Bella Benny & Others v. Alias Mathew & Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939 MACA.No. 1854 of 2008 ( ) -------------------------- AGAINST THE AWARD IN OPMV 854/2002 of MACT MUVATTUPUZHA APPELLANT(S)/APPELLANTS/PEPTITIONERS: ------------------------------------ 1. BELLA BENNY, W/O.BENNY GEORGE AND OTHERS RESIDING AT PULLAN HOUSE, KEERAMPARA P.O., KEERAMPARA VILLAGE, KOTHAMANGALAM, (W/O. THE DECEASED) 2. GEORGEKUTTY BENNY, S/O. BENNY RESIDING AT PULLAN HOUSE, KEERAMPARA P.O.KEERAMPARA VILLAGE, KOTHAMANGALAM (DATE OF BIRTH 14-3-2000, S/O., THE DECEASED) MINOR REPRESENTED BY HIS MOTHER AND, LEGAL GUARDIAN BELLA BENNY THE 1ST APPELLANT. 3. THRESSIAMMA GEORGE, W/O. GEORGE RESIDING AT PULLAN HOUSE, KEERAMPARA P.O,, KEERAMPARA VILLAGE, KOTHAMANGALAM., (MOTHER OF THE DECEASED.) BY ADVS.SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. ALIAS MATHEW, S/O.MATHEW AND OTHERS HOUSE IRINGOLE P.O., PERUMBAVOOR. (DELETED) 2. BINU T.P. S/O. PAULOSE THAZHUTHIGAPARAMBIL HOUSE, RAYAMANGALAM, PERUMBAVOOR. (DELETED) 3. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO.LTD., PERUMBAVOOR. R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 26.8.2016 IN IA. 2648/2016 IN MACA.1854/2008. R,R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2017, ALONG WITH MACA. 2747/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. Nos. 1854 & 2747 of 2008 ----------------------------------------------Dated this the 27th day of September, 2017 ## JUDGMENT ## Jyothindranath,J. In both these appeals, challenge is against the award in OP(MV).No.854/2002 on the files of the MACT, Muvattupuzha. MACA No.1854/2008 is filed by the claimants therein whereas MACA No.2747/2008 is filed by the Insurance Company who was respondent No.3 in the proceedings before Tribunal. The facts necessary for disposal of these appeals are as follows. 2. A motor vehicle accident involving a jeep bearing registration No.KL-7/N 7495 and the motor bike driven by the deceased occurred on 7.2.2002. In that accident, Benny George, who was aged 29 years at the time of accident sustained very severe injuries. He was taken to hospital. While he was undergoing treatment, he moved a MACA.1854/2008 & conn. case 2 claim petition before the Tribunal as OP(MV).No.854/2002. While undergoing treatment, he died due to the complications of the injury sustained in the accident. Post mortem was conducted and confirmed that death was due to the complications developed due to the injuries sustained in the accident. Thereafter, the wife, minor child and the mother got impleaded as additional petitioners. The claim was enhanced and evidence was recorded and the Tribunal awarded a total compensation of Rs.24,73,000/-. In the claimants appeal it is challenged on the ground that the compensation awarded was inadequate whereas the Insurance Company challenged the award stating that the compensation awarded was exorbitant as well as they got a case that the death was not positively proved that of the complications of the injuries sustained in the accident. Company also got a case that medical negligence resulted in the death and it is the case that they are not liable to pay the whole compensation, when the death is not the direct consequence of the injuries sustained in the accident. 3. We heard learned counsel for the appellants. After MACA.1854/2008 & conn. case 3 hearing the counsel for the appellants as well as the Insurance Company, we perused the award. It can be seen that Ext.A13 is the post mortem certificate marked on the side of the appellants. As per the said document therein it was opinioned that death was due to RTA and due to poly trauma with complications of intestinal injury. In this regard we also perused Ext.A12, a death summary issued from the Amirta Institute of Medical Science is relevant. In the award, in paragraph 16, the full text of the death summary was reproduced. Thus, it can be seen that apart from the fracture injuries sustained, he also sustained blunt stomach injury and the complications developed due to the injuries and death occurred. After appreciating the nature of the injury caused and expert opinion of the doctor who conducted post mortem, it can be held that there is no merit in the submission of the learned counsel appearing for the Insurance Company that the death was not due to the injury sustained in the accident or due to medical negligence. Thus, it is held that the deceased died due to the injuries sustained in the RTA . MACA.1854/2008 & conn. case 4 4. In this case there is no dispute regarding negligence aspect as well as the liability of the 3[rd] respondent. The only point left to be decided is regarding the quantum of compensation . In this case even though the Tribunal awarded a total sum of Rs.24,73,000/-, it can be seen that out of the same Rs.15,64,575/- was awarded towards reimbursement of medical expenses. It is the fact that eventhough the accident occurred on 7.2.2002, the deceased died only on 1.7.2003. During the said period, he was continuing his treatment. His date of birth was shown in the award as 21.5.1973. Thus, it can be seen that when he died on 1.7.2003, he just completed 30 years. The multiplier available as per the table in **Sarala Varma vs. Delhi Transport Corporation (2009) 6 SCC 121)** is 17 . The next point argued before us is regarding the notional income taken by the Tribunal. The Tribunal considered Rs.4500/- for assessment purpose. It is the submission that the Tribunal should have atleast considered Rs.5000/- on this head. The Tribunal considered the fact that he was under treatment for a long period and had spent more than MACA.1854/2008 & conn. case 5 15 lakhs. The Tribunal opinioned, it was an indication that either the deceased or the person who was looking after him during the treatment period, will be affluent to meet such an expense. 5. The case of the deceased was that he was a shareholder in a crusher unit and was having sufficient income. In support of the said contention, the appellants produced Ext.A15(a) partnership agreement between the deceased and his brother. Ext.A15(b) was the licence issued from he Keerampara Grama Panchayat. The claimants also produced a copy of the certificate issued from the Kerala State Pollution Control Board, Thiruvananthapuram, which was marked as Ext.A15(c). It was apparent and clear that he was a businessman by profession. Further to show that he was having sufficient income, claimants produced a registered document of purchase of property, in favour of the deceased, which was marked as Ext.A15. The deceased was also owning a motor vehicle apart from the motor bike involved in the accident. The Tribunal considered only Rs.4500/- as monthly income. MACA.1854/2008 & conn. case 6 On the background of all these materials and further keeping in mind that even in a motor vehicle accident of 2004 the income of a coolie was considered as Rs.4500/- by the Apex court and when the positive case of the appellants was that the deceased was an employer, we feel that it would be just and proper to consider Rs.5000/- as monthly income for calculation purpose. 6. Thus, a reassessment on the basis of the above findings is necessary. Then towards loss of earning during treatment period, by taking Rs.5000/- as monthly income, claimants will be entitled for an additional sum of Rs.8500/(5000 x 17 - 76,500/-). In this case, towards funeral expenses only a sum of Rs.5000/- was seen awarded by the Tribunal. As per the dictum laid down by the apex court in **Rajesh and others vs. Rajbir Singh and others (2013)** **9 SCC 54),** appellants are entitled for an additional sum of Rs.20000/-. The said amount is awarded. Towards consortium, only a sum of Rs.15000/- is seen awarded. By the same reasoning, the 1[st] appellant will be entitled for an additional compensation of Rs.85000/- on this head. The MACA.1854/2008 & conn. case 7 said amount is awarded. Towards love and affection to the child, only a sum of Rs.15000/- is seen awarded. It can be seen that the child was a minor. Under such circumstances an additional sum of Rs.35000/- is awarded to the child towards loss of love and affection. To the mother, only a sum of Rs.5000/- is seen granted. It is also on a lower side. An additional sum of Rs.20000/- is awarded to the mother towards loss of love and affection . Towards dependency the appellants will be entitled for an additional sum of Rs.68000/- (5000 x 12 x17 x 2/3 - 6,12,000/-). But, on going through the award, it can be seen that when an injury case is treated as a death case, it may not be proper to award compensation on the head of loss of expectation in life. Under such circumstances, a sum of Rs.10000/awarded on this head has to be deducted. After deducting the said amount of Rs.10,000/- from the additional compensation already awarded, the appellants will be entitled for an additional compensation of Rs.2,26,500/-. Out of the said amount, Rs.85000/- awarded towards loss of consortium will be exclusively entitled to the 2[nd] additional MACA.1854/2008 & conn. case 8 petitioner, who is the 1[st] appellant herein and further, additional compensation awarded to the minor child and mother will also be exclusively entitled to the child and mother respectively. The balance amount shall be shared equally in between appellants 1 and 2 (Additional Claimants 2 and 3). The additional compensation awarded will bear interest at the very same rate as ordered by the Tribunal. The Insurance Company shall pay the compensation within two months from the date of receipt of a copy of this judgment. 7. Thus, on the above terms, both the appeals are disposed of. If any amount is already paid /deposited by the Insurance Company that shall be taken into consideration while computing the amount due as well as interest. ## C.K.ABDUL REHIM, JUDGE ## K.P.JYOTHINDRANATH, JUDGE pmn/ MACA.1854/2008 & conn. case 9