MACA No. 2490 of 2013 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 MACA NO. 2490 OF 2013** **AGAINST THE ORDER/JUDGMENTOPMV 2061/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANTS/ADDL.PETITIONERS 2 TO 5:** 1 PADMAVATHY, AGED 41 YEARS, W/O LATE VIKRAMAN, BHASMATH VADAKKATHIL, MULLIKKALA, THEVALAKKARA. 2 VIJITH, AGED 19 YEARS, S/O LATE VIKRAMAN, BHASMATH VADAKKATHIL, MULLIKKALA, THEVALAKKARA. 3 VINOJ, AGED 16 YEARS, S/O LATE VIKRAMAN, BHASMATH VADAKKATHIL, MULLIKKALA, THEVALAKKARA. 4 KUNJU PENNU, M/O LATE VIKRAMAN, BHASMATH VADAKKATHIL, MULLIKKALA, THEVALAKKARA. BY ADVS. SRI.K.SIJU SMT.CHITHRA.S.BABU ## **RESPONDENT/3rd RESPONDENT:** NATIONAL INSURANCE COMPANY LTD, KAYAMKULAM-688013 BY ADVS. P.G.JAYASHANKAR SRI.AGI JOSEPH P.K.RESHMA (KALARICKAL)(K/875/2014) S.RAJEEV (K/001711/2019)(K/001711/2019) SAJANA V.H(K/1174/2021) VINITHA S.T.(K/704/2021) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.08.2022, THE COURT ON 04.11.2022 DELIVERED THE FOLLOWING: M.A.C.A.2490 of 2013 2 ## **C.JAYACHANDRAN, J** **-----------------------------** **M.A.C.A.No.2490 of 2013** **----------------------------Dated this the 4[th] day of November, 2022** ## **J U D G M E N T** **1.** Additional petitioners.2 to 5 in O.P(M.V.)No.2061 of 1999 of the Motor Accident Claims Tribunal, Kollam are the appellants. The original claimant, one Vikraman, was hit by a motor vehicle bearing registration No.KRU 1543 on 18.09.1998 causing serious injuries. Pending disposal of the original petition, he passed away and one of the major contentions before this Court is whether the death of the original petitioner has resulted from the accident; or whether, it has to be treated as a case of injury. **2.** Heard Sri.Siju Kamalasanan, learned counsel for the appellants (additional petitioners 2 to 5) and Sri.P.G.Jayashankar, learned Standing Counsel for the 3[rd] respondent/insurance company. Perused the records. M.A.C.A.2490 of 2013 3 **3.** Learned counsel for the appellants submitted that the original petitioner/victim passed away due to epileptic seizures, which is the direct consequence of the head injury sustained in the accident. Learned counsel pointed out that the victim had no history of any epileptic episode before the accident and that, he was aged only 32 years. The victim was not known to be suffering from any serious ailment prior to the accident. The evidence tendered by PW2, the doctor who treated the victim, was misread by the Tribunal in holding that the injuries sustained in the accident is partly responsible for the death of the victim. Consequently, the Tribunal erred in treating the instant claim as an injury case, instead of a death case. Learned counsel relied upon the judgment of the Division Bench of this Court in **Venugopal** v. **Paulson** _[2004)8 KLT 920]_ wherein the claim in respect of a person, who committed suicide due to mental depression developed as a consequence of accident, was treated as a death case and compensation awarded. According to M.A.C.A.2490 of 2013 4 the learned counsel, the appellants (additional petitioners 2 to 5) are therefore entitled to consortium at the rate of Rs.40,000/- per head as held by the larger Bench decision in **National Insurance Co.** **Ltd. v. Pranay Sethi** _[2017(4) KLT 662 (SC)]._ Learned counsel would submit that the appellants are also entitled to Rs.15,000/- towards funeral expenses and another Rs.15,000/- towards loss of estate. The amount of Rs.5,000/- granted under the heard transportation and Rs.2,000/- granted under the head extra nourishment, both, are on the lower side, submits the learned counsel. Finally, learned counsel pointed out that the income reckoned by the Tribunal at Rs.2,000/is grossly low. Even going by the index available in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance** **Insurance Company Ltd.** _[2011 KHC 4675]_ , a sum of Rs.4,500/- has been reckoned as notional income pertaining to the year 2004. Going by the original petition, the first petitioner/victim was a mason by profession and his notional income should have been M.A.C.A.2490 of 2013 5 reckoned at Rs.3,500/- atleast is the submission of the learned counsel. **4.** Per contra, these submissions were seriously opposed by the learned Standing Counsel for the insurance company. It was contended that, PW2 specifically deposed before the Court that the death was partly due to the injuries sustained in the accident, which justifies the course adopted by the Tribunal in treating the instant claim as a case of injury and not that of death. Even if it is treated as a death case, the amount of consortium specified in _**Pranay Sethi**_ supra, a judgment rendered in the year 2017, cannot _ipso facto_ be made applicable to an accident which took place in the year 1998 is the contention of the learned counsel. The Honourable Supreme Court contemplates an enhancement at the rate of 10% every 3 years from 2017, which logic should apply vice versa as well is the argument of the learned counsel. Alternatively, learned counsel would contend that, if 10% enhancement is to be given to M.A.C.A.2490 of 2013 6 consortium of Rs.40,000/- per head, then the same may not carry any interest, since the accident was of the year 1998. The same contention was canvassed in respect of the quantum in the case of funeral expenses and loss of estate. As regards transportation and extra nourishment etc, learned counsel contended that, reasonable amounts have already been granted by the Tribunal. It was also submitted that the amount granted under the head pain and suffering has to be obliterated. As regards the income, learned counsel is of the opinion that the notional income of Rs.2,000/- per month is quite reasonable, in as much as, no proof of income has been adduced before the Tribunal. **5.** The first point to be resolved is whether the instant case is to be treated as a death case or an injury case. The crucial evidence in this regard is one tendered by PW2, the Surgeon who treated the victim. The answer to the question whether the head injuries sustained by the victim was likely to cause the death of the injured is relevant and extracted M.A.C.A.2490 of 2013 7 ## herein. “Patient had a serious head injury which could have caused death but he had undergone treatment and recovered from it. He was having post head injury epilepsy for which he was on drugs. The epilepsy is a result of this head injury for which continued anti epileptic medication is the treatment. The injuries was sufficient to cause death during acute stage. The injury sustained to the injured are partly responsible for his death. I can't definitely say that the injured died out of the injuries sustained to him. Postmortem report is not available. Hence, I am not in a position to say as to whether the injured died out of the injuries sustained. The injuries might be partly responsible for the death.” It is relying upon the above evidence tendered by PW2 that the Tribunal found that the instant facts amounts to an injury case and not one of death. This Court finds it difficult to accept the said finding of the Tribunal. True that, PW2 opined in one part of his evidence that the injuries sustained to the injured are partly responsible for his death. However, that M.A.C.A.2490 of 2013 8 sentence cannot be culled out in isolation to arrive at a conclusion that the instant facts amounts to an injury case. It is part of PW2's evidence that the patient has suffered a serious head injury, which could have caused the death. It is specifically deposed by PW2 that the post traumatic epilepsy is nothing but the result of the head injuries sustained by the victim in the accident. PW2 also deposed that the injuries are sufficient to cause death during acute stage. However, PW2, in the absence of postmortem report, cannot vouch conclusively that the patient died out of the injuries sustained in the accident. **6.** It is important to note that the original applicant/victim was undergoing treatment ever since the accident till his death. There was no history of any epileptic seizures to the victim prior to the accident and that, the epilepsy developed was nothing but a post traumatic development. It has been specifically deposed that the epilepsy developed is M.A.C.A.2490 of 2013 ## 9 squarely attributable to the injuries sustained to the victim in the accident. It is also not under dispute that the patient succumbed to death pursuant to an epileptic attack. The victim was aged 32 years only at the time of his death and he had no history of any serious ailment. The cumulative effect of the above referred parameters is that the victim died out of the injuries sustained in the accident and also due to epileptic seizures which surfaced only as a post traumatic development. **7.** This Court finds no justification in not treating the instant facts as a case of death due to accident, although, the immediate result of the accident was serious head injuries. In arriving at the above conclusion, this Court place reliance upon a Bench decision of this Court in _**Venupogal**_ supra, where even a case of suicide was construed as a direct consequence of the accident. Point concluded accordingly. **8.** Once this Court finds that, this is a case of M.A.C.A.2490 of 2013 10 death, the parameters for compensation also gets altered. Needless to say that the appellants (additional petitioners 2 to 5) who are the wife, children and mother respectively of the deceased are entitled to consortium at the rate of Rs.40,000/each. They are also entitled to enhancement of 10% as contemplated in _**Pranay Sethi**_ supra, upon the efflux of three years' time from the year 2017, when the judgment in _**Pranay Sethi**_ was delivered. The argument of the learned counsel that consortium at the rates specified in _**Pranay Sethi**_ of the year 2017 cannot be applied in respect of an accident which took place in 1998, is only to be rejected. The Honourable Supreme Court fixed consortium at the rate of 40,000/- after taking into account the various parameters and the apparent dichotomy in reckoning compensation by various High Courts and Tribunals in different manner. The obvious purpose was to standardize the compensation, so as to bring in uniformity. There is no indication, whatsoever, in _**Pranay Sethi**_ that, it 11 ## M.A.C.A.2490 of 2013 operates only prospectively. Therefore, the said contention is rejected. The same is the fate of the contention that, in case 10% enhancement is being granted, as held in _**Pranay Sethi** supra,_ the appellants/petitioners shall be deprived of the interest component. This Court finds no rhyme or reason in endorsing such submission of the learned counsel. This Court cannot be unmindful of the fact that the appellants/petitioners were entitled to the compensation amount immediately after the accident, or atleast within a reasonable time thereof. **9.** Being a case of death, appellants are entitled to Rs.15,000/- each towards funeral expenses and compensation for loss of estate, together with 10% enhancement as held in _**Pranay Sethi**_ . Simultaneous with this, this Court will have to obliterate the compensation granted under the head pain and suffering, since the same abates with the death of the deceased as held in **Oriental Insurance Company** v **.Kahlon** [AIR 2021 SC 3913]. M.A.C.A.2490 of 2013 12 **10.** The last point is with respect to the monthly income of the deceased. In the original petition, it is pleaded that the first petitioner (original petitioner) was a mason by profession. The Tribunal found that, no evidence has been adduced in support of the said claim, wherefore, the Tribunal reckoned a notional income of Rs.2,000/- per month. The income claimed was Rs.5,000/- per month. This Court is of the view that, it would only be just and reasonable to reckon the monthly income at Rs.3,000/-, especially when the index in _**Ramachandrappa**_ supra pertaining to the year 2004 is Rs.4,500/-. **11.** In the result, this MACA is allowed and the compensation amount payable to the appellants/petitioners is indicated in the tabular statement herein. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|**Loss of earning for 6**<br>**months**|**12,000**|**18000**<br>**(3000x6)**| M.A.C.A.2490 of 2013 13 |2|**Partial Loss of Earning**|**Nil**|**Nil**| |---|---|---|---| |3|**Transport to the Hospital**|**5,000**|**5,000**| |4|**Extra Nourishment**|**2,000**|**2,000**| |5|**Damage to Clothing and**<br>**Articles**|**Nil**|**Nil**| |6|**Others-Bystander expenses**|**5,000**|**5,000**| |7|**Medical Expenses**|**5,000**|**5,000**| |8|**Compensation for pain and**<br>**suffering**|**75,000**|**Nil**| |9|**Funeral Expenses**|**-**|**16,500**<br>**[15000+(15000x10/100)]**| |10|**Consortium**|**-**|**1,76,000**<br>**[44,000x4]**| |11|**Loss of Estate**|**-**|**16,500**<br>**[15000+(15000x10/100)]**| ||**Total**|**1,04,000**|**2,44,000**| |Amount enhanced = Rs.**2,44,000**/ – Rs.**1,04,000**/ = Rs**.1,40,000/**|||| **12** . The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 2078 days in filing the appeal, the interest for the enhanced M.A.C.A.2490 of 2013 14 quantum shall not run for the said period as directed in order dated 27.11.2014 in C.M.A.No.3095/2013 in M.A.C.A.2490/2013. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** ## **C.JAYACHANDRAN JUDGE** ``` Sbna/ ```