IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 MACA.No. 1163 of 2004() ----------------------- OPMV.99/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER -------------- ABEY C.THOMAS, KAVANACHIRAPPATTU HOUSE, KOKKAPPILLY KARA, KOKKAPPILLY P.O., THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH RESPONDENT(S): RESPONDENTS --------------- 1. SAJI, S/O.ALIAS, PANCHIKYZHIYIL HOUSE, KUZHIKANDATHIL, MARANGATTULLY KARA, THIRUVANIYOOR P.O., THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 2. NATIONAL INSURANCE CO.LTD; ERNAKULAM BRANCH II, 3RD FLOOR, AJAY VIHAR, M.G.ROAD, ERNAKULAM - 682 016. 3. K.K.GEORGE, S/O.KURIAKO, KOLAPPILLIL HOUSE, KOKKAPPILLY KARA, KOKKAPPILLY P.O., THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN - 682 302. 4. K.V.SASI, S/O.VELAYUDHAN, KADALIKKATTIL HOUSE, KOKKAPPILLY KARA, KOKKAPPILLY P.O., THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 5. NATIONAL INSURANCE CO.LTD; TRIPUNITHURA BRANCH, P.B.NO.458, MARKET JUNCTION, THRIPUNITHURA - 682 301. ADV. SMT.RAJI T.BHASKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1163 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.99/99 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. He filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 5 lakhs for the loss caused to him on account of the death of his mother Gracy in a motor accident. 2. The Tribunal found that deceased Gracy died not due to the injury sustained in the accident and awarded only Rs.19,000/- as compensation for the injury sustained by the deceased in the motor accident by the impugned judgment and award dated May 13, 2004. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal and also the above finding of Tribunal regarding the cause of death of deceased Gracy. 3. The case of the appellant/claimant as testified by PW1, his grandfather and as stated in the petition in brief is this: M.A.C.A..No.1163/2004 2 On April 29, 1998 at about 9 a.m. , the deceased Gracy was travelling in the auto rickshaw bearing Reg.No.KL-7/4390 along Thiruvaniyoor-Sasthamugal road. When the autorickshaw reached near Vennikulam L.P. School, the mini lorry bearing Reg.No.KL-7/D 2350 dashed against the autorickshaw from behind. Deceased Gracy sustained fracture of left patella and injury on her left leg and face. She died on July 3, 1998. Alleging negligence against the first respondent, the driver of the lorry and alleging that the deceased died as a result of the injury sustained in the accident, the claimant who was a minor at that time through his next friend father filed the O.P. before the Tribunal. 4. Respondents 1 and 2 are the driver and insurer of the lorry and respondents 3 to 5 are the driver, owner and insurer of the auto rickshaw involved in the accident. Respondents 1 , 3 and 4 remained absent before the Tribunal. The second respondent, the insurer of the offending lorry filed a written statement admitting the policy, but denied the liability. The second respondent further contended that deceased died not due to the injury sustained in the accident. The fifth respondent, the insurer of the auto rickshaw in the written statement M.A.C.A..No.1163/2004 3 admitted the accident and the policy of the vehicle. 5. Pws 1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimant. On the side of the respondents, Ext.B1 was marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent, that deceased Gracy died not as a result of the injury sustained in the accident and awarded a compensation of Rs. 19,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the said finding and the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent is not challenged in this appeal. The claimant has challenged the finding of the Tribunal that the deceased died not as a result of the injury sustained in the accident. 8. The following points arise for consideration : M.A.C.A..No.1163/2004 4 1) Whether the finding of the Tribunal that the deceased died not as a result of the injury sustained in the accident can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? 9. The specific case of the claimant was that the accident occurred on April 29, 1998 and that the deceased died on July 3, 1998 and that the cause of death was the injury sustained in the accident. In an attempt to prove the above aspect, PW2, the doctor who issued the death certificate-Ext.A8 was examined on the side of the claimant. PW2 testified that deceased died as the result of the diabetes mellitus, subdural effusion of fronto parietal region and and infection. No postmortem was conducted on the body of the deceased to ascertain the exact cause of her death. It is seen from Ext.A5, the wound certificate that deceased sustained only a fracture of patella which cannot in the ordinary course lead to death. Therefore, the Tribunal is perfectly justified in holding that the deceased died not as a result of the injury sustained in the accident. We confirm the said finding of the Tribunal. 10. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal awarded a compensation of Rs. 19,000/-. The break up of the compensation M.A.C.A..No.1163/2004 5 amount awarded is as under : Loss of income - Rs. 3,000/- Transportation - Rs. 1,000/- Treatment expenses - Rs. 2,000/- Attendant expenses - Rs. 1,000/- Pain and suffering - Rs.10,000/- Loss of amenities - Rs. 2,000/- 11. Counsel for the claimant sought enhancement of the compensation on all heads. The Tribunal awarded a compensation of Rs. 2,000/- for treatment expenses. Taking into consideration the nature of the injury sustained by the deceased, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 12. The Tribunal awarded Rs. 1,000/- as compensation for attendant's expenses which appears to be very low. Having regard to the nature of the injury sustained by the deceased and the period of treatment he has undergone, we feel that a compensation of Rs. 3,000/- would be reasonable on this count. 13. The Tribunal awarded Rs. 10,000/- for pain and suffering endured by the deceased. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. M.A.C.A..No.1163/2004 6 14. The Tribunal took the monthly income of the claimant as Rs. 1,500/- and awarded Rs.3,000/- for loss of earnings for two months. The deceased was a tailor, according to PW1. Therefore, we feel that her monthly income can be reasonably fixed at Rs.2,500/-. Therefore, towards loss of earning, the claimant is entitled to a compensation of Rs. 5,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is found entitled to an additional compensation of Rs. 32,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A..No.1163/2004 7 M.A.C.A..No.1163/2004 8