High Court Kerala High Court

Yesoda vs P.Vijayan on 13 November, 2008

Kerala High Court
Yesoda vs P.Vijayan on 13 November, 2008
       

  

  

 
 
  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.
                       --------------------------------------
                       M.F.A.No.1076 OF 2001
                        -------------------------------------
                      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