IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 MACA.No. 1483 of 2004() ----------------------- OPMV.922/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONERS 2 TO 4 -------------------------------- 1. KARTHIYAYANI @ KARTHU, W/O.THEVAN, THACHAMANA HOUSE, PANICKARAMBALAM 4 CENT COLONY, KEEZHILLAM P.O. 2. RATHEESH, S/O.THEVAN, DO.DO. 3. RANJU, S/O.THEVAN, DO.DO. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): RESPONDENTS -------------------------- 1. K.P.UMMER, KOKKADAN HOUSE, ALLAPRA P.O., PERUMBAVOOR. 2. PRAKASH, S/O.RAMAN, VENCHATUKUDY HOUSE, KEEZHILLAM. 3. THE ORIENTAL INSURANCE CO LTD., MARKET ROAD, MUVATUPUZHA. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 1483 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2009 JUDGMENT Joseph, J. The appellants are additional petitioners in M.V.(OP) No. 922 of 1999. The petitioner in that case was the husband of the first appellant and father of appellants 2 and 3. The said petition was filed under Section 166 of the M.V. Act, claiming compensation for the injuries sustained by the petitioner in the accident, which occurred on 13.5.1999. Pending the petition, the original petitioner passed away on 9.2.2000. It is thereupon that the present appellants were brought on the party array as additional petitioners. 2. The Tribunal found that there is negligence on the part of the 2nd respondent. In view of the death of the petitioner on 9.2.2000, a contention was raised on behalf of him that the M.A.C.A.No. 1483 of 2004 2 death occurred on account of the accident. It is the case of the appellants that on account of the accident, the original petitioner developed epilepsy and he died on account of epilepsy. Therefore, the accident inflicted injury culminated in the death of the petitioner, it is contended. 3. The Tribunal, however, found that it could not be found that the death of the petitioner was on account of the injuries sustained. Thereafter the Tribunal proceeded to consider the claim of the appellants and awarded a sum of Rs.82,000/- as total compensation. 4. We heard the learned counsel for the appellants Shri.Mohammed Ravuf and the learned counsel for the respondents Shri. A.R. George. The learned counsel for the appellants would submit that it is a case, where there is evidence on record that the petitioner developed epilepsy consequent to the injuries suffered in the accident. He referred to the evidence of the doctor, who is a Neuro Surgeon and Head of the Department in the Medical Mission Medical College, Kolencherry. He was not the doctor who has treated the petitioner. The person who treated the petitioner is not available in M.A.C.A.No. 1483 of 2004 3 India. On the basis of the medical evidence, there can be no dispute that it is on account of the accident that the petitioner developed epilepsy. The doctor has proceeded to say that there is 15 to 20% chance of death occurring in the case of the injury as sustained. He would submit that having regard to the evidence of the doctor, it is clear that the petitioner continued to suffer on account of the injury sustained. The evidence would show that he was disoriented even at the time when he was discharged from the hospital. 5. The learned counsel for the appellants pointed out that the petitioner was only 42 years at the time of his death. He would further submit that the compensation awarded is too meager. The amount of compensation for loss of amenities is too low, as it is only Rs.5,000/- The appellants had a case that towards shorter expectation of life no amount has been awarded. Further, he would submit that the income of the petitioner has been arrived at as Rs.1,800/- The petitioner was a head load worker and the accident occurred in 1999. Therefore, the claim in the petition should have been allowed, that is, the income should have been found at Rs.3,500/- But the learned M.A.C.A.No. 1483 of 2004 4 counsel appearing for the Insurance Company, to the contrary, pointed out that the Tribunal has passed a just award. In particular, he points out that as against the claim for pain and sufferings, the amount which was usually awarded is only Rs.20,000/- But the Tribunal has awarded an amount of Rs.40,000/- noting the peculiar features of the case. 6. The first question that arises for consideration is whether it can be said that the death, which occurred on 9.2.2000, could be said to be due to the injury sustained in the accident. For that we will have to consider the evidence available in this case. The principal evidence which was canvassed before us is the evidence of the expert, which reads as follows: “At the time of admission, the patient was drowsy and disoriented. He was moving all four limbs. He had bleeding from the left ear. Pupil were equal in size and reacting to lights. His pulse rate and B.P. were normal. C.T. Scan of the brain was done on the day of admission and showed right temporal contusion with sub arachnoid hemorrhage. There was no mass effect on the mid line shift noticed in C.T. Scan report. He was managed conservatively with medicines and was discharged on M.A.C.A.No. 1483 of 2004 5 31.5.1999. At the time of discharge he was conscious but disoriented. He was advised to take anti-epileptic drugs regularly.” 7. The reason for developing epilepsy is due to the head injury. Epilepsy may cause death also. To a specific question, was the death of the patient caused due to the direct impact of epilepsy, the witness answered that he cannot ascertain, but there is possibility. In cross examination he admits that he never seen or treated the patient. But he submits that as per the records, at the time of discharge, the patient was conscious, but was occasionally disoriented. He also submits that the injury suffered by the petitioner cannot be said to be a major head injury, but it can be considered as a moderate head injury. He further states that in moderate head injuries the probability of causing death is only 15 to 20% and in serious cases it ranges from 35 to 50%. In mild cases it is only 2%. To a specific query, whether he would say the real cause of death of the patient, he replies he cannot. In re-examination he would say that stopping of the medicines also may cause death. But there is nothing before us to establish unambiguously that the death of M.A.C.A.No. 1483 of 2004 6 the petitioner occurred on account of the injury sustained by him in the accident. 8. In these circumstances, we think that it may not be proper for us to accept the contentions of the learned counsel for the appellants that the finding of the Tribunal regarding the cause of death of the petitioner is such that it is liable to be vacated. However, we think that the appellants are entitled to enhanced compensation. They were granted only Rs.5,000/- towards loss of amenities. We feel that a further sum of Rs.5,000/- would be sufficient to meets the ends of justice. We further notice that there is a case based on shorter expectation of life. In the nature of the evidence, we think that the appellants should be granted Rs.6,000/- towards that count. Lastly, we feel that in the nature of the evidence, which is before us, the appellants are entitled to higher compensation on the basis higher income being earned by the petitioner. The widow has gone to the witness box and spoken about her receiving Rs.100/- per day towards family expenses. The loss of earnings has been fixed for 9 months. The income is taken as Rs.1,800/- We think that having regard to the facts of the case, the M.A.C.A.No. 1483 of 2004 7 income can be fixed at Rs.2,800/- The appellants would be entitled for Rs.1,000/- more per month. (Rs.9,000/- for a period of nine months). 9. The appeal is allowed in part. The appellants are allowed to realise the enhanced compensation of Rs.20,000/-, which will bear interest at the rate of 7.5% from the date of the petition till the date of payment from the respondents. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm