IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1483 of 2004()
1. KARTHIYAYANI @ KARTHU, W/O.THEVAN,
... Petitioner
2. RATHEESH, S/O.THEVAN, DO.DO.
3. RANJU, S/O.THEVAN, DO.DO.
Vs
1. K.P.UMMER, KOKKADAN HOUSE,
... Respondent
2. PRAKASH, S/O.RAMAN, VENCHATUKUDY HOUSE,
3. THE ORIENTAL INSURANCE CO LTD.,
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :25/05/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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M.A.C.A.No. 1483 of 2004
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Dated this the 25th day of May, 2009
JUDGMENT
Joseph, J.
The appellants are additional petitioners in M.V.(OP) No.
922 of 1999. The petitioner in that case was the husband of the
first appellant and father of appellants 2 and 3. The said petition
was filed under Section 166 of the M.V. Act, claiming
compensation for the injuries sustained by the petitioner in the
accident, which occurred on 13.5.1999. Pending the petition, the
original petitioner passed away on 9.2.2000. It is thereupon that
the present appellants were brought on the party array as
additional petitioners.
2. The Tribunal found that there is negligence on the part
of the 2nd respondent. In view of the death of the petitioner on
9.2.2000, a contention was raised on behalf of him that the
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death occurred on account of the accident. It is the case of the
appellants that on account of the accident, the original petitioner
developed epilepsy and he died on account of epilepsy. Therefore, the
accident inflicted injury culminated in the death of the petitioner, it is
contended.
3. The Tribunal, however, found that it could not be found that
the death of the petitioner was on account of the injuries sustained.
Thereafter the Tribunal proceeded to consider the claim of the
appellants and awarded a sum of Rs.82,000/- as total compensation.
4. We heard the learned counsel for the appellants
Shri.Mohammed Ravuf and the learned counsel for the respondents
Shri. A.R. George. The learned counsel for the appellants would
submit that it is a case, where there is evidence on record that the
petitioner developed epilepsy consequent to the injuries suffered in the
accident. He referred to the evidence of the doctor, who is a Neuro
Surgeon and Head of the Department in the Medical Mission Medical
College, Kolencherry. He was not the doctor who has treated the
petitioner. The person who treated the petitioner is not available in
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India. On the basis of the medical evidence, there can be no dispute
that it is on account of the accident that the petitioner developed
epilepsy. The doctor has proceeded to say that there is 15 to 20%
chance of death occurring in the case of the injury as sustained. He
would submit that having regard to the evidence of the doctor, it is
clear that the petitioner continued to suffer on account of the injury
sustained. The evidence would show that he was disoriented even at
the time when he was discharged from the hospital.
5. The learned counsel for the appellants pointed out that the
petitioner was only 42 years at the time of his death. He would
further submit that the compensation awarded is too meager. The
amount of compensation for loss of amenities is too low, as it is only
Rs.5,000/- The appellants had a case that towards shorter expectation
of life no amount has been awarded. Further, he would submit that
the income of the petitioner has been arrived at as Rs.1,800/- The
petitioner was a head load worker and the accident occurred in 1999.
Therefore, the claim in the petition should have been allowed, that is,
the income should have been found at Rs.3,500/- But the learned
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counsel appearing for the Insurance Company, to the contrary, pointed
out that the Tribunal has passed a just award. In particular, he points
out that as against the claim for pain and sufferings, the amount which
was usually awarded is only Rs.20,000/- But the Tribunal has awarded
an amount of Rs.40,000/- noting the peculiar features of the case.
6. The first question that arises for consideration is whether it
can be said that the death, which occurred on 9.2.2000, could be said
to be due to the injury sustained in the accident. For that we will have
to consider the evidence available in this case. The principal evidence
which was canvassed before us is the evidence of the expert, which
reads as follows:
“At the time of admission, the patient was drowsy
and disoriented. He was moving all four limbs. He had
bleeding from the left ear. Pupil were equal in size and
reacting to lights. His pulse rate and B.P. were normal.
C.T. Scan of the brain was done on the day of admission
and showed right temporal contusion with sub arachnoid
hemorrhage. There was no mass effect on the mid line
shift noticed in C.T. Scan report. He was managed
conservatively with medicines and was discharged on
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31.5.1999. At the time of discharge he was conscious
but disoriented. He was advised to take anti-epileptic
drugs regularly.”
7. The reason for developing epilepsy is due to the head injury.
Epilepsy may cause death also. To a specific question, was the death of
the patient caused due to the direct impact of epilepsy, the witness
answered that he cannot ascertain, but there is possibility. In cross
examination he admits that he never seen or treated the patient. But he
submits that as per the records, at the time of discharge, the patient was
conscious, but was occasionally disoriented. He also submits that the
injury suffered by the petitioner cannot be said to be a major head
injury, but it can be considered as a moderate head injury. He further
states that in moderate head injuries the probability of causing death is
only 15 to 20% and in serious cases it ranges from 35 to 50%. In mild
cases it is only 2%. To a specific query, whether he would say the real
cause of death of the patient, he replies he cannot. In re-examination he
would say that stopping of the medicines also may cause death. But
there is nothing before us to establish unambiguously that the death of
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the petitioner occurred on account of the injury sustained by him in the
accident.
8. In these circumstances, we think that it may not be proper for
us to accept the contentions of the learned counsel for the appellants
that the finding of the Tribunal regarding the cause of death of the
petitioner is such that it is liable to be vacated. However, we think that
the appellants are entitled to enhanced compensation. They were
granted only Rs.5,000/- towards loss of amenities. We feel that a
further sum of Rs.5,000/- would be sufficient to meets the ends of
justice. We further notice that there is a case based on shorter
expectation of life. In the nature of the evidence, we think that the
appellants should be granted Rs.6,000/- towards that count. Lastly, we
feel that in the nature of the evidence, which is before us, the appellants
are entitled to higher compensation on the basis higher income being
earned by the petitioner. The widow has gone to the witness box and
spoken about her receiving Rs.100/- per day towards family expenses.
The loss of earnings has been fixed for 9 months. The income is taken
as Rs.1,800/- We think that having regard to the facts of the case, the
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income can be fixed at Rs.2,800/- The appellants would be entitled for
Rs.1,000/- more per month. (Rs.9,000/- for a period of nine months).
9. The appeal is allowed in part. The appellants are allowed to
realise the enhanced compensation of Rs.20,000/-, which will bear
interest at the rate of 7.5% from the date of the petition till the date of
payment from the respondents.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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