Fathima and others v United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 ``` ## `MACA NO. 2396 OF 2010` ``` [AGAINST THE AWARD DATED 29.10.2005 IN OP(MV)NO.716/2001 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI] ``` ## `APPELLANTS/PETITIONERS:` ``` 1FATHIMA, W/O.ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 2MOHAMMED, S/O. ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 3MOIDEENKUTTY, S/O. ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 4SAIDALI, S/O. ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 5SIDDIQUE, S/O. ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 6AYISHA, D/O. ALI, PARAYIL HOUSE, MINI ROAD, KAPPIL, CHERUR P.O. 7ASSYA, D/O. ALI, PARAYIL HOUSE, M,INI ROAD, KAPPIL, CHERUR P.O. BY ADV SRI.BABU S. NAIR ``` ## `RESPONDENT/3RD RESPONDENT:` ``` UNITED INDIA INSURANCE CO. LTD., MALAPPURAM, PIN – 676 505. ``` ``` BY ADV .SRI.P.K.MANOJ KUMAR, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2396 OF 2010 ``` ``` -2- ``` ## `JUDGMENT` ``` Ali was hit by the offending Jeep on 28.12.1995, while he was standing on the side of a public road and suffered grievous injuries. He died on 08.02.1996; whereupon his legal heirs – appellants herein – filedOP(MV) No.716/2001 before the Motor Accidents Claims Tribunal, Manjeri (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation for ``` ``` his death; but which was declined, however, ``` ``` granting compensation for his injuries alone. ``` ``` The appellants impugn the Award of the Tribunal as being unlawful in one part and inadequate on the other. ``` ``` 2.Smt.Jinu Antony – learned counsel ``` ``` appearing for the appellants, pointed out that the sole reason why the Tribunal refused to grant compensation for the death of Sri.Ali was that he died one and a half months after the ``` ``` MACA NO. 2396 OF 2010 ``` ``` -3- ``` |`accident. She, however, argued that this is`| |---| |`rather unfortunate because, Ext.A5 – Treatment`| |`Certificate would show that late Ali was`| |`continuously on treatment after the accident and`| |`though he was discharged on 17.01.1996, he was`| |`brought back to the hospital on 22.01.1996 and`| |`thereafter on 26.01.1996, complaining of`| |`breathlessness, in an unconscious state. She`| |`pointed out that the said certificate clearly`| |`records that it had been found that late Ali had`| |`developed ‘`<br>`cerebro-vascular insufficiency and`| |`aspiration pneumonia`<br>`’ (sic), which are only`| |`relatable to the injuries and its aftermath; and`| |`hence, that the learned Tribunal ought not to`| |`have dismissed the `<br>`Original Petition`<br>`to the`| |`extent to which compensation for his death had`| |`been claimed. She thus prayed that this Appeal`| |`be allowed and just and fair compensation`| |`awarded to her clients.`| ``` MACA NO. 2396 OF 2010 ``` ``` -4- ``` ``` 3.Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, on the other hand, submitted that since Ali died much after the accident, the causal connection between his ``` ``` death and the accident ought to have been proved specifically. He argued that, in the absence of such, the learned Tribunal could have only done, ``` ``` as what has been recorded in the impugned Award. ``` ``` 4.I have considered the afore rival ``` ``` contentions on the touchstone of the evidence on ``` ``` record, which I have evaluated very carefully. ``` ``` 5.As rightly argued by Smt.Jinu Antony, the sole reason why the learned Tribunal has refused to grant compensation to the appellants ``` ``` for the death of Sri.Ali is that no Postmortem ``` ``` Certificate had been produced to establish the ``` ``` causal connection between the accident and his ``` ``` demise. However, the learned Tribunal has omitted to notice that Ext.A5 – which remains ``` ``` MACA NO. 2396 OF 2010 ``` ``` -5- ``` ``` uncontroverted and unopposed – records that, on ``` ``` 26.01.1996, Ali was brought back to the hospital with‘cerebro-vascularinsufficiencyand ``` ``` aspiration pneumonia’ (sic). As is well known, ``` ``` ‘cerebro-vascularinsufficiency’isthe ``` ``` reduction in the cerebral arterial blood flow, ``` ``` resulting from an inadequate systemic arterial ``` ``` blood pressure or impairment of the cardiac ``` ``` output, caused particularly in the case of an accident which caused severe head injury. ``` ``` Further, ‘aspiration pneumonia’ is caused when ``` ``` food or liquid is breathed into the airways or lungs and this, in this case, would certainly be relatable to the Ryle’s Tube feeding, to which ``` ``` late Ali was subjected to. In the absence of any ``` ``` evidence to the contrary and since Ext.A5 contains the full Medical Treatment Record of late Ali, one cannot understand how the Tribunal could have entered a finding that same would not ``` ``` MACA NO. 2396 OF 2010 ``` ``` -6- ``` ``` establish a causal connection between his death and the accident. This is more so because, as the learned Tribunal has found from the Medical ``` ``` Records, particularly Ext.A2 – Wound Certificate ``` ``` and Ext.A4 – Discharge Certificate, late Ali ``` ``` suffered from wounds over his left temporal occipital region, along with fracture of right femoral condyle and left 5th metacarpal and right clavicle. ``` ``` 6.In fact, Ext.A5 confirms the above and records further that the CT Scan showed ‘Left ``` ``` Frontal Acute Sub Dural Hematoma with Cortical ``` ``` Contusion’ (sic). This injury required open ``` ``` reduction and internal fixation of right femoral ``` ``` condyle and though late Ali was discharged on 17.01.1996, he was brought back to the hospital on 22.01.1996 complaining of hypoglycemia and was, thereafter discharged on 24.01.1996, after his sutures on knee were removed. It then says ``` ``` MACA NO. 2396 OF 2010 ``` ``` -7- ``` ``` that on 26.01.1996 he developed breathlessness and was unconscious and was found to have ``` ``` ‘cerebro-vascular insufficiency and aspiration ``` ``` pneumonia’ as said above. Though he was discharged on request on 02.02.1996, he ``` ``` unfortunately died on 08.02.1996. ``` ``` 7.Itis,therefore,withoutany requirement for expatiation that the health condition of late Ali was solely on account of the accident and not otherwise; and it is, ``` ``` therefore, only probable that he died on account ``` ``` of its complications. It does not require a PostmortemCertificatetoprovethis, ``` ``` particularly when Ext.A5 speaks unequivocally on the trauma suffered by him. ``` ``` 8.In the afore circumstances, there can be little doubt that the appellants are entitled to succeed in this Appeal on the question as to whether Ali died on account of the accident; ``` ``` MACA NO. 2396 OF 2010 ``` ``` -8- ``` ``` with the same being thus answered in their favour. ``` ``` 9.That being said, I notice that the ``` ``` learned Tribunal has not fixed the compensation ``` ``` eligible, had the death of Ali been on account of the accident. I, therefore, put it to the learned counsel for the parties whether they would stand in the way of this Court making ``` ``` computations, to which, both sides answered to ``` ``` the negative. ``` ``` 10.I notice from the Claim Petition that ``` ``` the appellants had claimed Rs.2,00,000/- as ``` ``` compensation in the following manner: ``` ``` PART I a)Loss of Earning from 28.1.95 to till date Rs.6,000/- b)Partial loss of earning from Nil to Nil at the net rate of Rs.Nil a day/week c)Transport to hospital : Rs.500/- d)Extra Nourishment : Rs.500/- e)Damage to clothing and articles : Not claimed. f)Others 1. Medical expenses : Rs.20,000/- 2. Funeral Expenses : Rs.5,000/- ``` ``` MACA NO. 2396 OF 2010 ``` ``` -9- ``` ``` PART II g)Compensation for pain and sufferings h)Compensation for continuing or permanent disability if any : Nil i)Compensation for loss of future pecuniary benefits and love and affection : Rs.1,38,000/- Total : Rs.2,00,000/- ``` **==> picture [38 x 69] intentionally omitted <==** ``` 11.The learned Tribunal, as said above, has ``` ``` granted only Rs.63,409/-, reckoning that ``` ``` compensation can be given for the injuries ``` ``` sustained by late Ali and not for his death. ``` ``` Obviously, the said findings will have to be ``` ``` vacated, which I do; and then proceed to compute ``` ``` the compensation that would be eligible to the appellants, reckoning that late Ali died on account of the wounds sustained in the accident. ``` ``` 12.As said above, the accident happened in ``` ``` the year 1995 and late Ali is stated to be a ‘Coolie’workingondailywages.In ``` ``` Ramchandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd.[(2011) 13 SCC 236], theHonourable Supreme Courthas ``` ``` MACA NO. 2396 OF 2010 ``` ``` -10- ``` ``` postulated that the notional income of such a ``` ``` person, with an otherwise unascertainable income ``` ``` in the year 2004, must be reckoned as Rs.4,500/-. Since the accident happened several ``` ``` years prior to that, I am of the view that, ``` ``` safely a figure of Rs.2,000/- can be taken ``` ``` which, of course, will require to be added on ``` ``` with 40% future prospects. ``` ``` 13.Of course, an amount equal to one-third ``` ``` will have to be deducted as his personal ``` ``` expenses, going by the declarations of the Hon’ble Supreme Court inNational Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662 (SC)], since apart from his wife, only claimant Nos.5 and 7 were minors or financially depended upon him at the time of the accident. ``` ``` 14.In addition to this, the claimants are ``` ``` certainly entitled to Rs.15,000/- each under the heads “Funeral Expenses” and “Loss of Estate” ``` ``` MACA NO. 2396 OF 2010 ``` **==> picture [30 x 8] intentionally omitted <==** ``` and to compensation under the head “Loss of ``` ``` Consortium” to an extent of Rs.40,000/- each. ``` ``` Resultantly, this Appeal is partly allowed ``` ``` in the following manner: ``` - `(a) The finding of the learned Tribunal` ``` that death of Ali was not on account of the ``` ``` accident is set aside; and consequently, the ``` ``` compensation awarded by it solely for injuries is vacated. ``` ``` (b)The claimants are awarded compensation ``` ``` under the head “Loss of Dependency” to the extent of Rs.1,58,400/- (Rupees one lakh fifty ``` ``` eight thousand, four hundred only), reckoning ``` ``` the notional income of the deceased to be ``` ``` Rs.2,000/- per month, adding 10% future ``` ``` prospects to it, adopting the multiplier nine as ``` ``` perSarla Verma & Others v.Delhi Transport ``` ``` Corporation & Another[2010 (2) KLT 802], and ``` ``` deducting one-third towards his personal ``` ``` MACA NO. 2396 OF 2010 ``` ``` -12- ``` ``` expenses. ``` ``` (c) The appellants are awarded compensation at the rate of Rs.15,000/- each (Rupees fifteen thousand only) under the heads “Funeral Expenses” and “Loss of Estate”, as perPranay ``` ``` Sethi (supra). ``` ``` (d) The appellants are granted compensation ``` ``` to the extent of Rs.2,80,000/- (Rupees two lakhs ``` ``` eighty thousand only), under the head “Loss of ``` ``` Consortium” at the rate of Rs.40,000/- each, ``` ``` being guided by Pranay Sethi (supra). ``` ``` (e)An amount of Rs.500/- (Rupees five ``` ``` hundred only) each is granted to the appellants ``` ``` under the heads “Transportation Expenses” and ``` ``` “Loss of Clothing”. ``` ``` Resultantly, the respondent – Insurance ``` ``` Company will deposit the aforesaid amounts, along with interest at the rate of 6% per annum from the date of claim until it is so deposited; ``` ## `MACA NO. 2396 OF 2010` **==> picture [30 x 9] intentionally omitted <==** ``` and if it is so done, the appellants will be entitled to receive it in full. They will also be entitled to the costs and they are at liberty ``` `to file a Memo for the same before this Court` . ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of ``` ``` two months from the date of receipt of a copy ``` ``` this judgment. ``` ``` On the contrary, if the Insurance Company ``` ``` does not deposit the afore amount within the ``` ``` time fame above fixed, the appellants will be at ``` ``` liberty to recover the same from them, along ``` ``` with interest at the rate of 6% per annum from ``` ``` the date of claim, till it is realized, along with costs. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` akv ``` ## `JUDGE`