IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 MACA.No. 135 of 2003() -------------------------------- OPMV.2691/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER: ------------------------------------- P.KRISHNANKUTTY, S/O. SANKARAN NAMBOODIRI, AGED 51 YEARS, PADINCHATTAYIL HOUSE, P.O. PERAMANGALAM, THRISSUR DISTRICT. BY ADV. SRI.C.RAGHAVAN RESPONDENTS: RESPONDENTS: ------------------------------------------------ 1. P.J.JOHN, S/O. JOSEPH, PALAMATTOM HOUSE, P.O. ARIMBOOR, PARAKKAD, THRISSUR - OWNER OF THE BUS KL-8D/3474. 2. BENNY, S/O. THANKACHAN, PERUTHUR VEEDU, P.O. PEECHI, KANNARA, THRISSUR (DRIVER). 3. NATIONAL INSURANCE CO. LTD., THRISSUR-1, INSURER OF THE BUS. 4. K.V.SHOUKATHALI, S/O. KUTTIALI, KAITHAVALAPPIL P.O., VALLUR, MALAPPURAM DIST., OWNER OF JEEP NO. KLL 1467. 5. LATHEEF, S/O. MUHAMMED YUSUF, CHANDRAMALA DIVISION, PADAGIRI, NELLIYAMPATHY P.O. PALAKKAD - DRIVER OF THE JEEP NO.KLL 1467. 6. THE UNITED INDIA INSURANCE CO. LTD., INSURER OF THE JEEP. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, ALONG WITH MFA NO.426 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.A.C.A. No.135 of 2003 and M.F.A.No.426 of 2003 --------------------------------------- Dated this the 19th day of June, 2008 Judgment Koshy,J. These two appeals are filed by the claimants against the common award passed by the Motor Accidents Claims Tribunal, Palakkad. The claimants were passengers in a bus bearing registration No. KL-8D 3474 on 31.8.1994. The above bus collided with a jeep bearing registration No.KLL 1467. Original claim was filed against the driver, owner and insurance company. Thereafter, owner and driver of the jeep as well as the insurance company of the jeep were impleaded before evidence was taken in the case. The insurance companies of the bus and jeep filed a written statement. The driver and owner of the bus as well as the jeep were declared ex parte. After going through the evidence, the tribunal found that the accident occurred due to the negligent driving of both the drivers. Apart from the bus driver, police charge-sheeted the jeep driver also. Even PW1, who was one of the claimant in O.P.(M.V.) No.2691 of 1994, also deposed before the tribunal that the accident occurred due to the negligence of both drivers. From the evidence adduced in the case, the tribunal correctly M.A.C.A.No.135/2003 & M.F.A.No.426/2003 2 found that both drivers were negligent. The Apex Court also held in Bijoy Kumar Dugar v. Bidyadhar Dutta and others (AIR 2006 SC 1255) that negligence can be apportioned between the two drivers in the case of head-on collision in highways in the absence of any clear evidence. The tribunal awarded only 50% of the compensation calculated as 50% negligence was found on the driver of the bus and directed the insurance company of the bus to pay 50% of the compensation calculated, but, it did not award the balance 50% against the driver, owner and insurance company of the jeep on the ground that the allegations against the jeep driver was not mentioned in the original claim petition. We are of the view that the above stand is totally wrong. The driver, owner and insurance company of the jeep were impleaded before evidence started. PW1 claimant, before the tribunal, deposed that the accident occurred due to the negligence of both drivers. The counsel for the insurance company of the jeep was not able to discredit with the evidence of PW1. Therefore, we are of the view that after adjudication, the tribunal found that the accident occurred due to the negligence of both drivers and negligence can be apportioned equally. The jeep driver is liable to pay 50% of the compensation and owner of the jeep is also vicariously liable and is M.A.C.A.No.135/2003 & M.F.A.No.426/2003 3 also jointly and severally liable with the driver. Since 6th respondent insurance company insured the jeep, it is liable to deposit the amount. Therefore, total compensation awarded should be deposited in equal proportion by the third respondent insurance company of the bus and sixth respondent insurance company of the jeep. 2. Next point is the quantum of compensation. Appellant in M.A.C.A.No.135 of 2003 (O.P. (M.V.) No.2691 of 1994) was employed as a cook in a hotel and he was aged 42. He claimed that he was earning a sum of Rs.2,250/- per month. It is contended that Rs.1,500/- fixed as monthly income is too low, but, in the absence of evidence and considering the fact that the accident occurred in 1994, we are not enhancing the monthly income fixed by the tribunal. As a result of the accident, he suffered very serious injuries. Ext.A9 is the copy of the wound certificate issued by the Government Hospital, Nenmara. There was a crush wound below right elbow 2 c.ms. x 2 c.ms. There was a fracture of upper part of ulna right forearm. Ext.A10 shows that there was compound comminuted fracture on olecranon right and he was admitted on 31.8.1994, the date of accident, and discharged on 8.9.1994. Ext.A11 medical certificate stated that the petitioner had 100% disability for the period till 8.9.1994 and 35% temporary M.A.C.A.No.135/2003 & M.F.A.No.426/2003 4 disability for a period of six months and a permanent disability of 13%. The tribunal accepted only 5% disability. We are of the view that there is no reason for the tribunal to differ from the assessment made by the doctor. Since he was aged 42, taking guidance from second schedule, apt multiplier is 15. Therefore,compensation payable will be Rs.1500 x 12 x 15 x 13 = Rs.35,100/-. After deducting Rs.9,900/- 100 awarded by the tribunal, balance payable will be Rs.25,200/-. The total compensation calculated by the tribunal is Rs.34,700/- with cost of Rs.350/-. In view of enhancement of compensation for permanent disability, total compensation payable will be Rs.59,900/- with cost of Rs.350/-, total Rs.60,250/-. The above amount of Rs.60,250/- should be deposited by third and sixth respondents insurance companies in equal proportion with 7.5% interest from the date of application till its deposit after deducting the amount already deposited. On deposit of the amount, the appellant is allowed to withdraw the amount. 3. In O.P. (M.V.) No.2690 of 1994 (M.F.A.No.426 of 2003), the injured was a mechanic aged 28 years. According to him, his monthly income was only Rs.2,000/-. The tribunal fixed monthly income at Rs.1,500/- in the absence of evidence. We are of the M.A.C.A.No.135/2003 & M.F.A.No.426/2003 5 opinion that he was aged only 22 years at the time of accident and income fixed by the tribunal is just and reasonable. Merely because he was a mechanic and he was planning to go abroad, there is no ground to enhance the monthly income fixed by the tribunal. Ext.A5 medical certificate shows that there was a crush injury below the right elbow 2 x 3 c.m. and fracture of upper end of ulna right forearm. X-ray shows that there was compound fracture of olecranon right. He was admitted on 31.8.1994 and discharged on 8.9.1994. It was stated that he had temporary disability of 100% from 31.8.1994 till 8.10.1994 and 35% disability for six months and permanent disability is 20%. If the claimant was aged 22 years, going by the second schedule 17 is the apt multiplier. It is contended that being a mechanic, the fracture in the right arm will cause considerable difficulty. The tribunal did not award any compensation for permanent disability or for loss of earning capacity considering the fact that the claimant subsequently got employment in Gulf. Even though he got employment in Gulf, he had compound fracture on olecranon right and he may have some difficulties. In the above circumstances, we are of the view that for loss of amenities in life and consequences of the fracture and inconvenience caused to him, Rs.6,500/- ought to have been granted M.A.C.A.No.135/2003 & M.F.A.No.426/2003 6 instead of Rs.1,500/- granted by the tribunal. Therefore, he will be entitled to another Rs.5,000/-. Total compensation calculated by the tribunal is Rs.28,800/- with cost of Rs.300/-. Therefore, the claimant is entitled to Rs.33,800/- with cost of Rs.300/-, total Rs.34,100/-. The above amount of Rs.34,100/- should be deposited in equal proportion with 7.5% interest from the date of application till its deposit by third and sixth respondents respectively after deducting the amount, if any, paid by them. On deposit of the amount, appellant is allowed to withdraw the same. Both appeals are allowed partly. J.B.Koshy Judge P.N.Ravindran Judge vaa J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.A.C.A. No. 135 of 2003 and M.F.A.No.426 of 2003 ------------------------------------- Judgment Dated:19th June, 2008