GOPI Vs. SALIM

JUDGEMENT

(1.) Against the award in O.P.(MV) No. 211 of 1990 passed by the Motor Accidents Claims Tribunal, Ernakulam, the claimant filed M.F.A. No. 143 of 1396 claiming enhanced compensation. M.F.A. No. 356 of 1956 was filed by the sixth respondent insurance company on the contention that after holding that there was composite negligence, the Tribunal failed to apportion negligence and amount of compensation. The total amount of compensation awarded by the Tribunal was only Rs.1,27,435/-, out of which the third respondent who insured the autorickshaw involved in the accident was directed to pay Rs.50,000/- (limited in the policy) and the sixth respondent insurance company was directed to satisfy the balance amount. Before going into the contentions, we may go through the facts of the case.

(2.) On 8th August 1989 at about 8.10 p.m. while the claimant was walking along the Chittoor Road, Ernakulam, an autorickshaw, bearing Registration No.KCE 5428 came at high speed from north to south and dashed against the motor cycle bearing Registration No.KRE 957. The motor cycle in turn knocked down the claimant and he sustained several injuries. The claimant was an M.B.B.S. Doctor employed in Government service. At the time of accident ha was 50 years old and was getting a monthly salary of Rs.3,945/=. The Tribunal calculated a total compensation of Rs.1,27 , 435. -, but for disability and loss of earning capacity, only Rs. 20,000/- was awarded. That is the main grievance of the claimant. According to the Tribunal, the claimant was a Government Doctor, even after the accident he continued the employment, he has to retire only at the age of 55 and there is no data how much amount he will receive after his retirement from private practice. Therefore, Tribunal granted Rs. 20,000/- as lumpsum compensation for loss of future earnings. That part only is disputed herein by the claimant. Immediately after the accident he was taken to the City Hospital. He was unconscious for about two weeks. He was an inpatient for 45 days in the City Hospital. The scan report showed fracture on the left temporal bone and injury to brain. A piece of bone was removed from his left middle ear by an operation. According to the claimant, he lost his sense of smell and sense of hearing of left ear. His sense of taste was also affected and he was suffering from loss of memory and irritability. However, there was no certificate showing the percentage of disability. Therefore, we directed the claimant to be examined by a Medical Board constituted by the Medical College Hospital. Thrissur. The Medical Board certified disability at 40%. The Medical Board's certificate reads as follows:

(3.) Now we will consider the appeal filed by the insurance company. The Tribunal found that drivers of both the vehicles were negligent. The claimant was a pedestrian, a third party. Because of the composite negligence, the accident occurred. it was held by a Division Bench of this Court in National Insurance Co. Ltd. v. Sivasankara Pillay ( 1995 (1) KLT 51 ) that the Tribunal is required to make apportionment of compensation awarded as against each of the owners of the vehicles in proportion to the negligence of the respective drivers. The same view was taken in the decision in National Insurance Co. Ltd. v. Yohannan ( 1997 (2) KLT 771 ). In Khushro v. N.A.Guzder ( AIR 1970 SC 1488 ) the Supreme Court held that in the case of joint tort-feasors, in order to release all the joint tort-feasors the plaintiff must receive full satisfaction. or which the law must consider as such from a tort-feasor. before other joint tort-feasors can rely on accord and satisfaction as that rule is in consonance with equity, justice and good conscience and liability of the tort-feasors is joint and several.