## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 MACA NO. 3 OF 2014
AGAINST THE AWARD DATED 22.02.2013 IN OP(MV) NO.528 OF 2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD
## APPELLANTS/SUPPLI. PETITIONERS:
- 1 RADHA
AGED 39 YEARS
W/O. LATE DEVADAS,MANALI POTTA HOUSE, VELIKKAD.P.O., MUNDOOR, PALAKKAD.
## 2 DHANYA
AGED 21 YEARS D/O. LATE DEVADAS,MANALI POTTA HOUSE, VELIKKAD.P.O., MUNDOOR, PALAKKAD.
- 3 NEENA
AGED 18 YEARS D/O. LATE DEVADAS, MANALI POTTA HOUSE, VELIKKAD.P.O., MUNDOOR, PALAKKAD.
## BY ADV SRI.K.P.BALAGOPAL
## RESPONDENTS/RESPONDENTS:
- 1 MAMMU HAJI S/O. ABDUL RAHIMAN, PEBIN HOUSE, J.T. ROAD, VADAKARA, KOZHIKODE DISTRICT. PIN-673101.
## 2 SUNILKUMAR
AGED 34 YEARS
- S/O. BALAN, CHANDANASSERYKANDI VEEDU, MOILOTHARA, KOILANDI, KOZHIKODE DISTRICT-673305.
- 3 UNITED INDIA INSURANCE CO. LTD., VADAKARA, KOZHIKODE DISTRICT-673001.
BY ADVS.
SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **J U D G M E N T**
This appeal is at the instance of additional claimants 2 to 4 in OP(MV) No.528 of 2009 on the file of Motor Accidents Claims Tribunal, Palakkad, impugning the Award on the ground of inadequacy of compensation.
2. The appellants are the legal heirs of one Mr.Devadasan who was the original claimant in the OP(MV). He met with a road traffic accident on 11.11.2008 at 12.30 p.m, while he was riding a motorcycle through Palakkad-Mannarkkad National Highway. He was knocked down by KL-10H/9855 tempo van driven by the 2[nd] respondent in a rash and negligent manner. He sustained serious injuries including fracture of frontal bone, fracture of C5 vertebra, fracture of scapula etc. He was hospitalised for 21 days in total. He was a 38 year old coolie earning monthly income of Rs.3,500/-. He approached the Tribunal claiming compensation of Rs.9,56,000/-. Pending O.P, he passed away on 06.11.2009. His legal heirs were impleaded as additional claimants 2 to 4 and they got the claim petition amended converting it as a death claim, claiming compensation of Rs.15,06,000/-. But, learned Tribunal found that the additional
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claimants failed to prove any nexus between the accident and the death of the original claimant and so, the claim was treated as an injury claim only, and an Award was passed for an amount of Rs.3,55,850/-. Hence they approached this Court with this appeal challenging the Award.
3. R1 was the owner of the offending tempo van. R2 was its driver and R3 was its insurer.
4. R3, the insurer, entered appearance and admitted the policy.
5. Now this Court is called upon to find out whether there is any illegality, irregularity or impropriety in the impugned Award warranting interference by this Court.
6. Heard learned counsel for the appellants and learned counsel for the 3[rd] respondent/insurer.
7. Learned counsel for the appellants would submit that the original claimant Sri.Devadasan had suffered very serious injuries in the accident which occurred on 11.11.2008. He was completely bedridden after the accident and just after one year, he passed away on 06.11.2009. The appellants had pleaded before the Tribunal that Sri.Devadasan died due to the injuries he had suffered in the accident,
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and so, they prayed to treat their claim as a death claim. But, learned Tribunal found that the original claimant’s last visit in the hospital was on 19.01.2009, and no records were there to show that he was continuing treatment thereafter. Moreover, Ext.A22 series medical bills issued from Medical College Hospital, Thrissur for the period 29.10.2009 were not accepted by the Tribunal, as there was nothing to show that the said treatment was in connection with the injuries sustained by the original claimant in the accident. Learned Tribunal found that, the appellants failed to prove that, death of the original claimant was the direct result of the injuries sustained in the accident. Obviously, no evidence was adduced by the appellants before the Tribunal to prove that the deceased was continuing treatment for the injuries sustained in the accident, till his death, and his death occurred as a result of the injuries sustained. In the absence of any evidence or documents to prove any nexus between the injuries suffered in the accident and the death of the original claimant, this Court cannot blame the Tribunal for not treating the claim as a death claim of deceased Devadasan. So, this Court also is treating the claim of the appellants as a claim for the injuries suffered by Sri.Devadasan in the
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accident occurred on 11.11.2008.
8. Learned counsel for the appellants would submit that the deceased original claimant was earning monthly income of Rs.3,500/-. But, learned Tribunal fixed his notional income @ Rs.3,000/-. As the accident was in the year 2008, he was eligible to get his notional income fixed @ Rs.6,500/even going by the decision _**Ramchandrappa**_ vs. _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ (AIR 2011 SC 2951). But, since his claim was that he was earning monthly income of Rs.3,500/- only, this Court is inclined to fix his notional income @ Rs.3,500/-. Learned Tribunal took his loss of earning for ten months. He died after one year of the accident. There is nothing to show that he was able to do any job during that period. So, this Court is inclined to assess his loss of earning for one year @ Rs.3,500/-. So, it will come to Rs.42,000/-. Learned Tribunal awarded only Rs.30,000/-. So, the appellants are entitled to get the balance amount of Rs.12,000/- under the head ‘loss of earning’.
9. Towards bystander expenses, learned Tribunal awarded only Rs.4,200/-. The original claimant was bedridden for one year after
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suffering very serious injuries. So, this Court is inclined to award Rs.10,000/- under the head ‘bystander expenses’. After deducting Rs.4,200/- already awarded, they will get the balance Rs.5,800/-.
10. Towards transportation expenses, though the appellants claimed Rs.15,000/-, learned Tribunal awarded only Rs.10,000/-. The original claimant was residing at Palakkad and he was taken to Medical College Hospital, Coimbatore on several occasions. So, this Court is inclined to award Rs.5,000/- more under the head ‘transportation expenses’.
11. Towards extra nourishment, learned Tribunal awarded only Rs.7,500/- against the claim of Rs.15,000/-. Considering the nature of injuries suffered, the period of hospitalisation and the period of rest, this Court is inclined to award Rs.5,000/- more under the head ‘extra nourishment’.
12. Towards pain and suffering, learned Tribunal awarded only Rs.10,000/-. The original claimant suffered three major fractures and he was admitted in hospital for 21 days, and according to the appellants, till his death, he was in bed, suffering severe pain. So, this Court is inclined to award Rs.50,000/- towards pain and suffering as
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claimed by them. After deducting Rs.10,000/- already awarded, they are entitled to get the balance amount of Rs.40,000/- under the head ‘pain and suffering’.
13. Towards loss of amenities, no amount was awarded by the Tribunal though the appellants had claimed Rs.50,000/-. As submitted, due to the injuries suffered by the original claimant, he was not able to lead a normal life till his death. Considering that fact, this Court is inclined to award Rs.25,000/under the head ‘loss of amenities’.
14. True that no disability certificate was produced by the original claimant to show that he had suffered permanent disability due to the injuries suffered in the accident. But, learned Tribunal awarded Rs.15,000/- in total under the head permanent disability, loss of expectation of life etc. The original claimant died after one year of the accident. Learned counsel for the appellants would submit that the original claimant was totally disabled after the accident and only due to the gravity of the injuries, he suffered a premature death. Since no postmortem was conducted and no documents were produced to prove the nexus between the injuries suffered and the death of the original
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claimant, learned Tribunal refused to accept their claim as a death claim. Even then, considering the fact that the original claimant suffered very serious injuries and he was disabled to do any work till his death, this Court is inclined to award Rs.15,000/- more under the head permanent disability.
15. The compensation awarded under all other heads seems to
be reasonable and it need not be interfered with.
|**Head of claim**<br>**(1)**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**|
|---|---|---|---|
|Loss of earning|Rs.30,000/-|Rs.42,000/-|Rs.12,000/-|
|Bystander expenses|Rs.4,200/-|Rs.10,000/-|Rs.5,800/-|
|Transportation<br>expenses|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-|
|Extra nourishment|Rs.7,500/-|Rs.12,500/-|Rs.5,000/-|
|Pain and suffering|Rs.10,000/-|Rs.50,000/-|Rs.40,000/-|
|Loss of amenities|-|Rs.25,000/-|Rs.25,000/-|
|Permanent<br>disability/Loss of<br>expectation in life|Rs.15,000/-|Rs.30,000/-|Rs.15,000/-|
|**Total**|**Rs.76,700/-**|**Rs.1,84,500/-**|**Rs.1,07,800/-**|
16. In the result, the appellants are entitled to get Rs.1,07,800/-
(Rupees One lakh seven thousand eight hundred only) as enhanced
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compensation.
The 3[rd] respondent/insurer is directed to deposit the enhanced compensation of Rs.1,07,800/(Rupees One lakh seven thousand eight hundred only) with interest @ 7.5% per annum from the date of petition till the date of deposit (except 52 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Palakkad, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to appellants 1 to 3 in equal share, after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund.
The appeal is allowed to the extent as above. No order as to
costs.
Sd/- **SOPHY THOMAS JUDGE**
smp
