IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 MACA.No. 1523 of 2004() ----------------------- OPMV.274/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER IN O.P.M.V.NO.274/96: ------------------------------------------------------ * 1. K. PONNAMMA, AGED 76 YEARS, (DEAD) W/O. LATE VASUDEVA KURUP. 2. V. SADASIVAN, AGED 56 YEARS, S/O. LATE DO. 3. V. MOHANKUMAR, AGED 48 YEARS, S/O. LATE DO. ALL ARE RESIDING AT KANNAN'S HOUSE, KALARCODE P.O., ALAPPUZHA, PIN-688 003, NOW RESIDING AT MAPRAVIL HOUSE, IRIMPANAM P.O., TRIPUNITHURA. * Death of the 1st appellant is recorded vide order dtd.26/8/2011 in Memo dated 19/08/2011 (C.F.7979/11) BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT/ RESPONDENTS IN OP.M.V.274/96: -------------------------------------------- 1. P.K. JOSEPH KURIAN, POLLATHAL HOUSE, MARIDOM, KADAPLAMATTOM. 2. P.V. POULOSE, PAINADETH HOUSE, MEKKAD P.O., ANGAMALY. 3. THE NEW INDIA ASSURANCE CO.LTD., COCHIN-11. 4. A.N. VASUDEVAN, SREENIKETHANAM, VAKATHANAM P.O. 5. A.M. BABU, ASARIPARAMBIL VEEDU, PACHALAM. 6. THE NEW INDIA ASSURANCE CO.LTD., COCHIN-11. ADV. SRI.B.S.SURESH (CHIRAKKARA) FOR R5 SMT.P.K.SANTHAMMA FOR R3,6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.1523 of 2004 ---------------------------------------- Dated this the 23rd day of August 2011 J U D G M E N T R.BASANT,J Claimants are the appellants. They had claimed compensation for the loss suffered by them on account of the death of their husband/father, a person who was said to be aged 70 years who succumbed to injuries suffered in a motor accident which took place on 04/02/1995. He continued treatment as an in-patient in hospital till 06/03/1995. He was discharged from the hospital after last spell of hospitalisation on 06/03/1995. He expired on 21/5/1995. The claimants staked a claim for compensation alleging that the death of the deceased was on account of injuries suffered by him in the motor accident. 2. The Insurance company admitted liability; but contended that death was not the result of the accident and the injuries suffered in that accident. At the stage of trial, it was admitted that at the time of death the deceased was aged about 80 years. The tribunal, by the impugned award, came to the conclusion that the nexus between injury suffered in the motor M.A.C.A.No.1523 of 2004 2 accident and death has not been established satisfactorily. The tribunal noted that the deceased was discharged from the hospital on 06/03/1995 and there is nothing to show that death on 21/5/1995 was attributable to the accident and the injury suffered. However, the tribunal reckoning the case as one for compensation for personal injury, directed payment of a total amount of Rs.74,000/- as per the details given below: 1. Transportation expenses Rs.1,000/- 2. Damage to clothing etc. Rs.500/- 3. Medical expenses Rs.45,000/- (supported by bills - period of hospitalisation 25 days in two spells) 4. Pain and suffering Rs.15,000/- 5. Loss of amenities of life Rs.10,000/- 6. Bystander's expenses Rs.1,500/- 7. Extra nourishment Rs.1,000/- ----------------------------- Total Rs.74,000/- =========== 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The learned counsel for the appellant assails the impugned award on various grounds: M.A.C.A.No.1523 of 2004 3 4. First of all, it is contended that the tribunal erred in coming to the conclusion that there was no nexus between the injury suffered and the eventual death of the deceased on 21/5/1995. On this crucial aspect, we note that even though the possibility of the death having been taken place on 21/5/1995 as a result of the injury suffered in the accident which took place on 04/02/1995 for which he was under treatment as in-patient till 06/03/1995 cannot be ruled out, it has got to be seen that there is no direct, satisfactory and convincing evidence to establish the nexus between the accident and death. In these circumstances, we are unable to agree that the tribunal had committed any error in not granting compensation reckoning this as a case of death consequent to injury. The learned counsel for the appellants submits that the appellants had filed an application to call for the case sheet and examine the doctor; but the tribunal had not allowed the said application. 5. In reply to a specific query, the learned counsel for the appellant submits that in this old matter of 1994, the appellants do not also want the matter to be sent back to the tribunal for fresh disposal. On the available materials, appropriate amounts may be awarded, submits the learned M.A.C.A.No.1523 of 2004 4 counsel for the appellants. 6. Having rendered our anxious consideration to the relevant inputs, we are of the opinion that there is no evidence to prove any direct nexus between the injury and the death. In any case, we are satisfied that appropriate and safe inference can be drawn about the contribution of the injuries to the eventual death of the deceased on 21/5/1995. 7. The learned counsel for the appellants first of all contends that the tribunal has not awarded reasonable amounts as compensation under all the heads even if it is assumed that death has not been proved to be the direct result of the injury suffered. The learned counsel for the appellants first of all contends that no compensation has been awarded for the loss of earnings. Considering the nature of injury suffered, it is absolutely safe to come to the conclusion that the deceased must have been involuntarily unemployed till his death as a result of the accident. We agree with the learned counsel that appropriate amount of compensation can be awarded under the head of loss of earnings for a period of three months that is from the date of accident to the date of death. Even in the absence of better evidence, we are satisfied that Rs.1,250/- can safely be M.A.C.A.No.1523 of 2004 5 assumed to be the monthly income drawing inspiration from clause 6 of the second schedule to the M.V.Act. 8. The injured had suffered serious injuries that is i) Punctured wound left shoulder anterior aspect 3.2 cm muscle deep. ii) Fracture radius & ulna left fore arm. 9. He was an in-patient for a period of 25 days in two spells and the evidence of the son/claimant as PW1 indicates that the deceased was undergoing treatment till the date of his death. Only an amount of Rs.15,000/- has been awarded under the head of pain and suffering. We are satisfied that an amount of Rs.20,000/- can be awarded under that head. 10. The deceased was an in-patient for a period of 25 days. Only an amount of Rs.2,500/- (Rs.1,500/- + Rs.1,000/-) has been awarded under the common head of bystander expense and extra nourishment. The deceased had continued his treatment till the date of his death. Till then a bystander was required for him. Taking into account all the circumstances, the amount of compensation awarded under the head of bystanders expenses and extra nourishment may be enhanced, contends counsel. M.A.C.A.No.1523 of 2004 6 11. We are satisfied that the said request can be accepted. The amount of compensation awarded under those heads can be enhanced. The learned counsel for the appellants finally contends that for loss of amenities including acceleration of death as a result of the injury, compensation has not been awarded adequately. The tribunal has awarded a total amount of Rs.10,000/- under the head of loss of amenities. We are satisfied that, taking all the relevant inputs into account, Rs.20,000/- can be awarded under that head. We are not satisfied that amounts awarded under any other heads deserve modification/enhancement. 12. The above discussions lead us to the conclusion that the appellants are entitled to the following further amount of compensation in addition to the amount awarded by the tribunal. 1. Loss of earnings Rs.3,750/- (Rs.1,250/- x 3 months) (No amount awarded by the tribunal) 2. Pain and suffering Rs.5,000/- (Rs.20,000/- minus Ra.15,000/-) 3. Loss of amenities Rs.10,000/- (Rs.20,000/- minus Rs.10,000/-) M.A.C.A.No.1523 of 2004 7 4. Expenses for bystander and extra Rs.5,000/- nourishment (about 3 months of treatment @ Rs.2,500/- per month) (Rs.7,500/- minus Rs.2,500/-) Total Rs.23,750/- ======= Interest at the rate of 9% has been awarded by the tribunal. 13. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.23,750/- (Rupees twenty three thousand seven hundred and fifty only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation from the date of the petition to the date of deposit/realisation as directed by the tribunal. d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.1523 of 2004 8 M.A.C.A.No.1523 of 2004 9 M.A.C.A.No.1523 of 2004 10 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010