Kerala High Court

Radha vs Mammu Haji on 22 May, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
           WEDNESDAY, THE 22ND 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:
 MACA No.3 of 2014                          2


                                JUDGMENT

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 2nd 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

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 3rd 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,

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

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

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

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

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.

                            Amount             Amount       Difference to
         Head of claim   awarded by the       awarded in     be drawn as
                            Tribunal            appeal        enhanced
                                                            compensation
             (1)              (2)                 (3)            (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         Rs.10,000/-         Rs.15,000/-     Rs.5,000/-
   expenses

   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              Rs.15,000/-         Rs.30,000/-    Rs.15,000/-
   disability/Loss of
   expectation in life

   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

compensation.

The 3rd 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.