(Judgment of the Court was made by S.MANIKUMAR, J.) United India Insurance Company has challenged the judgment and decree, dated 07.09.2016, made in M.C.O.P.No.725 of 2013, by which, compensation of Rs.13,00,000/- has been awarded, for the death of one M.Elangovan. Claim petition in M.C.O.P.No.725 of 2013 was made, when he was alive, for the injuries sustained in the accident, which occurred on 25.07.2013. It is the case of his wife, Kannaki, that due to the injuries, he died on 23.10.2013.
2. RW.1, Mr.Kamaraj, Legal Assistant of the appellant-Insurance Company, has been examined as RW.1 and through him, Ex.R1 - Inspection Report, has been marked. RW.1, in his evidence, has deposed that immediately, after the accident, the injured was taken to Government General Hospital, Chennai and took inpatient treatment from 25.07.2013 to 30.07.2013. When the injured was discharged from hospital, the Doctors have advised him to attend the outpatient ward after two weeks. But the injured has not taken any treatment, after discharge and he attended the hospital only on 21.10.2013. On examination, the Doctors have given the report, stating that, "he was apparently normal, till two days back". However, injured died on 23.10.2013. According to RW.1, the injured was in good condition from the date of discharge, ie., on 30.07.2013, till the date of re-admission on 21.10.2013. Therefore, RW.1 has deposed that death was not due to the injuries, sustained in the accident.
3. On re-admission, the Doctors have recorded that the injured was "lencocytonens, thrombogtopmia with elevated renal and liver functions parameters. Injured was diagnosed with sepsis with multi organ disfunction and he died on 23.10.2013. PW.3, Doctor, in his chief examination has stated as follows:
"His death summary reveals the cause of death due to (i) old temporal bone fracture left side, (ii) systemic sepsis, (iii) multi organ dysfunction, (iv) septic shock, and (v) cardiopulmonary arrest. As per medical sentence, head injury can decrease a patient, cognitive function (higher brain function) ambulation. Such people are deep vain thormbors and pulmonary embulsion, atelectous and lung collapse, bed score and septemia, post head injury seqular (unresolved haematoma). And in death summary, the first possible reason states as left temporal bone fracture and haematoma, which can make the patient bed ridden and can cause various complications leading to death. The death caused by 3 months from the time of injury is to be considered the major factor for death."
4. Upon perusal of Ex.P5 - Death Report, the Claims Tribunal held that death was due to the fracture in the left temporal bone, which lead to sepsis with multi organ disfunction. Though the respondents claimed that the deceased was engaged in Real Estate business and earned Rs.25,000/- per month, the Claims Tribunal, determined the monthly income of the deceased as Rs.8,750/-, applied '15' multiplier, for the purpose of computing the loss of contribution to the family of the deceased, on the basis of the entry made in the claim statement, wherein, the age of the deceased was shown as 42 years. After deducting 1/3rd towards the personal and living expenses of the deceased, the Claims Tribunal computed the loss of contribution to the family as Rs.10,50,000/- (Rs.8,750/- x 12 x 15 x 2/3). In addition to the above, the Claims Tribunal has awarded Rs.2,00,000/- for loss of love and affection, Rs.1,00,000/- towards loss of consortium, Rs.50,000/- for funeral expenses and transportation and Rs.2,000/- for damages to clothes. Altogether, the Claims Tribunal has awarded Rs.14,02,000/-, as compensation. Since the claim was made only for Rs.13,00,000/-, the Claims Tribunal restricted to award Rs.13,00,000/- as compensation, with interest, at the rate of 7.5% per annum, from the date of claim, till the date of realisation.
5. Mr.A.Dhiraviyanathan, learned counsel appearing for the appellant-Insurance Company contended that there is no nexus between the injuries sustained on 25.07.2013 and death, which occurred, after nearly three months from the date of accident. He further submitted that when the claimants have not filed any medical records, to prove that after discharge from the hospital, the injured was constrained to take continuous treatment and therefore, the Claims Tribunal ought not to have computed the loss of contribution to the family. In addition to the above, he submitted that when the respondents have not filed any post-mortem certificate to prove the cause of death, they are not entitled to any compensation. Quantum of compensation is also disputed.
Heard the learned counsel for the parties and perused the materials available on record.
6. The accident has occurred on 25.07.2013 and M.Elangovan had sustained injuries. As per Ex.P4 Discharge Summary, issued by Government General Hospital, Chennai, he was hospitalised between 25.07.2013 and 30.07.2013, for six days. He died on 23.10.2013. Observations made in Ex.P5 - Death Report, issued by the Government General Hospital, Chennai, are as follows:
"CAUSE OF DEATH:
1. Lt. Temporal bone fracture
2. Systemic Sepsis
3. Multi organ Dysfunction
4. Septic shock
5. Cardiopulmonary arrest
7. Reading of the above, makes it clear that he had sustained severe head injury, underwent treatment for nearly six days. At the time of discharge, Doctors have clearly advised him to attend the outpatient ward after two weeks. On re-admission, the Doctors have recorded that the injured was "lencocytonens, thrombogtopmia with elevated renal and liver functions parameters" and that he was diagnosed with sepsis with multi organ disfunction. He died on 23.10.2013. Both in the chief and cross, examination of PW.3, Doctor, has affirmed that the cause of death, due to (i) old temporal bone fracture left side, (ii) systemic sepsis, (iii) multi organ dysfunction, (iv) septic shock, and (v) cardiopulmonary arrest. Thus, from the above, it could be deduced that the injured, though not continuously treated for the grievous injuries, particularly, head injury, developed complications and despite treatment, died on 23.10.2013.
8. On the question, as to whether, there was proximity or cause for the death, it is worthwhile to extract few paragraphs from the judgment of this Court in Abdul Rahim v. Sundaresan reported in 2010 (3) MLJ 1299. Paragraphs 8 to 10 are extracted hereunder:
8. He also referred THE BLACKS LAW DICTIONARY to define what is meant by cause:
Causa caqusans - An immediate or effective cause. Se immediate cause under Cause.
Causa sine qua non A necessary cause; the cause without which the thing cannot be or the event could not be or the event could not have incurred. See but-for cause under Cause.
Cause, n. 1. Something that produces an effect or result the cause of accident But-for cause. The cause without which the event could not have, occurred Also termed actual cause; cause in fact; factual cause. Proximate cause. 1. Cause that is legally sufficient to result in liability. 2. A cause that directly produces an event and without which the event would not have occurred -Also termed direct cause; direct and proximate cause; efficient proximate cause; efficient cause; efficient adequate cause; legal cause; procuring cause; producing cause; primary cause; jural cause.
9. The counsel also relied upon the decision of the Delhi High Court in Klaus Mittelbachert v. East India Hotels Ltd. AIR 1997 Delhi 201, wherein it is stated as follows:
128. In Words & Phrases, Permanent Edn Vol. 21 at page 448, injury causing death has been defined as under:
If an employee but for an injury would not have died at the time at which and in the way in which he did die the accident though it merely hastened a deep-seated disorder is regarded as resulting in an injury causing death within the Workmen's Compensation Act.
129. Death resulting from injury has been defined in Vol. XI page 46-47 (CAPP) ibid as follows:
Death resulting from an injury..... covers cases in which an injury aggravates or accelerates an existing condition so that death ensues earlier than it would in the ordinary course, even though the existing condition would have ultimately resulted fatally.
130. In Pigney v. Pointers Transport Services Ltd., 1952 (2) All England Law Reports 307 relying on Re: Polemis & Furnace, 1921 (3) KB 560, 577 LORD PILCHER has said: if death is directly traceable to the injury in the accident for which the defendants are responsible., the chain of causation is not broken.
131. In plain words, if an injury hastens or accelerates the death, directly and not remotely, then in law the injury is one causing or resulting in death. By relying upon those paragraphs, learned counsel for the appellants submitted that any injury which forms the nucleus resulting in a death, has to be taken as cause for the death.
10. He also relied upon RATANLAL & DHIRAJLALS THE LAW OF TORTS to speak about the connection between the act and the death. From the Chapter 1.Damages, he relied on the following paragraph:
1(B) Causation If the damage alleged was not caused by the defendant's wrongful act the question of its remoteness will not arise. In deciding the question whether the damage was caused by the wrongful act, the generally accepted test is known as but for test. This means that if the damage would not have resulted but for the defendant's wrongful act, it would be taken to have been caused by the wrongful act. Conversely it means that the defendant's wrongful act is not a cause of the damage if the same would have happened just the same, wrongful act or no wrongful act. Thus when a doctor is negligent in failing to see and examine a patient and give him the proper treatment, the claim will still fail if it is shown on evidence that the patient would have died of poisoning even if he had been treated with all due care. The doctor's negligence in such cases is not the cause of the patient's death.
9. In Abdul Rahim's case (cited supra), reference has also been made to a decision of the Hon'ble Supreme Court in Ramathal v. Managing Director, Cheran Transport Corporation AIR 2004 SC 3445 : (2003) 10 SCC 53, wherein, the deceased was sustained injuries on 14.1.1991, hospitalised for one week and subsequently, discharged from the hospital. Thereafter, after one year, he died on 26.2.1992. Initially, the injured filed a claim for compensation. After his demise, the dependents were brought on record. The Tribunal awarded Rs.3,59,508/-. But on the appeal, this Court reduced the compensation to Rs.76,000/-. The claimants therein preferred an appeal and the Apex Court, enhanced the compensation to Rs.2,00,000/-. While reversing the judgment of the High Court, the Apex Court, at paragraph 15 of the judgment, held as follows:
15. Unfortunately, the High Court did not discuss the materials on record in detail. It is not in dispute that the deceased was an indoor patient from 14.1.1991 to 21.1.1991. He thereafter was being treated in the Government Hospital, Palladam. He died there. The medical certificate shows that the cause of the death was due to primary disease hypoxic encephalopathy and the immediate cause of death was due to cardiorespiratory arrest. The doctor examined on behalf of the claimants categorically stated that the accident might have been the cause of death of the deceased. The respondent did not bring any material on record to show that there was no link between the accident and the death. The finding of the High Court that there was no proper medical treatment and, therefore, cause of death is not attributable to the accident does not appear to be based on any material on record. In any event, it cannot be said to be the correct approach adopted by the High Court particularly when the Tribunal on the basis of the materials brought on record by the parties came to a contrary finding. No strong and cogent reason has been assigned by the High Court in support of its judgment reversing the findings of the Tribunal. It accepted the submission made on behalf of the respondent herein without analysing the materials and without arriving at a clear finding of fact.
10. Some of the decisions on this aspect, are as follows:
(i) In Govind Singh and others vs. A.S.Kailasam and another reported in 1975 ACJ 215, the deceased sustained injury in a motor accident that occurred on 04.06.1967. She developed tetanus, despite receiving medical attention in the Government Hospital and succumbed to injuries on 22.06.1967. The evidence produced before the Court prove that there were 7 injuries and therefore, it was concluded that tetanus infection could have been caused by the supervening injuries. In that context, the Court held that the death could have been caused only due to tetanus and that infection would have been caused by one of the supervening injuries. 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, which is attributable only to tetanus. On an analysis of the entire evidence produced before the Court, it was concluded that there was no necessity to conduct post-mortem.
(ii) 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 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.
In the above case, the Court had the opinion of three medical men, and one among them was a surgeon, who had operated the deceased. The Doctor had 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 shunt was inserted and before the patient succumbed. Compensation was awarded, because the patient was provided with an artificial device, immediately after the accident and that due to the failure of the said artificial device after seven years, the patient succumbed to injuries.
(iii) 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 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, as no immediate cause other than injuries had been proved and therefore, the Court awarded compensation.
(iv) In Usha Jhingran and others vs. Budhsen and others reported in 1992 ACJ 110, the claimants contended that the deceased died due to the accident, but did not produce any medical or other expert evidence to infer that death was the direct consequence of injuries received by the deceased in the accident. The injured remained unconscious in the hospital for about a year after the accident and died, thereafter. The decision of the Tribunal dismissing the claim petition was reversed by the High Court and compensation was awarded.
(v) In Union of India and another vs. Saraswathi Debnath and others reported in 1995 ACJ 980, the High Court was pleased to consider as to how the evidence tendered before the Claims Tribunal has to be appreciated. In this case, the High Court was pleased to hold as follows :
"6. The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case. The law on this is laid down by the Supreme Court in N.K.V. Bros. (P) Ltd., vs. M.Karumai Ammal, 1980 ACJ 435 (SC).
(vi) 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, thereby, he sustained a head injury and lateron, he died. 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 Supreme Court concluded that the injury in the head was the cause of death.
(vii) 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 the fracture of right leg. The injured was continuously treated, and died after five months due to pneumonia. The medical evidence proved that the injury was one of the reasons, for his death and that there was no rebuttal evidence. Therefore, the Tribunal allowed compensation on the ground that death would have occurred due to pneumonia and renal failure.
In the above case, the accident occurred on 03.09.1997. The 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 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 injury and death, the Tribunal awarded compensation.
11. In the light of the above decisions and the medical evidence of PW.3, Doctor and Ex.P5 - Death Report, the findings of the Claims Tribunal that the death was due to accidental injuries, is confirmed.
12. Though the learned counsel appearing for the appellant-Insurance Company has disputed the determination of monthly income, by the Claims Tribunal, this Court, following the decisions in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC and Syed Sadiq etc. Vs. Division Manager, United India Insurance Company Limited reported in 2014 (1) TN MAC 459, is not inclined to reduce the same. Determination of compensation under the head, loss of contribution to the family and under other heads, is reasonable and it cannot be said to be excessive or bonanza to the family.
13. In the result, the Civil Miscellaneous Appeal is dismissed. The appellant-Insurance Company is directed to deposit the entire amount, less the amount already deposited, with accrued interest and costs, to the credit of M.C.O.P.No.725 of 2013, on the file of the Motor Accidents Claims Tribunal (2nd Additional District Judge), Poonamallee, within a period of four weeks from the date of receipt of a copy of this order. The share of the minors shall be deposited in any one of the Nationalised Banks in fixed deposit under the reinvestment scheme initially for a period of three years. The interest accruing on the share of the minors shall be paid to the guardian once in three months, till they attain majority. On such deposit being made, except the minors, the respondents/claimants are permitted to S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
skm withdraw the same, by making necessary application before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is also closed.
(S.M.K., J.) (M.G.R., J.) 05.06.2017 skm To The Motor Accidents Claims Tribunal, (2nd Additional District Judge), Poonamallee.
C.M.A.No.1598 of 2017 http://www.judis.nic.in