IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 MACA.No. 748 of 2004() ---------------------- OPMV.283/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER: ----------------------------------- K.M.CHANDRASEKHARA PANICKER, S/O. KRISHNAN NAIR, AGED 80, NOW RESIDING AT ERANDATH HOUSE, OPP. L.S.N. CONVENT, OTTAPPALAM. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. C.MANI, AGE NOT KNOWN, MATHASALAI, M.G.R. NAGAR, SREERANGAPALAYAM, COIMBATORE. 2. MOORTHY, S/O. NATARAJAN, 82 GOKULAM COLONY, P.N. PUTHUR, COIMBATORE-41. 3. THE NATIONAL INSURANCE CO. LTD., II/16 STATE BANK ROAD, COIMBATORE. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 748 of 2004 ------------------------------------------------------ Dated: JULY 8, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 283/2001 on the file of the Motor Accidents Claims Tribunal, Ottappalam, challenges the judgment and award of the Tribunal, dated, June 13, 2003 awarding a compensation of Rs.28560/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: On August 22, 2000 at about 4.30 p.m. the claimant was travelling in a car bearing registration No.TN 07A 0473 from Ernakulam to Palakkad. When he reached at Vattappara, the car hit on the backside of a lorry bearing registration No.TDE 5545 and thereafter it swerved to the right and hit against another car bearing registration No.TN 37 U 2988. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the driver of the lorry. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the M.A.C.A.748 of 2004 2 offending lorry are jointly and severally liable to pay compensation to the claimant. He claimed a compensation of Rs.2 lakhs. 3. Though the 1st respondent entered appearance though a counsel, no written statement was filed. The claim against the 2nd respondent was dismissed by the Tribunal. The 3rd respondent, insurer of the offending lorry, filed a written statement admitting the policy. 4. Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. Exts.B1 to B3 were marked on the side of the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the offending lorry, as well as the driver of the car in which the claimant was travelling and apportioned the liability of the driver of the offending lorry as 70% and that of the driver of the car bearing registration No.TN 07A 0473 as 30%. The Tribunal assessed a compensation of Rs.40,800/- and awarded only Rs.28,560/- to the claimant, with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.600/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the M.A.C.A.748 of 2004 3 Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the offending lorry, as well as the driver of the car involved in the accident is not challenged in this appeal. 7. The claimant sustained the following injuries as revealed from Ext.A6, copy of the wound certificate, issued from Fort Hospital, Palakkad:- “lacerated wound 2 x 1 cm over parietal scalp, lacerated wound 1 x 1 cm over Rt. frontal, lacerated wound 1 x 1 cm on lower lip incisors, lacerated wound 1 x 1 cm upper eyelid.” Ext.A7 is the scan report issued from the said hospital. The claimant was aged 90 at the time of the accident. 8. The Tribunal awarded a total compensation of Rs.40,800/-. The break up of the compensation awarded is as under:- pain and suffering - Rs.15,000/- hospital expenses - 3,500/- loss of amenities etc. - 6,000/- transportation - 2,500/- medical expenses - 9,800/- extra nourishment etc. - 4,000/- 9. Counsel for the claimant argued that in the case of a M.A.C.A.748 of 2004 4 composite negligence, the claimant can claim compensation from any of the tort feasors as the liability is joint and several. He has also challenged the adequacy of the compensation awarded by the Tribunal. Counsel for the Insurance Company on the other hand supported the award of the Tribunal. 10. The following points arise for consideration: I. “Whether the finding of the Tribunal deducting 30% of the compensation due to the claimant for non-impleadment of the owner, driver and insurer of the car involved in the accident can be sustained? II. Whether the claimant is entitled to any enhancement of compensation? POINT No.I 11. The Tribunal found that the accident occurred due to the composite negligence of the 1st respondent and that of the driver of the car bearing registration No.TN 07 A 0473 and apportioned the liability as 70% and 30%. Therefore the Tribunal deducted 30% of the compensation amount due to the claimant and only Rs.28,560/- was awarded to the claimant. For several reasons we hold that such a finding cannot be sustained. In the case of a composite negligence, the liability of the parties are joint and several. The injured can claim the entire compensation from one of the tort feasors. Therefore the M.A.C.A.748 of 2004 5 3rd respondent Insurance Company is bound to pay the entire compensation assessed by the Tribunal (Rs.40,800). The 3rd respondent can recover 30% of the compensation amount from the owner, driver and insurer of the offending car. POINT No.II 12. As regards the compensation awarded by the Tribunal, taking into consideration the nature of the injuries sustained by the claimant, we feel that the compensation awarded by the Tribunal is just and reasonable. In the result, the appeal is allowed in part. The 3rd respondent being the insurer of the offending vehicle shall deposit the entire amount awarded by the Tribunal i.e. Rs.40,800/- before the Tribunal with interest @ 9% per annum from the date of petition till realisation and proportionate cost within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-