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 SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 MACA.No. 804 of 2003() ---------------------- OPMV.716/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/PETITIOENRS IN OPMV. --------------------------------------------- 1. KANAKA AMMA, W/O.SANKUNNI NAIR, PARAPPIL HOUSE, KUTTICHIRA P.O. MUKUNDAPURAM TALUK. 2. SAJEEV, S/O.LATE SANKUNNI NAIR, DO. DO. 3. SOBHA D/O.LATE SANKUNNI NAIR, DO. DO. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENT IN OP.MV. ----------------------------------- 1. U.K.SIVADASAN, S/O.KUNAYYAPPAN, UNIMOTHUMKUDY HOUSE, KUTTICHIRA P.O. 2. APPUKUTTAN, S/O.KARAPPANDY, KAIPPUZHA HOUSE, KUNDUKUZHIPPADAM, KUTTICHIRA P.O. 3. MANAGER, NEW INDIA ASSURANCE CO,LTD.M, CHALAKKUDY. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- M.A.C.A. No. 804 OF 2003 -------------------------------------------- Dated this the 23rd day of May, 2009 JUDGMENT Ramachandran Nair,J. Appeal is filed for enhancement of compensation for injury sustained by the husband of the first appellant, who is the father of the remaining appellants. The motor cycle insured by the third respondent knocked down the husband of the first appellant, while he was walking on the road on 12.1.1997. Even though injured was admitted in the hospital on the very same day, he was discharged on 15.1.1997. The injuries noted on him are: 1. 2x0.5 cm. lacerated wound over occipital region. 2. Lacerated wound over right side of forehead 3. Abrasions over right leg, right 2nd toe. 4. Cerebral concussion. 2. The case of the appellants is that injuries were serious in nature and the deceased developed complications by way of fever and 2 chest pain, etc. later and he was admitted in the hospital on several occasions. Ultimately the injured died on 10.5.1997, i.e., within four months from the date of the accident. Eventhough appellants claimed compensation for the death of the deceased as attributable to the motor accident, MACT declined to grant compensation for the reason that no postmortem was carried out to prove the cause of death and that the driver of the offending vehicle was not charged for offences punishable under Section 304A IPC. It is further observed by the MACT that since there was no fracture to skull, there is no brain damage that could cause death of the injured. Counsel for the appellants relied on the wound certificate and CT scan report of the injured which show that the injured had suffered injury described in the wound certificate as "cerebral concussion". Similarly in the CT scan report, the impression noted is " multiple infarcts involving corona radiata on both sides, corten and sub cortical white matter of left fronto-parietal region". Based on the evidence of brain damage in the form of blood clots noted in the brain the wound certificate and CT scan report, counsel for the appellants contended that injured probably would have died because of 3 complications arising out of brain damage. Standing counsel for the insurance company opposed the claim by stating that there is no fracture to the skull and consequently the blood clots found in the brain are not attributable to the accident and in any case injuries cannot lead to the death of the injured. 3. We are unable to sustain the award and argument of standing counsel for the insurance company for many reasons. In the first place, the failure of the police to register a case under Section 304 of the IPC does not bar the claimants from claiming compensation for death of the injured if the death is attributable to the injuries sustained in the accident. Of course, claimants should have sought for postmortem of the deceased to ascertain the cause of death of the injured, which would help them to substantiate their claim. However, we do not think relief can be declined to the claimants because they are from the family of a coolie who died in the accident. In fact the appellants should have even examined the doctor for an expert opinion about the nature of injury and the complications that can arise out of the same. In any case we are of the view that the benefit of doubt should go to the appellants 4 for drawing the inference that the death is attributable to the injuries sustained in the accident for many reasons. In the first place, there is nothing to indicate that the injured was suffering from any ailment at the time of first admission after the accident and there is no record to show that he was treated for any serious ailment other than the injury. Even though counsel for the insurance company submitted that during later admissions in the hospital the injured was treated for fever and chest pain, there is nothing to indicate that he developed any heart problem which led to his death. Similarly, there is no material or even medical opinion as to whether brain damage can be due to blood clots in the brain to lead to complications which the injured later developed and which led to his death. Therefore we are of the view that in all probability brain damage would have led to complications that took away his life. Unfortunately, on later occasions the injured was taken to small hospital where he did snot get proper medical assistance. We therefore hold that the death of the injured within four months of the accident after repeated hospitalisation is on account of head injuries suffered by him. The total compensation awarded which is only Rs. 5 27,000/- therefore calls for enhancement. Considering the fact that he was a coolie and he died at the age of 54, we enhance the total compensation by Rs. 1,23,000/- under various heads thereby making the total compensation to Rs. 1,50,000/-. The insurance company is directed to deposit additional compensation granted by us with interest at 7.5 per cent per annum from the date of application till date of deposit. Appeal is allowed to the above extent. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 6