THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.M.A.No.401 of 2015 C.M.P.No.1 of 2015 The Branch Manager, M/s.National Insurance Co. Ltd., Trichy. .. Appellant versus Thiru.Sivalingam (Deceased)
1. Tmt.Ammakkannu
2. Miss.Maragatham
3. Miss.Chitra
4. Thiru.Jothimani
5. Thiru.K.P.Nataraj .. Respondents Prayer: Civil Miscellaneous Appeal is filed, against the judgment and decree in M.C.O.P.No.4590 of 2012, dated 02.04.2012, on the file of the learned Motor Accident Claims Tribunal (Additional Subordinate Judge), Tiruppur.
For Appellant : Mr.J.Chandran For Respondents 1 & 2 : Mr.Ma.P.Thangavel
JUDGMENT
(Judgement of the Court was made by S.MANIKUMAR, J.) Challenging liability, fastened on M/s.National Insurance Co. Ltd., Trichy, the appellant herein, to pay compensation of Rs.10,28,300/-, with interest at the rate of 7.5% per annum, from the date of claim, till deposit and costs, vide order in M.C.O.P.No.1075 of 2015, dated 02.04.2012, on the file of the learned Motor Accident Claims Tribunal (Additional Subordinate Judge), Tiruppur, Insurance Company is on appeal to this Court, contending inter alia that there was no nexus between the injury and death, from the date of accident and therefore, the claim petition itself ought to have been dismissed. Quantum of compensation has not been challenged.
2. Material on record discloses that in the accident, which occurred on 22.01.2005, involving a Motorcycle, bearing Registration No.TN 39 C 1569, driven by Sivalingam and a bus, bearing Registration No.KA 14 D 0001, insured with the appellant-Insurance Company, the motorcyclist, Sivalingam, aged about 55 years, stated to have worked as a Mason, sustained grievous injuries. A case in Cr.No.54 of 2005, under Sections 279 and 337 IPC., has been registered, against the driver of the bus, bearing Registration No.KA 14 D 0001, insured with the appellant-Insurance Company. Contending inter alia that due to the accident, the injured suffered disablement and could not work as Mason, he filed M.C.O.P.No.1075 of 2005, on the file of the learned Motor Accident Claims Tribunal (Additional Subordinate Judge), Tiruppur, claiming compensation of Rs.15,00,000/-, under various heads. During trial, he died on 30.03.2007. Vide order, dated 10.02.2011, in I.A.No.247 of 2010, legal representatives of the deceased have been impleaded.
3. The National Insurance Company Ltd., Trichy, disputed the manner of accident. The Company attributed negligence to the motorcyclist. The Company has further contended that the motorcyclist did not possess a valid and effective driving licence. Without prejudice to the above, the Company disputed the age, avocation and income of the deceased and the compensation made under various heads.
4. Pursuing the claim, wife examined herself as PW.1 and reiterated the manner of accident. PW.2, is stated to be the eye-witness. Two more witnesses have been examined on the side of the respondents/claimants. Ex.P1 - FIR, Ex.P2 - Motor Vehicles Inspector's Report, Ex.P3 - Neuro Surgeon Report, Ex.P4 - Discharge Summary, Ex.P5 - Medical Bills, Ex.P6 - Death Certificate and Ex.P7 - Legal heir Certificate, have been marked on the side of the respondents/claimants. No oral or documentary evidence has been adduced, on behalf of the appellant-Insurance Company.
5. Evaluating the oral and documentary evidence, the Claims Tribunal held that the driver of the bus, bearing Registration No.KA 14 D 0001, insured with the appellant-Insurance Company, was negligent in causing the accident. On the contention that death was not due to the injuries and that therefore, there was no causa causans, upon perusal of Ex.P3 - Neuro Surgeon Report submitted by Dr.R.Murali, Department of Neurosciences, Sri Ramakrishna Hospital, Coimbatore, the Tribunal has recorded that at the time of accident, the injured was unconscious, not responding to oral commands and pupils in the right eye was mid dilated and not reacting. There were cut injuries over right zygomatic area and right cheek. Abrasion and punctured wound were noticed over right knee and left leg lower 1/3rd, respectively. There was fracture of both bones and deformity, tenderness over left leg. On 11.03.2015, the following procedure has been done, "Under GA, Pt. in supine position, head turned to left, a right parietal burr hole was made. (R) Subcostal incision made. Peritoneum opened and purse string sutures applied. Tube was tunneled through in a lateral position than used normally to be away from the tracheotomy. Ventricle was tapped. CSF clear under high pressure. Ventricular end was connected to abdominal end. CSF flowing well. Abdominal end was inserted into peritoneum. Wound closed in layers after complete haemostasis."
Course taken in the hospital, as per Ex.P3 - Neuro Surgeon Report, is extracted hereunder:
"This 54 year old male was admitted with H/O head injury following RTA. CT brain showed multiple haemorrhagic contusions including a small contusion in brainstem and intraventricular bleed. Subarachnoid haemorrhage with no midline shift. On admission Pt. was intubated and connected to ventilator. Pt. also had fracture both bones Lt. leg, for which, Dr.Balasubramaniam (Ortho) opinion was obtained - Suggested : Lt.Tibial nailing. On 24.01.2005, Lt. tibial nailing was done. Post operatively Pt. was ventilated. Pt. was gradually weaned off the ventilator on 27.01.2005. Tracheostomy was done on 28.01.2005. Rpt. CT Brain was done showed dilatation of ventricles. LP showed CSF under very high pressure (52cm H2O). Theco-peritoneal shunt was attempted but after LP, the tube could not be connected and there was no CSF flow. Hence, abandoned. On 11.03.2015 (R) Ventriculo-
Peritoneal shunt was done. Post operative period was uneventful. Pt. was treated with higher antibiotics, Anti oedema measures, Anti convulsants, Anti hypertensive drugs, Vitamins and Supportive measures. Pt. neurologically improved."
Opinions of the Orthopaedic Surgeon, Plastic Surgeon, Ophthal and Dermatologist, from Ex.P3, is extracted hereunder:
"Dr.Balasubramaniam (Orthopaedic Surgeon) opinion obtained:-
- Fracture both bones Lt. Leg
- On 24.01.2005 under GA, Lt. tibial nailing done.
- Under GA, II guidance, punctured would debridged and thoroughly washed, thro' midline approach, patellar tendon split, tibial canal reamed and fixed with 320xgmm SMPL nail, proximal locking 45x1 (SMPL), distal locking 40x1 (universal). Wound closed in layers with drain.
- Wound healthy
Dr.Thirugnanam (Plastic Surgeon) opinion obtained regarding facial injuries:-
- ? Fracture (R) Maxilla
- Fracture (R) Zygoma
- Suggested: Fractures reduction if needed, once patient's general condition stabilized.
Dr.Ravichandran (Ophthal) opinion obtained regarding Subconjunctival:-
- Advised: Ciplox eye drops and Mosiol eye drops 3 drops TDS
Dr.Eswaramoorthy (Dermatologist) opinion obtained regarding rashed over the body:-
- Phenytoin hypersensitivity
- Suggested: To avoid Phenytoin, Fosophenytoin, Carbamazepine, Oxcarbamazepine, Phenobarbitone, Lamotrigine.
- Advised: Inj. Dexamhethasone 2cc IV OD."
Thus, it could be seen from the above, the injured sustained grievous injuries and given Tracheostomy.
6 . Condition of the patient, as on the date of issuance of case of Ex.P4 - Discharge Summary, issued by Dr.R.Murali, Department of Neurosciences, Sri Ramakrishna Hospital, Coimbatore, is as follows:
"Pt. Semiconscious, Spontaneous eye opening + Responds to call at times, PERL Moving all 4 limbs. Localilsing to pain Not obeying commands."
Perusal of Ex.P4 - Discharge Summary, shows that the injured was hospitalised between 22.01.2005 and 07.06.2005. He had given treatment for the complications, as follows:
"(R) V.P.Shunt done on 11.03.2005.
Under GA, Pt. in supine position, head turned to left, a right parietal burr hole was made. Rt. Subcostal incision made. Peritoneum opened and purse string sutures applied. Tube was tunneled through in a lateral position than used normally to be away from tracheostomy. Ventricle was tapped. CSF clear under high pressure. Ventricular end was connected to abdominal end. CSF flowing well. Abdominal end was inserted into peritoneum. Wound closed in layers after complete haemostasis."
7. In Govind Singh and others vs. A.S.Kailasam and another reported in 1975 ACJ 215, the deceased sustained injuries in a motor accident that occurred on 04.06.1967. She had developed tetanus, despite receiving medical attention in Government Hospital, she succumbed to the injuries on 22.06.1967. The evidence produced before the Court proved that there were 7 injuries and therefore, it was concluded that tetanus infection could have been caused by the supervening injuries. The Court held that the death could have been caused only due to tetanus. In the reported case, it was evident from Exs.P3 and P4-Out-patient chits and Ex.P8-case sheet that the deceased complained of symptoms of lock-jaw, attributable only to tetanus. On an analysis of the evidence produced, it was concluded that there was no necessity to conduct post-mortem.
8. In Kumar Mohamed Rafique (since deceased) by his heirs vs.
Municipal Corporation of Greater Bombay reported in 1986 ACJ 55, a 11 year old boy sustained head injuries in 1972 and became semi-conscious. An artificial device was inserted. Infection in the brain caused paralysis of the left side and deterioration in the general condition of the injured. There was evidence to show that he was continuously treated for the head injury; In spite of medical attention, he died in 1980.
9. In the above reported case, the Court had the benefit of opinion of three medical men, and one among them was a surgeon, who had operated the deceased. The Doctor has deposed that the patient was forced to have recourse to the artificial device, because of the accident and life of the device could not be guaranteed. Since, the failure of the said artificial device had resulted in the death of the injured, the Court had no difficulty in holding that the injury caused due to the accident was the cause of his death, notwithstanding the fact that seven years had elapsed after the stunt was inserted and the patient succumbed. Compensation was awarded, because the patient was provided with artificial device, immediately after the accident and that due to the failure of the said artificial device, after seven years, the patient succumbed to the injuries.
10. In New India Assurance Co. Ltd., and others vs. Shakuntla Bai and others reported in 1987 ACJ 224, a tempo van ran over an old man on 03.05.1980 and he sustained a compound fracture of pelvis bone and filed an application under Section 110-A on 31.10.1980 and died on 17.01.1981. It was held by the Court that the legal representatives of the deceased could pursue the action initiated by the injured and that they are entitled to be compensated for the loss of dependency. As the injured died after 8 months of the accident, due to the injuries he suffered in the accident and that there was no immediate cause other than injuries, the Court was pleased to award compensation.
11. In Usha Jhingran and others vs. Budhsen and others reported in 1992 ACJ 110, the claimants contended that the injured died due to the accident, but did not produce any medical or other expert evidence to infer that death was the direct consequence of the injuries received by the deceased in the accident. The injured remained unconscious in the hospital for about a year after the accident and thereafter died. Decision of the Tribunal dismissing the claim petition was reversed by the High Court and compensation was awarded.
12. In Klaus Mittelbachert and others vs. East India Hotels Ltd. and others reported in 1999 ACJ 287, the accident occurred while the guest was diving in the swimming pool and sustained head injury and he died later on. There was evidence to show that the guest sustained head injuries and that he was continuously treated from day one of the accident till his death. In this case, the Delhi High Court concluded that the injury in the head was the cause of death.
13. In Vidhyawati and another vs. A. Guruswamy and another reported in 2005 ACJ 433, a pedestrian was hit by a taxi and sustained injuries including a fracture of right leg. The injured was continuously treated and died after five months due to pneumonia. Medical evidence proved that the injury was one of the reasons for his death and there was no rebuttal evidence. Therefore, the Tribunal granted compensation on the ground that death would have occurred due to pneumonia and renal failure.
14. In the above reported case, the accident occurred on 03.09.1997.
Injured was treated in a hospital, but he was 'kept in follow-up'. His condition became serious, he was again admitted in the hospital on 02.01.1998 and was discharged on 16.01.1998. Again, he was brought to the hospital on 16.01.1998 and he died on 29.01.1998. Since there was proximity to the injuries and the death, the Tribunal awarded compensation.
15. In the case on hand, the accident occurred on 23.01.2005. He died on 30.03.2007. Upto 07.06.2005, he was in the hospital. From the medical history, extracted supra, it could be reasonably deduced that due to the gravity of charges, there were complications and the same would have accelerated death. Though there are no medical records to indicate that he had taken treatment, in some other hospital, it could be reasonably presumed that as there was no material change or improvement in the condition, from the date of admission, he would have been discharged from the hospital, ie., on 07.06.2005. In view of the medical records and considering the age of the victim, aged 55 years, at the time of accident, condition of the injured, at the time of discharge from the hospital, we are of the view that there was a clear nexus between the injuries and consequential death. Quantum of compensation is not seriously disputed.
16. Hence, this Civil Miscellaneous Appeal is dismissed. The appellant- Insurance Company is directed to deposit the award amount, less the amount already deposited, with accrued interest and costs, to the credit of M.C.O.P.No.4590 of 2012, on the file of the learned Motor Accident Claims Tribunal (Additional Subordinate Judge), Tiruppur, within a period of six weeks from the date of receipt of a copy of this order. The respondents/claimants are permitted to withdraw the said amount, by making necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are closed.
Index: Yes
Internet: Yes
Note: Tribunal is directed to affix the details of the order passed by this Court in the
notice board, mentioning that the appeal, filed by the appellant-Insurance Company, has been dismissed. Tribunal is further directed to disburse the amount, only on proper identity and proof.
(S.M.K., J.) (M.G.R., J.) 24.03.2017 skm To The Motor Accidents Claims Tribunal, (Additional Subordinate Judge), Tiruppur.
S. MANIKUMAR, J.
AND M.GOVINDARAJ, J.
skm C.M.A.No.401 of 2015 24.03.2017 http://www.judis.nic.in