CORAMTHE HONOURABLE MR v. R.Gopal2.United India Insurance Co. Ltd.,48, General Muthiah Mudali Street,Chennai – 79

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2007CORAMTHE HONOURABLE MR.JUSTICE S.MANIKUMARC.M.A.No.300 0F 20011.Sakunthala2.M.Das3.M.Mekala... Appellantsvs.1.R.Gopal2.United India Insurance Co. Ltd.,48, General Muthiah Mudali Street,Chennai – 79.... Respondents Civil Miscellaneous Appeal filed under Section 173 of the MotorVehicles Act, against the judgment and decree dated, 24.03.2000 made inM.A.C.T.O.P.No.481 of 1988 on the file of Motor Accidents ClaimsTribunal (Principal Sub Judge), Chengalpattu.For Appellants:Mr.Aru SillambayiramFor Respondents:Mr.A.Thayaparan, for R2For Respondent 1: No AppearanceJ U D G M E N TAppellants/petitioners 3 to 5 are the legal representatives of thedeceased first petitioner. They have preferred this appeal forenhancement of compensation against the judgment and decree dated,24.03.2000 made in M.A.C.T.O.P.No.481 of 1988 on the file of MotorAccidents Claims Tribunal (Principal Sub Judge), Chengalpattu.2.On 02.08.1988, at 5.45 p.m., when the deceased firstpetitioner was walking along G.N.T. Road, Sengundram, near AdityanStores, a lorry bearing Registration No.TDH.8199 driven by its driverfrom north to south, rashly and negligently, hit the deceased firstpetitioner, as a result of which, he sustained grievous injuries allover the body. He claimed Rs.90,000/- as compensation. 3.The second respondent Insurance Company denied the manner ofaccident and contended that the owner of the vehicle, the firstrespondent herein, has not furnished necessary particulars, such asRegistration Certificate, driving license, etc. The age, avocation,income, nature of injuries sustained by the deceased first petitionerand the treatment undergone by him were disputed. https://hcservices.ecourts.gov.in/hcservices/

4.During the pendency of the claim petition, the deceased firstpetitioner died on 04.12.1994 and his legal representatives were broughton record. They contended that the death occurred only due to theinjuries sustained in the accident and therefore, they are entitled toprosecute the appeal and claim compensation. Their amendment petitionfor enhancement of compensation has been ordered. 5.Mrs.Chinnaponnu, wife of the deceased first petitioner wasexamined as P.W.2. She has deposed that on 02.08.1988, at 5.45 p.m.,when her husband was walking on the left side of Sengundram road, thelorry owned by the first respondent herein came from behind in a rashand negligent manner, hit the deceased first petitioner and he sustainedsevere injuries in his right shoulder and left leg. First InformationReport was registered on the same day at 6.30 p.m. The owner of thelorry, first respondent herein, refuted the allegations made in theclaim petition. 6.It was the contention of appellants/petitioners 3 to 5, thatthe deceased first petitioner was working as a Fireman in Airport,earning Rs.2,000/- per month. He sustained injuries in the left cheek,left leg and lacerated wound in the fourth finger in his hand. Thedeceased first petitioner was treated as inpatient in Stanley GovernmentHospital, Chennai, from 02.08.1988 to 06.08.1988. Subsequently, he wastreated as inpatient in Sushruth Clinic, Avadi, from 07.08.1988 to10.11.1988. Again, he was treated as inpatient in Stanley GovernmentHospital, Chennai, from 02.01.1989 to 30.10.1991. Thereafter, he wastreated in K.M.C. Hospital from 01.07.1992 to 13.08.1992. The deceasedfirst petitioner has also undergone continuous treatment in EvanStetford Hospital, Ambattur. Again, he was an inpatient in K.M.C.Hospital, Chennai from 15.06.1994 to 24.09.1994. From 11.10.1994 to18.11.1994, he was again treated as inpatient in Stanley GovernmentHospital, Chennai. Thereafter, he was inpatient in I.A.F. Hospital from26.11.1994 till 30.11.1994.7.On the strength of various records relating to medicaltreatment from the year 1988 and in particular, Ex.P19-MedicalCertificate issued by P.W.3, Doctor, the legal representatives of thedeceased first petitioner contended that the death of the firstpetitioner was only due to the injuries sustained in the accident andhence, claimed compensation. 8.On the side of appellants/petitioners 3 to 5, P.Ws.1 to 3 wereexamined and Exs.P1 to P19 were marked. On behalf of respondents, nooral evidence was let in and no document was marked. 9.The Tribunal on consideration of the entire materials onrecord dismissed the claim made by appellants/petitioners 3 to 5, on thegrounds that there was no substantial proof to conclude that the firstpetitioner died only due to the injuries sustained in the accident. Asregards negligence, in the absence of any rebuttal evidence, the driverof the lorry was held responsible for the accident. Inasmuch as the https://hcservices.ecourts.gov.in/hcservices/ legal representatives are not entitled to claim compensation for thepersonal injuries sustained by the deceased for the loss of estate, theTribunal awarded Rs.15,000/- as compensation to his legalrepresentatives. 10.P.W.3, Doctor, who claimed to have examined the deceased firstpetitioner on 02.12.1994 has deposed that the left lower limb wasgrossly swollen with the signs of “Deep vein thrombosis” and that he hadadvised the deceased to get treated in the hospital, where vascularsurgery is feasible. He has further deposed that the cause of his deathwas due to deep vein thrombosis. The Tribunal considered the oraltestimony of P.W.3, Doctor and on perusal of the entire medical records,rejected the claim of the legal heirs of the deceased first petitioner,on the following grounds :(i)that the post-mortem report has not been marked(ii)that the deceased first petitioner was suffering from diabetesmellitus and that he was aged 59 years at the time of hisdeath and therefore, the death could have been due to old age.(iii)P.W.3, Doctor has deposed that he had treated the deceasedfirst petitioner, six years ago and that he had not maintainedany records. (iv)P.W.3, Doctor has deposed that he had examined the deceasedfirst petitioner on 02.12.1994 and after 2 days, the firstpetitioner died. (v)that the evidence of P.W.3, Doctor cannot be accepted as atrust-worthy evidence and that there is no emphasis in theevidence of P.W.3, Doctor, that the first petitioner died onlydue to the injuries sustained in the accident. The contentsof Ex.P19-Medical Certificate and the evidence of P.W.3 arenot acceptable, to conclude that the first petitioner died asa result of the injuries.11.Heard Mr.Aru Silambayiram, learned Counsel appearing forappellants and Mr.A.Thayaparan, learned Counsel appearing for the secondrespondent.12.Learned Counsel for appellants/petitioners 3 to 5 has raised apreliminary issue that the Tribunal has failed to frame a proper issueas to whether the deceased first petitioner died as a result of theinjuries sustained in the accident, during the pendency of the claimpetition. Learned Counsel for appellants/petitioners 3 to 5 further submittedthat there is sufficient evidence to conclude that there was nexusbetween the injury and the death of the first petitioner, which issupported by the evidence of P.W.3, Doctor. He further contended thatthe reasons assigned by the Tribunal for rejecting the evidence ofP.W.3, namely, Doctor is not proper and in the absence of any contraryevidence, the Tribunal ought to have allowed the claim petition on thebasis of available evidence. He submitted that the cause of death isonly due to the injuries sustained in the accident and therefore, his https://hcservices.ecourts.gov.in/hcservices/ legal representatives are entitled to just compensation. In support ofhis contention, learned Counsel placed reliance on various decisions.The applicability of the decisions cited by the learned Counsel forappellants is dealt with. (i)In a decision reported in 1975 ACJ 215 (Govind Singh andothers vs. A.S.Kailasam and another), the deceased sustained injury in amotor accident that occurred on 04.06.1967. She had developed tetanus,despite receiving medical attention in the Government Hospital andsuccumbed to injuries on 22.06.1967. The evidence produced before theCourt prove that there were 7 injuries and therefore, it was concludedthat tetanus infection could have been caused by the superveninginjuries. In that context, the Court held that the death could havebeen caused only due to tetanus and that the infection would have beencaused by one of the supervening injuries. In the reported case, it wasevident from Exs.P3 and P4-Out-patient chits and Ex.P8-case sheet thatthe deceased complained of symptoms of lock-jaw, which is attributableonly to tetanus. On an analysis of the entire evidence produced beforethe Court, it was concluded that there was no necessity to conduct post-mortem.(ii)In a decision reported in 2005 ACJ 433 (Vidhyawati and anothervs. A. Guruswamy and another), a pedestrian was hit by a taxi andsustained injuries including the fracture of right leg. The injured wascontinuously treated and died after five months due to pneumonia. Themedical evidence proved that the injury was one of the reasons for hisdeath and there was no rebuttal evidence. Therefore, the Tribunalallowed compensation on the ground that death would have occurred due topneumonia and renal failure. In the above case, the accident had occurred on 03.09.1997. Theinjured was treated in a hospital, but he was 'kept in follow-up'. Hiscondition became serious and he was again admitted in the hospital on02.01.1998 and was discharged on 16.01.1998. Again, he was brought tothe hospital on 16.01.1998 and he died on 29.01.1998. Since there wasproximity to the injury and the death, the Tribunal awardedcompensation. (iii)In a decision reported in 1986 ACJ 55 (Kumar Mohamed Rafique(since deceased) by his heirs vs. Municipal Corporation of GreaterBombay), a 11 year old boy sustained head injuries in 1972 and becamesemi-conscious. An artificial device was inserted. Infection in thebrain caused paralysis of the left side and deterioration in generalcondition of the injured. There was evidence to show that he wascontinuously treated for the head injury; In spite of medical attention,he died in 1980. In this case, the Court had the opinion of three medical men, andone among them was a surgeon, who had operated the deceased. The Doctorhad deposed that the patient was forced to have recourse to theartificial device, because of the accident and life of the device couldnot be guaranteed. Since, the failure of the said artificial device had https://hcservices.ecourts.gov.in/hcservices/ resulted in the death of the injured, the Court had no difficulty inholding that the injury caused due to the accident was the cause of hisdeath, notwithstanding the fact that seven years had elapsed after theshunt was inserted and before the patient succumbed. Compensation wasawarded, because the patient was provided with the artificial device,immediately after the accident and that due to the failure of the saidartificial device after seven years, the patient succumbed to injuries.(iv)In yet another decision reported in 1987 ACJ 224 (New IndiaAssurance Co. Ltd., and others vs. Shakuntla Bai and others), a tempovan ran over an old man on 03.05.1980 and he sustained compound fractureof pelvis bone and filed an application under Section 110-A on31.10.1980 and died on 17.01.1981. It was held by the Court that thelegal representatives of the deceased could pursue the action initiatedby the injured and they are entitled to be compensated for the loss ofdependency. As the injured died after 8 months of the accident, due tothe injuries he suffered in the accident, as no immediate cause otherthan injuries had been proved and therefore, the Court was pleased toaward compensation. (v)In a decision reported in 2005 (4) SCC 370 (Iqbal Singh Marwahand another vs. Meenakshi Marwah and another), the Apex Court has heldthat there is distinction in the standard of proof in Civil as well asCriminal proceedings. The findings given in one proceeding is notbinding on the other. Civil cases are decided on the basis ofpreponderance of evidence, while in a Criminal case, the entire burdenlies on the prosecution and proof beyond reasonable doubt has to begiven. The decision relates to the power of the Magistrate to takecognizance under Section 195 (1) (b) Cr.P.C., where certain procedure iscontemplated under the said Section. It was held that the MagistrateCourt has no powers to take cognizance of the evidence enumerated underSection 195 (1) (b) Cr.P.C. But, they ought to follow the procedureunder Sections 340, 341 and 343(2) Cr.P.C. The said decision is notapplicable to the facts of the present case.(vi)In a decision reported in 1992 ACJ 110 (Usha Jhingran andothers vs. Budhsen and others), the claimants contended that thedeceased died due to the accident, but did not produce any medical orother expert evidence to infer that death was the direct consequence ofinjuries received by the deceased in the accident. The injured remainedunconscious in the hospital for about a year after the accident anddied, thereafter. The decision of the Tribunal dismissing the claimpetition was reversed by the High Court and compensation was awarded.In the above referred case, it is evident that the deceased wasunconscious for one year due to the injury and therefore, there is noreason as to why the evidence tendered by the claimants should berejected. Therefore, the High Court was pleased to award compensation.(vii)In a decision reported in 1995 ACJ 980 (Union of Indiaand another vs. Saraswathi Debnath and others), the High Court waspleased to consider as to how the evidence tendered before the Claims https://hcservices.ecourts.gov.in/hcservices/ Tribunal has to be appreciated. In this case, the High Court waspleased to hold as follows :"6.The law is well settled that in a claimunder the Motor Vehicles Act, the evidence should not bescrutinised in a manner as is done in a civil suit or acriminal case. In a civil case the rule is preponderanceof probability and in a criminal case the rule is proofbeyond reasonable doubt. It is not necessary to considerthese niceties in a matter of accident claim case inasmuchas it is summary enquiry. If there is some evidence toarrive at the finding that itself is sufficient. No nicety,doubt or suspicion should weigh with the Claims Tribunal indeciding a motor accident claim case. The law on this islaid down by the Supreme Court in N.K.V. Bros. (P) Ltd., vs.M.Karumai Ammal, 1980 ACJ 435 (SC).(viii) In yet another decision reported in 1998 ACJ 513(Shankarayya and another vs. United India Insurance Co. Ltd. andanother), this Court in paragraph 4 has held as follows :"It clearly shows that the insurance company whenimpleaded as a party by the Court can be permitted to contestthe proceedings on merits only if the conditions precedentmentioned in the section are found to be satisfied and forthat purpose the insurance company has to obtain order inwriting from the Tribunal which should be a reasoned order bythe Tribunal. Unless that procedure is followed, theinsurance company cannot have a wider defence on merits thanwhat is available to it by way of statutory defence. It istrue that the claimants themselves had joined respondent No.1,insurance company in the claim petition but that was done witha view to thrust the statutory liability on the insurancecompany on account of the contract of insurance. That was notan order of the court itself permitting the insurance companywhich was impleaded to avail of a larger defence on merits onbeing satisfied with the aforesaid two conditions mentioned insection 170. Consequently, it must be held that on the factsof the present case, the respondent No.1, insurance companywas not entitled to file an appeal on merits of the claimwhich was awarded by the Tribunal.(ix)In a decision reported in 1993 ACJ 46 (Anil Kumar Jain vs.General Manager, Punjab Roadways, Chandigarh and others), the Courtconsidered as to whether the evidence of a senior Doctor on the questionof disability can be relied on without examining the Doctor.In the above case, the evidence tendered by the Doctor was soughtto be rejected on the ground that he was a Junior Resident of theDepartment. There was no suggestion that the opinion was not based onthe record and that there was no rebuttal evidence by the respondents insummoning the Doctor of a higher status. Therefore, the High Courtaccepted the opinion of the Senior Doctor and awarded compensation. https://hcservices.ecourts.gov.in/hcservices/ (x) In a decision reported in 1989 ACJ 448 (United IndiaInsurance Co. Ltd., vs. Katukuri Raghavareddy and others), it is heldthat a Claims Tribunal is a Court, subject to the revisionaljurisdiction of the High Court and that therefore the Tribunal ought tohave framed specific issue as to whether the death of the claimant isdue to the injury sustained in the accident. This decision issupported by the judgment reported in AIR 1983 Allahabad 450 (Smt. KanizFatima (deceased) and another vs. Shah Naim Ashraf). (xi)In yet another decision reported in 1999 ACJ 287 (KlausMittelbachert and others vs. East India Hotels Ltd. and others), theaccident occurred while the guest was diving in the swimming pool,thereby he sustained head injury and he died later on. There wasevidence to show that the guest sustained head injuries and that he wascontinuously treated from day one of the accident till his death. Inthis case, the Supreme Court concluded that the injury in the head wasthe cause of death.13.In the case on hand, the accident had occurred on 02.08.1988.(i)As per Ex.P4-Discharge Summary issued by GovernmentStanley Hospital, Chennai, the following injuries have been noticed.(i)Laceration over left cheek 3 cm x 2 cm x ½ cm(ii)Laceration left leg 6 cm x 4 cm(iii) Laceration 4th toe 3 cm x 2 cm(iv)Laceration all over body(ii)It is evident from Ex.P5 that the deceased first petitionerwas treated as inpatient in Sushruth Clinic, between 07.08.1988 and10.11.1988. In this document, the Doctor has noticed that the injuredfirst petitioner sustained extensive laceration of the left leg. (iii)Ex.P6 is the Certificate issued by Government StanleyHospital, which reveals that there was ulcer in the toes and it was nothealed. On 15.10.1989, skin grafting was done. (iv)It is seen from Ex.P7 that the deceased first petitioner wastreated in Kilpauk Medical College Hospital, Chennai, again from01.07.1992 to 13.08.1992. The diagnosis of the Civil Assistant Surgeonwas chronic ulcer in left foot and he was asked to review after threemonths. (v)Ex.P8 series is Out-patient cards of Sir Ivanstede FortHospital, Ambattur, Chennai, from 11.09.1992 to 20.11.1993, which revealthat the patient was suffering from ulcer, referred from IAF, Avadi fortreatment. In the Out-patient card, dated 14.02.1993, it is mentionedas follows : " Chronic ulcer (old RTA left foot injury treated) (left foot).Patient referred to K.M.C. Hospital – plastic surgery and Vascular Surgery to rule out. Varicose ulcer. Refer to Vascular Surgery Department." https://hcservices.ecourts.gov.in/hcservices/ (vi)Ex.P9 is Medical Follow up record from 15.06.1994 to24.09.1994 issued by K.M.C. Hospital, Chennai – 10, in which, it ismentioned as follows :"An old case of RTA treated in this hospital for injuryleft foot and for SSG and crush injury left foot. C/o Pain andinfection of S.S.G. on sole of left foot." (vii)Ex.P10 is the Discharge Summary, dated 18.11.1994, issued byGovernment Stanley Hospital, Chennai, in which it is mentioned for thefirst time that the deceased first petitioner was treated for traumaticulcer marked with SSG and acute thrombosis from 11.10.1994 to18.11.1994.(viii)Ex.P11 is the document, which shows that the deceased firstpetitioner on reference from Air Force Avadi Hospital, was treated asinpatient in Stetford Hospital, Ambattur from 26.11.1994 to 30.11.1994for treatment for chronic ulcer. (ix) Ex.P19 is the Medical Certificate issued by P.W.3, Doctor, whohas stated that the cause of death of the first petitioner was due todeep vein thrombosis. On the basis of this particular document, learnedCounsel for appellants strenuously contended that there is an expertopinion by the Doctor, who has examined the deceased first petitioner on02.12.1994 and in the absence of any rebuttal evidence, it should beconcluded that the death has occurred only as a result of the injuriesand therefore, the appellants are entitled to compensation.Ex.P19-Medical Certificate has been issued on 10.10.1999 after fiveyears, from the date of death of the deceased first petitioner, i.e. on04.12.1994. It is stated by the Doctor that the deceased was examinedon 02.12.1994 and that he had given his medical advice to gethospitalised, where vascular surgery is feasible. 14.During cross-examination, P.W.3, Doctor has deposed that he hasnot maintained any records relating to the deceased first petitioner.It is evident from Ex.P19-Medical Certificate, dated 10.10.1999 that notests have been conducted by the said Doctor to conclude that thedeceased had deep vein thrombosis. This crucial document does notindicate as to whether there was any opinion from any Vascular Surgeonor from the particular department, suggesting that there was deep veinthrombosis. In the absence of any specific test reports and medicalrecords, it is not known as to how a Doctor could conclude that thedeath was only due to deep vein thrombosis. If the deceased first petitioner had developed thrombosis due tothe injury, medical records right from the year 1988 till 1994 wouldhave reflected that the deceased had developed thrombosis. All therecords produced by the legal representatives of the deceased firstpetitioner show that there was chronic ulcer and that the deceased wastreated in various hospitals. No records have been produced by the https://hcservices.ecourts.gov.in/hcservices/ appellants for a period of three years from 15.10.1989 to show that thedeceased first petitioner was treated for the injury. None of theDoctors, who treated the deceased has given a categorical diagnosis thatthe deceased first petitioner had developed thrombosis in the foot,excepting Ex.P10-Discharge Summary, dated 18.11.1994. P.W.3, Doctor hasdeposed that he examined the deceased first petitioner on 02.12.1994,just about two days before his death and his Certificate, Ex.P19 hasbeen issued after five years, i.e. on 10.10.1999. 15.Learned Counsel for the second respondent Insurance Company,placing reliance on a decision reported in 1998 ACJ 601 (V.Mepherson andanother vs. Shiv Charan Singh and others) submitted that the death ofthe first petitioner is not connected with the injury and that thereforethe legal representatives of the deceased first petitioner are notentitled to compensation. Further, he submitted that the legalrepresentatives can always continue the proceedings for the loss ofestate, for which, the Tribunal has awarded compensation.Learned Counsel for the second respondent further submitted that inthe absence of medical records connecting the injury with the death ofthe first petitioner, the decision of the Tribunal is well consideredand it does not require any interference. 16.Some of the decisions cited by the learned Counsel forappellants relating to the procedures to be followed by the Tribunal,the nature of evidence which is required for the purpose of concludingnegligence on the part of the deceased are general principles of law andthey are accepted. In the other cases cited by the learned Counsel forthe appellant, there was a clear nexus between the injury and theconsequential death.Certificate issued by a Doctor should be based on medical records.There must be proximity with the injury and the death. There should bedirect relation with the injuries and the consequential death.Claimants have to prove that the death has occurred due to the injuriesby clear and cogent evidence. The cause of death should not be remoteand unconnected one with the injury sustained in the accident. Itshould be a forseable one and should not be an uncommon development. Ifthe cause of death is integrally connected with the injury sustained andis one in the chain of causa causans, the cause of death can beattributed to the injury suffered.17.In the instant case, there is no proximity with the injury andthe death of the deceased. There is no direct relation with theinjuries and the consequential death. For a period of three years,there is no medical record about the course of treatment. Medicalevidence prove that the deceased was not treated for thrombosis, but allalong treated only for chronic ulcer. If ever thrombosis was developeddue to injuries, there would have been some complications and theDoctors, who had treated him would have certainly noted in any one ofthe records. https://hcservices.ecourts.gov.in/hcservices/

18. Under these circumstances, I am of the considered view that theTribunal has properly assessed the evidence and has come to the rightconclusion that the death of the deceased first petitioner was not dueto the injury sustained in the accident. The other contentions of thelearned Counsel for appellants relating to quantum and the method ofcomputing the compensation do not deserve consideration.In the result, the Civil Miscellaneous Appeal fails and standsdismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarabeTo1.The Motor Accidents Claims Tribunal,(Principal Sub Judge)Chengalpattu.2.The Section Officer,V.R. Section,High Court of Madras,Chennai. 1 cc To Mr.Aru Sellambayiram, Advocate, SR.5673.1 cc To Mr.P.Sukumar, Advocate, SR.5476.C.M.A.No.300 OF 2001 PPV(CO)RVL 28.02.2007