Valsamma Kochupparambil and others v. Veerappan P. Alamkadavu and others; The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939 MACA.No. 1546 of 2015 () ------------------------AGAINST THE AWARD IN O.P(M.V)No.1414/2011 of M.A.C.T., KOTTAYAM DATED 30-01-2015 ## APPELLANTS/PETITIONERS:- ------------------------------- 1. VALSAMMA KOCHUPARAMBIL (H), NALUKODY P.O., CHANGANACHERRY. 2. ANOOP KOCHUPARAMBIL (H), NALUKODY P.O., CHANGANACHERRY. 3. ANITHA S. KAVUMKAL NADUKKETHIL, 5, NANNOOR, VALLAMKULAM P.O., ERAVIPEROOR. BY ADV. SRI.S.SUBHASH CHAND ## RESPONDENTS/RESPONDENTS:- ---------------------------------- 1. VEERAPPAN.P. ALAMKADAVU (H), AMBARAMPALAYAM P.O., POLLACHI, COIMBATORE - 642 001. 2. P.K.KASIM NO.138/8, 2ND MAIN ROAD, KALASIPALAYAM EXTENSION, BANGALORE - 560 001. 3. THE NEW INDIA ASSURANCE CO.LTD. KOTTAYAM REPRESENTED BY ITS BRANCH MANAGER, PIN - 686 001. R3 BY ADV.SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** -----------------------------------M.A.C.A.No.1546 of 2015 -----------------------------------Dated 4[th] October, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 30.1.2015 in O.P.(M.V)No.1414 of 2011 passed by the Motor Accidents Claims Tribunal, Kottayam. The legal heirs of one Gopalan Sasi, the victim of the accident involved in the said case are dissatisfied with and aggrieved by, the quantum of compensation granted by the Tribunal as per the award passed thereon. The main grievance of the appellants is that the Tribunal went wrong in treating the claim petition as a claim for compensation for personal injuries sustained. It is their contention that the application for compensation was filed under Section 166 of the Motor Vehicles Act seeking compensation for the death of Gopalan Sasi, the husband of the first appellant and the father of appellants 2 and 3. As per the impugned award, the Tribunal granted a compensation of 61,500/- as against a claim of 6,00,000/-, treating₹ ₹ the claim petition as one for compensation for personal injury. 2. We have heard the learned counsel for the appellants as also the learned counsel appearing for the third respondent. M.A.C.A.No.1546 of 2015 2 3. At the outset, it is to be noted that there is no dispute regarding the accident, cause of the accident as also the liability of the third respondent to indemnify the second respondent, the insured owner of the vehicle involved in the accident. 4. For a proper disposal of this appeal it is apropos to narrate the relevant facts, in succinct. Gopalan Sasi, the deceased sustained injuries in a motor vehicle accident occurred at SH Junction on Kaviyoor road at about 7.50 a.m. on 19.2.2011. He was then driving his autorickshaw through the aforesaid road. At the place of accident it was hit by the lorry bearing Reg.No.KA 01/C-6807, driven by the first respondent. On sustaining severe injuries he was immediately taken to Taluk Headquarters Hospital, Changanacherry. From there he was referred to Medical College Hospital, Kottayam. From 19.2.2011 till 10.3.2011 he remained as an inpatient there. Ext.A5 is the discharge certificate. Ext.A5 would reveal his condition at the time of discharge as follows:- “GCS-15/15, PEARL, ambulant, afebrile, taking oral feeds.” True that the advice on discharge would reveal that he was advised to continue to take medicines specifically mentioned thereunder and was asked to appear for a review after four weeks. He was again hospitalised on 12.5.2011 and was discharged only on 23.5.2011. He died on 29.5.2011 i.e., on the 6[th] day from the date of discharge. M.A.C.A.No.1546 of 2015 3 Ext.A9 is the discharge summary. On his discharge from the hospital on 23.5.2011 he was advised to appear for review. As noticed hereinbefore, it is soon after his discharge that he breathed his last. The learned counsel appearing for the appellants submitted that the advice on discharge, as revealed from Ext.A5 and Ext.A9, would show that he was advised to continue to take the prescribed medicines. In such circumstances, it is further contended that merely because of the fact that he was discharged from the hospital the Tribunal ought not to have declined to treat the proximate cause of death as the impact of the injuries sustained in the accident. It is the submission that Exts.A5 and A9 and also the fact that he lost his life on the 6[th] day of his discharge from the hospital, would reveal that Gopalan Sasi was virtually under treatment though not as an inpatient, at the point of time of his death. It is the submission that necessity to continue with the treatment even after the discharge is evident from the very fact that he was asked to appear for a review and also the advice to continue to take the prescribed medicines as can be seen from Ext.A9. Per contra, the learned counsel appearing for the third respondent submitted that the Tribunal cannot be found fault with in treating the application as a claim for compensation for personal injuries. It is the submission that merely because Gopalan Sasi died within six days from the date of his discharge, following the second spell of hospitalization, it M.A.C.A.No.1546 of 2015 4 cannot be a reason to treat his death as an accidental death due to the injuries sustained in a motor vehicle accident. The learned counsel further submitted that in a claim filed under Section 166 of the Act, seeking compensation for death, it is for the claimants to prove that the proximate cause of death is the injuries sustained in the accident. In that context, the learned counsel brought to our notice the nature of medical evidence tendered through PW1. PW1 is Dr.Mahadevan who was the Professor of Neurological Department attached to Medical College Hospital, Kottayam. We have carefully gone through the oral testimony of PW1. We are afraid, the oral account of PW1 would give little support to the case of the appellants that the proximate cause of death is the sustainment of injuries mentioned in Ext.A5. On being examined in chief, he would depose:- “the injuries mentioned there may or may not cause the death of the patient.” Evidently, the reference was about the injuries mentioned in Ext.A5. A scanning of his evidence would reveal that Ext.A5 discharge certificate alone was brought to his notice and he gave the aforesaid opinion taking note of the injuries mentioned only in Ext.A5. True that, during cross examination, the respondents elicited the condition of the patient at the time of his discharge. He would depose during cross examination that at the time of discharge the condition of the patient was good. As noticed hereinbefore, Ext.A5 is the discharge certificate issued at the M.A.C.A.No.1546 of 2015 5 time of his discharge from Medical College Hospital, Kottayam on 10.3.2011. Ext.A5 would also reveal that though at the time of discharge his condition was good he was advised to take the prescribed medicines and was also asked to appear for a review. The undisputed and indisputable fact is that subsequently, he was hospitalised. He remained as an inpatient from 12.5.2011 to 23.5.2011. Ext.A9 is the discharge certificate issued at the time of his discharge on 23.5.2011. We have already taken note of the fact that even at the time of his discharge on 23.5.2011 the deceased Gopalan Sasi was advised to continue the use of the prescribed medicines. Merely because a person was discharged from hospital, it cannot be said with certitude that he regained his health and fully recovered from the impact of the injuries sustained in the motor vehicle accident. Had he been fully recovered by the time viz., on 23.5.2011 what was the necessity to request him to appear for a review ? But, at the same time, it is a fact revealed from the deposition of PW1 that his examination was with reference to Ext.A5 and nothing was put to him, with reference to Ext.A9, so as to elicit the correct opinion on its basis. What would have been his opinion had Ext.A9 been brought to his notice cannot be presumed. When the claimants put forth a claim that Gopalan Sasi lost his life as an impact of the injuries sustained and therefore, they are entitled to compensation for his death and when according to the respondents it M.A.C.A.No.1546 of 2015 6 can be treated as a claim for personal injuries only, necessarily, the endeavour of the Tribunal ought to have been to find out the truth as to what exactly was the proximate cause of his death. We are of the considered view that to elicit such truth and to grant just compensation in terms of the provisions under Section 168 of the Motor Vehicles Act, the Tribunal ought to have brought Ext.A9 to the notice of the expert, the doctor who was examined before it and obtained his opinion. Such a course ought to have adopted by the Tribunal especially taking note of the fact that the death of Gopalan Sasi occurred on the 6[th] day from the date of his discharge. In this context, it is to be noted that going by Ext.A9 he was discharged on 23.5.2011 and the death occurred on 29.5.2011. We may hasten to add that we shall not be understood to have made a clear finding that the proximate cause of death is the injuries sustained by Gopalan Sasi, in the accident. That essentially is the burden of the appellants. 5. We will now proceed to consider the other grievances raised in this appeal. The appellants got a grievance that the Tribunal had erroneously fixed the monthly income of the deceased even while treating the claim petition as a case of compensation for bodily injuries. In fact, the monthly income was fixed notionally solely for the purpose of granting compensation towards loss of earnings. It was fixed as ₹5,000/-. The learned counsel submitted that the Tribunal had lost M.A.C.A.No.1546 of 2015 7 sight of the fact that Gopalan Sasi, the deceased was an autorickshaw driver and in fact, he met with the accident while he was driving the autorickshaw. Ext.A12 is the driving licence issued to Gopalan Sasi. It would reveal that he was having a valid driving licence. The accident in question occurred on 19.2.2011. In the light of the submissions, with reference to the above said facts, we are of the view that there is substance in the grievance and contention. It is to be noted that even in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex court fixed the monthly income for calculation purpose as ₹4,500/-. (See the decision of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236).** As noticed hereinbefore, the deceased was having Ext.A12 valid driving licence and evidently, he was authorised to drive the transport vehicles. The accident itself occurred while he was driving the autorickshaw with passengers. Taking into account all such aspects, we are inclined to fix the monthly income as 9,000/-. Needless to say that the Tribunal has to take the₹ monthly income of late Gopalan Sasi as ₹9,000/for granting compensation under the deserving heads of compensation where it is a relevant factor. Though the accident occurred in the year 2011, the Tribunal has granted reimbursement of the expenses incurred for the service of bystander only at the rate of 100/-. In fact, the deceased₹ M.A.C.A.No.1546 of 2015 8 had been an inpatient for a period of 31 days. We are of the view that the appellants oughts to have been granted reimbursement at the rate of 200/- per day taking into account the cost of living and price index₹ at the relevant point of time. 6. We will now revert to the consideration of the contentions as to whether or not, the Tribunal had erred in finding that the appellants had failed to prove the proximate cause of death and thereby in treating the claim petition as one for compensation for personal injury. After going through the evidence of PW1 and Ext.A9, we have already found that Ext. A9 was not put to the notice of PW1 and no opinion was obtained by him based on the same. 7. In a claim petition seeking compensation, it is the bounden duty of the Court or the Tribunal to grant just compensation in terms of the provisions under Section 168 of the Motor Vehicles Act. It is a social welfare measure. Taking into account all the aforesaid aspects, we are of the view that, it is only proper to remand the matter for fresh consideration on the question as to what exactly is the cause of death of Gopalan Sasi and needless to say that if it is ultimately found that it was an accidental death involving a motor vehicle, the appellants are entitled to get compensation for his death. Subject to the outcome of such consideration, the entitlement of the appellants/ claimants to funeral expenses, compensation for loss of M.A.C.A.No.1546 of 2015 9 dependency, loss of estate, loss of love and affection etc. are to be examined. For the purpose of calculating compensation under deserving head/heads, where monthly income is a relevant factor, his monthly income has to be taken as 9,000/-. Needless, to say that the re-fixed₹ rate of reimbursement of expenses for bystander's service, shall also be taken into consideration while passing fresh award. To enable such a consideration, the impugned judgment is set aside. The Tribunal shall afford opportunity to the appellants as also the respondents to adduce evidence on the 2[nd] issue formulated for consideration. Since the claim petition is of the year 2011, an expeditious disposal is essential and in such circumstances, the parties are directed to appear before the Tribunal on 16-11-2017. The Tribunal is directed to dispose of the matter, as expeditiously as possible, at any rate, within a period of six months from 16-11-2017. There will be no order as to costs. Registry shall transmit the entire records to the Tribunal forthwith. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **B.SUDHEENDRA KUMAR Judge** TKS/ani