IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 MFA.No. 1076 of 2001(B) ----------------------------------- OP(MV).NO.490/1995 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANTS/ PETITIONERS 2 TO 4: ---------------------------------------------------- 1. YESODA, D/O. MARAN, VILAMAKUMBIL HOUSE, P.O. IRITTY, KANNUR DIST. 2. SUNITHA (MINOR), D/O. LATE BHASKARAN, REP. BY GUARDIAN SUPPL.P2 YESODA. 3. SUDHEESH (MINOR), S/O. LATE BHASKARAN, REP BY GUARDIAN SUPPL. P2. YESODA. BY ADV. SRI.GRASHIOUS KURIAKOSE. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. POTTANKY VIJAYAN, S/O. KUNHIKANNAN, SIVAPURAM AMSOM, MALLUR DESOM, MALLUR, (DRIVER OF BUS KL.13/9394). 2. M.D. JOY, MANJALIL HOUSE, P.O. THONDIYIL, VIA. PERAVOOR, (OWNER OF BUS KL.13/9394). 3. UNITD INDIA INSURANCE COMPANY LIMITED, THALASSERY. R3 BY ADV. SRI.P.MURALEEDHARAN. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.No.1076 OF 2001 ------------------------------------- Dated 13th November, 2008 JUDGMENT Koshy,J . A young man aged 24 sustained very serious injuries in a motor accident on 7.10.94. He was admitted in the Medical College Hospital, calicut and treated as an inpatient for 26 days and advised absolute bed rest. He was having 100% quadriplegia. Then he was referred to the District Hospital, Kannur, his native place, for further treatment and there he was treated as an inpatient for three and a half months. Bed sore developed and on request he was discharged. While in bed ridden condition in the house, he passed away on 1.9.1995. Originally, the injured himself filed the application for compensation. After his death, his wife and two minor children were impleaded as additional claimants. Even though the Tribunal found that the accident occurred due to the negligence of the first respondent driver of the bus owned by the second respondent and insured by the third respondent insurance company, against a claim of compensation of Rs.5,00,000/=, only Rs.34,000/= was awarded inclusive of reimbursement of medical expenses. Respondents 1 and 2 were declared ex parte and insurance company was given permission to contest the case. Only quantum of MFA.1076/2001 2 compensation is disputed in this appeal. 2. It is the case of the appellants that death was due to the consequences of the injuries sustained in the accident and, therefore, they are entitled to get compensation for loss of dependency. The injured died at the age of 25 leaving his young wife and two minor children hapless. He had no other ailments before the accident and according to the appellants, death was the after effect of the accident injuries and its trauma. Now, we will consider the injuries suffered in the accident. Ext.A3 is the wound certificate. It shows that he had sustained head injury and incised bleeding – wound of 4cm x ½ cm depth near left eye. Ext.A4 is the discharge certificate issued from the Medical College Hospital, Calicut which shows that he was treated as inpatient from 8.10.1994 for 26 days in that hospital. Ext.A5 is the discharge card issued from the District Hospital, Kannur which shows that from 10.11.1994 he was treated as an inpatient there for three and a half years and on request he was discharged on 21.1.1995. It was also stated in the discharge card that bed sore was developed. The Tribunal called for the treatment records from the hospital. It shows that he had head injury and quadriplegia. X-ray showed C4-5 subluxation. He was treated conservatively and during hospital stay bed sore developed and there was collapse of right lung. Patient is MFA.1076/2001 3 having absolute quadriplegia and there was no sign of neurological recovery. He was advised absolute bed rest, two hourly change of position, care of skin and bladder and advised various medicines. On 19.10.1994 it was observed by the doctor that there was avulsion of C5 and C6 vertebrae, widening of C5, C6 spaces and he was suffering from traumatic quadriparasis. Ext.X1 treatment records from District Hospital, Kannur also shows that he had traumatic quadriplegia and collapse of right lung. Bed sore developed and no hope of neurological recovery. Ext.X2 treatment records from Medical College Hospital, Calicut further shows that there was cervical spine injury, muscle weakening etc. Since it is a non-redemption case, he was taken back to home. He was lying with quadriparasis and suffered the injuries till his death and he died. On going through the treatment records, we are of the view that his death was only due to the accidental injuries. Therefore, his legal representatives are entitled to compensation for loss of dependency. Now, the question is what is the amount to be awarded. 3. According to the claimants, the deceased was a wood cutter and he was getting Rs.3,000/= per month. The oral evidence is not contradicted. He was an able bodied man and he was maintaining his wife and two children. Even if he was getting only Rs.100/= per MFA.1076/2001 4 day, for 25 days he would have got Rs.2,500/=. Therefore, we fix Rs.2,500/= as the monthly income. He was aged 25 at the time of death. 17 is the apt multiplier taking guidelines from the second schedule. Even though it is contended by the appellants that the Hon'ble Apex Court held that for a person aged between 20 and 25 a higher multiplier of 18 should be taken, we are not enhancing the multiplier fixed by the Tribunal taking guidance from the second schedule. (See Smt.Supe Dei and others. v. M/s.National Insurance Company Ltd. and another (JT 2001 (Suppl.1) SC 451), Abati Bezbaruah v. Dy.Director General, Geological Survey of India and another ((2003) 3 SCC 148) and A.P.S.R.T.C. v. Pentaiah Chary (2007 AIR SCW 5689)). If the monthly income is Rs.2,500/=, his yearly income will be Rs.30,000/= and after deducting one third, the yearly loss of dependency to the family will be Rs.20,000/=. If 17 is taken as the multiplier, the compensation payable for loss of dependency will be Rs.3,40,000/= (20000 x 17). Even though he was bed ridden in the hospital for about 4 ½ months and rest of the time till his death in the house, the Tribunal has granted only Rs.2,000/= as bystander's expense, Rs.1,000/= for transportation expense, Rs.1,000/= for extra nourishment, Rs.2,000/= for medical expenses and Rs.20,000/= for pain and suffering. The Tribunal fixed Rs.8,000/= for loss of actual earnings. MFA.1076/2001 5 Thus, total compensation awarded was Rs.34,000/=. Even though it is contended that at least Rs.1,00,000/= should be awarded for pain and suffering, considering the total compensation awarded, we are not enhancing the compensation of Rs.20,000/= awarded for pain and suffering. It is true that no medical bills were produced, but, there was continuous treatment for 4 ½ months. They have claimed Rs.25,000/= for medical expenses, but, only Rs.2,000/= was allowed. We are of the opinion that Rs.5,000/= should have been awarded for medical expenses. For bystander's expense for 11 months at least Rs.11,000/= should be granted. Since we are granting compensation for death, we are not granting any amount for loss of actual earnings. For extra nourishment, the Tribunal has awarded Rs.1,000/=. We are not changing the same. For loss of consortium for young wife, we award Rs.10,000/= and for loss of love and affection and fatherly care to the minor children, we award Rs.5,000/= each. For transportation expense Rs.1,000/= was granted by the Tribunal. We are not changing the same. For funeral expense, we award Rs.2,000/=. Thus, the total compensation payable will be Rs.4,00,000/=. From the above amount, Rs.34,000/= awarded by the Tribunal has to be deducted and the balance amount payable will be Rs.3,66,000/=. The above amount of Rs.3,66,000/= should be deposited by the third respondent insurance company with 7.5% interest from the date of MFA.1076/2001 6 application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, first appellant is allowed to withdraw Rs.1,00,000/=. One third of the balance amount should be deposited in a Nationalised Bank in the name of the first appellant enabling her to withdraw the same after five years. First appellant is allowed to withdraw the quarterly interest of the amount deposited in her name. Balance amount should be deposited in a Nationalised bank in the name of the second and third appellants equally enabling them to withdraw the same when they attain the age of 21 or at the time of their marriage whichever is earlier. If they want to withdraw the interest for educational purposes, they can approach the Tribunal. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks