IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1076 of 2001()
1. YESODA
... Petitioner
Vs
1. P.VIJAYAN
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.P.MURALEEDHARAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.F.A.No.1076 OF 2001
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Dated 13th November, 2008
JUDGMENT
Koshy,J.
A young man aged 24 sustained very serious injuries in a
motor accident on 7.10.94. He was admitted in the Medical College
Hospital, calicut and treated as an inpatient for 26 days and advised
absolute bed rest. He was having 100% quadriplegia. Then he was
referred to the District Hospital, Kannur, his native place, for further
treatment and there he was treated as an inpatient for three and a half
months. Bed sore developed and on request he was discharged.
While in bed ridden condition in the house, he passed away on 1.9.1995.
Originally, the injured himself filed the application for compensation.
After his death, his wife and two minor children were impleaded as
additional claimants. Even though the Tribunal found that the accident
occurred due to the negligence of the first respondent driver of the bus
owned by the second respondent and insured by the third respondent
insurance company, against a claim of compensation of Rs.5,00,000/=,
only Rs.34,000/= was awarded inclusive of reimbursement of medical
expenses. Respondents 1 and 2 were declared ex parte and insurance
company was given permission to contest the case. Only quantum of
MFA.1076/2001 2
compensation is disputed in this appeal.
2. It is the case of the appellants that death was due to the
consequences of the injuries sustained in the accident and, therefore,
they are entitled to get compensation for loss of dependency. The
injured died at the age of 25 leaving his young wife and two minor
children hapless. He had no other ailments before the accident and
according to the appellants, death was the after effect of the accident
injuries and its trauma. Now, we will consider the injuries suffered in
the accident. Ext.A3 is the wound certificate. It shows that he had
sustained head injury and incised bleeding – wound of 4cm x = cm
depth near left eye. Ext.A4 is the discharge certificate issued from
the Medical College Hospital, Calicut which shows that he was treated
as inpatient from 8.10.1994 for 26 days in that hospital. Ext.A5 is the
discharge card issued from the District Hospital, Kannur which shows
that from 10.11.1994 he was treated as an inpatient there for three
and a half years and on request he was discharged on 21.1.1995. It
was also stated in the discharge card that bed sore was developed.
The Tribunal called for the treatment records from the hospital. It
shows that he had head injury and quadriplegia. X-ray showed C4-5
subluxation. He was treated conservatively and during hospital stay
bed sore developed and there was collapse of right lung. Patient is
MFA.1076/2001 3
having absolute quadriplegia and there was no sign of neurological
recovery. He was advised absolute bed rest, two hourly change of
position, care of skin and bladder and advised various medicines. On
19.10.1994 it was observed by the doctor that there was avulsion of
C5 and C6 vertebrae, widening of C5, C6 spaces and he was suffering
from traumatic quadriparasis. Ext.X1 treatment records from District
Hospital, Kannur also shows that he had traumatic quadriplegia and
collapse of right lung. Bed sore developed and no hope of
neurological recovery. Ext.X2 treatment records from Medical
College Hospital, Calicut further shows that there was cervical spine
injury, muscle weakening etc. Since it is a non-redemption case, he
was taken back to home. He was lying with quadriparasis and
suffered the injuries till his death and he died. On going through the
treatment records, we are of the view that his death was only due to
the accidental injuries. Therefore, his legal representatives are
entitled to compensation for loss of dependency. Now, the question is
what is the amount to be awarded.
3. According to the claimants, the deceased was a wood
cutter and he was getting Rs.3,000/= per month. The oral evidence is
not contradicted. He was an able bodied man and he was maintaining
his wife and two children. Even if he was getting only Rs.100/= per
MFA.1076/2001 4
day, for 25 days he would have got Rs.2,500/=. Therefore, we fix
Rs.2,500/= as the monthly income. He was aged 25 at the time of
death. 17 is the apt multiplier taking guidelines from the second
schedule. Even though it is contended by the appellants that the
Hon’ble Apex Court held that for a person aged between 20 and 25 a
higher multiplier of 18 should be taken, we are not enhancing the
multiplier fixed by the Tribunal taking guidance from the second
schedule. (See Smt.Supe Dei and others. v. M/s.National
Insurance Company Ltd. and another (JT 2001 (Suppl.1) SC 451),
Abati Bezbaruah v. Dy.Director General, Geological Survey of
India and another ((2003) 3 SCC 148) and A.P.S.R.T.C. v.
Pentaiah Chary (2007 AIR SCW 5689)). If the monthly income is
Rs.2,500/=, his yearly income will be Rs.30,000/= and after deducting
one third, the yearly loss of dependency to the family will be
Rs.20,000/=. If 17 is taken as the multiplier, the compensation
payable for loss of dependency will be Rs.3,40,000/= (20000 x 17).
Even though he was bed ridden in the hospital for about 4 = months
and rest of the time till his death in the house, the Tribunal has
granted only Rs.2,000/= as bystander’s expense, Rs.1,000/= for
transportation expense, Rs.1,000/= for extra nourishment,
Rs.2,000/= for medical expenses and Rs.20,000/= for pain and
suffering. The Tribunal fixed Rs.8,000/= for loss of actual earnings.
MFA.1076/2001 5
Thus, total compensation awarded was Rs.34,000/=. Even though it is
contended that at least Rs.1,00,000/= should be awarded for pain and
suffering, considering the total compensation awarded, we are not
enhancing the compensation of Rs.20,000/= awarded for pain and
suffering. It is true that no medical bills were produced, but, there
was continuous treatment for 4 = months. They have claimed
Rs.25,000/= for medical expenses, but, only Rs.2,000/= was allowed.
We are of the opinion that Rs.5,000/= should have been awarded for
medical expenses. For bystander’s expense for 11 months at least
Rs.11,000/= should be granted. Since we are granting compensation
for death, we are not granting any amount for loss of actual earnings.
For extra nourishment, the Tribunal has awarded Rs.1,000/=. We are
not changing the same. For loss of consortium for young wife, we
award Rs.10,000/= and for loss of love and affection and fatherly care
to the minor children, we award Rs.5,000/= each. For transportation
expense Rs.1,000/= was granted by the Tribunal. We are not
changing the same. For funeral expense, we award Rs.2,000/=.
Thus, the total compensation payable will be Rs.4,00,000/=. From the
above amount, Rs.34,000/= awarded by the Tribunal has to be
deducted and the balance amount payable will be Rs.3,66,000/=. The
above amount of Rs.3,66,000/= should be deposited by the third
respondent insurance company with 7.5% interest from the date of
MFA.1076/2001 6
application till its deposit, over and above the amount decreed by the
Tribunal. On deposit of the amount, first appellant is allowed to
withdraw Rs.1,00,000/=. One third of the balance amount should be
deposited in a Nationalised Bank in the name of the first appellant
enabling her to withdraw the same after five years. First appellant is
allowed to withdraw the quarterly interest of the amount deposited in
her name. Balance amount should be deposited in a Nationalised
bank in the name of the second and third appellants equally enabling
them to withdraw the same when they attain the age of 21 or at the
time of their marriage whichever is earlier. If they want to withdraw
the interest for educational purposes, they can approach the Tribunal.
The appeal is partly allowed.
J.B.KOSHY
JUDGE
THOMAS P. JOSEPH
JUDGE
tks