IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MACA.No. 179 of 2005() ---------------------- OPMV.678/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANTS/PETITIONERS: --------------------------------------------- 1. VENUGOPAL S/O.NARAYANAN NAIR, KEELATHE HOUSE, P.O.VATTANATHRA, VIA.AMBALLOOR, THRISSUR (DIED) 2. SREEDEVI W/O. LATE VENUGOPAL, KEELATHE HOUSE, P.O.VATTANATHRA, VIA.AMBALLOOR, THRISSUR. 3. VIDYA, D/O. LATE VENUGOPAL, DO. DO. 4. MINOR ANOOP, S/O. LATE VENUGOPAL, D.O.B. 10-5-1988, DO. DO. 5. NARAYANAN NAIR, F/O. LATE VENUGOPAL, DO. DO. DO. (DIED) 6. MEENAKSHY AMMA, M/O. LATE VENUGOPAL, DO. DO. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. T.L.PAULSON, THENGOLAPARAMBIL HOUSE, P.O.VARANTHARAPPILLY, THRISSUR. 2. RONY, S/O. GEORGE, MANJALI HOUSE, VENDUR, ALAGAPPANAGAR, THRISSUR. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, THRISSUR. ADV. SRI.MATHEWS JACOB (SR.), SC FOR R3 SRI.P.JACOB MATHEW FOR R3\ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------- M.A.C.A.No.179 of 2005 (G) -------------------------------------------------- Dated this the 3rd day of November, 2008 J U D G M E N T KOSHY,J. The 1st appellant sustained serious injuries in a motor accident on 12.11.1994. He claimed compensation before the Tribunal claiming an amount of Rs.2,03,000/-. The accident occurred on 12.11.1994. The 1st appellant committed suicide on February, 1997 on account of mental depression. Thereafter, his legal representatives consisting of his wife, son, daughter and his father and mother were impleaded and the amount claimed was enhanced to Rs.5,75,000/- alleging that the 1st appellant committed suicide due to depression caused as a consequence of the injuries suffered in the accident. Tribunal found that the accident occurred due to the negligent driving of the motor cycle by the 2nd respondent. The motor cycle was owned by the 1st respondent and insured by the 3rd respondent Insurance company. The contention of the appellants is that death was due to the after effect of the accidental injuries was not accepted by the Tribunal and MACA.No.179/2005 2 compensation awarded was only Rs.30,000/- with interest. The quantum of compensation is disputed in this appeal. 2. Claimant was aged 33 at the time of accident. The wound certificate shows that there was a smell of alcohol. The wound certificate (Ext.A2) reads as follows: “Multiple injuries due to RTA smell of alcohol ++. C.T.Scan shows no evidence of head or visceral injuries. Treated conservatively. Multiple injuries involving right leg and shoulder.” Ext.A10(2) is the reference card issued from the Medical College Hospital, Thrissur. He was admitted in the Medical College Hospital, Thrissur and treated as an inpatient from 13.11.1994 till 22.11.1994 for 9 days. Ext.A10 reference card shows the diagnosis as 'depression'. So, from the initial treatment period itself he was showing signs of depression. Again he was admitted in the Medical College Hospital on 11.12.1994 for depression and he was discharged on 24.12.1994. He was under continuous treatment. He produced medical prescriptions for 29 numbers as Ext.A15(1). Exts.A11 to A15 shows that the 1st appellant was under continuous treatment for depression and Ext.A12 shows that the injured made an attempt to commit suicide by consuming alcohol and 120 tablets of Eptoin. It is stated in the certificate that he consumed 120 MACA.No.179/2005 3 tablets along with alcohol. He was admitted in the District Hospital, Thrissur on 14.2.1996 till 21.2.1996. He was an employee of Alagappa Textiles (Cochin) Mills. It is true that after the accident he joined duty but he took leave immediately. He has taken ESI leave for 332 days. He has taken 406 days leave during the period between 20.11.1995 to 15.2.1997. It is the contention of the claimants that he has rejoined duty and took leave as his behavior was not normal after the accident. Even though initially Scan report did not show any serious head injuries, PW2 Doctor who treated him stated that certain head injuries could be detected only later. It is a case of head injury and there is inability to move right side. That was the certificate issued when he was admitted for the second time on 11.12.1994. The certificates would show that the head injury led to depression. The Tribunal came to the conclusion that he was an alcoholic person because wound certificate shows that there was smell of alcohol and in an earlier occasion, he tried to commit suicide by consuming 120 tablets of Eptoin (phenobarbitone prescribed to him) along with alcohol. This is also due to depression and mental problem. But there is no evidence to show that he was an alcoholic or depression occurred due to alcoholism. A deceased person cannot be called as an alcoholic MACA.No.179/2005 4 without any material. PW2, Dr.Mahadevan, stated that he had no depression before the accident. The Doctor certified as follows: “After perusing all his medical records provided and history from his close relatives, according to my opinion he committed suicide most probably due to Post traumatic chronic depression, a Sequelae of head injury sustained in RTA.” The medical certificate produced shows that he has got treatment from various centres for epilepsy and depression after the accident. He had no depression or similar diseases before the accident. On going through the medical evidence, it can be seen that his depression arose only consequent to the injuries on the head. 3. In Bourhill v. Young ((1942) 2 All ER 396) at page 402, (1943) AC 92 at 103 Lord Macmillan said: "The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer's system, and a mental shock may have consequence more serious than those resulting from physical impact." MACA.No.179/2005 5 Lord Bridge drew attention to the interrelation of physical and psychiatric injury in McLoughlin v. O'Brian ((1982) 2 All ER 298 at 312-313, (1983) 1 AC 410 at 433: "No Judge who has spent any length of time trying personal injury claims in recent years would doubt that physical injuries can give rise not only to organic but also to psychiatric disorders. The sufferings of the patient from the latter are no less real and frequently no less painful and disabling than from the former. Likewise, I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants." Recently, House of Lords consisting of five members considered a similar question in Corr (Administratrix of Corr deceased) v. IBC Vehicles Ltd. ((2008) 2 All ER 943). Facts of the above case is that in June, 1996, the claimant's husband, C, was badly injured in a factory accident on the premises of the defendant, his employer. The defendant admitted that the accident had been caused by its MACA.No.179/2005 6 negligence or breach of statutory duty. Thereafter, C suffered post- traumatic stress disorder and severe depression. Nearly six years later, in February 2002, he was being treated for depression and was admitted to hospital. He was assessed as being a significant suicide risk on 2 March 2002 and on 9 March it was noted that he had recurring thoughts of jumping from a high building. On 20 May 2002 the deceased was examined by a clinical psychologist who noted that he felt helpless and admitted to suicidal ideation. On 23 May 2002, while suffering from an episode of severe depression, C committed suicide by jumping from the top of a multi-storey car park. The claimant brought claims against the defendant including a claim under the Fatal Accidents Act, 1976. The judge dismissed her claim under the 1976 Act. The claimant's appeal was allowed by a majority of the Court of Appeal. It was argued in appeal that the accident occurred after about six years and it broke the chain of causation and constituted a novus actus interveniens, was an unreasonable act which broke the chain of causation and was the voluntary act of the deceased and so precluded by the principle volenti non fit injuria. All the five members were in agreement with the judgment of the Court of Appeal, but, Lord Scott of Foscote held that conduct of the victim is also not blameless and full MACA.No.179/2005 7 compensation will not be available, but, only a reduced compensation need be granted as there is some act on his part also. But, that was a dissenting opinion. Lord Walker of Gestingthorpe opinioned as follows: "In applying this test the court has to have regard both to blameworthiness and to what is sometimes called causal potency (Stapley v. Gypsum Mines Ltd. (1953) 2 All ER 478 at 486, (1953) AC 663 at 682). These are not precise or mutually exclusive tests. I do not regard 'blameworthy' as an appropriate term to describe Mr. Corr's conduct when, with his judgment impaired by severe depression, he decided to end his life by jumping off a high building. That was his own decision, but it was nevertheless a natural consequence of the physical and mental suffering which he had been enduring since the accident. For my part, in agreement with Lord Bingham, I would make no reduction in the damages to be awarded under the Fatal Accidents Act,1976." Lord Neuberger observed as follows: "50. Here, the coroner found that Mr. Corr 'underwent over time a psychological change resulting in depression and anxiety not previously experienced', while Dr.Paul McLaren, the consultant psychiatrist instructed by Mrs. Corr, said in his reports that ' a critical change takes place in the balance of a sufferer's thinking, when they stop seeing the hopeless thoughts as symptoms of an illness and the depressive thinking comes to determine their reality' and concluded that 'Mr. Corr's capacity to make a reasoned and informed judgment on his future was impaired by a Severe Depressive MACA.No.179/2005 8 Episode in the hours leading up to his death'. In these circumstances, there was a considerable case for the full recovery which the Court of Appeal awarded; this is also highlighted by Lloyd LJ's reasoning in Kirkham v. Chief Constable of the Greater Manchester Police (1990) 3 All ER 246 at 250, (1990) 2 QB 283 at 290, although his remarks were directed simply to an issue of volenti non fit injuria and it is not apparent that the issue of contributory fault raised in the notice of appeal (see (1990) 2 QB 283 at 285) was actually pursued before the court in that case. 51. However, in my view, the existence of a causal link between an accident and depression leading to suicide, sufficient to make a defendant who is responsible for the accident liable for the suicide as one of its consequences, does not necessarily mean that such liability should involve a 100 per cent recovery." It was further observed as follows: "62. In these circumstances, there is, I accept, a powerful case for saying that, where a defendant is tortiously liable under the 1976 Act for the suicide of a person, a degree of contributory negligence (which in the absence of special factors, might well be 50 per cent) should be attributable to the deceased where he is of sound mind, but that it is inappropriate to attribute any contributory negligence to him where it can be said that he was not of sound mind. However, it seems to me that such an approach does not pay sufficient regard to what Lord Hoffmann referred to in the passage already quoted as 'the complexity of life'. Indeed, what Lord Hoffmann had to say earlier in his opinion (1999) 3 All ER 897 at 903, (2000) MACA.No.179/2005 9 1 AC 360 at 368-369) appears to me to be even more directly in point: 'The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment.' " It was further observed as follows: "67. In the present case, Mr.Corr's depression led him to have 'thoughts of hopelessness' which 'became more difficult to resist' before the suicide and, at the time he committed suicide, he was suffering from a disabling mental condition, namely, a severe depressive episode, which impaired his capacity to make a reasoned and informed judgment on his future. This seems to me to render the employer's case on contributory negligence plainly and significantly weaker than that of the commissioner in Reeves's case. However, Mr. Corr's capacity was 'impaired' rather than removed, a point emphasised by the fact that neither his intellectual abilities nor his appreciation of danger had been lessened from the norm, and that he appreciated the consequences of jumping from a building." In the above circumstances, compensation amount was not reduced. 4. In this case, it has been in evidence that before the accident, the deceased had no depression. There is no evidence to the effect that the deceased has suffered depression leading to MACA.No.179/2005 10 suicide or any other psychological disorder before the accident. He was a happy family man before the dreadful accident. The Doctor also deposed that before the accident, no such depression was reported. From the evidence, it can be seen that his severe depression and worthilessness and helplessness came after the accident in view of the accidental injuries. In his severe depressed state, he felt that he was a greater burden to his relative's life. Suicide was his decision and worthilessness and helplessness which were the result of his depression which, in turn, resulted in the suicide. Therefore, we are of the view that compensation should be given to the legal representative for the death as death was caused due to the mental depression developed consequent to the injuries, but, we are of the opinion that on the facts and circumstances of this case, a reduction can be given and only 50% of the compensation payable for the death need be granted. On the facts of this case, we are not awarding separately compensation for loss of consortium, compensation to the children for loss of love and affection, for funeral expenses or for loss of estate. His monthly income is taken as Rs.2,500/-. Hence, notional yearly income is Rs.30,000/-. After deducting 1/3 rd, loss of dependency is Rs.20,000/-. Taking 17 as the multiplier as per the guidelines, compensation for MACA.No.179/2005 11 loss of dependency will be Rs.3,40,000/- (Rs.20,000 x 17). We note that he lost monthly income for a long time as can be seen from the certificate issued by the employer. Out of the Rs.30,000/- as compensation awarded, for loss of medical expenses, pain and suffering etc. no compensation was awarded for loss of earnings during the leave period and no compensation was awarded even for disability also. Since we are convinced that the death arose due to the consequence of the accidental injuries because depression developed due to the accident, we are of the opinion that his dependents are entitled to compensation, but, we are not awarding full compensation as per the guidelines under the 2nd schedule in this case. On the facts and circumstances of the case, instead of Rs.3,40,000/- which is the calculated amount as per the 2nd schedule, we award 50% of the same as additional compensation, that is, Rs.1,70,000/- in addition to the compensation awarded by the Tribunal. Hence, the additional amount of Rs.1,70,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit and on deposit of the above amount, the mother (sixth appellant) is allowed to withdraw a consolidated amount of Rs.15,000/- and out of the balance amount, 1/3 rd is allowed to be withdrawn by the widow MACA.No.179/2005 12 (second appellant). The daughter and son third and fourth appellants) are allowed to withdraw the balance amount in equal proportion. Appeal is accordingly partly allowed. J.B.KOSHY Judge K.P.BALACHANDRAN Judge prp/vav J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO.179 OF 2005 --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 3rd November, 2008