M.A.C.A.No.1396 of 2012 & 166 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** **M.A.C.A.No. 1396 of 2012** **AGAINST THE AWARD DATED 04-11-2011 IN O.P.(MV)No.612/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/3RD RESPONDENT IN O.P.(MV):** **ICICI LOMBARD GENERAL INSURNCE CO.LTD., PALAKKAD.** **BY ADVS. SRI.K.B.RAMANAND SRI.R.AJITKUMAR VARMA (128/84)** **RESPONDENTS/ORIGINAL CLAIMANT AND ADDITIONAL CLAIMANTS 2 TO 4 AND RESPONDENTS 1 AND 2 IN O.P.(MV):** - **1 CHERIAN, S/O.MATHEW, KATTO MADATHIL PUTHUMADOM HOUSE, KORATTY (PO), KORATTY KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680308.(DIED)** - **2 ALIYAMMA,** - **WIDOW OF CHERAIN, KATTO MADATHIL PUTHUMADOM HOUSE, KORATTY (PO), KORATTY KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 680308** - **3 KIRAN,** - **D/O.LATE CHERIAN, KATTO MADATHIL PUTHUMADOM HOUSE, KORATTY (PO), KORATTY KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 680308** - **4 KAVITHA,** - **D/O. LATE CHERIAN, KATTO MADATHIL PUTHUMADOM HOUSE, KORATTY (PO), KORATTY KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 680308** - **5 R.KRISHNAVENI, W/O.RADHAKRISHNAN, 155/122, VANIYAR STREET, KOZHINJAMPARA (PO). 678555** M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -2- **6 ARUNAGIRI, S/O.PALANISAMY, DOOR NO.322, 8/941, 6TH MILE, VANNAMADA DESOM, KOZHINJAMPARA (PO), PALAKKAD. 678 555** **BY ADVS. R5 SRI.A.C.DEVY R2, R3& R4 SRI.P.V.BABY SRI.A.N.SANTHOSH R6 SRI.RAJESH SIVARAMANKUTTY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2019, ALONG WITH MACA.166/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** ## **M.A.C.A.No. 166 of 2013** **AGAINST THE AWARD DATED 04-11-2011 IN O.P.(MV)No.612/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** **1 ALIYAMMA S/O.LATE CHERIYAN,KATTO MADATHIL MUTHUMADOM HOUSE,KORATTY DESOM AND.P.O.,KORATTY KIZHAKKUMMURI VILLAGE,MUKUNDAPURAM TALUK.** **2 KIRAN D/O.LATE CHERIAN, -DO- ,-DO-** **3 KAVITHA D/O,LATE CHERIAN,-DO- , -DO-** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** - **1 R.KRISHNAVENI W/O.RADHAKRISHNAN,155/122, VANIYAR STREET,KOZHINJAMPARA.P.O.,PIN-678555.** **2 ARUNAGIRI S/O.PALANISWAMY,DOOR NO.322,8/941, 6TH MILE,VANNAMADA DESOM,** M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -4- ## **KOZHINJAMPARA.P.O,PALAKKAD-678555.** **3 ICICI LOMBARD MOTOR INSURANCE CO.LTD, PALAKKAD-678001.** **BY ADVS. SRI.K.B.RAMANAND SRI.RAJESH SIVARAMANKUTTY SRI.R.AJITH KUMAR (128/84) SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2019, ALONG WITH MACA.1396/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -5- ## **JUDGMENT** Among these appeals, M.A.C.A. No. 166 of 2013 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No. 1396 of 2012 is by the insurer in the said proceedings. 2. The claimant in the proceedings was a carpenter aged 65 years. He sustained serious injuries in a motor accident took place on 30.11.2006. The claim in the proceedings was for Rs.7,61,000/-. The claimant died pending proceedings before the Tribunal. Consequent on the death of the claimant, his legal representatives got themselves impleaded in the proceedings as additional claimants and continued the proceedings. After the death of the claimant, the claim petition was amended for incorporating, among others, a plea that the death of the claimant was on account of the injuries sustained by him in the accident. The insurer in the proceedings contested the claim petition, contending among others, that the death of the claimant cannot be said to be attributed by the injuries sustained by him in the accident. The Tribunal found that the death of the claimant was on account of the injuries sustained by him in the accident. It also found that M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -6- the additional claimants are entitled to Rs.3,46,635/- by way of compensation on that basis. The insurer is aggrieved by the decision of the Tribunal in treating the claim petition as a case of death, and the additional claimants are aggrieved by the inadequacy of the compensation granted. Hence these appeals. 3. Heard the learned counsel for the appellants. 4. Is the finding by the Tribunal that the death of the claimant was on account of the injuries sustained by him in the accident sustainable in law, is the first question to be resolved. As noted, the accident took place on 30.11.2006. The materials on record indicate that the claimant was taken from the scene of the accident to St.James Hospital, Chalakudy and he was undergoing treatment in the said hospital for the injuries sustained by him in the accident till 23.12.2006. It has come out that thereafter he was under inpatient treatment in various other hospitals between 14.02.2007 to 28.02.2007, 25.07.2007 to 28.07.2007, 05.08.2007 to 10.08.2007, 10.08.2007 to 23.08.2007, 28.08.2007 to 06.09.2007 and M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -7- 7.09.2007 to 11.09.2007, and on 11.9.2007 he died. The discharge summaries issued to the claimant from the hospitals where he was admitted for treatment subsequently are part of the records. The discharge summaries referred to above indicate that the claimant was admitted in hospitals for the subsequent periods for treatment in connection with the the injuries sustained by him in the accident. It is having regard to the aforesaid facts and other circumstances, that the Tribunal has come to the conclusion that the cause of death of the claimant is nothing but the injuries sustained by him in the accident. The findings rendered by the Tribunal in this regard read thus: “One of the major contentions of the 3rd respondent is that the deceased in fact sustained only injuries and the death was not due to the injury sustained. Because it was after discharge of the deceased from the hospital it took months for him to get admitted again and that was not with these injuries but for infections in the residuary system and also for the subsequent ailment which were not resulting out of the earlier injury sustained in the accident and therefore the claimants are not liable to compensate for the purpose of death. On the other hand the petitioners' case is specific. I have looked into the Ext.A4 wound certificate, Ext.A5 medical certificate, Ext.A6 discharge certificate and also Ext.A9 certificate from the M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -8- Devamatha Hospital. It is seen from these documents that after the accident on 30.11.2006 at about 8.45 p.m, the deceased was admitted at St.James Hospital, Chalakkudy and thereafter he was admitted at Medical Trust Hospital, Ernakulam and it was while undergoing treatment he died on 11.09.2007 at the Devamatha Hospital, Koratty. At Medical Trust Hospital, Ernakulam he was admitted on 10.08.2007. At St.James Hospital, Chalakkudy he was treated from 05.08.2007 to 10.08.2007. Even though he was at St.James Hospital earlier and was discharged subsequently he developed several other symptoms. He had severe chest infection and accute residuary disease system and he has contusion and had become critical and so he was admitted at Medical Trust Hospital, Ernakulam. The final diagnosis therein was that he was having chronic obstructive pulmonary disease, bilateral pneumonia. He was discharged on 23.08.2007. Subsequently there developed another severe ARDS and admitted in Devamatha Hospital, Koratty on 28.08.2007. He continued there and he was discharged on 06.09.2007. However his system was getting into much complication to have an admission on 07.09.2007 at the same hospital. But unfortunately he died on 11.09.2007. The petitioners' case that from date of accident till his death he was hospitalised several times for 75 days and he had continuous treatment for injuries sustained in the accident are seen made probabilised by looking into the certificates and the treatment details. In fact he was completely bed ridden from the date of accident. He was not able to move or walk, being a victim of severe accident in which he sustained injuries on thoracic portion and other vital areas of the body. Naturally his resistance would have been reduced much and the death would have necessarily been accelerated due to the impediments in the M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -9- body of the deceased. Therefore though the death may not be the immediate result of the accident the difficulties and the convalescence situation arising out of the accident has contributed and accelerated the death of the deceased. I am inclined to hold the view that the deceased would have survived with treatment but because of the accident which took place inter alia his life span has come to an end within a gap of one year. Therefore the contention from the side of the respondents that the death was not due to the resultant action of the accident cannot be accepted in toto because there are no positive evidence or explanations from the respondents otherwise to prove the defence case. Under this context I am inclined to hold that the death was accelerated and was resulted due to the injuries sustained in the motor accident. The issue is also answered accordingly.” I am in complete agreement with the aforesaid findings and the question aforesaid is thus answered in favour of the additional claimants. 5. Now, I shall deal with the question relating to the correctness of the finding rendered by the Tribunal as to the quantum of compensation. The case pleaded in the claim petition was that the deceased was earning a sum of Rs.4,500/per month at the time of the accident. The Tribunal has however taken the monthly income of the deceased only at Rs.2,500/-. In so far as the accident took place in the year M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -10- 2006, in the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], according to me, the Tribunal could have fixed the monthly income of the claimant at Rs.5,500/-. If that be so, the compensation payable to the claimants for loss of dependency would come to Rs.3,08,000/- (5500x12x7x2/3). It is seen that the Tribunal has granted only a sum of Rs.1,00,000/- under the above head. The claimants are, therefore, entitled to a further sum of Rs.2,08,000/- under this head. As noted, it has come out that the deceased was completely bedridden until his death. In a case of this nature, according to me, bystander expenditure should have been granted by the Tribunal on monthly basis for a period of ten months between the accident and death. Rs.3,000/- per month can certainly be taken as the expenditure to be incurred towards bystander expenses. If that be so, the additional claimants are entitled to a sum of Rs.30,000/- by way of compensation under this head. The Tribunal has granted only a sum of Rs.10,500/-. They are, therefore, entitled to a M.A.C.A.Nos.1396 of 2012 & 166 of 2013 -11- further sum of Rs.19,500/- towards compensation for bystander expenses. Despite the very serious injuries and the continuous hospitalisation of the claimant for about ten months, the Tribunal has granted only a sum of Rs.25,000/- towards pain and suffering. According to me, the claimants are entitled to a further sum of Rs.25,000/- towards pain and suffering. Though the Tribunal has granted a sum of Rs.25,000/- to the wife of the deceased towards loss of consortium, only a sum of Rs.10,000/- was granted to the two children towards loss of love and affection. According to me, they are entitled to a sum of Rs.25,000/- each towards loss of love and affection. Thus the claimants are entitled to a further sum of Rs.40,000/- under this head. Towards funeral expenses, only a sum of Rs.5,000/- is seen granted. According to me, in so far as the accident took place in the year 2006, the Tribunal should have granted at least a sum of Rs.7,500/-. If that be so, the claimants are entitled to a sum of Rs.2,500/- more under the above head. Likewise, no compensation is seen awarded towards loss of estate. According to me, the claimants are entitled to a sum of M.A.C.A.Nos.1396 of 2012 & 166 of 2013 **==> picture [37 x 7] intentionally omitted <==** Rs.7,500/- towards loss of estate. Thus, the claimants are entitled to a total additional compensation of Rs.3,02,500/-. In the result, M.A.C.A. No. 1396 of 2012 is dismissed and M.A.C.A. No. 166 of 2013 is allowed in part directing the insurer in the proceedings to pay a sum of Rs.3,02,500/- to the claimants by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. ## **Sd/-** **P.B.SURESH KUMAR JUDGE** VV