IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 MACA.NO. 169 OF 2004() ------------------------------------ OPMV.1408/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): APPELLANT/PETITIONER: --------------------------------------------------------- K.P.KUNHIMOHAMMED, S/O.LATE MOHAMMED, POONAMPARAMBIL HOUSE, P.O. VALLIKKAPATTA, MALAPPURAM DIST. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): --------------------------- 1. K.KUINHALI, S/O. KUTTY HASSAN, KARUPARAKKAL HOUSE, P.O. KARUVAMBARA, KOLATHUR. 2. V.K.ABDUL BASHEER, S/O. HAMZA HAJI, VALALIL KOTTAKKAL HOUSE, P.O. ALIPARAMBA. 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, CALICUT ROAD, PERINTHALMANNA. 4. ANINA, W/O. MOHAMMED (LATE), POONAMPARAMBIL HOUSE, P.O. VALIKKAPATTA, MALAPPURAM DIST. 5. ABUBACKER, S/O. MOHAMMED, -DO- -DO-. 6. PATHUMMAKUTTY, D/O. -DO- -DO-. 7. KHADEEJA, D/O. -DO- -DO-. 8. AYSHA, D/O. -DO- -DO-. 9. ASYA, D/O. -DO- -DO-. 10. JAMEELA, D/O. -DO- -DO-. ADV. SMT.P.S.PREETHA FOR R4TO10 SMT.RAJI T.BHASKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.169 OF 2004 ---------------------------------------- APPENDIX --------------- APPELLANT'S EXHIBITS: ---------------------------------- EXHIBIT A4 PHOTOCOPY OF THE SCAN REPORT 5.3.1997, NATIONAL SCAN SEARCH CENTRE, CALICUT. RESPONDENTS' EXHIBITS: NIL ------------------------------------- J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A.No.169 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Father of the appellant and respondents 5 to 10 and husband of the 4th respondent sustained serious injuries in a motor accident on 5.3.1997. He died on 14.3.1997 while allegedly undergoing treatment for the injuries at his house. Appellant claimed compensation of Rs.2,00,000/- for the death from respondents 1 to 3 alleging that the accident occurred due to the rash and negligent driving of the Jeep by the first respondent. Tribunal found that the accident occurred due to the rashness and negligence of the first respondent. It also found that there is no evidence to show that death was on account of the injuries suffered in the accident and awarded compensation of Rs.13,800/- for the injuries sustained. Hence this appeal. On 25.11.2008 appellant filed I.A. No.3241 of 2008 supported by affidavit to receive additional evidence and produced the photocopy of a scan report dated 5.3.1997. That application is also heard along with the appeal. 2. Heard learned counsel for appellant and contesting respondent. 3. Points for consideration are: M.A.C.A. No.169 of 2004 -: 2 :- (1) Whether the death of the deceased was due to the injuries suffered in the motor accident? (2) Whether compensation awarded is just and fair? 4. Perused relevant records. 5. Point No.1: Learned counsel for the appellant contended that death of the deceased was on account of the injuries suffered in the accident which was not taken into account by the Tribunal. Counsel invited our attention to the document produced along with I.A. No.3241 of 2008. Counsel for contesting respondent would say that there is no evidence to show that death was due to the injuries suffered in the accident and that there is no specific claim in the application for compensation on account of the death of the deceased. 6. We have gone through the copy of the application produced by the counsel for the appellant. In column No.11 various injuries suffered by the deceased are stated. In column No.13, it is stated that immediately after the accident the victim was taken to the District Hospital, Manjeri, and was referred to the Medical College Hospital, Kozhikode where he underwent inpatient treatment till 12.3.1997 (wrongly stated in column No.13 as 2.3.1997) and was discharged on that day. In column No.14, it is stated that the injured is permanently disabled and not able to move even in his bed. This M.A.C.A. No.169 of 2004 -: 3 :- application was filed after the death of the deceased. In column No.23, a total sum of Rs.2,00,000/- is claimed as compensation. It is also stated that the deceased was looking after and managing the entire affairs of the family till his death. In column No.28, it is stated that he died two days after he was discharged from the hospital on 12.3.1997 and that he was inflicted with fatal injuries on his head and other parts of the body in the accident. On going through the application we find that though the same is not very artistically drafted, there is sufficient indication that according to the appellants, deceased suffered fatal injuries in the accident which occurred on 5.3.1997. Therefore, it is too technical for the contesting respondent to contend that there is no averment in the application that death occurred due to the injuries sustained. Death as pleaded in the application is referable to the injuries sustained. 7. Exhibit A2 is the copy of wound certificate. Injuries suffered are: Lacerated wound horizontal 3x2 bone deep of the lateral side of middle ilium, Skin abrasion on right forearm lateral and posterior parts, Multiple skin abrasion on left side of scalp, Contusion left eye lid and contusion left side of scalp and M.A.C.A. No.169 of 2004 -: 4 :- Suspected multiple fracture rib. We shall now refer to the document produced along with I.A. No.3241 of 2008. That is a photocopy of scan report dated 5.3.1997 issued from National Scan & Research Centre, Kozhikode. That concerned Mohammed aged 70 years. It is stated in that report that the victim suffered multiple fractures involving left frontal and temporal parietal bones with minimal depression, traverse fracture extending across the left orbital roof and plinum sphenoidale and haemorrhagic contusion in right posterior temporal and parietal region with minimal haemorrhage. There is no reason to doubt the genuineness of the report. That report is relevant and necessary for consideration of the appeal. Hence I.A. No.3241 of 2008 is allowed and the document is marked as Exhibit A4. It is not very much in dispute that the deceased sustained injuries on 5.3.1997 and underwent inpatient treatment till he was discharged on 12.3.1997. It is also not disputed that he died on 14.3.1997 at his house. It is true that no autopsy was conducted on the body of the deceased to ascertain the cause of death. But autopsy is not the only mode of ascertaining the cause of death. In this case, it is not the case of the contesting respondent that death was due to any other reason. Contesting respondent has not also stated any other circumstance to show that death could have M.A.C.A. No.169 of 2004 -: 5 :- been due to any other reason. Considering the nature of the injuries proved by Exhibits A2 and A3, it is only reasonable to think that discharge from the hospital on 12.3.1997 was not after the deceased was cured of the injuries he suffered on 5.3.1997, that he was able to move about freely after 12.3.1997 and died on account of any other reason on 14.3.1997. Reason persuades us to think, in the facts and circumstances of the case and particularly as it is not pleaded or proved that death was due to any other reason whatsoever, that the after-effect of the injuries resulted in the death of deceased on 14.3.1997. As such we accept the contention of the appellant that death was due to the injuries suffered in the accident. 8. Point No.2: The next question is whether compensation awarded by the Tribunal is just? It was treating the case as one for compensation for personal injuries that compensation of Rs.13,800/- was awarded. While answering point No.1 we found that the deceased died due to the injuries suffered in the accident. Legal heirs of the deceased are entitled to compensation on that basis. 9. Deceased was aged 65 years at the relevant time. Even if the age (70) mentioned in Exhibit A4 is taken, it made no difference in the multiplier to be adopted, as the apt multiplier to be taken between the age group of 65-70 is '5'. Therefore, we take 5 as the M.A.C.A. No.169 of 2004 -: 6 :- multiplier. There is no specific mention in the application about the monthly income of the deceased. But it is stated that the deceased was a coolie by occupation and was managing the entire family. Considering the occupation of the deceased and the wages payable to an unskilled worker at the relevant time, we take Rs.1,500/- as the monthly income of the deceased as on the date of accident. Deducting 1/3rd towards personal expenses, monthly contribution to the family is Rs.1,000/-. Taking '5' as the multiplier, compensation payable for loss of dependency and contribution is Rs.60,000/-. Tribunal awarded Rs.1,000/- for transportation, Rs.500/- for extra nourishment, Rs.2,000/- for bystanders expenses, Rs.2,000/- for damages to articles and Rs.10,000/- for pain and suffering undergone by the deceased. Though counsel for the appellant contended that compensation awarded on those counts are low, on going through the award and considering all relevant factors, we are not inclined to accept that contention. Therefore, no change is required in the matter of compensation awarded on those counts. But no amount was awarded for funeral expenses. We found that death was due to the injuries caused. Therefore we award Rs.2,000/- for funeral expenses. Thus the additional compensation payable comes to Rs.62,000/-, which will carry interest at the 7.5% per annum from the date of application till realisation. M.A.C.A. No.169 of 2004 -: 7 :- Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant and respondents 4 to 10 are allowed to realise additional compensation of Rs.62,000/- (Rupees sixty two thousand only) with interest at the rate of 7.5% per annum from the date of application till realisation from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the vehicle is directed to deposit the same in the Tribunal. On deposit, 4th respondent, wife is permitted to withdraw one half of the amount. Rest of the amount shall be shared equally by the appellant and respondents 5 to 10. They are permitted to withdraw their respective shares. Interlocutory application No.3241 of 2008 is allowed and the document produced along with it is marked as Exhibit A4. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv M.A.C.A. No.169 of 2004 -: 8 :-