Kerala High Court
K.Gurudath Prabhu vs Vijayaraman .B on 13 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
MACA NO. 2691 OF 2021
AGAINST THE AWARD DATED 15.07.2021 IN OPMV NO.218 OF
2018 OF III ADDITIONAL MACT, KASARAGODE.
APPELLANTS/PETITIONERS:
1 K.GURUDATH PRABHU,
AGED 52 YEARS
S/O. LATE SADANANDA PRABHU.
2 ANOOP SADANANDA PRABHU,
AGED 15 YEARS
S/O. K. GURUDATH PRABHU.
3 ANUSHREE PRABHU,
AGED 15 YEARS
D/O. K. GURUDATH PRABHU.,
APPELLANTS 2 AND 3 ARE MINORS, REPRESENTED BY 1ST
APPELLANT GUARDIAN FATHER.,
ALL ARE R/AT SADANANDA, BEHIND S.A. TEMPLE,
MATTADAGUDDE, HOSABETTU, POST MANJESHWAR,
KASARAGOD DISTRICT, PIN-671 323
BY ADVS.
KODOTH PUSHPARAJAN
K.JAYESH MOHANKUMAR
VANDANA MENON
VIMAL VIJAY
MACA No.2691/2021
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RESPONDENTS/RESPONDENTS:
1 VIJAYARAMAN .B.,
S/O. THEKKEMOOLE BABU, R/AT THEKKEMOOLE, POST
MUTTATHODY, KASARAGOD DISTRICT, PIN-671 123
2 THE MANAGING DIRECTOR,
K.S.R.T.C, TRIVANDRUM-695 023, OZHINHAVALAPPU
P.O, KASARAGOD DISTRICT, PIN-671 315
3 THE BRANCH MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
CHANDRASEKHARAN NAIR STADIUM COMPLEX, PALAYAM,
TRIVANDRUM-695 033
BY ADV VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.2691/2021
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EASWARAN S., J.
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MACA No.2691 OF 2021
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Dated this the 13th day of February, 2025
JUDGMENT
The legal heirs of one Akshatha Prabhu @ Shrimathi
Shanbogue have come up with the present appeal aggrieved by the
award passed by the Additional Motor Accident Claims Tribunal -
III, Kasaragod in O.P(MV) 218/2018.
2. The brief facts necessary for the disposal of the appeal
are as follows:
On 24.06.2015, while the deceased Akshatha Prabhu was
travelling in a KSRTC bus bearing Registration No.KL-15 7510 from
Manjeshwar to Mangalore, at a place named Udayavar, the driver of
the bus applied sudden break in a negligent manner, as a result of
which the deceased Akshatha Prabhu was thrown out of the bus
through the front door. As a result of the accident, she sustained
grievous injuries including head injury. Later, on 24.01.2016, late
Akshatha Prabhu was admitted to KMC Hospital for treatment of a
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suddenly developed asthma and was declared dead on the very
same day due to respiratory failure.
3. According to the appellants, the death of late Akshatha
Prabhu was as a result of the injury sustained by her in the road
accident. The appellants contended that late Akshatha Prabhu was
a School Teacher drawing an income of Rs.10,055/- and that they
are entitled for compensation under the head loss of dependency
due to the death of late Akshatha Prabhu. In support of their
claim, Exts.A1 to A12 were marked and PW1 to PW3 were
examined. Case sheet relating to the treatment of late Akshatha
Prabhu is produced as Ext.X1.
4. The Tribunal on appreciation of the evidence found that
the death of late Akshatha Prabhu was not as a result of the injury
sustained by her in the road traffic accident that occurred on
24.06.2015. Thus the Tribunal proceeded to grant the total
compensation of Rs.95,700/- for the injuries sustained by the
deceased in the road traffic accident. Aggrieved by the above
finding of the Tribunal, the claimants have preferred this present
appeal.
5. Heard, Sri.Kodoth Pushparajan - learned counsel for the
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appellants and Sri.V.P.K.Panicker - learned Standing Counsel for the
Insurance Company.
6. The learned counsel for the appellants submitted that
based on the material evidence before the Tribunal, the Tribunal
could not have concluded that the accident occurred was not due to
the injuries sustained by late Akshatha Prabhu in the accident.
Specific reference is made in the evidence of PW2. The learned
counsel for the appellants having no doubt, submits the fact that
although PW1 had deposed before the Tribunal that the death of
late Akshatha Prabhu was not as a result of the accident, the said
evidence when pitted against the evidence of PW2, which discloses
the contrary, is more convincing. Thus he prays that the award of
the Tribunal be modified and the appellants be granted the
compensation under the head loss of dependency.
7. On the other hand, Sri.V.P.K.Panicker - learned Standing
Counsel for the Insurance Company, pointed out that there is no
inconsistency in so far as the evidence of PW1 is concerned. The
deceased Akshatha Prabhu was being treated for respiratory illness
from 2012 onwards, which is evident from the case she produced
before the Tribunal as Ext.X1. Therefore, the evidence of PW1 was
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given more credence by the Tribunal than that of PW2. The
evidence of PW3 was not accepted by the Tribunal. Therefore, he
pointed out that the findings of the Tribunal does not call for any
interference.
8. I have considered the rival submissions raised across
the Bar and have perused the award of the Tribunal.
9. The only question to be considered is as to whether the
death of late Akshatha Prabhu occurred due to the injury sustained
by her in the road traffic accident that occurred on 24.06.2015. In
order to the arrive at the finding that the death occurred due to the
injuries sustained by her in the road traffic accident, the only
evidence before this Court is the testimonies of PW1 and PW2
upheld with Ext.X1. On a close reading of evidence of PW1 shows
that the late Akshatha Prabhu was admitted in the hospital on
24.06.2015 with a history of road traffic accident. PW1 specifically
deposed that when late Akshatha Prabhu was admitted on
24.06.2015, she did not have any co-morbidities (means no history
of previous complaints). In this context, it is worthwhile to extract
the evidence of PW1:
"On 24.06.2015, she was admitted in my hospital, with the
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history of RTA. She had head injury and fracture of right arm
and multiple abrasions. On 24.06.2015, she did not have co-
morbidities, means no history of previous complaints. If she
was having any injury on the chest due to the accident, which
was not properly attended there are chances of developing
(page No.3) complaints of respiratory failure in future. Isn't
so? (Q). I am seeing the patient only on 24.01.2016. So that
I can't give any answer for the question (Ans). In the case
file it is seen that she was under treatment for Asthma. It is
seen that, she has seen the physician on 06.01.2016, for
treatment of bronchial asthma. I have not recommended for
post-mortem examination. I cannot say, whether the death
was caused due to the complications caused in the (Page
No.4) accidents"
10. It is pertinent to mention that though PW1 was cross-
examined, nothing has been brought out to discredit her evidence.
11. Now coming to evidence of PW2, though a suggestion
was made before PW2 that the death occurred due to the
respiratory illness that resulted in the accident, PW2 categorically
denied the same. Here again, though the witness was extensively
cross-examined, the claimants could not discredit the evidence of
PW2.
12. On a close analysis of evidence of PW1 and PW2, this
Court is of the considered view that the finding of the Tribunal that
the death of late Akshatha Prabhu was not as a result of the
injuries sustained by her in the road traffic accident that occurred
on 24.06.2015 is perfectly justifiable and does not suffer from any
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infirmity or error on appreciation of evidence. Though it is
permissible for this Court to re-appreciate the evidence adduced by
the parties before the Tribunal, on a close reading of the evidence
of PW1 and PW2, this Court is not persuaded to overturn the
findings of the Tribunal in this regard. Therefore, the necessary
corollary is that the findings of the Tribunal has to be upheld.
13. This leaves this Court to consider as to whether the
claimants/appellants are entitled for any enhancement on count of
the injuries sustained by the late Akshatha Prabhu in the road
traffic accident.
14. In the considered view of this Court, the Tribunal having
taken note of the injuries sustained by late Akshatha Prabhu, as
evident from Ext.A3, was not justified in granting the meager
compensation. A perusal of the award impugned in the appeal
shows that the deceased Akshatha Prabhu suffered the following
injuries:
"1. Laceration at occipital region.
2. Tenderness and deformity at right arm.
3. Undisplaced fracture.
4. Undisplaced fracture left mastoid temporal bone.
5. Fracture of left lateral wall of sphenoid sinus.
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6. Acute subdural hemorrhage frontal region.
7. Hemorrhage contusion right frontal lobe."
15. Turning to the extent of compensation awarded by the
Tribunal, this Court finds that under certain heads the Tribunal was
not justified in limiting the compensation. Accordingly, the
claimants are thus entitled to an enhancement in the compensation
only on count of the injuries suffered by late Akshatha Prabhu in
the road traffic accident on 24.06.2015 and are not entitled to any
compensation under the head loss of dependency.
16. As an upshot of these discussions, this Court is of the
considered view that the claimants are entitled to succeed in part.
Accordingly, the appeal stands allowed in part. The compensation
granted by the Tribunal is modified as follows:
Heads Amount awarded Total Enhanced amount
by the Tribunal compensation of compensation
awarded in
appeal
Pain and sufferings 30,000/- 55,000/- 25,000/-
[55000-30000]
Loss of amenities Nil 75,000/- 75,000/-
Total enhanced amount of compensation 1,00,000/-
Accordingly, the appellants/claimants are awarded an
additional compensation of Rs.1,00,000/- (Rupees one lakhs
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only) over and above the compensation awarded by the Tribunal
with interest @9% per annum from the date of petition till
realization together with proportionate costs. The Insurance
Company is directed to deposit the aforesaid amount within a
period of two months from the date of receipt of a copy of this
judgment.
The appeal is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
ACR
