The Oriental Insurance Co. Ltd. v. N. Meenal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08..04..2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.1667 of 2003and C.M.P.No.10766 of 2003 The Oriental Insurance Co. Ltd.,rep. By its Divisional ManagerChennai-6. ...Appellant(II Respondent)Vs.1. N. Meenal2. Minor N. Meenakshi3. Minor N. Murugappan (Minors represented by mother and Natural Guardian 1st respondent) 4.R.Rajendran(4th Respondent exparte in lower Court) ...Respondents(Petitioners 1 to 3 and 1st Respondent)This civil miscellaneous appeal has been filed under Section 173of Motor Vehicles Act, 1988, against the Judgement and decre inM.C.O.P.No.1927 of 1997 dated 10.10.2002 on the file of the MotorAccidents Claims Tribunal – Chief Judge, Small Causes Court, Chennai For Appellant: Mr.N. VijayaraghavanFor Respondents 1 to 3: Mr.PL. Narayanan J U D G M E N T The allegations in the claim petition are as follows:The first petitioner is wife of the deceased Nachiappan andsecond and third petitioners are their children. On 8.9.94 at 5.15p.m. while the deceased was proceeding from Teynampet via KasturiRangan Road and Cathedral junction on his scooter bearingregistration No.TMH-6705 with his wife as pillion rider, while hewaiting for signal to turn right and proceeded to turn right, theauto-rickshaw bearing registration No.TSJ 4102 driven by the firstrespondent driver, violated traffic rules and unmindful of thesignal, turned right towards Cathedral Road junction at a very highspeed and in the process, he collided with the deceased's scooter atthe rear side by means of which both the deceased and his wife fell https://hcservices.ecourts.gov.in/hcservices/ down. The accident was outcome of rash and negligent driving of theauto driver. The deceased was working as clerk in Vijaya Bank, ClubHouse Road, Madras and was aged 41 years at the time of accident anddrawing salary of Rs.7,000/- per month. Hence a compensation ofRs.15,76,250/- is claimed.2. In the counter filed by the second respondent, the followingare stated:The claim is not sustainable in law or facts of the case sincethe deceased did not die due to the injuries sustained in theaccident which unrelated to the injuries and hence the cause ofaction does not survive to the claimants. The petitioners are put tostrict proof that the death was due to injuries sustained in theaccident. In a settlement it was agreed that Rs.50,000/- ascompensation be paid to the injuries on 16.2.95. This respondent isready to pay the sum of Rs.50,000/- and further claim is notsustainable. The age, occupation and income of the deceased aredenied. The place, date, time of accident and nature of injuries arenot admitted. The compensation claimed is excessive. Hence, thepetition has to be dismissed.3. The learned Chief Judge, Court of small causes, MotorAccidents Claims Tribunal, Chennai after scrutiny of the evidence andother materials on record passed an award directing the respondentsin the claim petition to pay a sum of Rs.9,24,435/- as compensationalong with interest at the rate of 9%. This is the award beingchallenged before this court. 4. The accident took place on 8.9.1994 at 5.15 p.m. as narratedin the petition. Even though general allegations are available in thecounter of this appellant as to the nature of the accident, theTribunal has found that the accident took place as pleaded by theclaimants. It has also anchored the liability upon the auto driverfor having caused the accident. It is his negligence which causedthe accident. In this regard there is not much debate before thiscourt. 5. The main thrust of the appellant is that Nachiappan did notdie on account of injuries sustained in the Road Accident but hisdeath may be due to other reasons. Per contra, the claimants wouldcontend that even though the death did not occur atonce after theaccident, due to the complications which occurred aftermath theaccident he died and that the death is attributable to the badconsequences of the injuries sustained by the deceased. 6. In order to unearth the truth, this Court has to make a probeinto the oral testimonies available on record. P.w.1, the firstclaimant/wife of the deceased would say that her husband sustainedfracture in his right leg and he underwent operation and even afterreturning back to the residence he still continued medical treatment;that one Dr.Rathinasabapathy treated him and Ex.P.4 is the MedicalCertificate issued by the Doctor. In her cross examination it wassuggested that her husband did not die due to the injuries sustained https://hcservices.ecourts.gov.in/hcservices/ in the accident for which her response was negative. It alsosuggested that he died due to blood pressure.7. The entire discussion of the case would revolve around theevidence of P.w.2, Dr. Rathinasabapathy, who is said to have giventreatment to Nachiappan. He is a General Medical Partitioner,qualified in Surgery. It is his version that in the accidentNachiappan's right knee was damaged and he was suffering from pain inthe right kidney region; that he was affected by "Pyonephrosis" anddue to cerebral haemorrhage he died. It is profitable to extract themedical certificate which was issued by him for better understandingof the matter. It is as follows:"This is to certify that Mr. Nachiappan K., son ofKaruppan Chetty, Madras – 600 018 died due toCerebran haemorrhage. He was having "Hypertension"due to renal damage (Right) as a result of which hehad cerebral haemorrhage and died.He was attended by me from September 1994. hemet with road traffic accident and was treated forfracture neck of femor (Rt). At that time his rightkidney was damaged. He had intermittant paid in theright kidney area. Investigations revealed that hewas having "Pyonephrosis". He was treated withantibiotics and the infection due to damage of thekidney subsided. But he developed "RenalHypertension" was growing in nature.He was admitted for surgical treatment forhernia in Asian Hospital, Besant Nagar, Madras – 90.His blood pressure was under control to some extent.But it was fluctuating and at times he was havinghigh blood pressure which caused cerebralhaemorrhage. Due to careful treatment some time theblood pressure was under control. Due to the stressand strain during the operation and post operativeperiod the usual drugs were of less use only and theblood pressure was raising dangerously. At last hemet with cerebral haemorrhage and died. Inconclusion, Mr. Nachiappan K. died as a result of thedeterioration in his health condition caused by thesaid road traffic accident."8. In his chief examination he said that by means of accidentNachiappan's right side kidney got swelled and germs were found inthe kidney and the germs generation has caused blood pressure andhence his kidney could not be removed, that for the reason of highblood pressure, cerebral haemorrhage occurred to him and that is whyhe breathed his last. In the cross examination he would say that inEx.P.6 Discharge Summary it was not stated that Nachiappan had kidneyproblem and that he did not die due to the Hernia Operation. He isdefinite that Nachiappan died due to the injuries received in https://hcservices.ecourts.gov.in/hcservices/ accident.9. In this context, it is worthwhile to have a glance of Ex.P.6Discharge Summary issued by the Devaki Hospital Limited, Madras. Hewas admitted on 8.9.1994 and was discharged on 20.9.1994. Aparticular reference as regards the abnormal feature as stated byP.W.2 is available in Ex.P.6, though not it is directly referable tothe kidney complication. It is stated that in the right hip joint,swelling, tenderness and painful movements were found. Since therewas swelling in the right hip joint it may be descerned that notonly it is an exposure of a fracture inside and also otherinflammations in the internal organs in the right hip region. In thisangle if the matter is approached, it could be candidly observed thatthe doctor's evidence is corroborated by Ex.P.6. To put it in anutshell, it can be stated that even at the time of accident hisright kidney got affected and it was not specifically diagnosed bythe infirmary, but the complication was subsisting and that it hasbeen remaining unattended. Concentration seems to have been made onthe fracture in neck of femur right and necessary surgeries wereundertaken. In this regard, it is advantageous to have extraction ofthe Discharge Summary as to the injuries sustained by Nachiappan andtreatment offered to him:"LOCAL EXAM: Right joint:- swelling, +, Tenderness, +, Movements painful, Dorsalis pedis pulsation +X-Raypelvis AP :- Both Hip joints O.A. Charges +, Fracture neck of femur right +, Ilium and sacro iliac joints – NormalC.T. Scal of Pelvis – Features of right femoral neck fracture can oblique fracture of the intra capsular portion right femoral neck, Crack of right acetabular cup.Treatment – Open reduction and SP Nail Fixation of fracture done on 9-9-94.OPERATION NOTES: Under G.A., patient supine, on thefracture table reduction doen and seen in imageintensifier, Fracture was well compacted, difficult toreduce in closed reduction accerately. Thro a lateralincision the base of Greater trochanter approached and Kwire introduced ,seen in image intensifier.Position acceptable, 70mm SP nail followed by 70mmScrew – Wound closed in layers with drain on situ"10. Another medical Certificate available in Ex.P.6 shows thatfrom 10.9.1994 to 10.1.95 the injured was advised to take sick leaveas he had undergone Hemiarthroplasty and he was fit to rejoin theduty. From this document it transpires that till 10.1.1995 he was on https://hcservices.ecourts.gov.in/hcservices/ medical leave. For the injuries suffered on 8.9.94, he died on23.2.95. No Post-mortem examination was conducted on the corpse ofthe injured. Hence it is the responsibility of the Court to go deepinto the matter and to find out whether the death was caused by theinjuries sustained in the accident for the ends of justice.11. As adverted to supra, there is a close connection betweenthe medical evidence as found between the oral testimony of P.W.2 andthe entries available in Ex.P-6. Even though the evidence putforthby the doctor was denied in his cross examination by the InsuranceCompany, the case is bereft of the medical evidence on the side ofthe appellant. In other words, the evidence given by P.w.2 has notbeen rebutted by the appellant and no steps have been taken in thisregard.12. When going into the arena of judicial pronouncements onthese matters, the decisions referred to and relied on by Mr.PL.Narayanan, learned counsel for the claimants, are note-worthy. In anearlier decision of this court, in an identical circumstance thisCourt has observed that even though Post-mortem was not conducted, itcould be concluded that the contention of the claimant was proved.In 1975 ACJ. 215 [Govind Singh and others v. A.S. Kailasam andanother] this Court has held as follows:"9. ......... Lastly, it was argued that noautopsy had been done on Heera Bai's dead body andtherefore, it is not possible to give a definitefinding that her death was due to tetanus resultingfrom the injury sustained in the accident. Here too,the contention must be disregarded because thedefinite evidence of the doctors is that Heera Bai'sdeath was due to tetanus and the infection had beenbrought about by injury sustained in the accident. Astray answer from P.w.5 in cross-examination that hecannot correctly set out the cause of death without apost-mortem certificate is clutched at by the firstrespondent's counsel to contend that there is noconclusive evidence in the case to prove that HeeraBai's death was only due to tetanus. This answercannot be available of because innumerable clinicalcircumstances lead to the irresistible conclusionthat the death was solely due to tetanus infection." 13. When the medical evidence says that Nachiappan sufferedcomplications in the Kidney and the cerebral haemorrhage occurred,which was the outcome of the kidney swelling and generation of germsby means of high blood pressure, has been established by oral anddocumentary evidence, even though no post mortem was conducted, itwould not shatter the strength of the above said medical evidence.The above said earlier view of this Court supports this opinion.14. A remarkable feature in the case is absence of contramedical evidence and such circumstance would probabilise theclaimant's version. In this juncture, learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ claimants placed reliance of a Division Bench decision of CalcuttaHigh Court [2005 ACJ 433 (Vidhyawati and another v. A. Guruswamy andanother)] which is more specifically on this point. The relevantportions of the judgment are as follows:"19. In such situation, the question is whetherinjury can be described as a cause of death. Suchquestion can be answered effectively by the doctorswho treated him. In this case P.w.5, a Professor ofMedicine in the Department of Banaras HinduUniversity has in clear terms indicated that theinjury on the right leg that was sustained by thepatient was one of the reasons of his death. Incross-examination, the said Professor has furtherstated that the injuries that he found might causeinfection and might perpetuate failure of severalorgans of the body one by one. On the fact of suchopinion of the doctor, no suggestion in crossexamination to the contrary was given to the saidwitness nor have respondents examined any otherexpert showing that in the present case injury cannotbe the cause of death.20. ..................21. As indicated above, in the absence of anymedical opinion contrary to the one given by P.W.5,this court is left with no other alternative but toaccept his version that injury was one of the causesof death. We find no reason to either ignore ordisbelieve the opinion of P.w.5, the Professor ofMedicine of the University in the absence of anyother opinion on the subject. Once the injury arisingfrom the accident is found to be primary cause ofdeath, the claimant should be entitled to getcompensation for the loss of life of the victim. Itis now settled position of law that if the cause ofdeath is integrally connected with the injurysustained in the accident and is one in the chain ofcausa causans, the cause of death must be attributedto the injury suffered in the accident." 15.There is nothing on record to brush aside the evidence ofP.W.2, which is natural, convincing and satisfactory. In thesituation available it has to be inevitably observed that althoughdeath is not an end product of accident directly, it is resultant ofaccident.16. Before a Division Bench of Bombay High Court a matter arose,where a boy aged about 11 years, student of 4th standard met with anaccident, by means of which paralysis in brain was caused due toinfection, which resulted in deterioration of general condition ofthe injured and the artificial device were malfunctioning and theaccident ultimately claimed the life of the victim. The case was https://hcservices.ecourts.gov.in/hcservices/ decided in 1986 ACJ 55 [Kumar Mohammed Rafique v. MunicipalCorporation of Greater Bombay]. The accident occurred in 1972 andthe boy died in 1980 due to several complications. It is held thatthe case papers shoe the cause of his death as hydro-cephalus withraised inracranial tension and it is ultimate cause of death itcannot seriously be suggested that the cause of death was not thehead injury received in the accident. 17. Attention of this Court was drawn to a decision of MadhyaPradesh High Court in 1987 ACJ 224 [New India Assurance Co. Ltd., andothers v. Shakuntla Bai and Others]wherein it is decided thatevidence of the doctors would show that the injured died 8 monthsafter the accident succumbed to the injuries he suffered in theaccident as no immediate cause other than the injuries had beenproved. It was suggested in that case that the death of injured tookplace due to either diabetes or due to the fact that he was a heartpatient, but it has not been proved. In the said decision it is alsomentioned that in the opinion of the Court if credibility is found inthe evidence of a witness, then there could be no reason to discardhis testimony. Two Supreme Court decisions have been referred inthis case [AIR 1951 SC 120 (Sarju Pershad Ramdeo Sahu v. JwaleshwariPratap Narain Singh) and AIR 1983 SC 114 (Madhusudan Das V. NarayaniBai)] where it has been held that primacy must be attached to thetrial court's opinion on the credibility of the witness and theappellate court must be very slow in discarding evidence of anywitness in appeal if he was found reliable by the trial court and ifhis testimony was accepted.18. The Tribunal has accepted the oral evidence of P.W.2 as tothe injury and cause of death and this Court is also of theconsidered opinion that the oral account of P.W.2 is not bristledwith any ambiguity or obscurity. The evidence is definite as to thenature of injuries and result of such injuries. There is no room toreject such evidence and to take a view otherwise, when rebuttalevidence is significantly absent in the case.19. At the cost of repetition, it is stated that the injuredNachiappan has succumbed to the injuries. The crucial evidence ofthe doctor cannot be ignored in a light manner since he has fortifiedthe consequent features which had arisen out of the impact on thekidney at the time of accident. He is a qualified doctor who has putin service in medical field for a long time there is nothing to smellrat in his evidence. Unless contra evidence is forthcoming, there isno embargo for placing reliance upon is opinion. The medicalevidence on record in this proceeding would go a long way to showthat Nachiappan died due to the injuries which he sustained in theaccident and this Court does not find any infirmity in the awardpassed by the Tribunal either factual or legal, which does not callfor any interference from the Court. The upshot of the Tribunal neednot be upset in any way which has to be confirmed and it isaccordingly confirmed.20. As far as the quantum fixed by the Tribunal is concernedthere also this Court finds it proper. In the salary certificate https://hcservices.ecourts.gov.in/hcservices/ monthly income was mentioned as Rs.7,360/-. Annual loss of income hasbeen arrived at Rs.58,884/-after deducting 1/3rd in the salary. Afterapplying multiplier, the dependency has been fixed at Rs.8,83,260/-.Rs.5000/- has been allowed for funeral expenses, loss of consortiumfor first claimant has been assessed at Rs.10,000/-. A sum ofRs.26,175.50 has been awarded for medical expenses. In total acompensation of Rs.9,24,435/- has been directed to be paid.21.In view of the above said observations there is nocircumstance to set aside the award nor vary the terms and thus theAppeal suffers dismissal. In fine, Civil Miscellaneous Appeal is dismissed. No costs.Connected M.P. is also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar ggsToThe Chief Judge, Court of Small CausesMotor Accidents Claims Tribunal,Chennai. Copy to : The Section Officer,VR Section, High Court, Madras.+1cc to Mr.PL.Narayanan, Advocate Sr 13194SA(CO)km/21.4. C.M.A.No.1667 of 2003 and C.M.P.No.10766 of 2003