MACA No. 2705 of 2014

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ## `MACA NO. 2705 OF 2014` ``` AGAINST THE AWARD DATED 30.05.2014 IN OP(MV) NO.483 OF 2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM ``` ## `APPELLANTS/PETITIONERS:` - `1 SUNITHA,W/O.LATE SIVADASAN, AGED 42 YEARS. 2 SEETHAL,D/O.LATE SIVADASAN, AGED 21 YEARS. 3 SREERAM,S/O.LATE SIVADASAN,AGED 15 YEARS REPRESENTED BY MOTHER SUNITHA AS NEXT FRIEND AND GUARDIAN.` - `4 YESODHA, M/O.LATE SIVADASAN,AGED 86 YEARS, NADAKKAVU HOUSE, PALLANCHATHANUR, COYALMANNAM, PALAKKAD. APPELLANTS 1 TO 3 ARE RESIDING AT NADAKKAVU HOUSE, JAYA NAGAR, CHANDRANAGAR, PALAKKAD, PIN - 678 007. BY ADV SRI.JACOB SEBASTIAN` ## `RESPONDENTS/RESPONDENTS:` ``` 1K.S.RAFEEQ (DELETED) S/O.SARFUDHEEN, AGED 48 YEARS, 2K.MOHAMMED ALI (DELETED) S/O.ABDUL GAFOOR, AGED 37 YEARS *RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS, AS PER ORDER DATED 2/2/2022 IN IA NO.1/21 IN MACA 2705/2014* 3NATIONAL INSURANCE CO.LTD. SREE RAM SITE, OFFICE, 2A PRAKASAM ROAD, T.NAGAR, CHENNAI, PIN - 600 017. RESPONDENTS 1 & 2 ARE RESIDING AT VASANTHA NAGAR, RAMASWAMY PILLAI, STREET NO.1, MAHADEVAPURAM, MAHADEVAPURAM P.O., METTUPALAYAM, COIMBATORE DISTRICT, TAMILNADU, PIN - 641 305. R3 BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2023,, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING: ``` MACA No. 2705 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.2705 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2023 ## **JUDGMENT** This appeal is preferred against an award passed by Motor Accidents Claims Tribunal, Ottappalam (for short ‘the Tribunal’) on 30.05.2015 in O.P. (MV) No.483/2008. Appellants are the legal heirs of one Mr.Sivadasan who met with a motor accident on 20.02.2005 and sustained serious injuries. The injuries being fatal, he succumbed to the injuries. Raising a claim for `75,00,000/- as compensation for the injuries sustained by him in the motor accident, the above Original Petition was filed before the Tribunal. Since the petitioner died during the pendency of the Original Petition, the claim was amended as if it was a claim for compensation for the death of the victim. The legal heirs were sought to be impleaded as supplemental petitioners 2 to 5. Certificate of relationship was also produced and marked in evidence as Ext.A56. The wife, two minor children and the MACA No. 2705 of 2014 -:3:- mother of the deceased were sought to be impleaded. Vide order passed by the Tribunal in I.A. Nos.1585 of 2010 and 2581 of 2013, the wife and two minor children and mother of the deceased respectively were brought on record as additional petitioners. 2. The facts of the case in brief are narrated hereunder; At about 10.15 p.m. on 20.02.2005 while Mr.Sivadasan was riding his motor cycle bearing registration No.KL –9B- 9219 from Kuzhalmannom to Chandra Nagar, a lorry bearing registration No.TN-40A-1593 driven by the 2[nd] respondent hit against the motor cycle at Chandra Nagar junction and he sustained serious injuries. He was rushed to Palana Hospital, Kannadi for treatment and treated there from 20.02.2005 till 21.02.2005. He was referred to K.G. Hospital, Coimbatore for further management and there he was admitted and treated from 21.02.2005 till 02.09.2005. Thereafter, he was also treated at Thankom Hospital, Palakkad and the treatment continued till the date of filing of the Original Petition. He was in a state of ‘Coma’ all throughout the five years succeeding the motor accident and was undergoing treatment. He died on 30.04.2010. MACA No. 2705 of 2014 -:4:- 3. The owner, the driver and the insurer of the lorry were arrayed as respondents 1 to 3 respectively. In spite of service of notice, 1[st] and 2[nd] respondents were declared as ex-parte for their failure to appear before the Tribunal. 3[rd] respondent filed written statement contending that Original Petition is bad for non-joinder of the insured as a party in the Original Petition. Following the contention raised as above, the insured was impleaded as supplemental respondent No.4. Lateron, it was revealed that the 1[st] and 4[th] respondents are one and the same. 4. Both sides adduced evidence in the Original Petition. PWs 1 to 4 were examined on the side of the petitioner and Exts.A1 to A57 and X1 were marked and on the side of the respondent, Ext.B1 was marked. 5. As per the claim of the petitioners in the Original Petition, Mr.Sivadasan was having `43,000/- as his monthly income at the relevant time of the motor accident. Since evidence was not forthcoming to establish the same, the Tribunal opted to fix `6,000/- as the monthly income on a notional basis. The Ayurvedic medical bills for a sum of `80,987/-and receipts for payment of `1,08,000/-towards physiotherapy, marked in MACA No. 2705 of 2014 -:5:- evidence as Ext.A14 series were discarded by the Tribunal. Documents evidencing expenditure of `90,000/- towards service of a home nurse availed for attending Mr.Sivadasan and got marked in evidence as Ext.A40 series, were also discarded by the Tribunal. Reasonable compensation was also declined by the Tribunal towards loss of amenities and inconveniences as well as damages to clothing. Accordingly the learned counsel canvassed for a modification of the compensation stood awarded by the Tribunal in interference. 6. Exts.A7 and A8 marked in evidence by the petitioners are wound certificates issued in favour of the petitioner and the following injuries are reported as sustained by Mr.Sivadasan in the motor accident: 1. Comminuted fracture at the base of the proximal phalanx of the fourth finger of left hand 2. Fracture at the midshaft of the right femur with displacement. 3. Comminuted fracture in the distal end of the radius with a gross degree of displacement. MACA No. 2705 of 2014 -:6:- Involvement of articular surface of radius in the fracture of left forearm with wrist, right fronto temporal callosal and midbrain hemmorrhagic foci with minimal IVH and small EDH at right parietal convexity, diffused axonal injury (detected in CT scan of brain) and fracture of right side of parietal bone were detected in the investigations held at the hospital. A contusion was also caused on the right fronto temporal lobe. An insised contusion in the dorso lateral midbrain (left) and diffused axonal injury were also detected in the further investigation held. Extradural haematoma was also detected in MRI of brain, in the right parietal convexity. 7. The passport and extract of the admission register of the school, where Mr.Sivadasan studied, were also marked on the side of the petitioners as Exts.A24 and A38, respectively wherefrom, the date of birth of the petitioner is disclosed as 30.12.1964. In the certificate of death marked in evidence as Ext.A55, Mr.Sivadasan was reported died on 30.04.2010, at the age of 45 years. Therefore the learned counsel canvassed for considering the age of the deceased as 45 years, relying on Ext.A55. MACA No. 2705 of 2014 -:7:- 8. The motor accident was occurred in the year 2010. Originally the petition seeking compensation was filed before MACT, Palakkad as OP(MV) No. 947/2005. Vide order passed by this Court in Transfer Petition No.105/2006, the case was transferred to the Tribunal and renumbered as OP(MV) No.483 of 2008. Petitioners did not adduce any evidence to establish the job and monthly income of the deceased at the relevant time. In the petition seeking compensation filed originally, the victim of the motor accident himself had raised claims that he was aged 39 years, having a JCB on his own and also working as a tailor in a tailoring shop namely ‘Prince Tailors’ in Emirates Fujaira Park Road run by Sri.Salem Miftah Mashi Mohad and earning a sum of `43,000/- monthly. Eventhough challenges were raised against the above claims of the petitioners, they did not produce any cogent materials to establish those. The passport and extract of the admission register maintained at the school where Mr.Sivadasan studied were produced and marked in evidence as Exts.A24 and A38 respectively. He had also produced copy of the driving licence and marked in evidence as Ext.A10. The date of birth of Mr.Sivadasan is evidenced from the above documents as MACA No. 2705 of 2014 -:8:- 30.12.1964 and accordingly the Tribunal took him as aged 40 years at the relevant time of the motor accident and 45 years at the relevant time of his death. Ext.A24 shows that Mr.Sivadasan had Visa for continuing in UAE for one year from 10.04.2005. The original passport was also produced and it is revealed therefrom that he had been working at UAE for about 14 years. It is the specific claim of the petitioners that while Mr.Sivadasan was in his hometown on leave that the motor accident was occurred. 9. Mr.Sivadasan was alleged to be a tailor by occupation in UAE and getting a sum of `43,000/- monthly. The passport, employment contract and the statement of accounts from his bank were also produced and marked in evidence as Exts.A24, A25 and A46 series. Five receipts found issued to the petitioners from Aiswarya Home Nursing services were also produced and marked in evidence as Ext.A40 series. It is revealed from the receipts that an average sum of `2,250/- was paid monthly for the service of a home nurse. The three receipts produced were found issued from JM Placements and home nurses and those reveal that a sum of `3,306/- was received by them monthly for MACA No. 2705 of 2014 -:9:- the services of home nurse rendered. A handwritten receipt allegedly issued by one Bhanumathi was also produced which would disclose receipt of a sum of `90,000/- for the services rendered by her from 01.03.2006 till 01.04.2009 at the rate of `2,500/- per month. A handwritten document endorsing receipt of `1,08,000/- from petitioners was also found issued by Sri.S.Saidu Mohammed, a retired Nursing Assistant, for physiotherapy done for a period of 24 months from 01.03.2007 till 01.04.2009. He was also examined as PW4. He deposed in tune with the contents of the document marked in evidence as Ext.A40(a). According to him, the person attended by him at the relevant time was in a state of ‘coma’. It was stated by him furthermore that one Mrs. Bhanumathi was also there to attend Mr.Sivadasan for two years. According to him, a lady by name Krishnakumari continued to attend Mr.Sivadasan when Mrs.Bhanumathi left abroad. Mr.Saidu Mohammed, during cross examination as PW4 was questioned with reference to the substitution of `1,08,000/- in the place of `56,000/- originally shown in Ext.A40(a). He also denied a suggestion put to him that the Doctor who had treated Mr.Sivadasan has never advised MACA No. 2705 of 2014 -:10:- to conduct massage on him. Though PW4 was cross examined, nothing was brought out by the learned counsel for the respondent so as to doubt his version. 10. Petitioner claimed to be a tailor in UAE conducting a tailor shop, namely ’Prince Tailors’, at Fujairah Park Road under the sponsorship of Salem Miftah Mashi Mohad, earning `43,000/per month. 3[rd] respondent disputed the claims raised as above but the petitioner failed to adduce any evidence to establish those. The passport of the petitioner was marked in evidence as Ext.A24 and it is established therefrom that the petitioner was employed abroad but no reliable evidence is forthcoming to establish his occupation and monthly income. Though the petitioner claimed to be the owner of a JCB and earning income therefrom, evidence is not forthcoming in that respect also. From Ext.A24, it is revealed that the petitioner had visa to continue in UAE for one year from 10.04.2005. It is further revealed that the deceased had been working in UAE for about fourteen years. As per the version of his wife, the motor accident was occurred while Mr.Sivadasan was in his home town on leave. The employment contract was produced by the MACA No. 2705 of 2014 -:11:- petitioners wherefrom it is revealed that Mr.Sivadasan was not a permanent employee in UAE. It has been held in **Valsamma v. Binu Jose** [2014(1) KLT 10] that in the case of non permanent employees in a foreign country with uncertainty regarding continuance, the income have to be assessed in the context of Indian standards. 11. Copy of statement of accounts maintained by the 2[nd] respondent in SBT, Kuzhalmannam were also marked in evidence as Ext.A46 series. Though the above documents were relied on by the petitioner to establish his monthly income, those are found insufficient for the purpose and therefore discarded by the Tribunal. Therefore, there is absolutely no evidence to support the claim of the petitioners that the deceased was employed as a tailor abroad and getting `43,000/- monthly. Moreover, the petitioner has admitted that he was not an income tax payee. 12. In the above circumstances, relying on **Valsamma** supra, this Court finds it appropriate to fix `10,000/- as the monthly income of the deceased at the relevant time of the motor accident. According to petitioners the deceased was aged 39 years at the relevant time of the motor accident. The date of MACA No. 2705 of 2014 -:12:- birth of the deceased is shown in Ext.A24 passport as 30.12.1964. The extract of the admission register marked in evidence as Ext.A38 and the copy of the driving licence marked in evidence as Ext.A10 also established the same. Therefore, the Tribunal cannot be found fault with for taking the age of Mr.Sivadasan as 40 years at the relevant time of the motor accident and 45 years at the relevant time of his death. When the date of birth is shown in Ext.A24 passport as 30.12.1964, which was issued after scrutiny of authentic documents, this Court is also inclined to fix the age of Mr.Sivadasan as 40 years at the relevant time of the motor accident and 45 years as on 30.04.2010, the date on which he died. Therefore, the Tribunal cannot be found fault with in adopting 14 as the multiplier. The petitioners claim was to adopt the multiplier of 15 instead of 14 having due regard to the date on which the motor accident was occurred. The argument is repelled for the reason that the claim petition was amended after the death of the victim as seeking compensation for loss sustained due to his death. The entitlement of the petitioners for getting compensation was originated only on the death of the victim. Therefore, the course MACA No. 2705 of 2014 -:13:- of action for the petitioners to get the compensation can be taken to have originated on 30.04.2010, when the victim died. Therefore, the age for the purpose of calculation of compensation in favour of the petitioners can only be taken as 45 years. Therefore, the Tribunal is justified in adopting 14 as the multiplier instead of 15. The deceased was survived by his wife, two minor children and mother. The number of the family members being four, ¼[th] is liable to be deducted from the monthly income fixed, in consideration of personal expenditure, Mr.Sivadasan would spent, had he been alive. The Tribunal has also deducted so correctly. 13. Mr.Sivadasan died untimely at the age of 45 years due to the injuries sustained by him in the motor accident. Therefore, he undoubtedly suffer loss of future prospects and as per the dictum in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)],** 25% can be added in consideration of. When 25% is added to the monthly income fixed as `10,000/-, 12,500/- (`10,000/- + 25% of `10,000/-) is arrived at. When compensation for loss of MACA No. 2705 of 2014 -:14:- dependency is calculated with the modified factors as above, `15,75,000/- (`12,500/- x 12x 14 x ¾) is arrived at. 14. After the motor accident, the victim was in coma for five years till his death on 30.04.2010. While calculating compensation for loss of dependency, this Court has adopted only the multiplier relevant to the age of the victim at the time of his death and not the one with reference to his age at the time of the motor accident. Since Mr.Sivadasan was incapacitated during the interregnum period of five years, he must have suffered loss of earning and this Court is inclined to compensate him by awarding `6,00,000/- (`10,000/- x 60). 15. The receipts issued by a Physiotherapist was marked in evidence as Ext.A40 series. He was also examined as PW4. According to him, `1,08,000/- was collected from the victim of the motor accident as charges for physiotherapy. He was not cross examined on that aspect. Therefore, the said sum is awarded in favour of the petitioners. 16. For a person in coma stage for five years, the services of a bystander is inevitable. This Court is inclined to consider a sum of `3,000/- as the monthly payment towards the service of MACA No. 2705 of 2014 -:15:- a bystander and thus `1,80,000/- (`3,000/- x 12 x 5) is arrived at. 17. Though a claim was raised on the strength of receipts marked in evidence as Ext.A40(a) seeking expenses incurred for availing service of home nurses, for the reason that the compensation was already awarded towards bystander expenses, the same is discarded. 18. The bills for Ayurvedic treatment were marked in evidence as Ext.A42 series and the petitioners claimed on its basis that `2,43,972/- was spent for Ayurvedic treatment. The Tribunal found on a scrutiny that bills worth `80,987/- were not accompanied by prescriptions of the Ayurvedic doctor and for that reason, it discarded those bills and confined awarding a sum of `1,62,985/- (`2,43,972/- - `80,987/-). This Court is declined to interfere with on being convinced of the genuineness of the reason stated by the Tribunal. The claims raised by the petitioner to consider the bills for `80,987/- is also discarded being devoid of merits. 19. Bills for diet charges worth `76,499/- were also marked in evidence from the side of the petitioners. It is MACA No. 2705 of 2014 -:16:- evidenced that the deceased was bed ridden for a prolonged period of five years after the motor accident. He was seriously injured in the motor accident and was in a coma stage. Therefore, there is every reason to award `76,499/- claimed to have been spent by the petitioners for nourishing the victim with special diets and this Court do so. 20. Marking medical bills respectively in evidence as Exts.A44 series, A45 series, A49 series, A50 series and A57 series, petitioners have raised a claim that the amounts exhibited there were spent by them towards allopathic treatment of Mr.Sivadasan. Some of the bills among those were found by the Tribunal, not acceptable. According to the Tribunal, the unacceptable bills include bills for advance payments, which have been credited in the final bills as well as bills for ambulance charges. The Tribunal has found bills for `14,25,514/- as acceptable and accordingly awarded the said sum as compensation in favour of the petitioners. Though it was canvassed by the learned counsel to award the full amount as per the above bills, this Court is declined to do so for the reasons described by the Tribunal in the impugned award. It is found on MACA No. 2705 of 2014 -:17:- a scrutiny of the impugned award that the Tribunal has awarded `1,00,000/- each as compensation towards pain and suffering and loss of love and affection. The petitioners are not entitled to get compensation awarded under those heads. 21. `1,00,000/- was found awarded by the Tribunal for loss of consortium in favour of the spouse of Mr.Sivadasan. Each of the survivors of the deceased are entitled to get `40,000/- as compensation towards loss of consortium as held by the Apex Court in **Pranay sethi** supra. Similarly, they are also entitled to get `15,000/- each as compensation towards loss of estate and funeral expenses. The Tribunal failed to award accordingly. Therefore, this Court is inclined to award `1,60,000/- (`40,000/x 4) as compensation towards loss of consortium and `15,000/each as compensation towards loss of estate and funeral expenses. Petitioners also raised a claim for `8,568/- as transportation expenses. In view of the treatment undergone by the Mr.Sivadasan for a long period and the coma stage in which he was, a conveyance was inevitable for transportation purpose. Therefore, this Court is inclined to award `8,568/- claimed to have spent by the petitioners on that count. MACA No. 2705 of 2014 -:18:- 22. In the above manner of calculation of compensation afresh, `43,26,566/- (`15,75,000/- + `14,25,514/- + `1,60,000/- + `6,00,000/- + `76,499/- + `1,62,985/-+ 15,000/+ `15,000/- + `8,568/- + `1,80,000/- + `1,08,000/-) (Forty three lakh twenty six thousand five hundred and sixty six only) is arrived at as the modified compensation. Petitioners are entitled to get the said sum instead of `35,37,400/- stood awarded by the Tribunal vide the impugned award, with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent is directed to pay the above sum with interest accrued on it at the rate fixed as above within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount in favour of the petitioners shall be in accordance with the directions issued by the Tribunal in the impugned award as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA is allowed accordingly. Sd/- **MARY JOSEPH** ttb **JUDGE**