IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 MACA.No. 1916 of 2009() ----------------------- OPMV.978/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, VATAKARA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER ------------------------- 1. SATHYABHAMA, W/O.LATE LAKSHMANAN, KAITHAYIL VALAPPIL HOUSE, CHERODE P.O., VATAKARA TALUK. 2. SAVITHRI, D/O.LAKSHMANAN, DO. DO. 3. SUNDARAN, S/O.LAKSHMANAN, DO. DO. 4. INDIRA, D/O. LAKSHMANAN, DO. DO. 5. SAJEEVAN, S/O.LAKSHMANAN, DO. DO. 6. RAJEEVAN, S/O.LAKSHMANAN, DO. DO. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). ADV. SRI.ZUBAIR PULIKKOOL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1916 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February, 2010 JUDGMENT Barkath Ali, J. Challenge in this appeal under Section 173 of Motor Vehicles Act by the third respondent in O.P.(MV)No.978/2006 of Motor Accidents Claims Tribunal, Vadakara who is the Insurance Company is to the judgment and award of the Tribunal dated January 28, 2009 awarding a compensation of Rs. 1,01,800/- to the claimants for the loss caused to the claimants on account of the death of deceased Lakshmanan in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Lakshmanan was aged 80 and was an agriculturist and used to earn Rs. 5000/- per month, according to the claimants. First claimant is his wife and claimants 2 to 6 are his major married sons and daughters. On May16, 2006, the deceased was walking along the side of the road near the New Bus stand, Vadakara . At that time, a motor cycle bearing Reg.No. KL-11/J 8138 ridden by the second respondent MACA.NO.1916/09 2 came at a high speed and knocked him down. He sustained serious injuries. He was admitted in the Co-operative Hospital, Vadakara and was discharged on May 30, 2005. On June 4, 2006 he succumbed to the injuries sustained. According to the claimants, the accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent. First respondent as the owner, second respondent as the rider and the third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimants. Claimants have claimed a compensation of Rs. 1,50,000/- 3. Respondents 1and 2, the owner and the rider of the offending motor cycle remained absent before the Tribunal. The third respondent Insurance Company filed a written statement admitting the policy, but contending that the deceased died of old age and not due to the injuries sustained in the accident. 4. Exts.A1 to A8 were marked on the side of the claimants before the Tribunal. On the side of the contesting third respondent, copy of policy was marked as Ext.B1. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on MACA.NO.1916/09 3 the part of the second respondent, that the deceased died as a result of the injuries sustained in the accident and awarded a compensation of Rs. 1,01,800/- The Insurance Company has now come up in appeal challenging the said judgment and award of the Tribunal. 5. Sri.Mathews Jacob, the learned senior counsel appearing for the Insurance Company argued that the accident occurred on May 16, 2006 and the deceased was discharged from the hospital on May 30, 2006, that he died on June 4, 2006 from his house, that no post mortem was conducted and that therefore it cannot be conclusively said that the deceased died as a result of the injuries sustained in the accident. There is no merit in the above contentions. The deceased was aged 80 at the time of the accident. Ext.A2 is the copy of wound certificate issued from Co-operative hospital, Vadakara, copy of which is produced for our perusal. Ext.A2 shows that the deceased sustained the following injuries : 1) 4 x 0.5 c.m. crushed lacerated wound on the back of head. 2) 4 x 0.5 x 0.5 cm. lacerated wound on right leg. 3) 1 x 1 cm abrasion on right 3rd toe 4) 1 x 1 cm. abrasion on right big toe 5) Minor abrasion on right sole 6) Minor abrasion on right elbow 7) CT scan showed fracture of occipital bone, Epidural heamatoma and subdural haemorrhage , left temporal lobe contusion. MACA.NO.1916/09 4 6. It is clear from the above that the deceased sustained severe head injury. He was aged 80 and died within four days of discharge from hospital. That being so, the Tribunal is perfectly justified in holding that the deceased died as a result of the injuries sustained in the accident. 7. That being so, the claimant being the dependents and legal heirs of the deceased are entitled to compensation from respondents for the loss caused to them on account of the death of deceased. The Tribunal awarded compensation as follows : Loss of dependency - Rs. 60,000/- Funeral expenses - Rs. 2000/- Transportation -Rs. 1000/- Loss of love and affection -Rs. 10,000/- Pain and suffering -Rs. 15,000/- Hospital expenses -Rs.2, 800/- Bystander's and extra nourishment -Rs. 1000/- For the metal shock and inconvenience -Rs. 5000/- Loss of consortium -Rs. 8000/- ------------- Rs. 101, 800/- ========= 8. The counsel for appellant pointed out that the Tribunal awarded Rs. 10,000/- for pain and suffering endured by the deceased and again awarded Rs.5000/- for mental shock and inconvenience MACA.NO.1916/09 5 caused to the claimants which is not warranted. There is force in the above contention. When compensation is awarded for pain and suffering, a further compensation for the mental shock and inconvenience is unwarranted. Therefore, we hold that the claimants are not entitled to Rs. 5000/- being the compensation awarded by the Tribunal for the mental shock and inconvenience caused to the deceased. No other point is argued before us. The compensation awarded under other heads is also not questioned. 9. Therefore, the impugned award is modified to the above extent. It is held that claimants would be entitled to a total compensation of Rs. 96,800/- only and not Rs. 1,01,800/- as found by the Tribunal . The appellant Insurance Company shall pay the amount within one month from the date of receipt of a copy of this judgment with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. ( contd----- 6) MACA.NO.1916/09 6 Figure “9%” occurring in the last but one line of paragraph 9 of the judgment dated 25/02/2010 in M.A.C.A.No.1916/2009 is corrected and substituted as “7.5%” as per order dated 01/01/2010 in R.P.413/2010 in M.A.C.A.1916/2009. Sd/- Registrar ( Judicial) MACA.NO.1916/09 7