IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1946 of 2007 ----------------------- OPMV.1478/2002 of MOTOR ACCIDENT CLAIMS STRIBUNAL, ERNAKULAM .................... APPELLANTS: APPELLANTS ------------------------ 1. KADIJA, AGED 45 YEARS, W/O.LATE MOHAMMADKUTTY, RESIDING AT H.NO.XI/893, PATTALAM HOUSE, FORT KOCHI VILLAGE. 2. MASHOOK, AGED 17 YEARS, S/O.LATE MOHAMMADKUTTY, DO. DO.REPRESENTD BY THE NEXT FRIEND, 1 ST APPELLANT. (ADDL.2ND AND 3RD PETITIONER IN ADDL.M.A.C.T. BEING LEGAL HEIRS OF PETITIONER). BY ADV. SRI.P.M.JOSHI RESPONDENTS: --------------- 1. SAJEER, S/O.MOIDEEN, AGED 25 YEARS, THOTTATHIL HOUSE, EAST TO K.S.R.T.C.GARAGE, THAIKKATTU KARA, WEST VILLAGE, ALUVA. (DRIVER OF THE OFFENDING SERVICE BUS, BEARING REG.NO.7/Q-5895). 2. MRS.LEELA KUNJU KUNJU, BALIAPADATHU HOUSE, THAIKKATTU KARA, ALUVA-683 106, (R.C.OWNER OF THE OFFENDING SERVICE BUS, BEARING REG.NO.7/Q-5895). 3. THE UNITED INDIA INSURANCE COMPANY LTD., II FLOOR, P.M.S.BUILDING, ELOOR ROAD, KALAMASSERY, ERNAKULAM DISTRICT, PIN-683 104. INSURER OF THE OFFENDING SERVICE BUS, BEARING REG.NO.7/Q-5895) (RESPONDENTS IN ADDL.M.A.C.T.). ADV. SRI.K.R.KURUP FOR R2 SRI.C.R.SYAMKUMAR FOR R2 SRI.K.J.ABRAHAM FOR R2 SRI.LAVARAJ M.G. FOR R2 SRI.C.R.VINOD KUMAR FOR R2 SRI.P.MURALEEDHARAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO.1946 OF 2007 ============================ Dated this the 8th day of August 2011 JUDGMENT R.Basant, J. The claimants are the appellants. They claimed compensation for the loss suffered by them as a result of the injuries suffered by their husband/father, who suffered injuries in a motor accident which took place on 15/3/2002. He had allegedly suffered grievous injuries. As a result of the injuries, he was virtually reduced to vegetable, unable to speak, move about or even to attend to the calls of nature. He was an inpatient for sixty days. He continued in that pitiable condition till 14/2/2003, on that day he allegedly succumbed to the injuries. Before he succumbed to the injuries, he had filed the present claim petition. His disability was assessed by the Medical Board. In Ext.A8 report of the Medical Board, the members of the Medical MACA 1946/2007 2 Board had opined that he is unable to speak and unable to walk independently. He is permanently incapacitated, it is certified. He had speech disability and difficulty in swallowing. It is certified that these are due to neurological problems due to head injury suffered. It is further certified that it is difficult to correct his condition. 2. Against the claim of Rs.4,05,000/-, the Tribunal awarded only an amount of Rs.2,67,010/- as per the details, which are given in paragraph 9 of the impugned award, which we extract below: Sl.No. Head Amount awarded 1 Medical expenses(supported by bills) Rs.59,010/- 2 Transportation, damage to clothes,extra nourishment, attendant expenses Rs.10,000/- 3 Loss of permanent disability(2000 x 12 x 11 x 75%) Rs.1,98,000/- Total Rs.2,67,010/- 3. The learned counsel for the appellants and the learned counsel for the Insurance Company have advanced their arguments. The learned counsel for the appellants MACA 1946/2007 3 assails the impugned award on various grounds. First of all, it is contended that the Tribunal ought to have realistically noted that the death in the instant case was consequent to the injuries suffered in the motor accident. The totality of the circumstances must have compellingly led the court to that conclusion. This contention urged by the appellants before the Tribunal was not accepted by the Tribunal for the only reason that postmortem certificate had not been produced. The learned counsel for the appellants vehemently contends that this must be taken and considered as a case of death following injuries suffered. 4. The learned counsel for the Insurance company contends that the available indications are not sufficient to help us to sail to a safe conclusion that the deceased had met with death on account of injuries suffered. 5. It is true that there is no convincing evidence adduced before the court, by evidence of Doctors who treated him immediately prior to the day when he met with his death. The learned counsel for the appellants submits MACA 1946/2007 4 that the appellants are so poor and they were hence unable to get the deceased admitted in the hospital and get him treated. The mere fact that postmortem examination was not conducted and the postmortem certificate was not produced or even the fact that he was not taken to any hospital for treatment before he ultimately expired is no reason for a prudent mind to assume that the death was not a result of the injuries suffered in the motor accident, contends counsel. 6. We have considered the rival submissions on this aspect. Technically there is no evidence to conclude that death was the result of the injuries suffered, but the overwhelming circumstances clearly point to the possibility of death as a result of the injuries suffered. The evidence of PW3, Doctor also convincingly points to the correctness of the contention of the learned counsel for the appellants. However, we note that there is no authentic evidence adduced to clinch the issue and it may not be possible for this court to opine specifically that death was the result of MACA 1946/2007 5 the injuries suffered. At any rate, a prudent mind cannot omit to take note of the fact that the compelling possibilities point to the death of the deceased as a result of the injuries suffered. 7. Learned counsel for the appellants then contends that even assuming that the appellants have not been able to make specific evidence available to link the accident with the death suffered, compensation is certainly liable to be awarded reckoning the case as one resulting in total permanent disability. The next grievance of the counsel is that the amounts legally liable to be paid have not been paid even if the case is reckoned as one of permanent disability resulting from the accident. 8. We find force in this contention. The matter deserves to be looked into to ascertain whether amounts legally payable as compensation for the injury suffered, treatment and disability have been paid in accordance with law. MACA 1946/2007 6 9. Learned counsel for the appellants first of all contends that no amount has been awarded under the head of loss of earning. Learned counsel points out that we have unmistakable evidence to show that the deceased was not able to undertake any income earning activity from the date of the accident on 15/3/2002 to the date of his death on 14/2/2003. For this period, at any rate, compensation must have been awarded to the appellants for the loss of earning that has resulted. We agree with the learned counsel for the appellants. 10. The next question is about the monthly income. The Tribunal had reckoned Rs.2,000/- as the monthly income. Learned counsel for the appellants submits that this is totally unrealistic. He relied on the evidence of PW1, wife of the deceased to contend that the deceased was employed as an auto mechanic and was earning an income of Rs.5,000/- per mensem. We have only oral evidence of PW1 on this aspect. But we are certainly satisfied that there is evidence to show that the deceased, his wife and his minor MACA 1946/2007 7 child were all depending upon the income earned by the deceased to keep body and soul together. The deceased was a person aged 53 years at the time of his death. Reasonable inferences can safely be drawn. Even in the absence of any better evidence, it is absolutely reasonable to assume that the deceased must have worked and earned sufficient income to maintain himself and his two dependents. A Tribunal cannot throw its hands up in helplessness, merely because documentary evidence to authentically prove the monthly income is not there. Even in such a situation reasonable inferences have to be drawn after anxiously considering all the relevant inputs. The deceased was aged 53 years, his wife and minor child in addition to himself were depending completely on his income. They were residing in a rented house. The Tribunal should also have taken note of the fact that even for a non-earning person, law from 1994 permits the drawal of an inference of prudence that even such a person was earning an income of Rs.1250/- per mensem. MACA 1946/2007 8 In the facts and circumstances of this case, we are satisfied that in any view of the matter it can safely be concluded that the deceased was earning an income of Rs.2,500/- per mensem. The learned counsel for the appellants submits that even in the case of home makers it has been held in Lata Wadwa & Others. V. State of Bihar & Others, [A.I.R.2001 S.C.3218], that Rs.3,000/- can be assumed to be the income. That decision was rendered as early as in 2001. We find it absolutely safe to draw the presumption of prudence that the deceased must have been earning income not less than Rs.2,500/- per mensem. 11. The deceased had endured, pain and suffering. Medical documents give details about the multiple fractures suffered. He was an inpatient for two months. He continued treatment as an outpatient even after discharge. He was completely bed ridden. The Tribunal has awarded no amount whatsoever under the head of pain and suffering. We are convinced that this omission is not justified. We are satisfied, considering the nature of injuries suffered, the MACA 1946/2007 9 period of treatment, the nature of the treatment given and the condition of the patient till the date of the claim, that an appropriate amount of compensation ought to be awarded under the head of pain and suffering. 12. The deceased was an inpatient for sixty days. He produced bills to show that actual medical expenses was of Rs.59,010/-. Subsequent treatment was also undertaken. The Tribunal awarded only the amount supported by the bills as medical expenses . The difficulty of a person hailing from the circumstances of the deceased to maintain meticulous accounts duly supported by vouchers to prove medical expenses must have been taken note of the Tribunal. We are satisfied that the Tribunal ought to have awarded some further amount in addition to actual medical bills for expenses incurred for medical treatment. An appropriate and specific amount, we are satisfied, must have been awarded under the head of transportation. There must have been a bystander to attend on the injured for the entire length of the period that he was undergoing MACA 1946/2007 10 treatment in the hospital. Even after discharge, the report of the medical Board shows that he was virtually leading vegetable existence. He was being tube fed and he was unable to move from bed. In these circumstances, for the entire period of 11 months subsequent to the accident, expenses of the bystander must have been awarded by the Tribunal. 13. For extra nourishment from the date of the accident till the date of the claim petition, the deceased was certainly entitled for amounts. No amount is seen to have been awarded specifically under this head. All that the Tribunal has awarded is a global amount of Rs 10,000/- under the omnibus head for transportation, damage to clothing, extra nourishment and attendant expenses etc. . 14. As compensation of permanent disability, an amount of Rs.1,98,000/- has been awarded (2000x12x11x75/100). The learned counsel for the appellants submits that the Tribunal ought to have noted that the disability suffered has completely deprived the MACA 1946/2007 11 deceased of any opportunity to work and earn his livelihood. That life did not ebb out of him is no reason to assume that the reduction in earning capacity consequent to permanent physical disability is only 75%. The total and complete deprivation of earning capacity must have been reckoned to ascertain the compensation payable under that head, contends counsel. We agree that 75% can be reckoned as the reduction in earning capacity safely. Even if it were reckoned as a case of death, 1/3rd would have been liable to be deducted towards personal expenses of the deceased. We do not hence interfere with the finding that 75% can be reckoned as permanent reduction in earning capacity as certified by the Medical Board. 15. After discharge from the hospital till the date of his death, life was virtually misery and suffering for the deceased. For such, loss of amenities during the period that he survived, we are satisfied that the appellants are entitled for further amount as compensation. No amount is seen granted by the Tribunal under that head also. MACA 1946/2007 12 16. The above discussions lead us to the conclusions that the appellants are entitled to the following total amount as compensation. Sl.No. Head Amount awarded 1 Loss of earnings Rs.27,500/- (Rs.2,500x11 - no amounts awarded by the Tribunal) 2 Pain and suffering Rs.25,000/- (considering the period of treatment and the nature of injuries suffered - till the date of the claim) 3 Medical bills Rs.70,000/- including bills produced for Rs.59,000/- 4 Transportation expenses Rs. 2,000/- (global) 5 Bystander's expenses Rs.11,000/- (Rs.1000x11) 6 Extra nourishment Rs.5,000/- 7 Damage to clothing Rs. 500/- 8 Reduction in earning capacity Rs.2,47,500/- (Rs.2,500/- x 12 x 11 x 75/100) 9 Loss of amenities Rs.10,000/- (impaired quality of life till the date of death) 10 Total Rs3,98,500/- 17. In the result, a)this appeal is allowed in part. MACA 1946/2007 13 b)The appellants are found entitled to a total amount of Rs.3,98,500/-(Rupees three lakhs ninety eight thousand and five hundred only) as compensation. c)We direct that interest shall be payable on the entire amount of compensation at the rates and for the period as directed by the Tribunal in the impugned award. d)All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MACA 1946/2007 14 1)Loss of earnings :Rs.33,000/-(Rs.3,000x11 – no amounts awarded by the Tribunal 2)Pain and suffering :Rs.25,000/-(considering the period of treatment and the nature of injuries suffered – till the date of discharge from the hospital) 3)Medical bills :Rs.11,000/-(Rs.70,000-59,000/-) 4)Transportation expenses :Rs.2,000/-(global) 5)Bystander’s expenses :Rs.22,000/-(2000x11) 6)Extra nourishment :Rs.10,000/-(for the period of 11 months till death) 7)Damage to clothing :Rs.5,00/- 8)Reduction in earning Capacity :Rs.99,000/- ( Rs.3,000x12x11x75/100 (=Rs.2,97,000/- - 1,98,000) ) 9)Loss of amenities : Rs.20,000/-(impaired quality of life till the date of death) Total :2,12,500 ( less 10000 awarded under the composite head of transport etc.) MACA 1946/2007 15