Omana and Kumari v. Devision, Sasidharan and National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 ``` ## `MACA NO. 828 OF 2010` ``` AGAINST THE AWARD DATED 30.06.2009 IN OP(MV)NO.305/2004 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, N.PARAVUR ``` ## `APPELLANTS/PETITIONERS:` ``` 1OMANA, W/O RAGHAVAN, PALAKKAPPARAMBIL HOUSE, OLANADU KARA, VARAPPUZHA P.O. 2KUMARI, D/O.RAGHAVAN, PALAKKAPPARAMBIL HOUSE, OLANADU KARA, VARAPPUZHA P.O. ``` ``` BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.SUNANDA SUKUMARAN SRI.THOMAS T.VARGHESE SRI.P.C.ARJUN RAJA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1DEVISION, S/O. JAMES, ANJILIKKAL HOUSE, ASOKA ROAD, KALOOR, ERNAKULAM. 2SASIDHARAN, S/O.KUMARAN, THALAPPILY HOUSE, KOMBATHKAVU P.O., PUTHEN CHIRA VILLAGE, THRISSUR DISTRICT. 3NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, VI-KA INDUSTRIES ESTATE, CHENNAI, TAMILNADU. ``` ``` BY ADVS.K.A.NOUSHAD SMT.DEEPA GEORGE SRI.M.A.GEORGE AMRIN FATHIMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 828 OF 2010 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellants are the wife and daughter of late Raghavan, who was hit by a bus, while he was walking on the National Highway, on ``` ``` 07.03.2003. Raghavan sustained injuries and continued treatment, until he unfortunately died on 05.06.2003. ``` ``` 2.The appellants assert that Raghavan died ``` ``` on account of the injuries sustained in the accident; and therefore, filed OP(MV)No.305/2004 before the Motor Accidents Claims Tribunal, ``` ``` N.Paravur (‘Tribunal’, for short), claiming an amount of Rs.3 lakhs towards compensation. The Tribunal, however, awarded only an amount of ``` ``` Rs.23,000/-, which has now been impugned by them in this Appeal. ``` ``` 3.I have heard Sri.P.C.Arjun Raja – learned counsel for the appellants; Smt.Deepa ``` ``` George – learned Standing Counsel, appearing for ``` ``` MACA NO. 828 OF 2010 ``` ``` -3- ``` ``` respondent No.3 and Smt.Amrin Fathima – learned ``` ``` counsel, appearing for respondents 1 and 2. ``` ``` 4.I have also examined the evidence and ``` ``` documents on record, which have been handed over ``` ``` across the Bar by the learned counsel for the partieswith specific consent that this Court can act upon it without dispute. ``` ``` 5.Sri.P.C.Arjun Raja – learned counsel for ``` ``` the appellants, argued that the death of ``` ``` Raghavan was solely on account of the accident, which is indubitable from Ext.A5 - Medical ``` ``` Certificate issued by the Chief Medical Officer, Varappuzha Medical Centre. He pointed out that, ``` ``` going by the said Certificate, Raghavan ``` ``` developed infection over the area where his skin ``` ``` had to be grafted - consequent to the accident and the fracture resultant thereof - which led to general weakness and finally caused his ``` ``` death. He contended that the evidence of PW2 - ``` ``` MACA NO. 828 OF 2010 ``` ``` -4- ``` ``` the Doctor who treated Raghavan, is unimpeached; and therefore, that the Tribunal ought to have granted compensation as claimed by his clients. ``` ``` 6.Sri.P.C.ArjunRajaallegedthat, ``` ``` however, on the contrary, the Tribunal merely granted Rs.10,000/- towards “Compensation for Injuries”; Rs.3,000/- towards compensation for “Loss of Earning” and another Rs.10,000/- ``` ``` towards “Treatment and Transport Expenses”. He ``` ``` argued that denial of compensation for death is ``` ``` untenable and illegal; alternatively, arguing ``` ``` that the amounts awarded by the Tribunal under the various heads are exiguous; while the denial under various others is illegal. ``` ``` 7.Smt.Deepa George – learned Standing ``` ``` Counsel for the Insurance Company, affirmed that the Tribunal has only awarded the aforesaid amounts in favour of the claimants and added that her client has also been allowed to recover ``` ``` MACA NO. 828 OF 2010 ``` ``` -5- ``` ``` the said amounts from the owner and driver of the offending vehicle, since the latter did not have a valid licence at the time of the accident. She then submitted that, since no ``` ``` causal connection, between the accident and the death of Raghavan, has been established by the claimants or through the evidence on record, ``` ``` their claim for compensation for his death is untenable and without basis. She submitted that, ``` ``` therefore, the Tribunal has correctly denied ``` ``` compensation for the death of Raghavan; however, ``` ``` granting compensation for injuries, Loss of Amenities and such other. ``` ``` 8.That said, to a pointed question from ``` ``` this Court, Smt.Deepa George conceded that, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) ``` ``` 13 SCC 236], the notional income ought to have been taken in the case of late Raghavan was ``` ## `MACA NO. 828 OF 2010` ``` -6- ``` ``` Rs.4,000/-, since he was injured in the year 2003 and since his income was otherwise unascertainable; and that on such terms, the amounts grantable to the claimants under the heads “Loss of Earning” and “oss of Amenities” would certainly require to be enhanced. She also left to this Court to decide the just compensation for “Injuries/Pain and Suffering” to Raghavan, since it will have to be reckoned as a case of injury and not death, consequent to the accident; as also towards other heads ``` ``` including “Transportation”, “Damage to Cloth” and such other. ``` ``` 9.Smt.Amrin Fathima – learned counsel ``` ``` appearing for respondents 1 and 2, argued that the findings of the Tribunal, that 1[st] respondent is responsible for the accident and that the Insurance Company is not liable to indemnify her clients are both incorrect. She, however, ``` ``` MACA NO. 828 OF 2010 ``` ``` -7- ``` ``` conceded that these have not been challenged by them through a separate appeal. ``` ``` 10.When I evaluate and consider the ``` ``` aforesaid submissions, it is without doubt that, in the absence of causal connection between the accident and the death being proved in any manner, compensation for the unfortunate demise ``` ``` of Raghavan may not be able to be impelled by the appellants. In this regard, I find favour with the conclusions of the Tribunal that, in the absence of a postmortem having been ``` ``` conducted on Raghavan, it would not be possible to establish that he died on account of the ``` ``` injuries sustained by him in the accident, which occurred on 07.03.2003. ``` ``` 11.That said, however, Ext.A5 certificate issued by the Chief Medical Officer, Varappuzha Medical Centre, and the deposition of PW2 – doctor, render it indubitable that late Raghavan ``` ``` MACA NO. 828 OF 2010 ``` ``` -8- ``` ``` suffered from various grievous injuries and had to be hospitalized for inpatient treatment, as also for continuous evaluation thereafter. In fact, it is undisputed that he died on ``` ``` 05.06.2003, merely three months after the accident. Though the causal connection between the accident and the death of Raghavan has not been established, the fact that he suffered during the entire period when he was alive after the accident, cannot be contested; and ``` ``` Smt.Deepa George fairly admits that he may have gone through trauma and stress at that time. ``` ``` 12.That being said, Ext.A3 to A5 - medical ``` ``` records, show that Raghavan suffered from ``` ``` “comminutted fracture of upper one forth left humerus; multiple abrasions and contusions on ``` ``` the left shoulder” (sic) and that he was treated as an inpatient from 07.03.2003 to 21.03.2003. ``` ``` 13.I am, therefore, of the firm view that ``` ``` MACA NO. 828 OF 2010 ``` **==> picture [22 x 9] intentionally omitted <==** ``` the compensation awarded by the Tribunal is ``` ``` exiguous and that same requires to be modified, ``` ``` which I propose to do in the following manner: ``` ``` The compensation is re-fixed as under: ``` - `(a) For treatment: Rs.10,000/-, going by` ``` Ext.A6 series documents. ``` - `(b) Damage to Cloth: Rs.500/-` - `(c) Loss of Amenities: Rs.30,000/-, taking` ``` the monthly income of late Raghavan notionally ``` ``` to be Rs.4,000/- per month. ``` **==> picture [377 x 13] intentionally omitted <==** ``` taking the monthly income of Raghavan as ``` ``` Rs.4,000/- per month. ``` **==> picture [377 x 13] intentionally omitted <==** ``` Suffering: Rs.40,000/-, reckoning the nature of ``` ``` the injuries and the amount of treatment ``` ``` suffered by him. ``` - `(f) Towards Transport Expenses: Rs.1,500/-.` ``` The total compensation is thus fixed as ``` ``` MACA NO. 828 OF 2010 ``` **==> picture [30 x 9] intentionally omitted <==** ``` Rs.94,000/-, instead of Rs.23,000/- as has been ``` ``` granted by the Tribunal; and the appellants will ``` ``` be at liberty to recover the same, in the ``` ``` proportion as ordered by the Tribunal, along ``` ``` with interest at the rate of 7% per annum, from ``` ``` the 3[rd] respondent. ``` ``` Needless to say, the Award of the Tribunal ``` ``` in all other respects is confirmed, including the liberty reserved to the 3[rd] respondent to pay ``` ``` the compensation and recover it from respondents 1 and 2. ``` ``` It goes without saying that interest for the ``` ``` period of 202 days, being the delay in filing this Appeal by the appellants and as covered by ``` ``` the order of this Court dated 09.06.2022, will ``` ``` not be eligible to them. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` akv ``` ## `JUDGE`