IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 560 of 2005() ---------------------- OPMV.1371/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S)/PETITIONER. ----------------------------------- C.DINESH KUMAR, S/O.BHASKARAN, AGED 43 YEARS, BUSINESS MANAGER, RESIDING AT NANGRATH PEEDIKA, P.O.TEMPLE GATE, THALASSERY TALUK, KANNUR DISTRICT. (DIED) ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED: ADDL. A2.MRS.K.P. DEEPA DINESH, W/O. LATE DINESH KUMAR, AGED 35 YEARS, RESIDING AT PAIKATTU HOUSE, NANGARATH PEEDIKA, TEMPLEGATE P.O., THALASSERY, KANNUR DISTRICT. ADDL.A3:DILIN DINISH, S/O.LATE DINESH KUMAR, AGED 35 YEARS, RESIDING AT PAIKATTU HOUSE, NANGARATH PEEDIKA, TEMPLEGATE P.O., THALASSERY, KANNUR DISTRICT. ADDL.A4:DIPIN DINESH, S/O.LATE DINESH KUMAR, AGED 35 YEARS, RESIDING AT PAIKATTU HOUSE, NANGARATH PEEDIKA, TEMPLEGATE P.O., THALASSERY, KANNUR DISTRICT. ADDL.A5:DINIL DINESH, S/O.LATE DINESH KUMAR, AGED 35 YEARS, RESIDING AT PAIKATTU HOUSE, NANGARATH PEEDIKA, TEMPLEGATE P.O., THALASSERY, KANNUR DISTRICT. ADDITIONAL APPELLANTS 3, 4 AND 5 ARE MINORS REPRESENTED BY MOTHER/GUARDIAN AND NEXT FRIEND, ADDITIONAL APPE3LLANT NO.2 (ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED AS PER ORDER DATED 11.3.2008 IN I.A. NOI.574/2008) BY ADVS. SRI.R.SURENDRAN SMT.P.GOPIKA RESPONDENT(S): RERSPONDENTS. ---------------------------- 1. K.P.SANTHOSH, S/O.K.P.RAGHVAN, SRUTHI, KUTTIMAKKOOL, P.O.THIRUVANGAD, THALASSERY 4, THALASSERY TALUK, KANNUR DISTRICT. 2. NATIONAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, BANK ROAD, KANNUR. ADVS. SRI.LAL GEORGE FOR R2 SRI.M.SASINDRAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 560 OF 2005 --------------------------------------------------------- Dated this the 28th day of October, 2008 JUDGMENT Ramachandran Nair, J. Original appellant who filed the appeal for enhancement of compensation died during the pendency of the appeal. The present appellants are his legal heirs. 2. The deceased sustained injuries when the autorickshaw in which he was travelling capsized on 20.5.1998. He was admitted in Government Hospital, Thalassery and later treated at Fathima Hospital, Kozhikode. The injuries noted by the two hospitals are stated in Exts.A3 and Ext.A4 respectively which are as follows: "Ext.A3 is the prescription of the doctor, Govt. Hospital, Thalassery wherein it is recorded that the the petitioner had sustained fracture of left clavical, comminuted fracture of left M.A.C.A. NO.560/2005 2 trouchanter and shaft and pelvis ans suspected fracture of acetabulam and suspected cerebral concussion. But Ext.A4 the medical certificate issued by the doctor, Fathima Hospital has certified fracture of laterial end of left clavide , sub-trochangteric; left femur, left acetabulam non weight bearing area is also seen recorded and ORIF with BOARD DEP was done on 22.5.98." 3. The claimant was employed in a Chit company which had office in Tamil Nadu also. The claimant who got treatment in Tamil Nadu also produced medical certificate issued by the doctor at Tamil Nadu certifying 40% disability. However, the Additional Motor Accidents Claims Tribunal, Thalassery did not accept the disability certificate as it was not proved . The case of the appellants is that there is nothing to doubt the genuineness of the certificate and it was difficult for the claimant to get the doctor from Madras to be examined before the Tribunal. However, Standing Counsel appearing for the Insurance Company opposed grant of compensation for disability on the ground that the claimant could have obtained a certificate from the hospital where he underwent treatment. Moreover, according to counsel, the claimant, even after the accident, continued to do his work though with a break and, therefore, was fit for his job. The case of the appellants is that the injuries sustained by the claimant caused temporary disability for a long period and consequently, the claimant was not able to work or earn for nine months. It is further M.A.C.A. NO.560/2005 3 stated that out of the total compensation of Rs.89,100/-, a substantial amount represented reimbursement of cost of treatment. 4. We have gone through the award and have heard the contentions raised by both sides. The injuries sustained by the claimant noted above go to show that the accident was not a minor one and the claimant had suffered injuries of the hip, shoulder and head leading to fracture and cerebral concussion. Unfortunately, the claimant died at the age of 43 during the pendency of this appeal. He in fact survived only for seven years after the accident. However, the appellants have no case that death of the claimant was on account of the accident or even the accident caused his death. In any case, we feel the claimant is entitled to compensation for disability, probably though not to the extent certified by the doctor. Since it is difficult to fix compensation for disability based on multiplier after the death of the claimant at the age of 43, we feel a consolidated amount of compensation to the wife and minor children will serve the purpose. Accordingly, we grant an additional compensation of Rs.50,000/- to the appellants with a direction to the Insurance Company to deposit the said amount with interest at the rate of 7.5 % per annum from the date of M.A.C.A. NO.560/2005 4 application till date of payment. The appeal is allowed to the extent indicated above. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NO.560/2005 5 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NO. 560/2005 JUDGMENT 28th October, 2008