Sainaba Yusuff and Others v. Ziyad T.K., Rajeev T. and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933** **MACA.No. 93 of 2006 ( )** **----------------------OPMV.1033/1998 of M.A.C.T.,PERUMBAVOOR -----** ## **APPELLANTS/PETITIONERS: ------------------------** **1. SAINABA YUSUFF, WIFE OF LATE P.K.YUSUFF, PARAMBILKUDY HOUSE, NOCHIMA KARA, EDATHALA VILLAGE ALUVA TALUK.** **2. YOUFEL P.U. (MINOR),** - **S/O. LATE P.K. YUSUFF, PARAMBILKUDY HOUSE NOCHIMA KARA, EDATHALA VILLAGE, ALUVA TALUK.** - **(REP. BY THE GUARDIAN AND NEXT FRIEND** - **1ST PETITIONER).** **3. NOUFIA P.U. (MINOR), D/O. LATE P.K. YUSUFF, PARAMBILKUDY HOUSE NOCHIMA KARA, EDATHALA VILLAGE, ALUVA TALUK.** - **(REP. BY THE GUARDIAN AND NEXT FRIEND, 1ST PETITIONER).** **4. SHEREEFA, W/O. KOCHUMUHAMMED, PARAMBILKUDY HOUSE, NOCHIMA KARA, EDATHALA VILLAGE** **BY ADVS.SRI.RAJESH VIJAYAN SRI.C.A.ANOOP (B/O)** ## **RESPONDENTS/RESPONDENTS:** ## **------------------------** **1. ZIYAD T.K., S/O.T.P.KHADER,** - **THANISSERY HOUSE, ERUMELI KARA, KUMARAPURAM P.O.** **2. RAJEEV T., S/O. P.A. THAMPI,** - **RAJEEV MANDIRAM, KANAKKARY P.O., PALA, KOTTAYAM DISTRICT.** **3. THE ORIENTAL INSURANCE CO. LTD.,** - **DIVISIONAL OFFICE, T.H. TOWER, MARKET ROAD, MUVATTUPUZHA.** **R2 BY SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VK** ## **JUDGEMENT** **---------** **No representation for the appellant. The appeal is dismissed for default.** **30.1.2012 Sd/- PIUS C.KURIAKOSE, JUDGE Sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** **/ TRUE COPY /** **P.A. TO JUDGE** ## **VK** ## PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.93 of 2006 -----------------------------------------------Dated this the 24[th] day of July, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The appellants are the aged mother, widow and children of one Yusuff who sustained injuries in a road traffic accident occurred on 28/04/98. Allegedly while the deceased was undergoing treatment for the injuries sustained by him in the accident, he breathed his last on 03/08/98 due to pulmonary embolism. 2. On the ill-fated day while the deceased was walking along the road he was hit down by the motorcycle ridden by the first respondent and insured with the third respondent Insurance Company. The appellants who are the legal heirs of the deceased approached the Tribunal claiming a sum of ` 4,50,000/- as compensation alleging that the death was the direct result of the injuries sustained by the deceased in M. A. C. A No.93 of 2006 -2- the accident. However, the learned Tribunal treated the claim as one for personal injury and awarded only a sum of ` 70,000/- as compensation. 3. In this appeal the appellants are challenging the said finding as well as consequential award which according to them are grossly inadequate. 4. We have heard the learned counsel for the appellants and the learned counsel for the third respondent Insurance Company. We have also perused the impugned award. 5. The main grievance voiced against the award by the learned counsel for the appellants is that though Ext.A7 certificate which was duly proved through PW3, the Doctor who examined the deceased was pressed into service to substantiate the case of the appellants that the death of the deceased was the direct result of the injuries sustained by him in the accident the learned Tribunal came to the conclusion that there was no nexus between the death and M. A. C. A No.93 of 2006 -3- the injuries sustained by the deceased mainly for the reason that there is no postmortem certificate to support the claim of the appellants. Going through Ext.A7, we notice that the deceased was admitted to the hospital on 28/04/98 at 2.00 p.m. with multiple fractures and difficulty in passing urine following the road traffic accident occurred on the same day. Medical records reveal that in addition to bilateral fracture to the radius he has sustained fracture to inferior pubic ramus. A combined reading of details of injuries mentioned in the wound certificate (Ext.A6) and the subsequent follow up action advised as per Ext.A7 would take us to the conclusion that even after the discharge of the deceased from the hospital on 14/05/98 he had been under treatment for urethral dilatation every month. This is corroborated by the testimony of PW3, Doctor who has done this exercise. He would depose that after discharge on 14/05/98, the deceased was advised to come every month for urethral dilatation. The deceased was re-admitted again on 08/06/98 M. A. C. A No.93 of 2006 -4- for cutting the plaster and for pin removal and was discharged on 09/06/98. He was reviewed again on 29/06/98 and was advised Cristoscopy under General Anasthasia (dilatation of urethra for problems in passing urine). On 22/07/98 urethral dilatation was done under General Anasthasia and he was discharged on 23/07/98. He was next seen on 03/08/98. On that date also urethral dilatation was done under General Anasthasia. Though the deceased was advised to go home about 6.30 p.m. all on a sudden he lost consciousness and developed breathing difficulty and he breathed his last at 7.10 p.m. on the same day. According to PW3, the sudden death was due to pulmonary embolism which was consequent to the difficulty in passing urine which was on account of the injuries sustained by the deceased in the accident. 6. On an anxious consideration of the medical evidence, we have no hesitation to hold that the death was the ultimate result of the injuries sustained by the deceased in M. A. C. A No.93 of 2006 -5- the accident. So we are inclined to reverse the finding of the learned Tribunal and to treat the claim petition as one for compensation for the death of the deceased. 7. As per medical records the deceased was aged 36 years old at the time of the accident. According to the learned counsel for the appellants, he was a fish vendor earning a monthly income of ` 3,000/-. As the accident was in the year 1998, we are of the view that the deceased might have been earning at least ` 2,000/- per month by engaging himself in any job. The correct multiplier applicable to the age group of the deceased is 15 as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC). The claimants are the aged mother, widow and two minor children. There is no evidence on record that the aged mother was depending upon the deceased. Since the actual dependants are only three, we are of the view that one third of the amount has to be deducted in consideration of the expenses which the M. A. C. A No.93 of 2006 -6- deceased would have incurred had he been alive. When the dependency compensation is re-calculated on the basis of the aforesaid monthly income and the correct multiplier, it will come to ` 2,40,000/- and we award that amount to the appellants towards loss of dependency. 8. It is in evidence that the deceased was suffering from pain on account of the difficulty in passing urine after the accident till his death. Appellants are to be given adequate compensation for the pain and suffering undergone by the deceased till the time of death. We award a sum of ` 20,000/- on that count. 9. Towards funeral expenses we award a sum of ` 5,000/- to the appellants. 10. Towards loss of estate we award a sum of ` 5,000/- to the appellants. 11. The appellants have produced medical bills for about ` 12,000/-. We are inclined to award a sum of ` 12,000/- towards medical expenses and we award the said M. A. C. A No.93 of 2006 -7- amount to the appellants towards medical expenses. 12. The second appellant who is the widow is entitled to get a compensation for loss of consortium as she lost her husband and we award to the second appellant a sum of ` 25,000/- towards loss of consortium. 13. The third and fourth appellants were minors at the time of the death of their father. As they lost their father at their tender age, certainly they are entitled to get a reasonable compensation for loss of love and affection. Accordingly, we award to them a sum of ` 30,000/- towards loss of love and affection. 14. Thus in total the appellants become entitled to get a sum of ` 3,37,000/- as compensation. This is in substitution of the amount of ` 70,000/- awarded by the Tribunal. The amount awarded shall carry interest at the rate of 7% per annum from the date of claim petition till realisation. 15. The appeal is allowed. The impugned award shall stand modified as above. The award amount shall be M. A. C. A No.93 of 2006 -8- apportioned among the appellants in the same ratio made mention of in the impugned award. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE