Joycee, Siya Peter (Minor) and others v. P.O. Thomas, P.A. Thomas, The Manager, National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930** **MACA.No. 1675 of 2005(C)** **-------------------------------------** ## **O.P(MV).NO.551/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** **....................** ## **APPELLANTS/ PETITIONERS:** **------------------------------------------** **1. JOYCEE, W/O.LATE PETER, VALIYAPARAMBIL VEETTIL HOUSE, P.O.WEST CHALAKUDY, THRISSUR DISTRICT.** **2. SIYA PETER (MINOR), D/O.LATE PETER, REP. BY MOTHER JOYCEE, VALIYAPARAMBIL VEETTIL HOUSE, P.O.WEST CHALAKUDY, THRISSUR DISTRICT.** **3. V.V.JOSEPH, F/O.LATE PETER, VALIYAPARAMBIL VEETTIL HOUSE, P.O.WEST CHALAKUDY, THRISSUR DISTRICT.** **4. K.M.THRESIA, M/O.LATE PETER, VALIYAPARAMBIL VEETTIL HOUSE, P.O.WEST CHALAKUDY, THRISSUR DISTRICT.** **BY ADV. SRI.T.A.UNNIKRISHNAN, ADV. SMT.RESHMI POULOSE.** ## **RESPONDENTS:** **-----------------------** ## **1. P.O.THOMAS, PALATTI HOUSE,** - **P.O.PUTHENVELIKKARA, N.PARUR.** **2. P.A.THOMAS, ANI, S/O.ANTONY, PALATHINKAL HOUSE, P.O.THURUTHIPPURAM, THRISSUR DIST.** ## **3. THE MANAGER,** - **NATIONAL INSURANCE CO. LTD., N.PARUR.** **R2 BY ADV. SRI.M.V.THAMBAN, ADV. SRI.SREEKANTH, ADV. SMT.THARA THAMBAN, R3 BY ADV. SRI.RAJAN P.KALIYATH.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD 14/10/2008 ALONG WITH M.A.C.A NO.13/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** **J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------** ## **M.A.C.A.NOS.1675 OF 2005 (C) & 13 OF 2006 (A)** **----------------------------------Dated this the 14[th] day of October, 2008** ## **J U D G M E N T** ## **KOSHY,J.** These two appeals are filed against the award in O.P.(MV).No.551/1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. A 34 year old man sustained very serious injuries in a motor accident. He died after two years. Even though claim petition was filed by the injured himself, later legal heirs widow, minor daughter and parents were impleaded as additional claimants. The accident occurred while he was travelling in a motor cycle as a tempo van hit the motor cycle and he sustained injuries. The Tribunal found that if both riders were vigilant, accident could have been avoided, and therefore, negligence was apportioned equally. After assessing the compensation of Rs.8,28,452/-, 50% was reduced for contributory negligence and compensation of Rs.4,14,226/- was awarded by the Tribunal. **==> picture [132 x 44] intentionally omitted <==** 2. Claimants filed M.A.C.A.No.1675/2005 contending that the compensation amount awarded was very low. It is further contended that finding of contributory negligence was not correct. After getting notice on the appeal, Insurance company filed M.A.C.A.No.13/2006 along with a delay condonation petition contending that the compensation awarded was very high. Delay was condoned and both cases were heard together. Since both sides contested the question of quantum of compensation, we may first deal with the quantum of compensation. 3. The contention of the Insurance company is that accident occurred on 26.10.1997 at 1.30 p.m. But the claimant died only on 24.4.1999, and therefore, compensation cannot be granted for death. As a result of the accident, his rib pierced the diaphram. PW2 Doctor who treated the claimant issued Ext.A9 certificate. Tribunal considered the evidence and held as follows: “Ext.A9 certificate shows “Mr.Peter was M.A.C.A.NOS.1675 OF 2005 (C) & 13 OF 2006 (A) 3 admitted in the Medical Trust Hospital on 20.1.1999 with diaphragmatic hernia and volvulus of the stomach leading to gangrane stomach. There is a history of road traffic accident two years ago, when he had sustained fracture ribs and pelvis. It is most likely that there was diaphragmatic rupture at that time with herniation of stomach into the left thoracic cavity with subsequent volvulus at present. Resection and oesphage gastric anastomosis was done on 20.1.1999. Patient had a stormy post operation period. He developed a small fistula at anastomotic site. This was being conservatively managed. However since there was signs of increasing discharge from the fistula, he was re-explored on 17.3.1999. The anastomotic leak was closed and overlaid with a jejuna loop. A feeding jejunostomy was also performed. However, the leak reappeared after two weeks and continued to discharge. Though his nutrition was maintained with jejunostomy feeds, his general condition deteriorated. He developed a terminal respiratory infection and expired on 24.4.1999. PW2 in the cross examination deposed that operation was conducted on 20.1.1999. There was a possibility of rupture of Diaphram at that time. But he cannot definitely say where the diaphram was pierced due to the accident. But Ext.A9 and the deposition of PW2 show that chance of rupture of a diaphram was due to the fracture of ribs. The ribs may have pierced into the diaphram and rupture may have occurred. But the rupture was not noticed at the time when he was treated at first in the hospital. **==> picture [132 x 27] intentionally omitted <==** **==> picture [5 x 7] intentionally omitted <==** Subsequently stomach entered into the left thoracic cavity with subsequent volvulus. The reason of the death was due to diaphragmatic hernia and volvulus caused to the petitioner. Hence the death was due to gangrene stomach. So the death was happened due to the rupture of diaphram. Ext.A9 shows that most probable cause of death of the original petitioner was the injuries sustained in the accident which happened about 2 years ago. On the basis of the discussions made above, I find that Mr.Peter died due to the injuries sustained by him in the accident. Hence legal heirs of the deceased Peter are entitled to get compensation.” The certificate shows that the claimant has diaphragmatic hernia and volvulus of the stomach leading to gangrane stomach as a result of the accident. It is true that he was discharged from the hospital as the internal injury was not noticed at that time. But immediately in view of the internal injuries, he was unable to do any work and he was again admitted in the Hospital and surgeries were conducted. Evidence adduced clearly shows that the death was due to the consequence of the injuries suffered in the accident. In this connection, we also refer to the decision of the House of Lords M.A.C.A.NOS.1675 OF 2005 (C) & 13 OF 2006 (A) 5 ## in **Corr (Administratrix of Corr deceased) v. IBC** ## **Vehicles Ltd. [[2008] 2 All ER 943]** . The medical evidence as well as the facts and circumstances of the case shows that the death occurred due to the accidental injuries itself. We fully agree with the findings of the Tribunal in this fact. Hence we are of the opinion that the insurance company's appeal on this point has no merit. 4. The deceased was an employee in the Sub Registrar's Office at the time of the accident and his last drawn salary as per Ext.A4 certificate was Rs.4,844/-. Tribunal has taken only that amount for the purpose of calculating compensation. It is contended that he was a Government employee. Apart from the chances of promotion, there will be benefits of periodical wage revisions and yearly increments. He died at the age of 34. He had 21 years service more. After retirement at the age of 55 also he can get private job. If he continued in service till the age of retirement, his salary would have been ten times higher and retiral benefits payable on the basis of the last drawn salary are also much more and in any event **==> picture [132 x 44] intentionally omitted <==** some amount ought have been awarded taking into account the future prospects in life. It is true that waggeries of life cannot be predicted. We are of the view that atleast Rs.6,000/- can be taken as the monthly income. Then,[1] /3rd is to be deducted. Thus Rs.4,000/- can be taken as the monthly income. Tribunal has taken 16 as the multiplier. It is also contended that as per the 2[nd] Schedule, 17 is the apt multiplier considering the age of the deceased. It is further contended that he has got more than 21 years of service at the time of accident. Considering the increase in expectancy of life and other contentions, a highest multiplier ought to have been taken considering the multiplicand. We see no ground to enhance the multiplier and 2[nd] Schedule need be taken only for guideline in a claim petition filed under Section 166 of the Motor Vehicles Act. **(See** _**United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74))**_ . If that be so, compensation payable for loss of dependency is Rs.4,000 x 12 x 16 = Rs.7,68,000/- instead of Rs.6,20,192/-. Hence, the additional amount payable will be Rs.1,47,808/-. We see no ground to enhance the compensation awarded **==> picture [132 x 44] intentionally omitted <==** under other heads even though it is submitted that compensation awarded under other heads are very meager and inadequate. 5. With regard to the finding of contributory negligence, Tribunal has considered the matter at paragraph 9 of the award in detail. The tempo van was coming from east to west. The tempo entered into a junction and it reached the western side of the road. The motor cycle came from the northern side and both collided. It is not clear whether seeing the tempo van, cycle diverted and tried to proceed towards south without hitting the tempo van or the motor cycle was running along the wrong side. In any event, there is no clear evidence. Considering the scene mahazar and considering the evidence adduced, Tribunal came to the opinion that if both drivers are vigilant, accident could have been avoided. Merely because injured gave a statement at the time he was admitted that he was not responsible for the accident and that seeing the tempo coming in a rash manner, he first tried to avoid the accident and turned to the other side **==> picture [132 x 44] intentionally omitted <==** we cannot clearly say that one driver alone was negligent. In the absence of clear evidence, we are not changing the finding of negligence. On the facts of this case, negligence has to be proved on both drivers. In this connection, we refer to the observations of the Honourable Supreme Court in **Bijoy Kumar Dugar v. Bidyadhar Dutta and others (AIR 2006 SC 1255).** Hence there is no merit in the ground urged by the claimants regarding the finding of contributory negligence by the Tribunal. We have already seen that the additional amount payable for loss of dependency will be Rs.1,47,808/-, 50% is to be deducted for contributory negligence and hence additional amount payable will be Rs.73,904/- rounded to Rs.73,900/-. The above amount should be deposited by the 3[rd] respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the Tribunal. It is submitted that the widow subsequently remarried. On deposit of the additional amount, Rs.10,000/(consolidated amount) each should be given to widow and **==> picture [132 x 44] intentionally omitted <==** parents and balance amount should be deposited in a nationalised bank in the name of the 2[nd] claimant, daughter of the motor accident victim enabling her to withdraw it when she attains the age of 21 or at the time of marriage which ever is earlier. Hence M.A.C.A.1675/2005 is dismissed and M.A.C.A.13/2006 is partly allowed. ## **J.B.KOSHY, JUDGE** ## **K.P.BALACHANDRAN, JUDGE** prp ## **J.B.KOSHY & K.P.BALACHANDRAN, JJ.** ## **--------------------------------------------------------** **M.F.A.NO. OF 2006 ()** **---------------------------------------------------------** **J U D G M E N T** **---------------------------------------------------------** **14[th] October, 2008**