IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 MFA.No. 1254 of 2001(B) ----------------------- OPMV.619/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT: ----------------- 1. BHARGAVI, W/O.BALAKRISHNAN EZHUTHASSAN. 2. SURESH KUMAR, S/O.LATE.BALAKRISHNAN EZHUTHASSAN. 3. RAJENDRA KUMAR, S/O.DO. DO. 4. RATNAMALLIKA, D/O. DO. DO. (ALL ARE RESIDING AT THEKKEKARA VEEDU, POMBILAYA POST, OTTAPALAM TALUK.) BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS: --------------------- 1. M.K.SARFUDDIN, S/O.ALIKUTTY, MOOCHIKOOTTATHIL HOUSE, THRIKKIDEERI POST, OTTAPALAM TALUK. (RC.OWNER AND RIDER OF MOTOR CYCLE KL.10.B/8612). 2. THE UNITED INDIA INSURANCE CO. LTD., FAIZAL BUILDING, MAIN ROAD, OTTAPALAM 9INSURER OF KL.10.B/8612). BY ADV. SRI.PMM.NAJEEB KHAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1254 of 2001 ----------------------------------------- Dated this the 7th day of March, 2008 JUDGMENT Koshy, J. Husband of the first appellant while walking along the public road suffered serious injuries when a motor cycle driven by the first respondent hit him on 11.4.1999. he was admitted in the Moulana Hospital, Perinthalmanna. Being a very poor person, he was discharged from the hospital on the next day. The wound certificate shows that the patient was drowsy. There was zygomatic fracture (L) side and fracture of occipital bone and fracture sphenoid bone with brain oedema and superficial corresponding facial injuries. The C.T. Scan certificate also confirmed the fracture. Exhibit A5 is the wound certificate and Exhibit A6 is the CT Scan report. Discharge certificate shows that there was brain oedema. Even though on the next day he was discharged from the hospital, he was advised to take bed rest, as can be seen from Exhibit A7 discharge summary. He died on 13.5.1999, i.e., exactly after one month of discharge. His wife and three children approached the court contending that he died due to the fatal injury sustained in the accident. In the absence of clear evidence to that effect, the Tribunal awarded a compensation for M.F.A.1254/01 2 injuries amounting to Rs.37,338/- with interest and cost. This appeal is filed challenging the quantum of compensation awarded and contending that the fatal injuries sustained due to the accident and also contending that compensation ought to have been granted for death. There was brain injury and the CT Scan report shows that there was zygomatic fracture and fracture of occipital bone and fracture sphenoid bone with brain oedema. Unless proper treatment is given effect of head injury can be disastrous and some times, impact of the accident may not manifest immediately. He was drowsy throughout and within one month he died. Of course in the private hospital from where he was discharged, treatment was very costly. The petitioners were not able to produce certificate. But there was no other complaint on him. He was an able bodied man and he was maintaining a family by doing agricultural work. The principle of res ipsa loquitor is clearly applicable in this case. After receipt of serious injuries, he died within a month. Only possible conclusion is that the death is the direct result of the accident. We are of opinion that compensation ought to have been granted for the death. 2. The deceased was an agriculturist. No data regarding his income was produced. Therefore, the Tribunal assessed his monthly M.F.A.1254/01 3 income as Rs.1,500/-. The accident occurred in 1999. We see no ground to interfere with the assessment of monthly income of the deceased, in the absence of data, even though according to the petitioners, the deceased was getting Rs.4,500/- per month. He was aged 50 at the time of death. If a person who died between 50 and 55, taking guidelines from the second schedule, 11 is the apt multiplier. One-third has to be deducted from the income for finding out loss of family contribution. Therefore, compensation payable for death will be: Rs.1,000 x 12 x 11 = Rs.1,32,000/-. Wife was aged 45 at the time of accident. We award Rs.10,000/- for loss of consortium. The Tribunal has awarded Rs.11,000/- for pain and suffering. We see no ground to change the same. The Tribunal also awarded Rs.1,500/- as the transportation expenses. He has to be taken to the hospital and after death his body was transported to his house. Therefore, we award Rs.1,500/- more for transportation expenses. The Tribunal has awarded also Rs.2,538/- as medical reimbursement and Rs.300/- as hospital expenses (total Rs.2,838/-). He was ailing for one month consequent to the accident. Finally life saving medicines have to be given. All expenses in the hospital will not be covered by bills. We award Rs.3,000/- more for treatment and hospital expenses. The Tribunal has awarded Rs.1,500/- for extra M.F.A.1254/01 4 nourishment and attendant charges. For funeral expenses we award Rs.2,000/-. We are not changing the same. Thus, the total compensation is Rs.1,73,338/-. Tribunal awarded Rs.37,338/-. That has to be deducted. Tribunal has granted Rs.7,000/- for shortened expectation in life and loss of monetary benefits. We change the same as compensation for loss of estate. The total additional compensation payable will be Rs.1,35,000/-. The above amount should be deposited by the second respondent Insurance Company with 7.5% from the date of application till the date of deposit, after deducting the amount already deposited. On deposit of the amount, the first appellant is allowed to withdraw 50% of the amount and appellants 2, 3 and 4 are allowed to withdraw the balance amount in equal proportion. The appeal is allowed as above. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.1254/01 5 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.1254 of 2001 ------------------------------ JUDGMENT 7.3.2008