IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08..04..2009 CORAM THE HON'BLE Mr. JUSTICE S.PALANIVELU C.M.A.No.1667 of 2003 and C.M.P.No.10766 of 2003 The Oriental Insurance Co. Ltd., rep. By its Divisional Manager Chennai-6. ... Appellant Vs.
1. N. Meenal
2. Minor N. Meenakshi
3. Minor N. Murugesan (Minors represented by mother and Natural Guardian 1st respondent) ... Respondents This civil miscellaneous appeal has been filed under
Section 173 of Motor Vehicles Act, 1988, against the Judgement and decre in M.C.O.P.No.1927 of 1997 dated 10.10.2002 on the file of the Motor Accidents Claims Tribunal Chief Court, Small Causes, Chennai For Appellant : Mr.N. Vijayaraghavan For Respondent : 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 and second and third petitioners are their children. On 8.9.94 at 5.15 p.m. while the deceased was proceeding from Teynampet via Kasturi Rangan Road and Cathedral junction on his scooter bearing registration No.TMH-6705 with his wife as pillion rider, while he waiting for signal to turn right and proceeded to turn right, the auto-rickshaw bearing registration No.TSJ 4102 driven by the first respondent driver, violated traffic rules and unmindful of the signal, turned right towards Cathedral Road junction at a very high speed and in the process, he collided with the deceased's scooter at the rear side by means of which both the deceased and his wife fell down. The accident was outcome of rash and negligent driving of the auto driver. The deceased was working as clerk in Vijaya Bank, Club House Road, Madras and was aged 41 years at the time of accident and drawing salary of Rs.7,000/- per month. Hence a compensation of Rs.15,76,250/- is claimed.
2. In the counter filed by the second respondent, the following are stated:
The claim is not sustainable in law or facts of the case since the deceased did not die due to the injuries sustained in the accident which unrelated to the injuries and hence the cause of action does not survive to the claimants. The petitioners are put to strict proof that the death was due to injuries sustained in the accident. In a settlement it was agreed that Rs.50,000/- as compensation be paid to the injuries on 16.2.95. This respondent is ready to pay the sum of Rs.50,000/- and further claim is not sustainable. The age, occupation and income of the deceased are denied. The place, date, time of accident and nature of injuries are not admitted. The compensation claimed is excessive. Hence, the petition has to be dismissed.
3. The learned Chief Judge, Court of small causes, Motor Accidents Claims Tribunal, Chennai after scrutiny of the evidence and other materials on record passed an award directing the respondents in the claim petition to pay a sum of Rs.9,25,425/- as compensation along with interest at the rate of 9%. This is the award being challenged before this court.
4. The accident took place on 8.9.1994 at 5.15 p.m. as narrated in the petition. Even though general allegations are available in the counter of this appellant as to the nature of the accident, the Tribunal has found that the accident took place as pleaded by the claimants. It has also anchored the liability upon the auto driver for having caused the accident. It is his negligence which caused the accident. In this regard there is not much debate before this court.
5. The main thrust of the appellant is that Nachiappan did not die on account of injuries sustained in the Road Accident but his death may be due to other reasons. Per contra, the claimants would contend that even though the death did not occur atonce after the accident, due to the complications which occurred aftermath the accident he died and that the death is attributable to the bad consequences of the injuries sustained by the deceased.
6. In order to unearth the truth, this Court has to make a probe into the oral testimonies available on record. P.w.1, the first claimant/wife of the deceased would say that her husband sustained fracture in his right leg and he underwent operation and even after returning back to the residence he still continued medical treatment; that one Dr.Rathinasabapathy treated him and Ex.P.4 is the Medical Certificate issued by the Doctor. In her cross examination it was suggested that her husband did not die due to the injuries sustained in the accident for which her response was negative. It also suggested that he died due to blood pressure.
7. The entire discussion of the case would revolve around the evidence of P.w.2, Dr. Rathinasabapathy, who is said to have given treatment to Nachiappan. He is a General Medical Partitioner, qualified in Surgery. It is his version that in the accident Nachiappan's right knee was damaged and he was suffering from pain in the right kidney region; that he was affected by "Pyonephrosis" and due to cerebral haemorrhage he died. It is profitable to extract the medical certificate which was issued by him for better understanding of the matter. It is as follows:
"This is to certify that Mr. Nachiappan K., son of Karuppan Chetty, Madras 600 018 died due to Cerebran haemorrhage. He was having "Hypertension" due to renal damage (Right) as a result of which he had cerebral haemorrhage and died.
He was attended by me from September 1994. he met with road traffic accident and was treated for fracture neck of femor (Rt). At that time his right kidney was damaged. He had intermittant paid in the right kidney area. Investigations revealed that he was having "Pyonephrosis". He was treated with antibiotics and the infection due to damage of the kidney subsided. But he developed "Renal Hypertension" was growing in nature.
He was admitted for surgical treatment for hernia 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 having high blood pressure which caused cerebral haemorrhage. Due to careful treatment some time the blood pressure was under control. Due to the stress and strain during the operation and post operative period the usual drugs were of less use only and the blood pressure was raising dangerously. At last he met with cerebral haemorrhage and died. In conclusion, Mr. Nachiappan K. died as a result of the deterioration in his health condition caused by the said road traffic accident."
8. In his chief examination he said that by means of accident Nachiappan's right side kidney got swelled and germs were found in the kidney and the germs generation has caused blood pressure and hence his kidney could not be removed, that for the reason of high blood pressure, cerebral haemorrhage occurred to him and that is why he breathed his last. In the cross examination he would say that in Ex.P.6 Discharge Summary it was not stated that Nachiappan had kidney problem and that he did not die due to the Hernia Operation. He is definite that Nachiappan died due to the injuries received in accident.
9. In this context, it is worthwhile to have a glance of Ex.P.6 Discharge Summary issued by the Devaki Hospital Limited, Madras. He was admitted on 8.9.1994 and was discharged on 20.9.1994. A particular reference as regards the abnormal feature as stated by P.W.2 is available in Ex.P.6, though not it is directly referable to the kidney complication. It is stated that in the right hip joint, swelling, tenderness and painful movements were found. Since there was swelling in the right hip joint it may be descerned that not only it is an exposure of a fracture inside and also other inflammations in the internal organs in the right hip region. In this angle if the matter is approached, it could be candidly observed that the doctor's evidence is corroborated by Ex.P.6. To put it in a nutshell, it can be stated that even at the time of accident his right kidney got affected and it was not specifically diagnosed by the infirmary, but the complication was subsisting and that it has been remaining unattended. Concentration seems to have been made on the fracture in neck of femur right and necessary surgeries were undertaken. In this regard, it is advantageous to have extraction of the Discharge Summary as to the injuries sustained by Nachiappan and treatment 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 Normal C.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 the fracture table reduction doen and seen in image intensifier, Fracture was well compacted, difficult to reduce in closed reduction accerately. Thro a lateral incision the base of Greater trochanter approached and K wire introduced ,seen in image intensifier.
Position acceptable, 70mm SP nail followed by 70mm Screw Wound closed in layers with drain on situ"
10. Another medical Certificate available in Ex.P.6 shows that from 10.9.1994 to 10.1.95 the injured was advised to take sick leave as he had undergone Hemiarthroplasty and he was fit to rejoin the duty. From this document it transpires that till 10.1.1995 he was on medical leave. For the injuries suffered on 8.9.94, he died on 23.2.95. No Post-mortem examination was conducted on the corpse of the injured. Hence it is the responsibility of the Court to go deep into the matter and to find out whether the death was caused by the injuries sustained in the accident for the ends of justice.
11. As adverted to supra, there is a close connection between the medical evidence as found between the oral testimony of P.W.2 and the entries available in Ex.P-6. Even though the evidence putforth by the doctor was denied in his cross examination by the Insurance Company, the case is bereft of the medical evidence on the side of the appellant. In other words, the evidence given by P.w.2 has not been rebutted by the appellant and no steps have been taken in this regard.
12. When going into the arena of judicial pronouncements on these matters, the decisions referred to and relied on by Mr.PL. Narayanan, learned counsel for the claimants, are note-worthy. In an earlier decision of this court, in an identical circumstance this Court has observed that even though Post-mortem was not conducted, it could be concluded that the contention of the claimant was proved. In 1975 ACJ. 215 [Govind Singh and others v. A.S. Kailasam and another] this Court has held as follows:
"9. ... ... ... Lastly, it was argued that no autopsy had been done on Heera Bai's dead body and therefore, it is not possible to give a definite finding that her death was due to tetanus resulting from the injury sustained in the accident. Here too, the contention must be disregarded because the definite evidence of the doctors is that Heera Bai's death was due to tetanus and the infection had been brought about by injury sustained in the accident. A stray answer from P.w.5 in cross-examination that he cannot correctly set out the cause of death without a post-mortem certificate is clutched at by the first respondent's counsel to contend that there is no conclusive evidence in the case to prove that Heera Bai's death was only due to tetanus. This answer cannot be available of because innumerable clinical circumstances lead to the irresistible conclusion that the death was solely due to tetanus infection."
13. When the medical evidence says that Nachiappan suffered complications in the Kidney and the cerebral haemorrhage occurred, which was the outcome of the kidney swelling and generation of germs by means of high blood pressure, has been established by oral and documentary evidence, even though no post mortem was conducted, it would 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 contra medical evidence and such circumstance would probabilise the claimant's version. In this juncture, learned counsel for the claimants placed reliance of a Division Bench decision of Calcutta High Court [2005 ACJ 433 (Vidhyawati and another v. A. Guruswamy and another)] which is more specifically on this point. The relevant portions of the judgment are as follows:
"19. In such situation, the question is whether injury can be described as a cause of death. Such question can be answered effectively by the doctors who treated him. In this case P.w.5, a Professor of Medicine in the Department of Banaras Hindu University has in clear terms indicated that the injury on the right leg that was sustained by the patient was one of the reasons of his death. In cross-examination, the said Professor has further stated that the injuries that he found might cause infection and might perpetuate failure of several organs of the body one by one. On the fact of such opinion of the doctor, no suggestion in cross examination to the contrary was given to the said witness nor have respondents examined any other expert showing that in the present case injury cannot be the cause of death.
20. ... ... ... ... ... ...
21. As indicated above, in the absence of any medical opinion contrary to the one given by P.W.5, this court is left with no other alternative but to accept his version that injury was one of the causes of death. We find no reason to either ignore or disbelieve the opinion of P.w.5, the Professor of Medicine of the University in the absence of any other opinion on the subject. Once the injury arising from the accident is found to be primary cause of death, the claimant should be entitled to get compensation for the loss of life of the victim. It is now settled position of law that if the cause of death is integrally connected with the injury sustained in the accident and is one in the chain of causa causans, the cause of death must be attributed to the injury suffered in the accident."
15.There is nothing on record to brush aside the evidence of P.W.2, which is natural, convincing and satisfactory. In the situation available it has to be inevitably observed that although death is not an end product of accident directly, it is resultant of accident.
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 an accident, by means of which paralysis in brain was caused due to infection, which resulted in deterioration of general condition of the injured and the artificial device were malfunctioning and the accident ultimately claimed the life of the victim. The case was decided in 1986 ACJ 55 [Kumar Mohammed Rafique v. Municipal Corporation of Greater Bombay]. The accident occurred in 1972 and the boy died in 1980 due to several complications. It is held that the case papers shoe the cause of his death as hydro-cephalus with raised inracranial tension and it is ultimate cause of death it cannot seriously be suggested that the cause of death was not the head injury received in the accident.
17. Attention of this Court was drawn to a decision of Madhya Pradesh High Court in 1987 ACJ 224 [New India Assurance Co. Ltd., and others v. Shakuntla Bai and Others] wherein it is decided that evidence of the doctors would show that the injured died 8 months after the accident succumbed to the injuries he suffered in the accident as no immediate cause other than the injuries had been proved. It was suggested in that case that the death of injured took place due to either diabetes or due to the fact that he was a heart patient, but it has not been proved. In the said decision it is also mentioned that in the opinion of the Court if credibility is found in the evidence of a witness, then there could be no reason to discard his testimony. Two Supreme Court decisions have been referred in this case [AIR 1951 SC 120 (Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) and AIR 1983 SC 114 (Madhusudan Das V. Narayani Bai)] where it has been held that primacy must be attached to the trial court's opinion on the credibility of the witness and the appellate court must be very slow in discarding evidence of any witness in appeal if he was found reliable by the trial court and if his testimony was accepted.
18. The Tribunal has accepted the oral evidence of P.W.2 as to the injury and cause of death and this Court is also of the considered opinion that the oral account of P.W.2 is not bristled with any ambiguity or obscurity. The evidence is definite as to the nature of injuries and result of such injuries. There is no room to reject such evidence and to take a view otherwise, when rebuttal evidence is significantly absent in the case.
19. At the cost of repetition, it is stated that the injured Nachiappan has succumbed to the injuries. The crucial evidence of the doctor cannot be ignored in a light manner since he has fortified the consequent features which had arisen out of the impact on the kidney at the time of accident. He is a qualified doctor who has put in service in medical field for a long time there is nothing to smell rat in his evidence. Unless contra evidence is forthcoming, there is no embargo for placing reliance upon is opinion. The medical evidence on record in this proceeding would go a long way to show that Nachiappan died due to the injuries which he sustained in the accident and this Court does not find any infirmity in the award passed by the Tribunal either factual or legal, which does not call for any interference from the Court. The upshot of the Tribunal need not be upset in any way which has to be confirmed and it is accordingly confirmed.
20. As far as the quantum fixed by the Tribunal is concerned there also this Court finds it proper. In the salary certificate monthly income was mentioned as Rs.7,360/-. Annual loss of income has been arrived at Rs.58,884/-after deducting 1/3rd in the salary. After applying multiplier, the dependency has been fixed at Rs.8,83,260/-. Rs.5000/- has been allowed for funeral expenses, loss of consortium for first claimant has been assessed at Rs.10,000/-. A sum of Rs.26,175.50 has been awarded for medical expenses. In total a compensation of Rs.9,24,435/- has been directed to be paid.
21.In view of the above said observations there is no circumstance to set aside the award nor vary the terms and thus the Appeal suffers dismissal.
In fine, Civil Miscellaneous Appeal is dismissed. No costs. Connected M.P. is also dismissed.