New India Assurance Company Limited v. Ammini, Soumya and Amal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938** **MACA.No. 918 of 2013 () ------------------------** **AGAINST THE AWARD IN OPMV 2309/2006 of M.A.C.T.,PERUMBAVOOR DATED 19-03-2012** ## **APPELLANT/3RD RESPONDENT:** **--------------------------------------** **THE NEW INDIA ASSURANCE CO. LTD. REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS/PETITIONERS 1 TO 3:** **---------------------------------------------** **1. AMMINI W/O. BABY, NJANAKKAL HOUSE, KANJIRKKADU KARA, PERUMBAVOOR VILLAGE-683542.** **2. SOUMYA** **D/O. BABY, NJANAKKAL HOUSE, KANJIRKKADU KARA, PERUMBAVOOR VILLAGE-683542.** **3. AMAL** **S/O. BABY, NJANAKKAL HOUSE, KANJIRKKADU KARA, PERUMBAVOOR VILLAGE-683542.** **R1,R2 & 3 BY ADV. SRI.PHILIP T.VARGHESE R1,R2 & 3 BY ADV. SRI.THOMAS T.VARGHESE R1,R2 & 3 BY ADV. SMT.ACHU SUBHA ABRAHAM R1,R2 & 3 BY ADV. SMT.T.M.BINITHA R1,R2 & 3 BY ADV. SMT.S.JANAKI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.918 of 2013 -------------------------------Dated 9[th] June, 2016 ## **JUDGMENT** ## Ravikumar, J. New India Assurance Company Limited which is the 3[rd] respondent in O.P.(M.V)No.2309 of 2006 on the files of the Motor Accidents Claims Tribunal, Perumbavoor filed the captioned appeal on being aggrieved by and dissatisfied with the award passed thereon. The claim petition was filed by the respondents herein who are the wife and children of one Baby who met with an accident on 19.10.2005 and later died on 19.8.2006. The respondents filed the aforementioned claim petition under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.5 lakhs. Essentially, this appeal has been filed against the finding of the Tribunal that the death involved is accidental death and the respondents/claimants are entitled to get compensation for death. The core contention of the appellant is that the Tribunal M.A.C.A.No.918/2013 2 went wrong in treating it as a claim for accidental death and in fact, it ought to have been considered only as a claim for injury and compensation ought to have assessed only on such consideration. 2. For a proper disposal of the appeal it is only proper and profitable to succinctly refer to the facts. The deceased Baby was employed in Travancore Rayons Factory at Perumbavoor. On 30.5.2008 he was riding his motor cycle bearing Reg.No.KL-17/C1165 from south to north through M.C. Road. At about 9 p.m. when he reached Kanjirakkad junction the offending vehicle which is a Tipper Lorry bearing Reg.No.KL-01/R-234 driven by the first respondent dashed against his motor cycle. Consequently, he fell down and sustained injuries. Immediately he was taken to Sanjoe Hospital, Perumbavoor and from there he was referred to MOSE Medical College Hospital, Kolenchery. Ext.A9 is the wound certificate which would reveal that he sustained the following injuries:- - “1. Right lower limb not moving 2. Lacerated wound .2 x .5 cm right forehead 3. Swelling tenderness around and in right knee joint M.A.C.A.No.918/2013 3 ## 4. Multiple abrasion lateral aspect of knee” Ext.A10 discharge certificate would reveal that he had been an inpatient there from 19.10.2005 to 5.11.2005. Evidently, on diagnosis it was found that he had sustained Type IV fracture on right femur and type C3 condylar fracture on right femur with compound fracture Type VI on tibial condyle. He underwent an operation on 20.10.2005 for Dynamic Condylar Screw fixation and Dynamic Hip Screw system under general anesthesia. AK cast was applied on 2.11.2005. Subsequently, he was again hospitalised on 4.1.2006 and was discharged on 9.1.2006. Obviously, he was further hospitalised for the period from 27.3.2006 to 1.4.2006. After about four months since the last hospitalization he breathed his last precisely on 19.8.2008. It is in the said circumstances that the respondents filed the above mentioned claim petition seeking compensation for the death of Baby. To support the claim the 3[rd] respondent herein/3[rd] petitioner was examined as PW1 and one M.P.Joy was examined as PW2 besides getting marked Exts.A1 to A15 series. On the side of the respondents no evidence M.A.C.A.No.918/2013 4 whatsoever, either orally or documentary, was produced and the Tribunal on evaluating the evidence on record and appreciating the rival contentions passed the impugned award upholding the contention of the respondents that it is a case of accidental death, for a total compensation of 4,94092/- with interest at the rate of 8% on the amount awarded from the date of petition till realisation. As noticed hereinbefore, this appeal has been preferred mainly on being aggrieved by the finding of the Tribunal that the death of Baby was accidental death and therefore, the respondents-claimants are entitled to compensation. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondents. 4. Various contentions have been raised by the learned counsel for the appellant to mount challenge against the award. Firstly it is contended that the accident occurred on 19.10.2005 and going by the medical records after the last hospitalization deceased Baby died on 19.8.2006. The further contention is that though he died on 19.8.2006 the respondents-claimants did not adduce any evidence to establish that M.A.C.A.No.918/2013 5 the proximate cause for the death is the injuries sustained in the accident. It is contended that in view of the fact that the respondentsclaimants have failed to establish the said fact the Tribunal wrongly treated the application as one for compensation for death and according to the learned counsel, the Tribunal ought to have taken it only as a claim petition for compensation for the injuries sustained. The learned counsel also contended that the medical records would reveal that during his hospitalization in MOSE Medical College Hospital he had undergone chemotherapy and it is further contended that the respondents failed to let in any expert evidence to establish that the injuries sustained in the accident had virtually accelerated his death. 5. The learned counsel for the respondents/petitioners contended that the Tribunal after appreciating the evidence on record has come to the right conclusion that it is a case of accidental death and that the petitioners are entitled to be compensated for the death of Baby. It is the contention that the finding of the Tribunal that the injuries sustained by deceased Baby accelerate his death is the rightful conclusion that could be arrived at in the facts and circumstances. In M.A.C.A.No.918/2013 6 short, according to the learned counsel for the respondents, the contentions raised by the appellants are not at all sufficient to upturn the findings of the Tribunal, especially taking note of the fact that the claim for compensation under the Motor Vehicles Act is a benevolent provision. 6. Having regard to the rival contentions, we are of the view that the point firstly to be considered is whether the death of Baby occurred on 19.08.2006, after about 10 months from the date of the accident viz. 19.10.2005 could be said to be an accidental death and whether the respondents are entitled to be compensated treating it as accidental death. While considering the said aspect, the fact that the Tribunal had virtually arrived at only a finding that the accident had only accelerated his death has to be taken into account. Be that as it may, the question is when the injuries sustained in an accident only accelerated the death, sustainment of such injuries could be said to be the proximate cause of death. A scanning of the award would reveal that the Tribunal had not arrived at a finding to the effect that the injuries sustained by Baby in the accident that occurred on 19.10.2005 M.A.C.A.No.918/2013 7 is the proximate cause of death. To canvass the position that the impugned judgment does not require appellate interference, the learned counsel for the respondents relied on the decision of a Division Bench of the High Court of Gujarat in **Ranchhodbhai Somabhai deceased by his heirs Somabhai Vajabhai and another v. Babubai Bhailalbhai and others (1982 ACJ (supp) 548).** It is submitted that though the death in that case occurred after about five months since the accident, it was treated as an accidental death and compensation was granted. 7. We have carefully gone through the said judgment. A bare perusal of the decision would reveal that the person on whose death claim for compensation was made was a perfectly healthy person suffered from no disease prior to the accident. In the circumstances, the High Court observed that if a young man died suddenly some cause has to be found for his death. After analysing the evidence on record and the facts and circumstances of that case, the High Court observed that the fact that no medical evidence was adduced to precisely establish the cause of death is not a matter of consequence on M.A.C.A.No.918/2013 8 the facts and circumstances of that case and also based on the evidence on record. Further it was held “ _As we have pointed out earlier, it might not be possible in all cases to lead the evidence of experts. That apart, when the direct and circumstantial evidence tending to establish the link between the accident injury and death goes unchallenged, as in the present case, it would be idle to insist upon the fulfilment of such a requirement. We are, therefore, of the view that the Tribunal, in the instant case, reached the conclusion, which it was impossible to arrive at on the evidence on record, when it held that the death was not the result of the accident injury. We reverse the finding of the Tribunal on that point and hold that the death of the deceased had direct and proximate connection with the accident injury._ ” 8. The said decision relied on by the learned counsel for the respondents itself would indicate that in such circumstances , the question to be considered is whether the death got a direct and proximate connection with the accident injury. In the case on hand, it is to be noted that no expert evidence was let in. Certainly, it cannot be M.A.C.A.No.918/2013 9 said that it is a case where no such evidence could have been let in. It is a fact that Baby met with an accident on 19.10.2005. Though PW1 deposed before the Tribunal that deceased Baby was suffering from cancer, but according to PW1 he had recovered fully from the said disease. But at the same time, the medical records produced in this case would reveal that he had undergone chemotherapy even after the date of accident. The medical records would further reveal that deceased Baby had been undergoing treatment for cancer from Lakeshore Hospital, Ernakulam and after the accident also, he underwent chemotherapy from Medical College Hospital, Kolenchery. No medical records relating to his treatment for cancer has been produced in this case. In other words, there is absolute absence of any records to find what exactly was his condition owing to the affliction of cancer. In this context, it is also to be noted that the records in this case would reveal that in the accident he had fracture of femur and tibia condyl. The treatments required for such injuries and actually undertaken were completed by 1.4.2016. The death occurred much thereafter. Even the finding of the Tribunal after considering all the M.A.C.A.No.918/2013 10 relevant factors and evidence on record is only to the effect that the injuries sustained in the accident only accelerated his death. In other words, there is no clear finding to the effect that death of Baby had direct and proximate connection with the injuries sustained in the accident. In fact, to treat the case on hand as accidental death, the point that is to be proved is that death of Baby had direct and proximate connection with the injuries which he sustained on 19.10.2005 in the accident. After careful consideration of the evidence on record, we are of the considered view that the respondents/petitioners have failed to establish that the death of Baby had any direct and proximate connection with the accident injury and such an evidence is absolutely lacking in the case on hand. Merely because such injuries accelerated death they cannot be taken as the proximate cause of death. Once it is held so the finding of the Tribunal that the respondents are entitled to be compensated for death has to be interfered with. Accordingly, we reverse the finding of the Tribunal that the death of Baby is an accidental death and the respondents/petitioners are entitled to get compensation for the death of Baby. M.A.C.A.No.918/2013 11 9. The reversal of the finding of the Tribunal on the aforesaid point is not at all a reason for holding that the respondents/claimants disentitled to get compensation for the injuries sustained by deceased Baby in the motor vehicle accident. In this context, it is only appropriate to note that the deceased had sustained injuries in the motor vehicle accident and that the accident occurred due to the negligence on the part of the driver of the lorry are not at all disputed before us. In such circumstances, for treating the claim petition as one for compensation for the injuries, there can be no impediment at all. Therefore, we will, now, consider the question what exactly is the just compensation payable to the respondents for the injuries sustained by Baby on 19.10.2005, who later died on 19.08.2006. 10. We have already noticed the injuries and the nature of injuries sustained by the aforesaid Baby in the accident occurred on 19.10.2005. Under the head transportation to hospital, the appellant claimed an amount of Rs.5,000/-. The Tribunal granted an amount of Rs.2,500/-. It is to be noted that Baby died only on 19.8.2006. In between, evidently, he had several admissions in hospital. In such M.A.C.A.No.918/2013 12 circumstances, we are inclined to grant the amount as claimed, under that head. Hence, the respondents/petitioners are entitled to get Rs.5,000/- under that head. Towards medical expenses, evidently the respondents have produced original medical bills for Rs.92,410/-. The Tribunal, upon verifying the actual bills, accepted the entire claim. On going through the actual bills we do not find any reason to decline the said claim. In such circumstances, the entire amount covered by such bills to be tune of Rs.92,410/- is awarded towards medical expenses. 11. Towards damage to clothing, the respondents claimed an amount of Rs.15,000/-. The said claim is exorbitant. There can be no doubt that in the accident the dresses worn by the deceased must have been damaged. In the said circumstances, we are inclined to grant an amount of Rs.1,000/- under that head. 12. For pain and suffering, the respondents claimed an amount of Rs.1,00,000/-. We have already taken note of the injuries sustained by the deceased Baby as is obvious from Annexure A3. While considering grant of compensation under that head, the fact that during M.A.C.A.No.918/2013 13 that period, he was actually suffering from cancer also has to be borne in mind. There is no doubt that the said disease would destroy the immunizing power of a person. In such circumstances, if a person afflicted with such a disease is sustaining injuries in an accident, he must certainly experience the excruciating pain. Evidently, he had to endure the excruciating pain for a long time. In such circumstances, we are inclined to grant Rs.75,000/- under that head. 13. Towards loss of earnings, the respondents claimed an amount of Rs.1,50,000/-. Deceased Baby was an employee of Travancore Rayons, Perumbavoor. Going by Ext.A14 salary certificate, he was drawing a monthly salary of Rs.4,647/-. It is to be noted that to prove the income of the deceased Baby, the petitioners got examined PW2 who was the Accounts Officer attached to Travancore Rayons, Perumbavoor. When the salary certificate was legally brought on record by examining the competent officer there is no reason to disbelieve the income certified under the relevant certificate. Hence, the entire amount of salary certified under Ext.P4, i.e. Rs.4647/- can be accepted as his monthly income. Even if the deceased Baby had full M.A.C.A.No.918/2013 14 salary from his employer during the period of his illness, against his earned leave, we are of the view that he is entitled to get loss for that period reimbursed. In such circumstances, it cannot be said to be double enrichment or double payment as salary was paid by the employer for the earned leave and not in connection with the accident. In this context, it is relevant to refer to a decision of the High Court of Madya Pradesh in **Union of India through Defence Ministry v. Yashwant Singh** ( **1987 ACJ 437).** Taking note of the long period of treatment, we are of the view that the period of loss of earnings has to be taken as ten months. In the aforesaid circumstances, towards loss of earnings, the respondents/petitioners are entitled to get an amount of Rs.46,470/-. 14. Taking note of the period of treatment and the nature of the injuries and also the condition of deceased Baby who was actually then afflicted with cancer, we are of the view that he is entitled to get compensation for loss of amenities as well. Though an amount of Rs.1,00,000/- was claimed under that head, no amount was granted by M.A.C.A.No.918/2013 15 the Tribunal. Taking into account the aforesaid aspects expatiated above, we are of the view that an amount of Rs.75,000/- has to be granted under that head. Towards extra nourishment, an amount of Rs.10,000/- was claimed. Taking into account the nature of the injuries as also the period and again the fact that he was a cancer patient, we have no doubt that he must have taken nutritious food during that period. In such circumstances, certainly the respondents/petitioners are entitled to get Rs.10,000/- under that head. 15. Towards hospital assistants, an amount of Rs.40,000/- was claimed. Going by the discharge summary viz, Exts.A11 and A12, the total period of hospitalization was only 52 days. But at the same time, taking into account the facts that has been referred herein before, it can only be inferred that even after discharge from the hospital, he must have had the services of a bystander. In such circumstances, we are of the view that the period of bystander's services has to be taken as 90 days. The respondents are entitled to get an amount of Rs.200/- per day. In such circumstances, the respondents are entitled to get Rs.18,000/-. M.A.C.A.No.918/2013 16 16. Though the respondents/petitioners did not make any claim towards loss of expectation of life, the evidence on record would undoubtedly reveal that the accident virtually cut short his life. The very finding of the Tribunal is the injuries sustained in the accident accelerated his death. The deceased was an employee of the Travancore Rayons, Perumbavoor and was aged only 51 at the time of death. Taking into account all the aforesaid aspects we also inclined to grant an amount of Rs.50,000/- under that head. It is granted. 17. In the light of the aforesaid discussion, we reassessed the quantum of compensation of Rs.3,72,880/-, for the injuries. In this appeal, this court passed an interim order on 6.6.2013 directing the appellant to deposit 50% of the amount awarded as a condition for staying the execution of the impugned award. The learned counsel for the respondents submitted that the said direction was complied with and half the amount of the award was already deposited. Since we have re-assessed the compensation as Rs.3,72,880/-, the appellant is directed to pay the balance amount remaining to be paid by virtue of this award with interest @ 9% per annum from the date of petition till M.A.C.A.No.918/2013 17 realization within a period of two months from the date of receipt of a copy of this judgment. This appeal is disposed of as above. ## **C.T.RAVIKUMAR, JUDGE** tks/sv. **K.P.JYOTHINDRANATH, JUDGE**