IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 MACA.No. 159 of 2003(B) ---------------------- OPMV.579/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT : PETITIONER -------------- SANTHOSH, S/O. KUMARAN, KAKKUZHI HOUSE,. VAIKARA, RAMAMANGALAM VILLAGE, NOW RESIDING AT KALLUMKOOTTATHIL HOUSE, KINGINIMATTOM, KOLENCHERRY. REPRESENTED BY HIS NEXT FRIEND WIFE REMA, DO. DO. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS --------------- 1. P.K. VARGHESE, S/O. KURIAKOSE, AREECKAL PANGOTTU HOUSE, KURUPPUMPADY (VIA). 2. KUNJU, S/O. PAULOSE, KANJIRAMKUDI HOUSE, KOMBANADU P.O., KURUPPUMPADY (VIA). 3. NATIONAL INSURANCE CO. LTD., MULLAPPILLY BUILDING, PERUMBAVOOR. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 159 of 2003 ------------------------------------------------------ Dated: OCTOBER 1, 2010 JUDGMENT Basheer, J. Appellants are the widow and minor son of the victim of a road traffic accident. The husband of appellant No.1 sustained grievous injuries on his head which ultimately resulted in “impairment of brain functions other than motor functions” as certified by a Neurosurgeon who was examined as PW.1. We will refer to the injuries in detail, a little later. 2. In the claim petition filed before the Tribunal under Sec.166 of the Motor Vehicles Act, he injured victim who was represented by appellant No.1, had claimed a total sum of Rs.8 lakhs. The specific case of the claimant was that he had practically become a vegetable after the accident. Appellant No.1 was examined in the case as PW.3. She narrated the sad plight of her husband and stated that he was not in a position to attend even to his daily routine/primary needs. PW.1/Neurosurgeon who issued Ext.A2 certificate also elaborately spoke about the physical and mental condition of the victim. In Ext.A2 certificate PW.1 has stated thus: M.A.C.A. 159 of 2003 2 “As of today at the end of more than 2 years following the injury, he has residual functional loss of the brain and spinal cord function leading to disability. Under impairment of spinal cord and/or brain motor functions, can neither stand nor walk. He has severe degree of inability to use his upper limbs to the extent he has problems with self-care, he needs assistance and constant attention for self care. He has urgency of micturation and lack of full voluntary control over ano rectal functions. He has no sexual functions. Among impairment of brain function other than motor functions, he can comprehend, but cannot produce sufficient or appropriate language. He has severe spastic speech. Under complex integrated cerebral functional disturbances, he needs confinement. Patient is nursed on the floor due to the danger of falling off bed. Emotional disturbances are present in moderate to severe degree under ordinary stress. He requires either constant supervision or confinement. His sleep is always disturbed. He has partial loss of the hearing on the left side. The left VIIth nerve lower motor palsy and left IIIrd nerve palsy are persisting. The overall percentage of impairment of brain and spinal cord functions of the whole person can be determined as 75%.” M.A.C.A. 159 of 2003 3 3. We have extracted the relevant portion of Ext.A1 certificate only to throw light on the pitiable condition of the victim. The Tribunal, of course, took note of the fact that the victim had practically become a vegetable and that it was almost impossible for him to recover. Though PW.1 had assessed the disability of the victim as 75%, the Tribunal reckoned it as 40%. The monthly income of the victim was taken as Rs.2000/- and applying the multiplier of 17, the compensation payable under the head “permanent disability” was calculated as Rs.1,72,800/-. In addition to the above, a sum of Rs.59,490/- was awarded towards medical expenses and a sum of Rs.18,000/- was awarded for loss of amenities and Rs.20,000/- towards pain and suffering. Under the head “loss of love and affection”, appellant No.1 was awarded a sum of Rs.10,000/-. Thus a total sum of Rs.3,24,120/- was awarded by the Tribunal towards compensation under the above and other heads. 4. While impugning the above award, learned counsel for the appellant submits that the victim has met his inevitable fate during the pendency of this appeal. He passed away sometime in 2008, it is submitted by the learned counsel. His minor son has thereafter been impleaded as appellant No.2. 5. We have heard learned counsel for the appellant and learned M.A.C.A. 159 of 2003 4 counsel for respondent No.3, Insurance Company at length. We have also perused the entire materials available on record. 6. It cannot be disputed that the unfortunate victim had suffered very serious injuries on his head in the accident. PW.1 had categorically stated that because of the brain and spinal impairment, the victim could not stand or walk, he could not use his upper limbs and he needed assistance and constant attention for his care. Due to the impairment of brain function other than motor functions, the victim was able to comprehend, but he had developed spastic speech. It came out from the medical records that the skull of the victim had sustained depressed fracture. CT scan of brain showed comminuted depressed fracture through left temporal bone with extra axial compression. 7. We have referred to the nature of the injuries only to indicate that there is considerable force in the contention raised by the appellants that the victim had inevitably succumbed to the injuries suffered by him in the accident. 8. Learned counsel submits that the appellants did not deem it necessary to amend the claim petition after the death of the victim for the simple reason that they had suffered enough and also since they did not want to prolong the agony of litigation any further. Keeping in M.A.C.A. 159 of 2003 5 view the facts and circumstance of the case, we are satisfied that the claim made by the appellants can be treated as one seeking compensation for death. 9. The deceased was working as a granite cutter. In the claim petition it was stated that he was earning Rs.3500/- per month. PW.4, his employer, had vouchsafed about the salary that was being paid by him to the deceased. Ext.A10 certificate also indicated the same. The deceased was aged 27. Therefore the multiplier applicable will be 17. Having regard to the facts and circumstances we are we are of the view that the annual income of the deceased can be reckoned as Rs.36000/-. Deducting 1/3rd for his personal expenses, dependancy compensation can be calculated thus: Rs.24000 x 17 = Rs.4,08,000/- The amount of Rs.1,72,800/- awarded under the head “disability” shall be deducted from the dependancy compensation. Thus the appellants would be entitled to get Rs.2,35,200/- (4,08,000 - 1,72,800) as enhanced compensation. 10. In addition to the above, the appellants shall be entitled to a further sum of Rs.90,600/- towards medical expenses in addition to what has been awarded by the Tribunal. The Tribunal had awarded Rs.20,000/- under the head “pain and suffering”. Under this head, M.A.C.A. 159 of 2003 6 the appellants are awarded a sum of Rs.50,000/- viz. an enhancement of Rs.30,000/-. For loss of love and affection, a sum of Rs.25000/- is awarded and for loss of consortium a sum of Rs.25000/- is also awarded. However, the sum of Rs.10,000/- awarded for future medical expenses is deleted. Similarly, the sum of Rs.1000/- awarded for future attendant's expenses is also deleted. The amounts awarded under other heads are not being disturbed. 11. The amount shall carry interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The appeal is disposed of as above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/- M.A.C.A. 159 of 2003 7 A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.159 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of May, 2010 JUDGMENT Basheer, J. This appeal has been pending on the file of this court since June 2003. Service of notice on respondents 1 and 2 is not yet complete. Appellant has not taken effective steps so far in this regard. More importantly, when this case came up before the Lok Adalath on February 6, 2008, it was reported that the appellant was no more. Though a submission was made that steps will be taken to implead the legal representatives, no such steps have been taken so far. Today, when the case is posted in the defect list, learned counsel submits that steps will be taken immediately and he prays for a short adjournment. But we are not at all satisfied that any further opportunity is to be granted, particularly keeping in view the past conduct of the appellant. Therefore, the Appeal is dismissed for non-prosecution. A.K.BASHEER, JUDGE M.A.C.A. 159 of 2003 8 P.Q.BARKATH ALI, JUDGE sv. M.A.C.A. 159 of 2003 9