IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 MACA.No. 2029 of 2007() ----------------------- OPMV.140/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANTS/PETITIONERS -------------- 1. PATHUMMA, AGED 57 YEARS,W/O.LATE MAMMUNNI THONDIKODAN,NADUKKANDI HOUSE, PUTHUR PALLIKKAL P.O.,DEVATHIYAL, TENHIPPALAM-673636. 2. SUBAIDA, AGED 35 YEARS, D/O.LATE MAMMUNNI THONDIKODAN,NADUKKANDI HOUSE, PUTHUR PALLIKKAL P.O.,DEVATHIYAL, TENHIPPALAM-673636. 3. THONDIKODAN AYISA, W/O. LATE BEERANKUTTY THONDIKODAN,NADUKKANDI HOUSE, PUTHUR PALLIKKAL P.O.,DEVATHIYAL, TENHIPPALAM-673636. 4. THONDIKODAN NABEESA,W/O.LATE ABDULLLAKUTTY THONDIKODAN,NADUKKANDI HOUSE, PUTHUR PALLIKKAL P.O.,DEVATHIYAL, TENHIPPALAM-673636. 5. THONDIKODAN KADER, S/O.MOIDEENKUTTY, THONDIKODAN,NADUKKANDI HOUSE, PUTHUR PALLIKKAL P.O.,DEVATHIYAL, TENHIPPALAM-673636. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS/RESPONDENTS --------------- 1, SAIDALAVI, S/O MOHAMMED, KUNDUKULAVAN HOUSE P.O. NEDIYIRUPPU, KONDOTTY 673 638 2. MANAKKADAN MOHAMMED, S/O MOIDEENKUTTY RAMACHAM PARAMBIL HOUSE, P.O. KONDOTTY 673 638 3. THE ORIENTAL INSURANCE CO.LTD., JASEELA COMPLEX NILAMBUR ROAD, MANJERI ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.2029 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2011 JUDGMENT Basheer, J. Appellants are the legal heirs of deceased/first claimant in a petition for compensation filed under Section 166 of the Motor Vehicles Act. The accident occurred on November 3, 2003. The victim sustained fracture to his left temporal and occipital bones. He claimed compensation from the respondents herein contending inter alia that he had been rendered totally disabled to continue his avocation in life as a coolie. The claim was resisted by the Insurance Company contending that the injury was not serious enough warranting any compensation under the head of disability as claimed by the victim. 2. It is on record that during the pendency of the claim petition, the insured-victim passed away on September 7, 2004 while undergoing treatment for suspected subdural haematoma. Therefore, the legal heirs of the victim came on record and claimed compensation for his death. However, the Tribunal held that there was no nexus MACA.No.2029/2007 2 between the injury sustained by him in the accident and the death. Therefore treating the claim as one for compensation for the injury sustained in the accident, the Tribunal awarded a sum of Rs. 35,000/- to the claimants. The said award is under challenge in this appeal. 3. When this appeal came up for consideration, we called for the lower court records. We have perused the records and heard learned counsel for the parties at length. 4. Sri.VPK.Panicker, learned counsel for respondent No.3/Insurance Company, submits that there is no direct evidence to show that the cause of death of the victim was a sequel to the injury sustained by him in the accident. According to the learned counsel, if infact, the victim had been undergoing treatment ever since the accident, medical records would have been available with the claimants He points out that no such record had been produced by the claimants before the Tribunal. Still further, the record available in the case will show that death was due to cardiac respiratory failure. 5. It may be noticed that the doctor, who treated the MACA.No.2029/2007 3 deceased -victim on his admission in the Red Crescent Hospital in September 2004, was examined in the case as PW3. She deposed before the court, while referring to Ext.X1 case sheet, that the deceased was brought to the hospital with “history of convulsion, loss of memory and consciousness”. She further asserted that deceased had been undergoing treatment for the injuries sustained in a road accident and that CT scan taken in November 2003 showed that there was subdural haematoma, which was due to head injury. PW3 also spoke with reference to the earlier treatment undergone by the claimant in the Medical College Hospital, Kozhikode. PW3 categorically stated that her opinion regarding cause of death of the victim was “subdural haematoma due to road traffic accident”. She further stated that in Ext.X1 case sheet she had recorded so. 6. In this context, it may be noticed that claimants had produced Ext.A11 treatment book, which clearly showed that the deceased had been undergoing treatment for the injury sustained by him in the accident till his last admission in the Red Crescent Hospital. Several reviews were held and he was put on constant medication as MACA.No.2029/2007 4 could be seen from Ext.A11 . 7. Keeping in view the evidence of PW3 and also Ext.X1 case sheet and Ext.A11 treatment book, we have no hesitation to hold that the victim died due to the complications that arose out of the injuries sustained by him in the road traffic accident. The CT scan taken not only at the initial stage of his treatment , but also later, clearly revealed that he had sustained injuries on the left temporal and occipital bones. The records further revealed that the complication was diagnosed as subdural haematoma arising out of the above head injury. 8. In that view of the matter, the Tribunal was not justified in holding that the cause of death of the victim was not due to the injuries sustained by him in the accident. 9. The next question that falls for consideration is what should be the quantum of compensation to be awarded to the appellants. 10. It is not in dispute that the deceased was aged around 65. He was a coolie by profession. Therefore, in our view, his monthly income at the time of the accident can be safely taken as Rs.3,000/- per month and 1/3rd can be deducted towards his personal expenses. The MACA.No.2029/2007 5 multiplier applicable will be 5. Thus, the compensation for dependency can be computed as hereunder : Rs.24,000 x 5 = Rs.1,20,000/-. 11. The Tribunal awarded only a sum of Rs. 15,000/- under the head of pain and suffering . In our view, this is too inadequate and low. Admittedly, deceased had been undergoing treatment for nearly ten months. Therefore, ends of justice will be met, if the appellants are awarded a sum of Rs 35,000/- under this head. 12. For loss of love and affection, appellants are awarded a sum of Rs.15,000/- and for medical expenses, we award a further sum of Rs.30,000/- in lump. Thus, the appellants will be entitled to get an additional compensation of Rs. 1,85,000/- with interest @ 7.5% from the date of petition till the date of payment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2029/2007 6 MACA.No.2029/2007 7