from either of the tortfeasors. The inter se liability of the tortfeasors have to be worked out independently, in accordance with law. Since there was a valid insurance policy for the motorcycle, I find that the appellant/claimant is entitled to recover the amount awarded by the tribunal and by this court, from the insurer of the motorcycle. 8. The learned counsel for the appellant claims enhancement mainly under the following heads:- Notional income :- The learned counsel for the appellant submitted that though an amount of Rs.8,000/- was claimed, the tribunal had taken only an amount of Rs.4,000/- as the monthly notional income. The appellant submitted that he was a handicraft worker. However, no document has been produced to prove the same. In order to award a just and reasonable compensation, following the judgment in Ramachanddrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 , I find it appropriate to re-fix the monthly notional income as Rs.5,000/-. Loss of earnings :- The learned counsel for the appellant submitted that the tribunal has taken only 3 months for calculating loss of earnings. Following were the injuries sustained by the appellant: (1) Tenderness on the lumbar vertebra region, (2) Fracture on the L2 vertebra region, (3) Contusion abrasion, (4) Lacerated injury on the dorsum of the left foot, right elbow (5) Minor injury scalp region. Considering the nature of injuries sustained, I find that a period of five months can be taken for awarding compensation under the afore head. Considering the nature of injuries sustained, I find that a period of five months can be taken for awarding compensation under the afore head. Accordingly, the compensation under the head is recalculated thus: Rs.25,000/- (5000x5). The tribunal has granted an amount of Rs.12,000/-. Thus, there will be an additional amount of Rs. 13,000/ -. Permanent disability :- The learned counsel for the appellant submitted that as per Ext.A14 disability certificate, the Medical Board of General Hospital, Pathanamthitta, assessed the percentage of disability as 21%. However, the tribunal has reduced the percentage to 18%. If the Tribunal had any doubt, it ought to have referred the appellant for further examination to the State Medical Board, as held by the apex court in Rajkumar v. Ajay Kumar, 2011 (1) KLT 620 SC and by this court in Manikantan G. v. K. Janardhanan Nair , 2021 (5) KHC 305 and hence the reasoning of the tribunal does not appear to be acceptable. Since the certificate was issued by the medical board, I do not find any reason to disbelieve Ext.A14 disability certificate. Accordingly, the percentage of disability is assessed as 21%. Since the monthly income has been re-fixed at Rs.5,000/-, the compensation payable under the afore head, following the apex court judgments in National Insurance Co. Ltd. v. Pranay Sethi, 2017 (4) KLT 662 (SC) and Sarla Verma v. Delhi Transport Corporation, 2010 (2) KLT 802 (SC) , is re-calculated as thus: Rs.2,01,600/- (5000x12x16x21/100). The tribunal has already awarded an amount of Rs.1,38,240/-. Thus, there will be an additional amount of Rs. 63,360/- under the head permanent disability. Loss of amenities :- Though the appellant claimed an amount of Rs.30,000/- under this head, the tribunal awarded only an amount of Rs.15,000/-, which, according to the appellant, is on the lower side. Considering the age of the appellant as well as the nature of injuries sustained, I find that a total amount of Rs.20,000/- can be awarded under the head loss of amenities. Thus, there will be an additional amount of Rs. 5,000/- under the afore head. Pain and sufferings :- Though an amount of Rs.40,000/- was claimed, the tribunal has awarded only an amount of Rs.20,000/- towards pain and sufferings. Considering the nature of injuries sustained, I find that a total amount of Rs.25,000/- can be awarded under the said head. Thus, there will be an additional amount of Rs. 5,000/- under the afore head. Pain and sufferings :- Though an amount of Rs.40,000/- was claimed, the tribunal has awarded only an amount of Rs.20,000/- towards pain and sufferings. Considering the nature of injuries sustained, I find that a total amount of Rs.25,000/- can be awarded under the said head. Thus, there will be an additional amount of Rs. 5,000/- under the afore head. 9. Though the appellant claimed enhancement of compensation under the other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Since the appeal is of the year 2015, I find it reasonable to fix the interest @ 8% per annum on the enhanced amount. 10. Thus, the impugned award of the tribunal is modified as follows:- S. No Head of Claim Amount claimed Amount awarded by the tribunal Modified in appeal Total compensation 1 Loss of earnings 40,000 12,000 13,000 25,000 2 Transport to hospital 3,250 1,500 Not modified 1,500 3 Extra nourishment 4,000 1,500 Not modified 1,500 4 Damage to clothing 1,000 500 Not modified 500 5 Medical expenses 35,000 8,104 Not modified 8,104 6 Bystander expenses 7,000 1,500 Not modified 1,500 7 Compensation for loss of amenities 30,000 15,000 5,000 20,000 8 Compensation for permanent disability 3,60,000 1,38,240 63,360 2,01,600 9 Pain and suffering 40,000 20,000 5,000 25,000 TOTAL 5,20,250limited to2,20,250 1,98,344 86,360 2,84,704 Accordingly, the appeal is allowed in part as follows: 1. The finding of the tribunal that the negligence was on the part of the driver of the car alone is set aside. I hold that the rider of the motorcycle and the driver of the car being joint toreasors, would be liable jointly as well as severally to pay compensation. Since the motorcycle is having a valid insurance policy, the claimant will be at liberty to recover the amount awarded by the tribunal and the enhanced amount awarded by this court from the insurer of the motorcycle. The inter se liability of the tortfeasors have to be worked out independently, in accordance with law. 2. The appellant/claimant is awarded an additional compensation of Rs. The inter se liability of the tortfeasors have to be worked out independently, in accordance with law. 2. The appellant/claimant is awarded an additional compensation of Rs. 86,360/- (Rupees Eighty six thousand three hundred and sixty only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The 3 rd respondent insurer shall deposit the amount awarded by the tribunal and the enhanced amount awarded by this court with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the third respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the third respondent insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law.