IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 MACA.No. 1826 of 2005() --------------------------------- OPMV.879/1996 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT(S): /PETITIONERS. ------------------------ 1. V.BALASUBRAMANIAN, AGED 51 YEARS, S/O.NARAYANAN NAIR, EDAKULATHIL HOUSE, P.O.NELLIKKODE, KOZHIKODE(HUSBAND OF THE DECEASED) 2. B.DILEEP, AGED 25 YEARS, S/O.NIRMALAKUMARI, EDAKULATHIL HOUSE, P.O.NELLIKKODE, KOZHIKODE, (SON OF DECEASED). 3. B.DEEPTHI, AGED 23 YEARS, S/O.NIRMALAKUMARI, EDAKULATHIL HOUSE, P.O.NELLIKODE, KOZHIKODE, DAUGHTER OF THE DECEASED 4. B.DRISHYA, (DATE OF BIRTH 22.11.1989), D.O.NIRMALAKUMARI, MINOR, REPRESENTED BY THE FATHER.V.BALASUBRAMANIAN, (DAUGHTER OF THE DECEASED). BY ADVS.MR.P.S.SREEDHARAN PILLAI MR.K.B.SAJEESH MR.P.GOPINATH MR.C.S.SUNIL SMT.C.G.PREETHA MR.M.PRAVEESH RESPONDENT(S): RESPONDENTS. --------------------------- 1. SURESH BABU, S/O.NARAYANAN, KANNACHAN KANDIYIL HOUSE, P.O.KARUVISSERY CALICUT, R.C.OWNER OF BUS NO.KRZ 2449. M.A.C.A. NO.1826/2005 2. P.RAMADASAN, S/O.KUNHIKANDAN P. PALAT HOUSE,NALLALAM AMSOM DESOM, CALICUT DISTRICT, DRIVER OF BUS NO.KRZ 2449. 3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH AHAMMED BUILDING, CHEROOTTY ROAD, CALICUT. R3 BY ADV. MR.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM,JJ. -------------------------------------------- MACA.No. 1826 of 2005 --------------------------------------------- Dated this the 25th day of August, 2009. JUDGMENT Abdul Rehim,J. Husband and three children of a deceased lady, who sustained severe injuries in an accident, who were claimants before the Tribunal are in appeal, seeking enhancement of the compensation awarded. The accident occurred when she was knocked down by a Bus on a public road. The deceased sustained very severe injuries in the accident like, multiple fracture including fracture of pelvis. She had undergone laproctomy and colostomy. Blood transfusion was done on more than one occasion. She developed severe bed sore and skin grafting surgery was done by plastic surgeon. Subsequently she developed post traumatic schizophernia with epilipsy. The accident was on 27.10.1994. She continued treatment as inpatient till 22.1.1995. After discharge while she was continuing treatment as outpatient she died on 11.6.1995. Eventhough postmortem was conducted the Tribunal had not accepted the MACA.NO.1826/2005 2 claim that the death was due to the injuries sustained in the accident. Therefore a total compensation of Rs.1,11,500/- alone was awarded. 2. Heard, learned counsel for the appellants and the Standing Counsel appearing for the third respondent Insurance Company. The appellants contended that the death was only due to injury sustained in the accident which is revealed from the postmortem certificate. The immediate cause of death was reported as due to tuberculosis. According to the appellants she had no history of tuberculosis and after the accident her physical condition became very worse and the infection of tuberculosis was only due to loss of blood and loss of resistance. On the other hand learned Standing Counsel vehemently opposed the contention on the ground that there is no medical evidence adduced before the Tribunal to prove that the cause of death is due to the injuries sustained in the accident. It is contended that the death occurred after 8 months of the accident that too after discharge of the deceased from the hospital. 3. On a perusal of the evidence on record we notice the deposition of the doctor who was examined as PW1. Testimony MACA.NO.1826/2005 3 of PW1 is to the effect that, at the time of admission the deceased had no past history of tuberculosis. It is stated that her physical condition was worse due to the injuries. Her body became very weak and there was a chance of infection of tuberculosis. It is stated that wounds were infected and due to the bed ridden stage of the patient. She may have pneumonia also. RW1 is another doctor examined, who deposed that a patient may die even within two weeks due to tuberculosis. According to RW1 she may have tuberculosis due to various reasons like depression and immunity deficiency. He further deposed that tuberculosis can be infected due to loss of blood or due to bone fracture. It is categorically stated that due to fracture and bed ridden stage a patient may have tuberculosis. PW2 is the husband of the deceased. He had deposed that the deceased was having a weight of 55 kg prior to the accident and after the accident her weight was reduced to 22 kgs. 4. The Tribunal found that the doctor who had conducted postmortem was not examined. Inspite of the expert evidence of doctors examined as PW1 and Rw1, the Tribunal had not accepted the cause of death as due to the injuries sustained, MACA.NO.1826/2005 4 stating the reason that there is no clear evidence adduced to prove that the tuberculosis had developed as an offshoot of the injuries. But considering the evidence on record as narrated above, we are persuaded to accept contentions of the appellants that the death is due to the severe injuries sustained and due to the subsequent complications developed during the prolonged treatment. 5. Eventhough counsel contended that the amount of Rs.2000/- accepted by the Tribunal as monthly income of the deceased is unrealistic we find no reason to interfere with the fixation of monthly income. Accordingly we are inclined to fix compensation under the head of loss of dependency after deducting 1/3rd of the amount for personal expenses. The appellants are thus entitled for an amount of Rs.2,56,000/- under the head of loss of dependency (2000 x12 x 16 x 2/3). 6. It is contended by the Standing Counsel that the amount of Rs.50,000/- awarded by the Tribunal under the head of pain and suffering is highly excessive and exorbitant. We are inclined to accept the contention and accordingly refix the compensation under the head of pain and suffering at Rs.15,000/-. This will MACA.NO.1826/2005 5 reduce the compensation proposed under the head of dependency to Rs.2,21,000/- 7. Standing Counsel for the respondent contended that in a case of death when dependency is calculated on the basis of multiplier method no amount under the head of temporary loss of earning can be granted. On the other hand counsel for the appellants contended that the appellants are entitled to compensation under the head of loss of consortium and loss of love and affection. Considering the rival contention we are not interfering with the award under the heads of temporary loss of earning. 8. In the result the appeal is partly allowed enhancing the total compensation of Rs.1,11,500/- awarded by the Tribunal by a further sum of Rs.2,21,000/- which will carry interest at the same rate awarded by the Tribunal from the date of claim petition till realisation. The third respondent Insurance Company is directed to make payment of the amount within two months from the date of receipt of a copy of this judgment. C.N.RAMACHANDRAN NAIR,JUDGE. pmn/ C.K.ABDUL REHIM, JUDGE MACA.NO.1826/2005 6