1. This appeal is filed by the claimant in O.P (MV) No.1823 of 2001 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda seeking enhancement of compensation as well as challenging the finding of the tribunal fixing the liability upon the 4th respondent, owner of the vehicle. The respondents herein were the respondents before the tribunal.

2. According to the claimant, on 17.07.2001 at about 1 p.m., while the claimant was travelling as a passenger in an autorickshaw bearing Reg.No.KL-8/G 8329 driven by 2nd respondent through Chalakudy-Angamaly Sector of NH 47 and when the autorickshaw reached near Koratty Junction a tanker lorry bearing Reg.No.TN 47/C 9229 driven by 5th respondent in a rash and negligent manner, came from the opposite direction and collided with the autorickshaw, as a result claimant sustained serious bodily injuries. The claimant approached the tribunal claiming compensation of Rs.2,58,000/-which was limited to Rs.1,00,000/-.

3. The first and second respondents who  were   the registered owner and the driver of the auto-rickshaw remained ex- parte before the tribunal. The third respondent, insurer of the auto- rickshaw, filed a written statement admitting the policy, but disputing the quantum of compensation claimed. It was also contended that the charge sheet was drawn against the fifth respondent, driver of the tanker lorry. The fourth and fifth respondents, who were the registered owner and the driver of the tanker lorry filed a written statement contending that the accident occurred not due to the negligence of the 5th respondent. PW’s 1 and 2 were examined. Exts.A1 to A11 documents were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.73,326/- with interest @6% per annum as compensation under different heads against the 4th respondent being the owner of the tanker lorry, since there was no insurance coverage for the tanker lorry; and in default of payment as above, penal interest @ 7.5% per annum was also awarded. Dissatisfied with the quantum of compensation awarded by the tribunal, as well as the fixing the liability upon the 4th respondent, owner of the vehicle, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the learned standing counsel for the respondent insurer. Though notice was served on the fourth respondent and vakalat was filed, they chose not to appear before this court.

5. 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.4,000/- was claimed as the income of the injured, the tribunal had taken only an amount of Rs.2,000/-. The learned counsel further submitted that the injured was working in a cassette shop and was earning an amount of Rs.150/- per month. The claimant was examined as PW2, but no other evidence was adduced to prove the avocation nor the income. Even going by the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the income of a Coolie, for an accident in 2001 is fixed as Rs.3,000/- and sought for enhancement of income. In order to award a just and reasonable compensation, I find it appropriate to re-fix the income at Rs.3,000/-.

                  Loss of earnings :- The learned counsel for the appellant submitted that for awarding compensation under the head loss of earnings, the tribunal had taken only a period of three months. The claimant sustained (1) fracture both bones left forearm, (2)abrasion segmental fracture and (3)abrasion left knee. Considering the nature of injuries sustained, I find that a period of four months can be taken for awarding compensation under the afore head. Accordingly, the compensation under the head is re-calculated: Rs.12,000/- (3000 x 4). The tribunal had already awarded an amount of Rs.6,000/-. Thus, there will be an additional amount of Rs.6,000/- under the afore head.

                  Extra nourishment :- The learned counsel for the appellant submitted that the tribunal has not awarded any amount under the head extra nourishment. Considering the nature of injuries sustained and the year of accident, I find that a total amount of Rs.1,500/- can be awarded under the afore head.

                  Pain and sufferings :- The learned counsel for the appellant submitted that the tribunal has awarded an amount of Rs.10,000/- towards the head pain and suffering, which is on the lower side. Considering the nature of injuries sustained, I am inclined to grant an additional amount      of Rs.5,000/- totalling to an amount of Rs.15,000/- under the afore head.

                  Loss of amenities :- The tribunal has awarded an amount of Rs.3,000/- under the head loss of amenities. Considering the age of the appellant and loss of enjoyment in life, I find that an amount of Rs.15,000/- can be awarded under the afore head. Thus, there will be an additional amount        of Rs.12,000/- under the head loss of amenities.

                  Compensation for disability :- The learned counsel for the appellant submitted that though as per Ext.A1 disability certificate, the percentage of whole body disability was assessed as 12%, however, the tribunal reduced the percentage of disability to 8%. The learned counsel submitted that the doctor who had issued the Ext.A1 certificate was examined as PW1. On pursuing the deposition, it is seen that the doctor had deposed that he had assessed the whole body disability of the claimant at 12%. The reasoning of the tribunal does not appear to be acceptable in view of the judgment of the apex court in Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC] and this Court in Manikantan G. v. K.Janardhanan Nair [2021(5) KHC 305] and I do not find any reason to disbelieve Ext.A1 disability certificate. The claimant was aged 28 at the time of the accident and following the judgement in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the multiplier to be adopted is ‘17’ and not ‘18’. Accordingly, following the judgments in National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Verma (supra), the compensation payable under the head disability is re- calculated thus: Rs.73,440/- (3000 x 12 x 17 x 12/100). The tribunal has awarded an amount of Rs.34,560/- under the afore head. Thus, there will be an additional amount of Rs.38,880/- to be awarded under the head compensation for disability.

6. 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.

7. The main contention raised by the learned counsel for the appellant is that there was negligence on the part of the driver of the autorickshaw as well as the driver of the lorry in causing the accident and the negligence was composite as far as the claimant is concerned.

8. The learned counsel for the appellant submitted that when the original award was challenged, this Court as per the judgment in M.A.C.A. No.1349 of 2007 remanded the matter back to the tribunal, and thereafter the claim petition was amended by the claimant, raising a ground that the negligence involved was composite and not contributory. The learned counsel further submitted that the injured was a passenger in the autorickshaw, and that the accident occurred due to the rash and negligent driving of both the drivers of the autorickshaw and the lorry. Therefore, as far as the claimant is concerned, the negligence of the drivers were composite and not contributory. It was further submitted that though the claim petition was amended and a specific ground was raised that the negligence was contributory, the tribunal did not consider the same while passing the award on 31.01.2012. The very same earlier award was passed by the tribunal without considering the amendment made to the claim petition, thus fixing the liability on the 4th respondent, owner of the lorry. The learned counsel for the appellant further submitted that in the claim petition since it was specifically contended that the accident occurred due to the negligence on the part of the driver of the autorickshaw as well as the driver of the lorry, even though the lorry was not insured, the insurer of the autorickshaw remained liable to compensate the claimant for the injuries sustained in the accident. The learned counsel for the appellant also relied on the deposition of the claimant who was examined as PW2, wherein he had stated that there was negligence on the part of the driver of the autorickshaw as well as the driver of the lorry.

9 Per Contra, the learned Standing Counsel appearing for the 3rd respondent–insurer of the autorickshaw submitted that the charge sheet was drawn against the driver of the lorry. It is also contended that the accident occurred on the wrong side of the lorry and that the autorickshaw, which was proceeding on the correct side, had not contributed to the accident. Therefore, the negligence was solely attributable to the lorry driver. The lorry driver swerved the vehicle to the wrong side and hit the autorickshaw, which was moving in the correct direction. Hence, no composite negligence can be attributed to the driver of the autorickshaw as claimed by the claimant. It is further contended that since the charge sheet was laid against the driver of the lorry, there was no justification for the Tribunal to find composite negligence on the part of the autorickshaw driver. It was therefore argued that, although the matter was remanded to the tribunal and the claim petition was amended, the claimant did not adduce any further evidence to substantiate the allegation of composite negligence on the part of the autorickshaw driver. Hence, there is no reason for this court to interfere with the award passed by the tribunal.

10. I have considered the rival contentions raised by both sides.

11. The original award in O.P.(MV) No.1823 of 2001 was passed by the tribunal on 30.11.2006 fixing the liability on respondents 4 and 5, who are the owner and driver of the lorry involved in the accident. The 4th respondent/owner filed appeal before this Court challenging the award passed by the tribunal and as per judgment dated 13.10.2009 in MACA No.1349 of 2007, the award passed by the tribunal was set aside and the matter was remanded back to the tribunal with permission to the claimant to amend the claim petition and permitting all the parties to produce documentary as well as oral evidence in support of their respective contention and then decide the matter in accordance with law. The tribunal was also directed to frame appropriate issues on the basis of the pleadings available before the Court.

12. After remand, the claimant amended the claim petition as per I.A.NO.6091 of 2009 dated 31.12.2009. In the amended claim petition, it was specifically averred that the claimant sustained injuries due to the composite negligence of the 2nd and 5th respondents. After remand, the following issues were raised by the tribunal :

                  (1)      who is negligent for the accident?

                  (2)      Whether the petitioner is entitled to any compensation? If so, what is the quantum and who is liable to pay the same?

13. On a perusal of the issue framed by the tribunal after remand, it is seen that the tribunal did not frame an issue whether the negligence was composite or not. Even in the award passed, the tribunal has not considered the issue regarding composite negligence. The Tribunal found that since the accident occurred on the correct side of the autorickshaw and the charge sheet had been laid against the driver of the lorry, there was no negligence on the part of the autorickshaw driver. Accordingly, the tribunal held the owner of the lorry vicariously liable for the negligence of its driver. The claimant who was examined as PW2, before the amendment of the claim petition, deposed as follows :-

                 

15. In the claim petition as well as in the evidence adduced the claimant had stated that the autorickshaw was moving at a high speed. The autorickshaw was moving from north to south whereas the lorry was coming from south to north. The correct side of the autorickshaw was the eastern side and the correct side of the lorry was on the western side. The road was having a width of 6 metres. The accident occurred about 155 cm towards the west from the eastern tarred end. Admittedly, the autorickshaw was moving through the correct side. The lorry had swerved to the wrong side by almost 1.45 metres. It is an admitted fact that there is a clear line of distant vision of about 200 metres to the south and 250 metres to the north from the place of occurrence. If the autorickshaw had not been speeding and had been moving at a moderate pace, the impact of the accident could have been reduced. It is to be presumed that the autorickshaw turned upside down due to its high speed and thus the claimant sustained injuries. Admittedly, there was no insurance for the lorry. The claimant, who was a passenger in the autorickshaw, sustained serious injuries in the accident. Though the claimant had contended that the negligence was composite and not contributory, the tribunal failed to consider the same. Ext.A4 inspection report of the autorickshaw also shows that the front portion of the vehicle was damaged. The driver of the lorry could have avoided the accident if he had not attempted to overtake the two-wheeler that was moving in front of the lorry. Since the claimant had averred that the autorickshaw was moving at a high speed, it cannot be found that there was no negligence on the part of the driver of the autorickshaw in causing the accident. Accordingly, I find that both the drivers are tortfeasors and the negligence attributed is one of composite negligence and not negligence on the part of the lorry driver alone. Considering the facts of the case and the spot of accident, I fix the ratio of composite negligence at the ratio 25:75 as between the driver of the autorickshaw and driver of the lorry. In Khenyei v. New India Assurance Company Ltd. and others [2015 (3) KHC 70], it is held that the claimant is entitled to sue both or any of the joint tortfeasors, and the claimant can recover at its option all damages from any of them. Therefore, the third respondent/insurer of the autorickshaw is liable to pay the compensation amount awarded by this court and the amount awarded by the tribunal and the third respondent will be at liberty to recover the same from the 4th respondent/owner of the vehicle.

16.    On a perusal of the impugned award, it is seen that the tribunal awarded penal interest at the rate of 7.5%, which is not legally sustainable in view of the judgment of the apex court in National Insurance Co. Ltd. v. Keshav Bahadur [2004 (2) SCC 370]. Therefore, the direction of the tribunal awarding penal interest @ 7.5% per annum is hereby set aside.

17.    Thus, the impugned award of the tribunal is modified as follows:-

                 

                  Accordingly, the appeal is allowed in part as follows:

                  1. The ratio of composite negligence is fixed at the ratio 25:75 as between the driver of the autorickshaw and driver of the lorry. Hence, the 3rd respondent/insurer of the autorickshaw shall pay the entire compensation awarded by the tribunal as well as the enhanced compensation awarded by this court and the 3rd respondent will be at liberty to recover the same from the 4th respondent/owner of the lorry.

                  2. The appellant/claimant is awarded an additional compensation of Rs.63,380/- (Rupees sixty three thousand three hundred and eighty only) over and above the compensation awarded by the tribunal with interest @ 6% per annum from the date of petition till realization and proportionate costs. The direction of the tribunal awarding penal interest @ 7.5% per annum is set aside. The 3rd respondent insurer shall deposit the said amount as well as the award amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. On payment of the said amount, the 3rd respondent/insurer will be at liberty to recover the same from the 4th respondent/owner of the lorry. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the 3rd 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 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.