IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 MACA.No. 831 of 2008() ---------------------- OP(MV).660/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): APPELLANTS/PETITIONERS ----------------- 1. SUBAIDA,AGED 44 YEARS,W/O.LATE IBRAHIM, AMBALEDATH HOUSE,KODUMUDI P.O., NOW RESIDING AT MODAMPARAMBIL HOUSE, BANGLAWKUNNU,KUTTIPURAM. 2. INAYATH,AGED 26 YEARS,D/O.LATE IBRAHIM, -DO- -DO- 3. RAIHAVANATH.A.V.,AGED 24 YEARS, DAUGHTER OF LATE IBRAHIM, -DO- -DO- 4. RASSANATHU BEEVI.A.V.,AGED 22 YEARS, DAUGHTER OF LATE IBRAHIM, -DO- -DO- 5. MOHAMMED AMEEN.A.V.(MINOR),AGED 11 YRS., SON OF LATE IBRAHIM,REP.BY NEXT-FRIEND, MOTHER IST APPELLANT SUBAIDA. -DO- -DO- 6. SAINUL ABIDIN (MINOR),AGED 14 YEARS, SON OF LATE IBRAHIM,REP.BY NEXT-FRIEND, MOTHER IST APPELLANT SUBAIDA. -DO- -DO- BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER RESPONDENT(S): RESPONDENTS/RESPONDENTS -------------------- 1. SEVI THARAKAN,S/O.T.C.RAPHEAL, THARAKAN HOUSE,PERUVALLOOR, TRISSUR. 2. THE NEW INDIA ASSURANCE COMPANY LIMITED, REGIONAL OFFICE,CHANDRIKA BUILDINGS, COCHIN 682 011. BY ADV. SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A.No. 831 of 2008 ------------------------------- Dated this the 10th November, 2009 J U D G M E N T Ramachandra Menon, J. This appeal arises from a claim originally preferred by the injured, who met with an accident on 11.3.1999. The claimant was was riding a motor cycle at about 3.30 p.m., when the Van bearing Registration No.KEH-3798, owned and driven by the first respondent herein and insured by the second respondent, came and hit against the motor cycle, causing serious injuries leading to hospitalisation of nearly 156 days involving medical expenses of nearly Rs.2,12,200/-. 2. The claim petition attributing negligence solely on the driver of the Van was resisted from the part of the respondents, contending that the accident was only because of the rider of the motor cycle, who was none other than the claimant himself. Nobody was examined on either side to MACA No.831 of 2008 2 substantiate the pleadings. The only evidence was the documents produced as Exts.A1 to A14 marked on the side of the claimant. On the basis of the available materials on record, the Tribunal arrived at a finding that the accident was because of the rash and negligent driving of the Van by the first respondent. 3. Coming to the fixation of quantum, the injuries, as revealed from Ext.A8 certificate issued by the Urology Department of the Specialists Hospital, Ernakulam, which have been extracted in paragraph 11 of the Award, are as given below:- “Mr.Ibrahim was admitted first on 11/3/99 in a critical condition following a road traffic accident. He had an open compound fracture of the pelvis, extensive soft tissue damages of the perinium and compound fracture involving bones of the left lower limb. There was total loss of soft tissues in the perineum extending and including the bladder base, with loss of about 5 cm of the bladder base. The rectum was retracted, with loss of sphincters. He underwent the following Urology and General surgeries so far- 1. Emergency Laparotomy, repair of intraperitoneal rupture of the bladder and colostomy. MACA No.831 of 2008 3 2. Multiple cystoscopies to assess the bladder base and urethral defects. 3. Laparotomy and repair of the bladder base + Gracilis muscle transfer to partially cover the perineal defect. He has the following residual Urological and General Surgical Problems- 1. A healing vesico-cutaneous fistula from bladder base to perineum. 2. Urethra with no sphincter control. 3. Non functioning left kidney. 4. Incisional hernia. The following surgical procedures will be required- 1. Removal of left kidney. 2. Bladder reconstruction with continence mechanism for self catheterisation. 3. Incisional hernia repair. 4. Reversal of colostomy and repair of bowel continence.” 4. Ext.A9 treatment certificate issued by the Orthopaedics Department of Specialists Hospital also refers to Type 'C' fracture of pelvis; fracture of both bones of right leg and perineal tear with urethral injury and ano-rectal tear. The MACA No.831 of 2008 4 surgical treatment undergone by the injured as stated in Ext.A9 certificate has been extracted in Paragraph 13 of the Award which is extracted below:- “Patient was in shock initially and resuscitated with rapid transfusion of blood and crystalloids. On 11/3/99 as an emergency wound debridement external fixator for the (R) leg, exploratory laprotomy and bladder drainage and defunctioning colostomy done. Patient underwent multiple urologic and bowel procedures as described in the urology treatment summary issued by Dr.Vijayan on 15/3/01. On 3/4/99 the pelvic external fixator was removed and on 15/5/99 sequestectomy of the tibia done. Patient was discharged on 25/5/99. Patient was re-admitted on 24/6/99 and on 30/6/99 bifocal ILIZAROV osteosynthesis done. This was followed by later removal of the whole of lower end of tibia and continuation of transport. Patient was discharged on 20/7/99. Patient was on irregular follow up and on review after 6 months the tibial fragment had mal docked with the talus and this was realigned. MACA No.831 of 2008 5 5. It is brought from the materials on record that the original claimant, who sustained injuries on 11.3.1999 took his last breath on 30.8.2003, i.e., about four years after the accident. The case of the appellants (wife and children of the deceased claimant) appears to be that the death was because of the serious injuries caused to the deceased. It was contended that the deceased was 45 years of age on the relevant date and was having a monthly income of Rs.4000/- per month, procured from the business of conducting a 'Thattu Kada'. 6. After analysing the evidence on record, the Tribunal held that absolutely no evidence was adduced on the part of the appellants who were impleaded as the Additional claimants 2 to 7, being the legal heirs of the deceased original claimant, to show that the death of the deceased which occurred on 30.8.2003 was having a close nexus with the accident occurred on 11.3.1999. It was also observed by the Tribunal that no disability certificate was produced by the claimants. In the said circumstances, despite the serious nature of the injuries resulted, the Tribunal awarded only a sum of Rs.25,000/- as compensation for the 'loss of amenities' and no amount was MACA No.831 of 2008 6 awarded either towards the 'permanent disability' or in respect of the 'death'. Taking note of the hospitalisation of nearly 156 days, the Tribunal awarded a sum of Rs.15,600/- towards the 'expenses of by-standers' and another sum of Rs.18,000/- towards 'extra nourishment', simultaneously awarding some nominal amounts under other permissible heads, so as to make a total of Rs.3,30,000/- as compensation, of which Rs.2,12,200/- was accounted towards the 'medical expenses'. 7. The learned counsel appearing for the second respondent, Insurance Company, vehemently opposed the reliefs prayed for in the appeal for enhancement, asserting that no amount can be awarded towards 'disability' or in respect of the 'death', in the absence of any evidence to show the permanent disability or to arrive at a conclusion that the death occurred four years after the accident was because of the injuries sustained by the deceased. We find some force in the said submission, particularly, in view of the fact that no medical expert was sought to be examined before the Tribunal in this regard. However, we also cannot shut our eyes to make it dark when the documents produced, showing the very serious nature of MACA No.831 of 2008 7 injuries involving the damage caused to the Urinary Bladder and Urethra with no sphincter control, non-functioning of left kidney and suggesting the removal of left kidney with Bladder reconstruction etc. speak volumes. We find, despite the lapses, the additional claimants are to be provided one more opportunity to substantiate their pleadings, so as to facilitate payment of the “just” compensation, as provided under Section 168 of the Motor Vehicles Act. 8. In the circumstances, the Award passed by the Tribunal is set aside, to the limited extent of deciding the additional amount, if any, to be paid towards the 'permanent disability' or in respect of the 'death', if the claimants succeed in proving the permanent disability or that the death was caused because of the injuries suffered at the time of accident. Accordingly, the matter is remanded for fresh consideration of the Tribunal, with liberty for both the sides to amend the pleadings, if necessary, and also to adduce further evidence in this regard. 9. However, it is made clear that the amount already awarded by the Tribunal to the extent of Rs.3,30,000/- MACA No.831 of 2008 8 with interest, shall be satisfied by the Insurance Company in the meanwhile, if not cleared already. Parties shall appear before the Motor Accidents Claims Tribunal, Tirur, on 21.12.2009. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.