Rohinikutty B. and others v. George V.C., Bijulal and The Branch Manager, Cholamandalam MS Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940 MACA.No. 1399 of 2015** **AGAINST THE AWARD IN OPMV 1976/2011 of M.A.C.T.,KOLLAM DATED 17.01.2015** ## **APPELLANTS:** - **1 ROHINIKUTTY B. W/O RAJENDRAN, PANAYIL KANDATHIL VEEDU, MURINGACKA JUNCTION, KANNIMEL CHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT** - **2 NIDISH** - **S/O RAJENDRAN, PANAYIL KANDATHIL VEEDU, MURINGACKA JUNCTION, KANNIMEL CHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT** - **3 NIDHIN APPUNNI S/O. RAJENDRAN, PANAYIL KANDATHIL VEEDU, MURINGACKA JUNCTION, KANNIMEL CHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT** ## **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS:** - **1 GEORGE V.C.** - **S/O CHACKO, VADAKKEKUDIYIRUPPIL HOUSE, VELIYANNOORP O, PALA, KOTTAYAM PIN 686 575** - **2 BIJULAL** - **S/O VIJAYENDRAN, NELLIVILA VEEDU, KANNANALLOOR.PO, KOLLAM 691` 576** - **3 THE BRANCH MANAGER M/S. CHOLAMANDALAM M.S. INSURANCE COMPANY LIMITED, CHAMBERS, DIAMOND HILL, THIRUVANANTHAPURAM 695 001** ## **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.C.RAJENDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1399/2015 2 ## **JUDGMENT** **The appeal is filed by the claimants against the award of the Tribunal finding the death of the husband and father of the claimants to be not one caused as a result of the accident. Admittedly there was an accident on 30.06.2011 wherein the deceased who was riding a motor bike was hit by a mini bus. The injured was first admitted to the District Hospital, Kollam and then transferred to various other hospitals and eventually he was discharged from KIMS Hospital, Thiruvananthapuram on 13.07.2011. He was admitted to Travancore Medical College Hospital, Kollam where he succumbed to his injuries on 14.07.2011 according to the claimants. The Insurance Company however, seriously challenged the cause of death and contended that the death was only by reason of the earlier ailments of the deceased. The accident did not at all contribute to the cause of death is the argument. It was also alleged that, in the accident, there were only minor injuries.** MACA No.1399/2015 3 **The Tribunal accepted the contention of the Insurance Company and found that the aberrations and incised wounds suffered by the injured was not sufficient to cause renal failure or coronary artery disease. The Postmortem report produced at Ext.A9 was relied on to find that the injured died of coronary artery disease, which cannot be caused by any of the injuries. The deceased was found to have suffered from diabetes for the past many years and renal complaints and cardiac problems which led to the death of the injured, was held to be the result of his long standing medical condition.** **2. It is pertinent that the wound certificate at the initial stage has not been produced and the wounds found by the Tribunal are as seen from the postmortem certificate. Ext.A13 discharge summary issued by the KIMS hospital throws some light on the injury suffered in the accident. The discharge summary and clinical findings indicates that the injured was referred from one Sankars Hospital, Kollam** ## MACA No.1399/2015 4 **wherein he was admitted following a road traffic accident on 30.06.2011. At Sankar's Hospital, the injured was treated for run over injury of right thigh. He is said to have developed “bradycardia dysnponea, hypotension” and was resusitated. He is said to be type 2 DM since seven years with regular medicines. The symptoms on admission was stated to be deranged RFT(renal failure test) with high creatinine level of 3.5 which progressively worsened. He is said to have been initiated with hemodialysis and it was continued on alternate days till discharge. The discharge summary also indicates the findings on the C T Scan which are as follows:** **CT Chest, Abdomen & Pelvis- Mild curvilinear sub pleural collapse of right lower lobe of lung. Mild right pneumothorax.** **Surgical emphysema seen in right posterior and postero lateral aspect of lower chest wall & subcutaneous plane of midline back region(R>L). Fractures seen involving posterior aspect of 10[th] 11[th] right ribs** **Mild diffuse fatty infiltration ofliver No e/o solid abdominal organ injury.** MACA No.1399/2015 5 ## **No e/o hemo/pneumoperitoneum.** _**Injury to inferior aspect of latissimus dorsi, external oblique muscles with overlying subcutaneous fat injury.**_ **No fracture/ dislocation of lubosacral spine, pelvic bones and visualized both lower limb bones.** _**Right gluteus maximus, vastus intermedius, lateralis, rectus femoris and partly biceps femoris muscles injury in the upper thigh. Mild to moderate heterogeneously isodense hemorchagic collection seen overlying the tensor fascis lata along the subcutaneous plane of lateral aspect of entire right thigh.**_ **(underlining and italics supplied me to emphasize)** **3. The injured was said to have been given multiple dialysis for Rhabdomyolysis. As for Rhabdomyolysis, the deposition of PW2 is relevant. PW2 was the Doctor who last treated him at the Travancore Medical College. The Doctor had specifically deposed that the accident was the cause of the coronary disease which led to the death of the injured. The Doctor stated that the stress caused in the accident would have resulted in the death of the injured.** MACA No.1399/2015 6 **Rhabdomyolysis, is explained to be the release of toxins, due to the injury caused to the muscles in the accident; which affected the kidney. The discharge summary issued by the KIMS Hospital indicates that the deceased had suffered certain injuries in the road traffic accident which was quite serious in nature. Though the deceased had been treated for diabetics for the last seven years, that was not the cause of death or even the renal failure or the coronary disease. The Renal problem as is seen from Ext.A 13 and deposition of PW2 was due to the toxin release resulting from the muscle injury caused to the injured. The postmortem certificate also indicate the injury as “Multiple incised fasciotomy wound on right thigh 4x1cm, 5x2.5cm and 2x1cm”. The continued dialysis was necessitated by reason only of the renal problems, which in turn was a direct consequence of the injury suffered in the accident. The resultant stress on the patient obviously led to his death from coronary artery disease. This Court cannot accept the finding of the** MACA No.1399/2015 7 **Tribunal that the death was not one caused due to the accident.** **4. In this context pertinent is the proximity in time in which the death occurred, which is also a relevant consideration. The accident occurred on 30.06.2011 and the injured breathed his last on 15.07.2011 during which time he continued as an inpatient and was under treatment for the injuries and the resultant medical complications. He was discharged from KIMS hospital and got admitted to Travancore Medical College, Kollam which is a hospital nearer to his residence. On the very next day of his admission in that hospital the patient expired, which points to the death being a direct consequence of the accident, the injuries caused from it and the resultant medical problems. Though the learned Counsel appearing for the Insurance Company submits that the injured was a diabetic patient for the last seven years it is very clear that the death was not due to such ailment and but for the accident the life of the injured would not** MACA No.1399/2015 8 **have been extinguished so early. The Renal failure was also not one developed from the diabetic complaints of the deceased but as explained by the Doctor a consequence of the injuries suffered in the accident. The Doctor's evidence clearly shows that the renal complaints arose only for reason of the injury caused in road traffic accident. This Court is of the opinion that the death was a direct result of the accident. In this context, this Court also relies on the decision of a Division Bench in** _**2008(4) KLT 920 [Venugopal v. Paulson]**_ **. Therein, consequent to an injury suffered in an accident, the injured developed severe depression which eventually led to his suicide. Therein the accident occurred on 12.11.1994 and the injured committed suicide on 23.05.2002. Even then the Court found that the death was a direct result of the accident, which caused mental problems by way of severe depression suffered by the injured. On the above reasoning based on the facts and the evidence led before the Tribunal, it has to be held that the** MACA No.1399/2015 9 **Tribunal erred in the findings with respect to the cause of death. The said findings are set aside. It is only proper that the Tribunal consider the matter afresh on the issue of compensation.** **5. Hence setting aside the order of the Tribunal and finding the death of the injured to be, one caused as a direct result of the accident, the matter is remanded for fresh consideration. It is made clear that there need not be any further evidence led and the Tribunal may consider the matter of compensation after hearing the parties. The parties shall appear before the Tribunal on 28.09.2018. The Tribunal shall consider the issue within a period of two months from the date of appearance of the parties. M.A.C.A is allowed remanding the matter to the** **Tribunal.** **Sd/-** **K.VINOD CHANDRAN** jma **JUDGE**