IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MACA.No. 800 of 2004(G) ----------------------- OPMV.1677/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS/PETIIONERS ----------------------------------- 1. RAJAMMA PONNAPPAN, AGED 44 W/O.LATE PONNAPPAN, KOTTACHIRAYIL HOUSEM, POOTHOTTA P.O., ERNAKULAM DIST. 2. SONI, D/O. LATE PONNAPPAN, AGED 22, DO. DO. 3. SINI, D/O. LATE PONNAPPAN, AGED 20, REP. DO. DO. 4. SIBI, D/O.LATE PONNAPPAN, AGED 17, REP. BY MOTHER RAJAMMA PONNAPPAN DO. DO. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS: RESPONDENTS -------------------------- 1. PETER MATHEW, S/O.PATHROSE, PUTHENPURACKAL HOUSE, VELIYANADU P.O., ARAKUNNAM. 2. JOSE, S/O.THOMAS AGED 39, THOTTUNGAL HOUSE, MULANTHURUTHY P.O. 3. NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE MATTANCHERRY, KOCHI-2. ADV. SRI.T.KURIAKOSE PETER FOR R1 SRI.ABRAHAM P.GEORGE FOR R1 SRI.RAJAN P.KALIYATH FOR R3 SRI.P.K.BEHANAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. ----------------------------------------- M.A.C.A No. 800 of 2004 ----------------------------------------- Dated this the 3rd day of November , 2008 JUDGMENT Ramachandran Nair .J, This appeal is filed by the widow and three female children of a bus driver who died in a road accident. The accident is a collision between two buses one of which was driven by the victim who was only 32 years of age at the time of the accident. After the accident on 20.6.1991 the victim was taken to the Government Hospital at Thripunithura wherefrom he got first aid. Then he was referred to the General Hospital Ernakulam. However according to the claimants in stead of going to the General Hospital he was taken to Vijayakumara Menon Hospital at Thripunithura where he underwent treatment for 60 days and thereafter to the Medical College, Kottayam where he died. There is a controversy as to whether the victim had suffered a fracture to the leg or to the hand. Of course there is no medical records to prove that a fracture was suffered by the deceased. However the Injury Certificate issued by the Govt. Hospital Thripunithura where he was given first aid, shows that he has suffered lacerated wounds on his legs and had an aberration on the forehead . Even though the matter was once remanded the claimants could not produce evidence about the detailed treatment underwent by the deceased. According to the claimants the Govt. Hospital Thripunithura had not retained the old records which are 17 years old now. According M.A.C.A. No. 800 of 2004 -2- to them after discharging from the Vijaya Kumara Menon hospital, the victim remained bedridden in the house unable to do any work. On 27.8.1991 the victim developed giddiness and was taken to a hospital at Vaikom wherefrom he was referred to the Medical College hospital Kottayam. Even though he was taken to the Medical College Hospital, he died on that day itself. According to the Doctor of the Kottayam Medical College Hospital, the cause of death was acute pneumonia with pulmonary oedema. Post - mortem examination was conducted on 28.8.1991. The Doctor who issued the post-mortem certificate, is already dead and his successor in office was examined to prove the post- mortem certificate. He has also confirmed that the cause of death is attributable to acute pneumonia with pulmonary oedema. However in evidence he has ruled out the possibility of death as on account of the injuries sustained in the accident. Strangely there is no detailed examination by the said Doctor about the causes of pneumonia with pulmonary oedema which led to the eventual death of the deceased. 2. Even though we find that detailed evidence is lacking to prove that the death was caused on account of the accident we feel the circumstance and medical evidence atleast prove that the death happened on account of the injuries sustained in the accident. In the first place, even though the counsel for the Insurance Company pointed out that there is no evidence about the fracture and serious head injury claimed to have been suffered by the victim, we find that the Government M.A.C.A. No. 800 of 2004 -3- hospital at Thripunithura where the victim was taken immediately after the accident, referred him to the General hospital, Ernakulam which goes to show that the injuries are not very minor in nature. However the claimants, instead of admitting the injured to the General Hospital, Ernakulam, took him to a Private hospital at Thripunithura. Since evidence is not there about the treatment undergone by the victim in that hospital, we directed the claimants 1 & 2 who are the widow and elder daughter of the deceased to appear before this Court today and we have questioned both of them. Both of them have given clear cut statement that after undergoing treatment for some time the victim was taken to the house where he was bed ridden and was unable to do any work . Thereafter he was taken to the Kottayam Medical College hospital for treatment where died. The claimants did not appear to have taken his problem seriously or probably they would not have been noticed the development of pneumonia in him and only when he collapsed he was taken to the Kottayam Medical College hospital where he died. There is every possibility of pneumonia developing on account of infection as a result of injury sustained in the accident or atleast the infection on account of injury in accident triggering the disease The Doctor who was proved the post-mortem report though ruled out that the death as caused on account of the injuries,has not denied these possibilities. In this circumstance we feel that the death is at least substantially attributable to the injuries sustained in the accident. Consequently the claimants are M.A.C.A. No. 800 of 2004 -4- entitled to enhancement of compensation. Considering the age of the deceased i.e 32 at the time of his death and that he was a professional heavy vehicle driver engaged in driving a private bus, we fix compensation of Rs. 2,00,000/- in addition to Rs.7,750/- granted by the M.A.C.T. Since the counsel for the Insurance Company complained that the remand and delay are attributable to the claimants, we limit the liability of interest at Rs.1,00,000/- Accordingly the total additional compensation granted will come to 3,00,000/- which we direct the Insurance Company to deposit within two months from the date of receipt of a copy of this judgment. This appeal is allowed tot he above extent. (C.N.RAMACHANDRAN NAIR,JUDGE) (HARUN-UL-RASHID, JUDGE) es C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------- M.A.C.A. No.800 of 2004 ---------------------------- JUDGMENT 3rd November, 2008