IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 179 of 2005()
1. VENUGOPAL S/O.NARAYANAN NAIR,
... Petitioner
2. SREEDEVI W/O. LATE VENUGOPAL,
3. VIDYA D/O. LATE VENUGOPAL, DO. DO.
4. MINOR ANOOP S/O. LATE VENUGOPAL,
5. NARAYANAN NAIR F/O. LATE VENUGOPAL,
6. MEENAKSHY AMMA M/O. LATE VENUGOPAL,
Vs
1. T.L.PAULSON, THENGOLAPARAMBIL HOUSE,
... Respondent
2. RONY S/O. GEORGE, MANJALI HOUSE,
3. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :03/11/2008
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.A.C.A.No.179 of 2005 (G)
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Dated this the 3rd day of November, 2008
J U D G M E N T
KOSHY,J.
The 1st appellant sustained serious injuries in a motor
accident on 12.11.1994. He claimed compensation before the
Tribunal claiming an amount of Rs.2,03,000/-. The accident
occurred on 12.11.1994. The 1st appellant committed suicide on
February, 1997 on account of mental depression. Thereafter, his
legal representatives consisting of his wife, son, daughter and his
father and mother were impleaded and the amount claimed was
enhanced to Rs.5,75,000/- alleging that the 1st appellant committed
suicide due to depression caused as a consequence of the injuries
suffered in the accident. Tribunal found that the accident occurred
due to the negligent driving of the motor cycle by the 2nd
respondent. The motor cycle was owned by the 1st respondent and
insured by the 3rd respondent Insurance company. The contention
of the appellants is that death was due to the after effect of the
accidental injuries was not accepted by the Tribunal and
MACA.No.179/2005 2
compensation awarded was only Rs.30,000/- with interest. The
quantum of compensation is disputed in this appeal.
2. Claimant was aged 33 at the time of accident. The
wound certificate shows that there was a smell of alcohol. The
wound certificate (Ext.A2) reads as follows:
“Multiple injuries due to RTA smell of alcohol
++. C.T.Scan shows no evidence of head or
visceral injuries. Treated conservatively. Multiple
injuries involving right leg and shoulder.”Ext.A10(2) is the reference card issued from the Medical College
Hospital, Thrissur. He was admitted in the Medical College Hospital,
Thrissur and treated as an inpatient from 13.11.1994 till 22.11.1994
for 9 days. Ext.A10 reference card shows the diagnosis as
‘depression’. So, from the initial treatment period itself he was
showing signs of depression. Again he was admitted in the Medical
College Hospital on 11.12.1994 for depression and he was
discharged on 24.12.1994. He was under continuous treatment. He
produced medical prescriptions for 29 numbers as Ext.A15(1).
Exts.A11 to A15 shows that the 1st appellant was under continuous
treatment for depression and Ext.A12 shows that the injured made
an attempt to commit suicide by consuming alcohol and 120 tablets
of Eptoin. It is stated in the certificate that he consumed 120
MACA.No.179/2005 3
tablets along with alcohol. He was admitted in the District Hospital,
Thrissur on 14.2.1996 till 21.2.1996. He was an employee of
Alagappa Textiles (Cochin) Mills. It is true that after the accident he
joined duty but he took leave immediately. He has taken ESI leave
for 332 days. He has taken 406 days leave during the period
between 20.11.1995 to 15.2.1997. It is the contention of the
claimants that he has rejoined duty and took leave as his behavior
was not normal after the accident. Even though initially Scan
report did not show any serious head injuries, PW2 Doctor who
treated him stated that certain head injuries could be detected only
later. It is a case of head injury and there is inability to move right
side. That was the certificate issued when he was admitted for the
second time on 11.12.1994. The certificates would show that the
head injury led to depression. The Tribunal came to the conclusion
that he was an alcoholic person because wound certificate shows
that there was smell of alcohol and in an earlier occasion, he tried
to commit suicide by consuming 120 tablets of Eptoin
(phenobarbitone prescribed to him) along with alcohol. This is also
due to depression and mental problem. But there is no evidence to
show that he was an alcoholic or depression occurred due to
alcoholism. A deceased person cannot be called as an alcoholic
MACA.No.179/2005 4
without any material. PW2, Dr.Mahadevan, stated that he had no
depression before the accident. The Doctor certified as follows:
“After perusing all his medical records
provided and history from his close relatives,
according to my opinion he committed suicide
most probably due to Post traumatic chronic
depression, a Sequelae of head injury sustained
in RTA.”The medical certificate produced shows that he has got treatment
from various centres for epilepsy and depression after the accident.
He had no depression or similar diseases before the accident. On
going through the medical evidence, it can be seen that his
depression arose only consequent to the injuries on the head.
3. In Bourhill v. Young ((1942) 2 All ER 396) at page
402, (1943) AC 92 at 103 Lord Macmillan said:
“The crude view that the law should take
cognizance only of physical injury resulting from
actual impact has been discarded, and it is now
well recognised that an action will lie for injury
by shock sustained through the medium of the
eye or the ear without direct contact. The
distinction between mental shock and bodily
injury was never a scientific one, for mental
shock is presumably in all cases the result of, or
at least accompanied by, some physical
disturbance in the sufferer’s system, and a
mental shock may have consequence more
serious than those resulting from physical
impact.”MACA.No.179/2005 5
Lord Bridge drew attention to the interrelation of physical and
psychiatric injury in McLoughlin v. O’Brian ((1982) 2 All ER 298 at
312-313, (1983) 1 AC 410 at 433:
“No Judge who has spent any length of time
trying personal injury claims in recent years
would doubt that physical injuries can give rise
not only to organic but also to psychiatric
disorders. The sufferings of the patient from the
latter are no less real and frequently no less
painful and disabling than from the former.
Likewise, I would suppose that the legal
profession well understands that an acute
emotional trauma, like a physical trauma, can
well cause a psychiatric illness in a wide range
of circumstances and in a wide range of
individuals whom it would be wrong to regard as
having any abnormal psychological make-up. It
is in comparatively recent times that these
insights have come to be generally accepted by
the judiciary. It is only by giving effect to these
insights in the developing law of negligence that
we can do justice to an important, though no
doubt small, class of plaintiffs whose genuine
psychiatric illnesses are caused by negligent
defendants.”Recently, House of Lords consisting of five members considered a
similar question in Corr (Administratrix of Corr deceased) v. IBC
Vehicles Ltd. ((2008) 2 All ER 943). Facts of the above case is that
in June, 1996, the claimant’s husband, C, was badly injured in a
factory accident on the premises of the defendant, his employer.
The defendant admitted that the accident had been caused by its
MACA.No.179/2005 6
negligence or breach of statutory duty. Thereafter, C suffered post-
traumatic stress disorder and severe depression. Nearly six years
later, in February 2002, he was being treated for depression and
was admitted to hospital. He was assessed as being a significant
suicide risk on 2 March 2002 and on 9 March it was noted that he
had recurring thoughts of jumping from a high building. On 20 May
2002 the deceased was examined by a clinical psychologist who
noted that he felt helpless and admitted to suicidal ideation. On 23
May 2002, while suffering from an episode of severe depression, C
committed suicide by jumping from the top of a multi-storey car
park. The claimant brought claims against the defendant including
a claim under the Fatal Accidents Act, 1976. The judge dismissed
her claim under the 1976 Act. The claimant’s appeal was allowed
by a majority of the Court of Appeal. It was argued in appeal that
the accident occurred after about six years and it broke the chain of
causation and constituted a novus actus interveniens, was an
unreasonable act which broke the chain of causation and was the
voluntary act of the deceased and so precluded by the principle
volenti non fit injuria. All the five members were in agreement with
the judgment of the Court of Appeal, but, Lord Scott of Foscote held
that conduct of the victim is also not blameless and full
MACA.No.179/2005 7
compensation will not be available, but, only a reduced
compensation need be granted as there is some act on his part
also. But, that was a dissenting opinion. Lord Walker of
Gestingthorpe opinioned as follows:
“In applying this test the court has to have
regard both to blameworthiness and to what is
sometimes called causal potency (Stapley v.
Gypsum Mines Ltd. (1953) 2 All ER 478 at 486,
(1953) AC 663 at 682). These are not precise
or mutually exclusive tests. I do not regard
‘blameworthy’ as an appropriate term to
describe Mr. Corr’s conduct when, with his
judgment impaired by severe depression, he
decided to end his life by jumping off a high
building. That was his own decision, but it was
nevertheless a natural consequence of the
physical and mental suffering which he had
been enduring since the accident. For my part,
in agreement with Lord Bingham, I would
make no reduction in the damages to be
awarded under the Fatal Accidents Act,1976.”Lord Neuberger observed as follows:
“50. Here, the coroner found that Mr. Corr
‘underwent over time a psychological change
resulting in depression and anxiety not
previously experienced’, while Dr.Paul McLaren,
the consultant psychiatrist instructed by Mrs.
Corr, said in his reports that ‘ a critical change
takes place in the balance of a sufferer’s
thinking, when they stop seeing the hopeless
thoughts as symptoms of an illness and the
depressive thinking comes to determine their
reality’ and concluded that ‘Mr. Corr’s capacity
to make a reasoned and informed judgment on
his future was impaired by a Severe DepressiveMACA.No.179/2005 8
Episode in the hours leading up to his death’. In
these circumstances, there was a considerable
case for the full recovery which the Court of
Appeal awarded; this is also highlighted by
Lloyd LJ’s reasoning in Kirkham v. Chief
Constable of the Greater Manchester Police
(1990) 3 All ER 246 at 250, (1990) 2 QB 283 at
290, although his remarks were directed simply
to an issue of volenti non fit injuria and it is not
apparent that the issue of contributory fault
raised in the notice of appeal (see (1990) 2 QB
283 at 285) was actually pursued before the
court in that case.51. However, in my view, the existence of a
causal link between an accident and depression
leading to suicide, sufficient to make a
defendant who is responsible for the accident
liable for the suicide as one of its consequences,
does not necessarily mean that such liability
should involve a 100 per cent recovery.”It was further observed as follows:
“62. In these circumstances, there is, I
accept, a powerful case for saying that, where a
defendant is tortiously liable under the 1976 Act
for the suicide of a person, a degree of
contributory negligence (which in the absence of
special factors, might well be 50 per cent)
should be attributable to the deceased where he
is of sound mind, but that it is inappropriate to
attribute any contributory negligence to him
where it can be said that he was not of sound
mind. However, it seems to me that such an
approach does not pay sufficient regard to what
Lord Hoffmann referred to in the passage
already quoted as ‘the complexity of life’.
Indeed, what Lord Hoffmann had to say earlier
in his opinion (1999) 3 All ER 897 at 903, (2000)MACA.No.179/2005 9
1 AC 360 at 368-369) appears to me to be even
more directly in point:‘The difference between being of
sound and unsound mind, while appealing
to lawyers who like clear-cut rules, seems
to me inadequate to deal with the
complexities of human psychology in the
context of the stresses caused by
imprisonment.’ ”It was further observed as follows:
“67. In the present case, Mr.Corr’s
depression led him to have ‘thoughts of
hopelessness’ which ‘became more difficult to
resist’ before the suicide and, at the time he
committed suicide, he was suffering from a
disabling mental condition, namely, a severe
depressive episode, which impaired his capacity
to make a reasoned and informed judgment on
his future. This seems to me to render the
employer’s case on contributory negligence
plainly and significantly weaker than that of the
commissioner in Reeves’s case. However,
Mr. Corr’s capacity was ‘impaired’ rather than
removed, a point emphasised by the fact that
neither his intellectual abilities nor his
appreciation of danger had been lessened from
the norm, and that he appreciated the
consequences of jumping from a building.”
In the above circumstances, compensation amount was not
reduced.
4. In this case, it has been in evidence that before the
accident, the deceased had no depression. There is no evidence to
the effect that the deceased has suffered depression leading to
MACA.No.179/2005 10
suicide or any other psychological disorder before the accident. He
was a happy family man before the dreadful accident. The Doctor
also deposed that before the accident, no such depression was
reported. From the evidence, it can be seen that his severe
depression and worthilessness and helplessness came after the
accident in view of the accidental injuries. In his severe depressed
state, he felt that he was a greater burden to his relative’s life.
Suicide was his decision and worthilessness and helplessness which
were the result of his depression which, in turn, resulted in the
suicide. Therefore, we are of the view that compensation should be
given to the legal representative for the death as death was caused
due to the mental depression developed consequent to the injuries,
but, we are of the opinion that on the facts and circumstances of
this case, a reduction can be given and only 50% of the
compensation payable for the death need be granted. On the facts
of this case, we are not awarding separately compensation for loss
of consortium, compensation to the children for loss of love and
affection, for funeral expenses or for loss of estate. His monthly
income is taken as Rs.2,500/-. Hence, notional yearly income is
Rs.30,000/-. After deducting /3 , loss of dependency is Rs.20,000/-.
1 rd
Taking 17 as the multiplier as per the guidelines, compensation for
MACA.No.179/2005 11
loss of dependency will be Rs.3,40,000/- (Rs.20,000 x 17). We note
that he lost monthly income for a long time as can be seen from
the certificate issued by the employer. Out of the Rs.30,000/- as
compensation awarded, for loss of medical expenses, pain and
suffering etc. no compensation was awarded for loss of earnings
during the leave period and no compensation was awarded even for
disability also. Since we are convinced that the death arose due to
the consequence of the accidental injuries because depression
developed due to the accident, we are of the opinion that his
dependents are entitled to compensation, but, we are not awarding
full compensation as per the guidelines under the 2nd schedule in
this case. On the facts and circumstances of the case, instead of
Rs.3,40,000/- which is the calculated amount as per the 2nd
schedule, we award 50% of the same as additional compensation,
that is, Rs.1,70,000/- in addition to the compensation awarded by
the Tribunal. Hence, the additional amount of Rs.1,70,000/- should
be deposited by the 3rd respondent Insurance company with 7.5%
interest from the date of application till its deposit and on deposit of
the above amount, the mother (sixth appellant) is allowed to
withdraw a consolidated amount of Rs.15,000/- and out of the
balance amount, /3 1 rdis allowed to be withdrawn by the widow
MACA.No.179/2005 12
(second appellant). The daughter and son third and fourth
appellants) are allowed to withdraw the balance amount in equal
proportion. Appeal is accordingly partly allowed.
J.B.KOSHY
Judge
K.P.BALACHANDRAN
Judge
prp/vav
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.NO.179 OF 2005
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J U D G M E N T
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3rd November, 2008