Madras High Court
M/S. National Insurance Co. Ltd vs K.P.Kuppusamy on 13 December, 2010
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.12.2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.(NPD)No.1964 of 2003 M/s. National Insurance Co. Ltd., Mettupalayam Road, R.V.R. Building, First Floor, 16, Karamadai Road, Mettupalayam. ... Appellant/3rd Respondent vs. 1.K.P.Kuppusamy, 2.Rani Rangaraj (Respondents 1 and 2 are the legal representatives of the deceased original first petitioner in the MCOP) 3.R.David, 4.K.Senniappan Gounder. (Respondents 3 and 4 ex parte in lower court). ... Respondents/Petitioners 2 and 3 and respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 7.3.2002 passed in M.C.O.P.No.187 of 1994 on the file of the Motor Accidents Claims Tribunal (Principal Sub Court), Coimbatore. For appellant : Mr.M.B.Ragavan For respondents : Mr.M.Sriram for R1 and R2 : R3 and R4 ex parte in the tribunal. ----- JUDGMENT
The National Insurance Company is on appeal challenging the award dated 7.3.2002 passed in M.C.O.P.No.187 of 1994 on the file of the Motor Accidents Claims Tribunal (Principal Sub Court), Coimbatore.
2. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 5.10.1991. One Rathinam alias Rathinabai, wife of K.P.Kuppusamy, 50 years old agriculturist was walking on the Gandhipuram Cross Cut Road. She was hit by a motorcycle driven by the third respondent, owned by the fourth respondent and insured with the appellant. In that accident, she suffered grievous head injury. She was taken to Ellen Hospital and surgery was done to the head region. It is stated that she could not regain her conscious even after operation. She was kept in Intensive Care Unit from 6.10.1991 to 22.4.1992. A claim petition claiming compensation in a sum of Rs.7,00,000/- was filed by the injured claimant represented by next friend and husband K.P.Kuppusamy in view of the serious health condition of the injured. Thereafter, the injured died on 4.11.1997 and the claim was amended. Consequent to the death, the legal heirs of the deceased Rathinam alias Rathinabai prosecuted the claim.
3. In support of the claim, the husband of the deceased was examined as P.W.1. One Mr.K.G.Ramaraj, the eye witness to the accident, was examined as P.W.2. Dr.Narayanamoorthy, Dr.Manohar and Dr.S.Rajasekaran, were examined as P.Ws.3 to 5. Exs.A-1 to A-25 were marked on behalf of the claimants, the details of which as mentioned in the award of the Tribunal are as follows:-
Ex.A-1 is the vakalat and affidavit, Ex.A-2 is the copy of criminal court judgment, Ex.A-3 series are the medical receipts, Ex.A-4 is the receipt dated 18.6.1992 for purchasing air bed, Exs.A-5 to A-10 are the receipts for medical expenses, Ex.A-11 is the letter to purchase Kavintone tablets from Singapore, Ex.A-12 series are the receipts for medical expenses, Ex.A-13 is the X-Ray, Ex.A-14 is the receipt issued by Alwin Power System, Ex.A-15 is the certificate issued by Salicka Naickenpalayam Village Administrative Officer, Ex.A-16 is the copy of FIR, Ex.A-17 is the X-Ray, Ex.A-18 is the Report issued by Kovai Scan Centre Ex.A-19 is the X-Ray, Ex.A-20 is the Report issued by Sri Ramakrishna Hospital, Ex.A-21 is the discharge summary issued by Ellen Hospital, Ex.A-22 is the certificate issued by Ellen Hospital, Ex.A-23 (not typed in the award) Ex.A-24 is the medical certificate issued by Dr.D.Manohar and Ex.A-25 is the wound certificate issued by the Ellen Hospital.
On behalf of the appellant, the third respondent before the Tribunal no oral or documentary evidence was let in.
4. The documentary evidence marked before the Tribunal clearly revealed that the injured claimant who died subsequently suffered grievous injuries on her head. From the evidence, it could be seen that the injured was living without consciousness and died in the year 1997. The prolonged medical treatment proved futile and that is evident from the medical records produced. P.W.3, Dr.Narayanamoorthy in his evidence stated that the disability is 100%. The injured person totally lost the ability to move her hands or legs. She has no sensory perception. The medical records clearly established the case of the injured claimant suffering grievous injuries resulting in total loss of memory and sense. This could be akin to what is called as brain death. Claimants have expended substantial amount for medical treatment for which a sum of Rs.2,30,000/- was granted by the Tribunal. The balance amount is towards compensation under various heads on which there appears to be no serious dispute. In all, the Tribunal granted the following amounts as compensation with 9% interest as follows:-
Sl.No. Head Amount granted by the Tribunal 1 Medical expenses expended by the husband of the deceased Rs.2,30,500/-2
Loss of pecuniary benefits to the dependents of the deceased (Rs.30,000/- x 2/3 x 13 = Rs.2,60,000/-) Rs.2,60,000/-3
Pain and sufferings Rs. 25,000/-4
Loss of consortium to the husband of the deceased Rs. 10,000/-
5
Funeral expenses
Rs. 4,500/-
Total
Rs.5,30,000/-
5. The only point canvassed in this appeal is that from the date of accident (i.e.) on 5.10.1991 till the date of death (i.e.) on 4.11.1997, there is a long gap and there is no postmortem certificate to prove that the death was due to injury suffered in the accident.
6. This Court is unable to accept the appellant's plea. The medical evidence on record prove that the injured lady was totally paralyzed after the accident and lived like a vegetable for number of years. She lived in a comatose stage and without sensory perception and in spite of extensive medical treatment she did not recover. The evidence of doctors and medical records clearly supports the case of belated death consequent to the accident which happened on 5.10.1991. When the victim is in such a bad state of health for number of years and dies due to deterioration of health, the postmortem certificate need not be insisted upon considering the facts of the present case. In such view of the matter, this Court is not inclined to take a different view from the view taken by the Tribunal.
7. With regard to negligence, the Tribunal discussed the issue in paragraphs 5 and 6 of the award in answer to point No.1. The Tribunal based on the evidence of the eye witness P.W.2 and the admission of guilt by the driver of the motor cycle before the criminal court, held that the accident was due to rash and negligent driving of the motorcyclist and fixed the liability on the appellant insurance company to compensate the claimants. This issue is not seriously urged by the appellant as there is no material to hold otherwise.
8. There is no dispute with regard to quantum of compensation or interest awarded by the Tribunal.
9. Finding no merit, this Civil Miscellaneous Appeal is dismissed. No costs.
13.12.2010
Index: No.
Internet: Yes
ts
To
The Principal Subordinate Judge,
(Motor Accidents Claims Tribunal)
Coimbatore.
R.SUDHAKAR,J.
ts
Judgment in
C.M.A.(NPD)No.1964 of 2003
13.12.2010