M.T. Kurian vs N.A. Baraham and Others

K.P. Balanarayana Marar, J.—These appeals arise out of the award passed by the Motor Accident Claims Tribunal, Kottayam. In M.A.C.O. Ps. 244/83 and 255/83. Petitioner in O.P. 244/83 are the wife, daughter and mother of one Dr. M.P. Thomas. He was riding a motor cycle from Cherpunkal to Athirampuzha along Ettumannoor-Palai Road. The claimant in the other petition Shri. M.T. Kurian was the pillion rider. They were travelling from east to west. While so, jeep PYP 4144 owned by first respondent and driven by 2nd respondent hit the motor cycle as a result of which the rider and the pillion rider sustained serious injuries. Dr. Thomas succumbed to the injuries on the same day. Alleging that the accident happened due to rash and negligent driving by 2nd respondent the wife, daughter and mother of Dr. Thomas moved the tribunal claiming an amount of Rs. 3,07,400/-. The injured Kurian claimed an amount of Rs. 1,07,550/- . Both the petitions were heard jointly by Tribunal and as per the common order awarded an amount of Rs. 52,425/- to the claimants in D.P. 244/83 out of which Rs. 5,175/- was payable to the widwo of the deceased and Rs. 40,500/- to the daughter. The mother was found entitled to get Rs. 6,700/-. Shri. Kurian was awarded an amount of Rs. 35,000/-. The 3rd respondent insurer was found liable to pay the amounts awarded. The tribunal had come to the conclusion that both the jeep driver as well as the rider of the motor cycle were rash and negligent and the liability was apportioned in the ratio of 75:25. The total compensation awarded to the claimants in D.P. 244/83 was reduced by 75%. But no reduction was made in the case of the claimant in the other petition observing that he is only a pillion rider and has got cause of action against both the drivers. Dissatisfied with the amount awarded the claimants have come up in appeal M.F.A. No. 302/85 is by the petitioner in D.P. 255/83 and the other appeal no. M.F.A. 325/85 is by the petitioners in D.P. 244/83. Both the appeals were heard jointly and are being disposed of by this common judgment.

Appellants challenge the findings of the Tribunal both on the aspect of negligence as well as on the quantum awarded. The grievance of the appellants in M.F.A. 325/85 is against the finding of the Tribunal that there was the negligence in the part of the rider of the motorcycle also. The tribunal found the driver of the jeep and the rider of the motor cycle negligent and the liability was apportioned in the ratio 75:25. Appellants contended that the accident happened solely due to rashness and negligence on the part of the jeep driver and that there was no negligence at all on the part of Dr. Thomas who rode the motor cycle at the time of accident. The driver of the jeep on the other hand stated that the motor cyclist had come at excessive speed and jumped into a guttar as a result of which he host control of the vehicle which went and dashed against the jeep. Appellant in M.F.A. 302/85 who was the pillion rider had spoken about the negligence on the part of the driver and an independent witness was also examined. Both of them had spoken about the manner in which the jeep was driven. The jeep was awarded suddenly towards right and that resulted in the jeep hitting the motor cycle, according to these witnesses. Referring to the scene mahasar and Tribunal has (sic) that the driver of the jeep might have swere the vehicle. A little towards the right in order to avoid the irregular edges on the southern side of the road. The road lies straight at the place of accident. The collision took place at the middle of the road. There is straight vision to a distance of about 150 meters on both sides. The impact on the jeep was on the right bumper. The position of the vehicle at the time of the accident as mentioned in the scene mahazar prepared by the police in connection with a criminal case is indicative of negligence on the part of the jeep driver as well as the rider of the motor cycle and the tribunal has placed considerable reliance on the scene mahazar rather than on the testimony of the witnesses. An independent witness has no doubt spoken about the negligence on the part of the jeep driver. The injured had also tendered evidence. But the driver of the jeep had controverted the evidence tendered by these witnesses by saying that there has no negligence on his part whereas the motor cycle was ridden in a rash manner. From the material contained in the scene mahazar the Tribunal was able to find that the accident happened at the middle of the road and that is suggestive of negligence. On the part of the jeep driver and the rider of the motor cycle. Under these circumstances the finding of the Tribunal on the aspect of negligence is perfectly justified and there is no reason to interfere with the same.

The appellants in M.F.A. 325/85 who are the legal representatives of the deceased Thomas were awarded a total amount of Rs. 52,425/-. This amount was ascertained after reducing the total compensation estimated by 25% . The amount estimated is very low according to the appellants. The deceased was a Medical Practitioner aged 32 at the time of accident. His monthly salary as per the salary certificate was Rs. 944/-. at that time. That was taken as the monthly income of the deceased. At the time of argument before the Tribunal the counsel wanted the Tribunal to take note of the fact that the deceased was getting income from private practice also. But there was no pleading to that effect and the actual income obtained by the deceased from his private practice was also not spoken to by his widow. No material was, therefore, placed before the Tribunal to show that the deceased was getting income from private practice. In the circumstances the Tribunal was right in relying on the salary certificate and finding that the deceased was getting a monthly income of Rs. 944/-.The widow is a post graduate in medicine and is employed in a Maternity Hospital at Trichur. She is not a dependent on her husband and as pointed out by the Tribunal her evidence also would show that she was not financial dependent on her husband. After 21/2 years of the accident she married again. The denial of compensation to the widow was, therefore, justified in the circumstances. Still the tribunal awarded an amount of Rs. 5,000/- for loss of consortium. An amount of Rs. 10,000/- was claimed under this head. Since first petitioner was remarried after two and half years of the death of her first husband the amount awarded cannot be said to be unreasonable so as to warrant interference in appeal.

The daughter was aged only 6 at the time of the accident. The Tribunal has estimated the total compensation at Rs. 54,000/- taking into account the contribution to the minor at Rs. 300/-. per month and adopting the multiplier as 15. The Tribunal has given reasons for adopting the multiplier as 15. By the time the girl reaches the age of 21 she is likely to get married and at or about that time she may also become a doctor or may out for some other employment. The widow of the deceased is a Medical Practitioner getting sufficient income. In these circumstances the contribution for the welfare of the minor daughter estimated by the Tribunal and the multiplier adopted by him are only reasonable. The total compensation estimated by the Tribunal does not therefore require any modification. Since both the petitioner were found to be negligent the minor girl was found entitled only to get 75% of the total estimates. We see no reason why that should be further increased. An amount of Rs. 9,000/- was estimated as compensation due to the mother of the deceased and that also has been reduced to Rs. 6,750/- being 75% of the total compensation. On a consideration of all the circumstances we feel that adequate compensation has been awarded by the Tribunal. No modification is required in appeal.

The claimant in D.P. 255/83 is also dissatisfied with the quantum awarded by the Tribunal. He sustained serious injuries in the accident. Both bones of the right forearm had fracture. He also sustained fracture of pelvic bone. He was operated on 3.5.1979 and an open reduction in internal fixation of the fracture Of both bones forearm was done. He had admitted in the hospital on 13.4.1979 and discharged on 14.5.1979. He was readmitted on 15.12.1980. and again operated and discharged on 19.12.1980. The disability sustained by him had estimated at 15%. The medical certificate Ext. Ab. shows the details of the injuries sustained by him. It would appear that he was not in a position to do any work till 19.12.1980. Taking note of the injuries sustained and the disability caused on account of such injuries and and the period of treatment undergone by the injured the Tribunal awarded an amount of Rs. 15,000/- as compensation for pain and suffering. An amount of Rs. 25,0007- was claimed under this head. According to appellant in this appeal the Tribunal should have awarded that much amount taking note of the seriousness of the injuries and the severe pain undergone by him. But the amount awarded by the Tribunal does not appear to be low nor can it be said that it is an unjust estimate. We see no reason why the amount awarded under this head should be enhanced. An amount of Rs. 300/- was awarded as transport expenses an amount of Rs. 1000/- as extra nourishment and Rs. 100/- for loss of articles. These amounts appear to just and reasonable.

Appellant has raised serious objection regarding the quantum awarded for loss of amenities in life and loss of earning power and the amount awarded towards loss of earnings. It is his case that he was not in a position to do any work from 13.4.1979 upto 19.12.1980. Medical certificate were produced by him to show that treatment continued even after he was discharged from the hospital he had to be readmitted for a further period on 15.12.1980 and was discharged on 19.12.1980. It is spoken to by him that he was not in a position to do any work till 19.12.1980. He had been operated twice in the meanwhile. He had spoken about the difficulties experienced by him. In the circumstances there is no reason why this case that he was not in a position to do any work till 19.12.1980 should not be believed. The tribunal has awarded only loss of earnings for a period of 6 months i.e. from 13.4.1979 to 10.10.1979 the date of filing the petition. The loss of earnings power for the remaining period was not awarded. There is no bar in awarding the loss of earning period was not awarded. There is no bar in awarding the loss of earnings from the date of position till the date on which the petitioner was able to do his normal work. In other words there is no reason why his claim under this head for a period of 14 months after the filing of the petition should be denied. We feel that appellant in M.F.A. 302/85 deserves payment of loss of earnings for a period of 14 months more. That will work out to Rs. 8,400/- on the basis of the estimates of the income made by the Tribunal. We award Rs. 8,400/- more under this head.

An award of Rs. 15,000/- is awarded towards loss of amenities in life and loss of earning power. The disability sustained by him was estimated at 15% .The Tribunal awarded a sum of Rs. 15,000/- which according to us appears to be reasonable After 19.12.1980 he was in a position to do his normal work. The amounts of Rs. 15,000/ awarded under this head is therefore reasonable in the circumstances.

It is urged by Shri. Parameswaran, learned Counsel for the insurer, 3rd respondent that the Tribunal has committed an error of law in awarding the full compensation estimated after finding negligence in both the drivers. Counsel argues that the finding of negligence and the apportionment of liability between the driver of the jeep and the rider of the motor cycle in the ratio 75:25 should have been adopted by the Tribunal in determining the compensation payable to the pillion rider also. The entire compensation estimated by the Tribunal was awarded to the Pillion rider for the reason that he has got cause of action against both the petitioners. The motor cyclist died in the accident and the insurer with whom that vehicles was insured was also not made a party. Still the liability was fastened on the respondents for the reason that the liability is joint and several. The claim of the legal representatives of the motor cyclist and the claim of the pillion rider were considered jointly by the Tribunal and the finding of negligence is common both the petitions. It is therefore, the contention of the 3rd respondent that the compensation awarded to the pillion rider should also have been reduced to 75% for the reason that the motorcyclist was also negligent. But it has to be noted that neither the owner nor the driver has preferred an appeal against the award. The insurer also has not chosen to challenge the award on any one or other of the grounds available u/s 96(2) of the Motor Vehicles Act. The limited question that we are called upon to consider in M.F.A. 305/85 is whether the quantum of compensation awarded is reasonable. In other words the reasonableness of the compensation awarded by the Tribunal alone need be considered in this appeal filed by the claimant, his grievance being that the compensation award is very low. It is not, therefore, open to the insurer in the appeal filed by the claimant to challenge the quantum of compensation awarded by the Tribunal.

In this connection, learned Counsel for insurer had cited the decision of this court in New India Assurance Co. Ltd. Vs. Fatmabai and Others, The counsel points out that this court can interfere with the award only on two grounds viz (1) that the Tribunal has acted on a wrong principle of law and (2) that he had made an entirely erroneous estimate of the damages. On a perusal of the award we do not feel that the Tribunal has acted on any wrong principle of law in M.F.A. 325/85 we found that the compensation awarded is just and reasonable. In the other appeal the award was modified only to the extent of loss of earnings for the period after the filing of the petition and upto the data on which the petitioner was in a position to do work. The Tribunal has omitted to provide for the loss of earnings during that period presumably for the reason that it fell due after the filing of the petition. There has been an erroneous estimates of the damages as far as that portion of the claimant is concerned. Regarding the award of compensation under other hands we are in agreement with the view of the Tribunal.

In the result M.F.A. 325/85 is found to be devoid of merits and is hereby dismissed. M.F.A. 302/85 is allowed in part and the award passed in M.A.D.O.P. 255/83 is modified and we pass an award in favour of the petitioner for an amount of Rs. 43,000/-. In other words petitioner therein is found entitled to get Rs. 8,400/-. The direction to pay interest will stand . Parties are directed to suffer their costs in appeal.