Gujarat High Court
Future Generali India Insurance Co Ltd vs Manjula Aubrey Tomlinson Christi on 20 October, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1769/2021 JUDGMENT DATED: 20/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1769 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FUTURE GENERALI INDIA INSURANCE CO LTD
Versus
MANJULA AUBREY TOMLINSON CHRISTI
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR. VARUN G RAI(7135) for the Defendant(s) No. 1
SERVED BY AFFIX(N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/10/2023
ORAL JUDGMENT
1. The appellant-Insurance company challenges the judgment dated 10.8.2020 passed by MACT (Aux), Page 1 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Vadodara in MACP no.295 of 2016, mainly on the ground that the appellant should be exonerated from the liability of paying the compensation since no nexus between injury sustained in vehicular accident and the death could be proved by the claimant.
2. The mother of the deceased - Rosemary Aubrey Tomlinson had moved MACP on 27.4.2016 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on the death of her daughter owing to a vehicular accident. The Tribunal partly allowed the petition granting the amount of Rs.19,90,600/- with 9% interest.
3. The claimant, referring to the accident dated 20.7.2015, had contended before the Tribunal that her daughter's death on 5.3.2016, during the treatment when admitted in ESIS Hospital at Gotri was the result of injuries sustained in the accident, owing to rash and negligent driving on the part of the opponent no.1 Page 2 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined driver of car, for which the FIR came to be lodged as CR no. I-102/2015 with Raopura Police Station, Vadodara City.
4. Facts of the case suggest, that on 20.7.2015 at about 9.00 a.m., the daughter of the claimant was proceeding towards her job place, by riding her Activa bearing registration no. GJ-06 CS-7204. When she reached near the nursing home, the cross roads was closed because of the traffic, the lane on which she was proceeding from Kirti Stambh to Kothi was thereafter opened, she started her vehicle, and it had been contended that at the same time, though the lane from Akota bridge to Dandia bazar was closed, opponent no.1 came from Akota bridge driving his car bearing registration no. GJ-06 EH-9905 in a rash and negligent manner with full speed and dashed with Activa of the deceased and thereby, caused the accident. The complaint was given by the injured. FIR was produced at Exh.55. At Page 3 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the time of the accident, a office colleague- Hiten Mistry and one another whose name she does not recall were present there.
5. In the accident, she sustained chest injury with bilateral ribs fracture with pneumothorax and contusion over back. She was thereafter immediately taken to Sparsh Hospital and then at Baroda Hospital and as there was no proper treatment, she was shifted to Sunshine Global Hospital, Manjalpur, Vadodara where she stayed as an indoor patient upto 1.8.2015.
6. The claimant - mother, while reiterating the facts averred in the claim petition, had deposed on oath at Exh.18, stating that the accident was informed to her by the office colleague - Hiten Mistry. The HR of the office-Shraddha Madam came with her car at the place of the incident and first took her daughter at Pratham Sparsh Hospital and owing to lack of facility, she was taken to Baroda Page 4 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Hospital. There too, there was no sufficient provision for the treatment and therefore, she was shifted to Sunshine Global Hospital, Manjalpur, where she remained as an indoor patient. As per the claimant, because of the grievous injuries sustained by her daughter, she was under continuous treatment for about 7 months and on 5.3.2016, she died.
7. Her evidence is to the effect that on 20.7.2015, when she was taken to Sunshine Global Hospital and admitted as an indoor patient, Dr. Bhikhubhai Patel informed her that both sides ribs were broken and she was having difficulty in breathing. She was brought back home on 1.8.2015, she continuously remained in bed, she was not in a position to sit, walk or rise on her own and every week, she was to be taken for examination. The mother has stated that after a month, there was sudden cough and she was suffering from fever. At Sunshine Global Page 5 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Hospital, Dr. Tushar Patel informed that her daughter was suffering from Pneumonia and therefore, was shown to the family Doctor-Dr. Prakash Bhagade, and after a little improvement in her health, the Doctor had advised for exercise and therefore, they had called the Physiotherapist at home who assisted for about 20 days for the exercise and according to the mother, during that period, the daughter had started taking 2-3 steps with the assistance of other person. While remained continuously in bed, owing to heavy medicines. She also suffered severe bedsores and therefore, again her physical activities got standstill and because of the bedsores, there was severe pain in her back and joints.
8. The claimant further stated that again on 1.12.2015, she was admitted in Sunshine Global Hospital where she was treated till 5.12.2015, and the Doctor had asked for customizing a Page 6 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined special belt. The mother thus stated that with the help of belt, she could make efforts to stand, but because of the bedsores, she was not in a position to wear the belt and the belt further increased sores on the back and chest and therefore, all her activities of standing and sitting came to a halt and gradually, her food intake also got low, again she started vomiting, so she was admitted on 6.2.2016 at Manjalpur Hospital where she had undergone surgery performed by Dr. Ankur Kothari. According to the mother, there was no change in her health, she started vomiting blood and the sores developed infection. The stomach had enlarged and the consumption of food was very less.
9. The deposition further notes that for treatment of the bedsores, they had taken the service of a registered nurse - Kochumol Acharya from Sunshine Global Hospital, who used to come daily to their home, but there Page 7 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined was no improvement in the health, and on 5.3.2016, they had taken the appointment of Dr. Madhubhaskar Iyer for taking stitches on the sores suffered, while the mother deposed, that on that day, from the morning, she was facing difficulty in breathing and therefore, they took her to ESIS Hospital, Gotri, where Dr. Nilesh Makwana had admitted her and had started the treatment, but during the course of treatment, she died. The mother stated that cause of the death is the injuries sustained during the accident.
10. Referring to the job of the deceased, the claimant deposed that her daughter was working in Checkmate Services Pvt. Ltd. Fatehganj, Vadodara as Executive (Administration) for the last 5 years and was earning monthly income of Rs.11,555/- and at the time of the death, her age was 32 years and was unmarried. The claimant stated that the daughter was hale and hearty and because of untimely death, she lost Page 8 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined her young daughter. The claimant also stated that had she been alive, her daughter would have progressed in her life.
11. The claimant examined, the brother of the deceased - Rajesh Aubrey Tomlinson at Exh.24, and (1) Dr. Dipakbhai Chimanbhai, Medical Officer, Sunshine Global Hospital, (2) Dr. Ankur Kothari, General Surgeon, Manjalpur Hospital, Vadodara, (3) Dr. Prakash Bhagade, M.D., Vinayak Hospital, Vadodara, (4) Dr. Snehal Shah, Physiotherapist, Aashray Physiotherapy Centre, Vadodara, (5) Dr. Nilesh Makwana, Medical Officer, ESI Hospita, Gotri, Vadodara at Exhs.33, 40, 43, 47 and 49 respectively.
12. Advocate Ms. Kirti S. Pathak for the appellant-insurance Company, submitted that the deceased died a natural death after 7 months, and there is no nexus between the cause of death and accident. There is no Page 9 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined postmortem report of the deceased to prove the nexus between the accident injuries and death of the deceased. Advocate Ms. Pathak would contend that in usual course, the postmortem report would not be required, but in such medical cases wherein the claimant is having multiple ailment, it would be necessary to substantiate the "Actual Cause of Death". Ms. Pathak would submit that medical certificate issued by various hospitals shows that deceased died naturally and not due to the accident. The Doctors have not referred for postmortem. Under such circumstances, as the deceased did not die because of accidental injuries, the application of the claimant should be dismissed.
12.1 Ms. Pathak contended that the learned Tribunal has apparently erred in overlooking medical clinical papers which disclosed deceased having multiple ailments.
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NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined 12.2 Advocate Ms. Pathak referring to the medical documents on record submitted that the admission card of Sunshine Global Hospital dated 1.12.2015 shows the date of discharge as 5.12.2015 which specifically mentions C/o. Hyperthyroidism and stated that clinical papers, in the column of significant past history refers as Hyperthyroidism. From the medical papers, it transpires that the deceased was suffering from multiple ailments which clearly mentions in the medical certification of cause of death in column (C) answering the morbid conditions giving rise to the cause is DM/RA/Hyperthyroidism and the final diagnosis for the cardio respiratory failure is with Hyperthyroidism. 12.3 Ms. Pathak submits that as per the cross-
examination of Dr. Nilesh Chauhan, the patient had natural death. Many comorbidities, blood infections were observed. He clearly stated that when the deceased was taken to the Page 11 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined hospital, he was not informed with regard to "history of accident" and hence, the entire so called nexus is got up, just to fetch compensation from the appellant-insurance company.
12.4 Referring to evidence of Dr. Ankur Kothari at Exh.40, Ms. Pathak submitted that the deceased was having multiple ailments of diabetes, blood pressure, thyroid, had undergone knee replacement, blood transfusion, her hemoglobin level was also very low and the insulin was regularly taken due to diabetes. 12.5 In context to evidence of Dr. Prakash Bhagade at Exh.43, Ms. Pathak states that in September, 2015, the deceased was taking treatment of pneumonia.
12.6 Ms. Pathak submitted that the claimant had not examined Dr. Nand Kumar Chawla, Physician who had examined the deceased during her last breath, who could have certainly stated that Page 12 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the deceased died naturally.
12.7 Endeavour was made by Advocate Ms. Pathak relying upon legal research article on "Post- Mortem Report and its particulars in Forensic Science dated 5.11.2020" to project her contention, that autopsy of the death helps to determine the particular cause of death. Postmortem carried out by Pathologists enable to obtain a better understanding of how the death may have occurred, thus submits that it is a inevitable document which will be required, usually, when a death is sudden, suspicious or unnatural and more particularly in matters where deceased had multiple ailments.
12.8 Thus, Ms. Pathak submits that in the present case, since no such postmortem of the deceased has been done by the claimant, the mandatory requirement of Rule 231 of the Gujarat Motor Vehicle Rules has been clearly violated by the Page 13 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined claimant and therefore also, the claim of the claimant should be dismissed.
Rule 231 of the Gujarat Motor Vehicle Rules reads as under:-
"231. Procedure regarding compensation on the principle of no fault.-
Notwithstanding anything contained in Rules 211 to 230 and 232 in the case of a claim for compensation under Chapter X of the Act, the procedure shall be as follows, namely:-
(1) An application for compensation shall be made to the Claims Tribunal in Form CWF, in triplicate, and shall contain the particulars specified in that form.
(2) The application shall be accompanied by a fee of ten rupees in the form of Court fee stamps, and the following documents, namely:-
(i) First Information Report;
(ii) Injury certificate or postmortem report in case of death;
(iii) Heirship certificate in case of death;
(iv) Certificate from the registering authority regarding ownership of the vehicle involved in the accident;Page 14 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined
(v) Particulars or insurance of the vehicle involved in the accident." 12.9 Ms. Pathak tend to submit without prejudice and without admitting any liability, that if at all the Court comes to the conclusion to grant any amount of compensation to mother, then the claimant would only be entitled to receive the amount as per medical bills. Advocate Ms. Pathak has contended that the claim made is not fair, contending to be a fraud.
12.10 Ms. Pathak would contend that fraud and justice never dwell together Frans etjus nunquam cohabitant is a pristine maxim which has never lost its temper over all these centuries. Ms. Pathak referred to Lord Denning observation, in a language without equivocation that, "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud Page 15 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined unravels everything (Lazarus Estae Ltd. v. Beasley, 1956 (1) QB 702). Advocate Ms. Pathak thus argued that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court, and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon the Court. Thus, stated that the claimant has intentionally not allowed postmortem analysis as the outcome would have been otherwise.
12.11 Ms. Pathak submitted that even after the accident, the deceased after the physiotherapy treatment was able to walk and hence, the family had also discontinued the treatment thereafter. Dr. Nilesh Chauhan who examined her on the date of death was not aware about "accident history" which he admitted in his cross-examination. No nexus was established, no autopsy was advised by the doctor which Page 16 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined becomes a necessary piece of evidence, more particularly, when the deceased was suffering from multiple ailment. Ms. Pathak contended that as per lucid ample evidences on record, the appellant-insurance company has clearly proved that there is no nexus to death on account of accident injuries since deceased died naturally as per the deposition of Dr. Nilesh Chauhan and therefore, the impugned award should be set aside, exonerating the insurance company from the liability to pay the compensation.
12.12 Ms. Pathak's stress in her argument was, the non-availability of postmortem report, to contend outright rejection of the claim petition. Reliance was placed by Advocate Ms. Pathak in the case of M. Narayanappa v. Shiva Shakthi Bio Plantic Ltd. reported in 2014 SCC Online KAR 1363, where the accident had taken place on 23.6.2008, while the injured died on 7.11.2008, the issue raised was that the Page 17 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined postmortem was not conducted to prove that the injured died due to accidental injuries, and further a contention was raised that the legal representatives had not produced any documents to show that the injured was under treatment till his death. The nexus between the accidental injuries and death caused after a long period was not proved by the legal representatives.
In the judgment, after critical evaluation of the oral and documentary evidence and other material which were available on the file and the referring to the judgment and award, it was observed by the Court that the occurrence of accident is not in dispute, while observing that the claimant has not examined any independent witness nor the Doctor and further significantly noting, that the postmortem was also not conducted to prove that the death of the deceased is due to the accidental injuries, it was observed that the Tribunal Page 18 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined has rightly recorded the finding that the claimant was not entitled for any compensation.
12.13 Smt. Tayawwa @ Thayavva v. Sri Mayur S/o Manohar Kardi, by Karnataka High Court, Dharwad Bench rendered in MFA no.100093 of 2022, where contention was raised by the counsel for the insurer was with regard to the nexus between the injury and the cause of death of the death to claim compensation by his legal representative. Applying the case of Kannamma v. Deputy General Manager, Karnataka State Road Transport Corporation, the claimants were made entitled for compensation towards hospitalization and medical expense only and not for loss for estate wherein too non-performance of postmortem was a issue argued. The Court observed that there were no materials whatsoever to show that death was on account of and as a direct consequence of the injury suffered by the accused in the motor Page 19 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined vehicle accident.
12.14 The judgment was relied upon by Advocate Ms. Pathak in the case of Smt. Athijamma v. Thalakkara Moiden, rendered in MFA no.2451 of 2013. The case before the Karnataka High Court was that the insured fell inside the bus as was dashed by a jeep and suffered injuries and immediately after the accident, was shifted to the hospital where he took treatment for a period of 3 days and again for another period of 3 days in total 6 days. The injuries sustained was fracture of femur and thereafter, the treatment was taken in the year 2003 and he died in the year 2005. After remand of the matter, the Doctors were examined and in the cross-examination, the Doctor could not definitely state that the death was due to injury sustained by the injured in the motor accident. The injured was inpatient from 17.8.2003 to 19.8.2003 and thereafter, was taking follow up treatment. Page 20 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Subsequently, the injured developed infection of the fracture site and he was advised hospitalization for further investigation, and on 26.6.2005, the injured developed septicemia due to infection of intertrochanteric fracture and died due to injuries sustained.
It was observed that even after the remand of the case, the claimant failed to prove that the death was on account of accidental injuries and the cause of death was also on account of accidental injuries. Hence, the High Court found no error committed by the Tribunal, in not accepting the case of the claimant, that the death was on account of accidental injuries.
12.15 In ICICI Lombard v. Mangala wife of Dhanapal Patil, by Karnataka Circuit Bench at Dharwad rendered in MFA no.20365/2008 relied upon by advocate Ms. Pathak, the insurance company in the appeal was challenging the order and award Page 21 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined passed by the Commissioner for workman compensation, where the case was urged about the death by the use of the vehicle for commercial purpose, namely loading and unloading of the mud, for laying the road which amounted to violation of the policy condition as the owner had not used the vehicle for agriculture purpose.
The contention was raised that there was no nexus to the cause of death by the use of the vehicle, where the High Court came to the opinion that the Commissioner was not justified in fastening the liability on the insurance company to indemnify the claim of the insurer since no nexus between the death and the use of the vehicle in question was proved.
12.16 In Uttam Kumar (Deceased) v. Madhav Kumar, rendered in MFA no.5537/1999, reported in I (2006) ACC 378, a case where reference was Page 22 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined made by the Division Bench to the Larger Bench. The Division Bench of Karnataka High Court relying on the Full Bench decision in Kannamma v. Deputy General Manager, Karnataka State Road Transport Corporation found that cause of action will not survive on death of claimant Uttam Kumar and LRs of the deceased claimant will not be entitled to compensation. In view of the amended provision of the Motor Vehicles Act, 1988 and the decision of the Hon'ble Supreme Court referred therein, the Full Bench decision of Kannamma (supra) was referred for consideration. In Kanamma's case, Full Bench of the Karnataka High Court has held as under:-
"(i) The Common Law Rule 'actio personalis moritur cum persona' as embodied in Section 306 of the Succession Act since applies to India, a claim by a person for compensation for personal injuries caused in a motor accident does not, on that person's death not being the consequence of such injuries, survive to his/her legal representatives;Page 23 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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(ii) Cause of action for personal injuries being founded on tort (motor accident caused by the tortfeasor), injured person's claims for damages under heads recognised by Common Law and not by Statute, based on such tort and not independently of it, cannot, on such person's death, survive for prosecution by his/her executors or administrators (or legal representatives) since Section 306 of the Succession Act in express terms, declares that the cause of action in favour of a person for personal injuries (tort) does not survive on such person's death to his/her executors or legal representatives;
(iii) A claim by a person for compensation for personal injuries, be it pending before the Claims Tribunal, be it pending in the first Appellate Court or be it pending in the second Appellate Court, does not survive on such person's death not caused as a consequence of personal injuries, to his legal representatives;
(iv) A claim of a person for compensation for personal injuries if has resulted in award of the Claims Tribunal or decree of the Appellate Court, survives to his legal representatives on his death, even if such death is not the consequence of personal injuries Page 24 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined sustained by him and hence, if such award or decree is disputed in the first Appellate Court or the second Appellate Court, the same could be resisted by the legal representatives of the claimant;
(v) A person's claim for compensation for personal injuries under the head loss to his/her estate, can, on his/her death as a consequence of such injuries, be prosecuted by his/her legal representatives, if they do not include a claim for compensation under that head, as and when they file a claim petition under clause
(b) of Sub-section (1) of Section 110-A of the Act, on the death of the person injured"."
Thereafter, after elaborate discussion and detailed order, Full Bench answered reference as under:-
"13(i) A claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc. (loss to the estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor Page 25 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined accident, be prosecuted by his/her legal representatives; but
(ii) A claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc, (loss to the estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only insofar as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident.
14. On overall consideration and as discussed above, we are in full agreement with the well reasoned order made by the Full Bench since that part will not say anything regarding Section 306 of the I.S. Act and it is not necessary to go into the observation. It is also not necessary to go into the question of fact as alleged by the LRs that the deceased died due to the injuries sustained in the accident and that question can only be considered while considering the compensation. We answer the reference in the affirmative and fully approve the earlier Full Bench decision in Kannamma's case (supra), as stated." Page 26 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined So under reference, the proposition of law laid down in Kannamma's case (supra) was approved.
12.17 Relying upon the judgments, Advocate Ms. Pathak sought to canvass an argument that since the deceased has not died due to the motor vehicle accident injuries, but has died a natural death, the claimant, legal representative would have no right to put up a claim for compensation and further cannot even ask for loss to estate or under other head recognized by the law, since deceased, as injured, had not moved the Court for compensation for injuries suffered during the accident. To answer the same, it would be apt to refer to the judgment of this Court in the case of Surpal Singh Ladhubha Gohil v. Raliyatbahen Mohanbhai Savlia & Ors., reported in 2009 (2) GLH 217 which was referred under Section 166 of the Motor Vehicles Act, 1988, where the claimant sustained injuries in the Page 27 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined motor accident. During the pendency of the claim petition, the original claimant died and heirs were brought on record. The Tribunal held that the claimants would not be entitled to recover the amount since they have no right to continue the proceedings on the death of original claimant, as action for the personal injury dies with the death of original claimant. It was held by the Division Bench of this Court that strict application of the maxims "action personlis mortiur cum persona"
cannot be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act to the advantages of a wrong doer and further held that once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation to them on the ground that the injury was personal to the claimant, it will give a premium to the wrong committed. It would Page 28 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined defeat the very purpose and object of the legislation. Even after death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives.
13. Per contra, Advocate Mr. Varun G. Rai for the claimant submitted that the claimant had evidently proved her claim by way of examining herself, her son, as well as the Doctors from whom the deceased took treatment. The accused was admitted in Sunshine Global Hospital for the treatment towards the injuries sustained by her during the accident. Dr. Dipak Chimanbhai Parikh Authorized Medical Officer was examined at Exh.33. Injured was discharged from hospital on 1.8.2015. Advocate Mr. Rai contended that due to the injuries, the deceased was unable to sit, stand and walk, continued to take treatment as outdoor patient. During that period, she suffered from fever and pneumonia and as advised by Dr. Page 29 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Tushar Patel of Sunshine Global Hospital, she was taken to family doctor, Dr. Prakash Bhagade who too had come to the Trial Court for his deposition at Exh.43. Advocate Mr. Rai further submitted that since the deceased was unable to walk without the support, the Doctor advised her to take physiotherapy treatment and therefore, she took the treatment. 13.1 Advocate Mr. Rai stated that the deceased was bed stricken, she developed bedsores and had difficulty in her physical activities and therefore, again, she was admitted on 1.12.2015 at Sunshine Global Hospital, where she was treated till 5.12.2015. 13.2 For the period between 6.2.2016 to 16.2.2016, Advocate Mr. Rai submitted that the injured was advised to wear a special belt, but owing to bedsores, she could not wear it. She was admitted to Manjalpur Hospital, where Dr. Ankur Kothari treated her as indoor patient Page 30 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined upto 16.2.2016. Dr. Kothari performed surgery on her. The injured started vomiting blood many a times and wound infection started increasing. Dr. Ankur Kothari examined at Exh.40 advised for physiotherapy treatment and referred to Dr. Snehal Shah.
13.3 Advocate Mr. Rai further stated that the physiotherapist was examined in the Court who gave the evidence for the period between 7.2.2016 to 19.2.2016 at Exh.47. Mr. Rai further stated that on 5.3.2016, she breathed her last at ESIS Hospital of Gotri, where actually she had an appointment with Dr. Madhubhaskar Iyer to take stitches on the wounds, but in the morning, she developed difficulties in breathing and as proved by Dr. Nilesh Makwana at Exh.49 of ESIS Hospital, she died during treatment.
13.4 Advocate Mr. Rai thus contended that the nexus of death due to the accident injuries had been Page 31 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined proved by examining all the doctors who had treated her for the period between 20.7.2016 to 5.3.2016. Advocate Mr. Rai relied upon the judgment of this Court in the case of Insurance Company Ltd. v. Kalubhai Bhikhabhai Mir Through Aabedaben wd/o Kalubhai, reported in 2023 (1) GLR 85 to urge before the court that in case of prolonged treatment for fracture on right knee and pelvis fracture Rt. femur of mid shaft etc. resulting into paralysis and death, the Court had believed the direct nexus with death observing that prolonged treatment has a clear connection with the injuries sustained in the accident.
14. Having heard the learned advocates on record, considering the evidence of the claimant mother as noted hereinabove, the evidence of other witnesses would require analysis to consider the issue whether death is directly traceable to the injuries sustained in motor vehicle accident.
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15. The brother of the deceased examined as witness no.2 supported the evidence of the claimant - mother, and affirmed that in the accident, her sister had sustained rib fracture, while there was no fracture on any other part of the body. After the accident, initially for about 10 days, she was at Sunshine Global Hospital and thereafter, was discharged and he also affirmed that thereafter, the treatment was continued at home for initial period of six months. Because of the fever and nausea, she was taken to the hospital where she died. But no postmortem was conducted on her. Exh.54 is a communication on 20.7.2015 at 12.00 hrs. by the brother to Raopura Police Station, Vadodara for initiating police case. In document Exh.54, the brother had referred about grievous injury to her sister in chest and waist.
16. In the cross-examination of the claimant- Page 33 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined mother, it has come on record that there was no fracture on the hands and legs. She had affirmed that after the discharge from the hospital, the daughter could walk at home and after 2-3 months because of the fever and cough, she was admitted in the hospital and had also admitted that while she was admitted for treatment second time, the medical papers do not disclose that she was admitted because of the accidental injury and has stated that thereafter, whenever she would fall sick, on being referred by the family Doctor, she was admitted in the hospital. She also affirmed that after 5-6 months, the stomach of her daughter got enlarged and because of vomiting, she was admitted in the hospital and lastly, has affirmed that on having fever and as her stomach had enlarged, body suffered infection and she died during the treatment.
17. She has also stated that her daughter had studied upto Std.12. She has denied the Page 34 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined suggestion that the daughter was not earning. Her daughter was not having any mediclaim policy.
18. The evidence of the mother reflects that after the accident, deceased was taken to Sunshine Global Hospital, Vadodara. Dr. Dipakbhai Chimanbhai, Medical Officer of Sunshine Global Hospital was examined as witness no.3 who is a MBBS degree holder, and in medico legal consultancy he has served for about 14 years and has total experience of 18 years. He had come in the Court to depose on witness summons being served. The Doctor was shown document Exh.34 who identified his signature on it and referring to the document, he stated that the injury certificate notes that both the sides of ribs of the patient were fractured and because of that, there was water congestion in the chest and there were swelling on the waist with bruises. The discharge summary was referred to him. Doctor had deposed about the Page 35 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined accident which had taken place near Maharani Shantidevi Hospital between four wheeler and two wheeler. Since the patient had suffered on chest and waist, she was admitted in Sunshine Global Hospital. According to the Doctor, she was having difficulty in breathing as well in sitting, while she was brought in the hospital, she was conscious and was discharged on 1.8.2015. The Doctor stated that at the time of discharge, she was well, but her medicines were continued and was advised for rest. The Doctor deposed that because of the fracture in the ribs, she was facing difficulty in breathing, and confidently agreed that because of bilateral rib fracture, lifelong the patient would have difficulty in breathing, while the Doctor in the evidence could not state about the possible minimum or maximum time for total recuperation, because of the physical and mental condition, which according to him is a different factor. Page 36 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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19. The Doctor while referring to the document at Exhs.35 and 36 stated that, again, the patient was admitted on 1.12.2015 as she was having much pain in the waist and because of that, there were difficulties in the movement of hands and legs. She had disc problem in L4, L5, S1 vertebra and there was protrusion between two vertebras and because of that, she was facing spinal disc herniation.
20. As per the evidence of Dr. Dipakbhai Chimanbhai, when she was initially admitted, at that time too, she was having complaint about waist, but there was no examination of protrusion. It is stated that protrusion could be because of the forceful colliding, and thus, stated that because of the accident, she would have protrusion, but as she was for the treatment of rib fracture, they could not make examination at the relevant time. Referring to Mark 17/59, the Doctor deposed that because of Page 37 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the protrusion, team of orthopedic were called for the treatment, while, when she was discharged, she was advised to walk with the help of walker. As per the Doctor, according to the discharge certificate, there were no marks of extraordinary injury. The powder treatment for fungal infection was prescribed and neosporin powder was advised to apply on the external injuries, which according to the Doctor, is the powder which would generally be used for the treatment after the surgeries which is antiseptic in nature, and, the Doctor deposed that from first discharge to second discharge, the patient would have been constantly in bed in supine position and has also affirmed that because of rib fracture and pain in the waist, she would have been in continuous bed rest position and because of that, may have sustained sores.
21. The deposition of Dr. Dipakbhai further notes that after being admitted on 1.12.2015, she Page 38 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined was discharged on 5.12.2015. The patient was admitted by Dr. Rajiv Shah and between 5 months period of first discharge and second discharge, follow up treatment continued, but affirmed that the history does not suggest that during these 5 months' period, there was any follow-up treatment. The Doctor deposed that because of the chest injury and difficulty in breathing, the death of the patient was possible and further has stated that because of rib fracture, there was all possibility of infection in the lungs.
22. The Doctor in the cross-examination has affirmed that there are no document, which suggests that he has physically examined the patient. Exh.34 injury certificate does not disclose that the injury of the patient was grievous and affirmed that Exh.34 reflects only of rib fracture and had also affirmed that as per his experience in medical field for treatment of rib fracture, there would not Page 39 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined be any necessity of plaster. He also affirmed that as per the discharge summary at Exh.35 which was 10 days after the accident, the condition of the patient was good and the said discharge summary does not state that the patient was advised for a continuous oxygen intake or other ways of treatment. He also affirmed that after the discharge on 1.8.2015 as per Exh.36, there was no note that, again the patient had come for the treatment. The Doctor had also affirmed that the injury at the waist on the patient of L5 also could be caused by a fall in the house, and affirms that after the discharge on 1.8.2015 till 1.12.2015, he does not have personal information of the type of injury. The Doctor had also affirmed that as per Exhs.35 and 36 - discharge summary, since there was no grievous injury, there was no MRI of the patient, but denied the suggestion, that because of the injury as shown in Exh.34, there would be no Page 40 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined possibility of death, but could not definitely say that the injury could lead to death and could also not definitely state that because of the difficulty in breathing, owing to injury on chest, there are any probability of a death of the person and has no knowledge as to when the patient died. Dr. Dipakbhai affirmed that in case of accidental death, postmortem of a person is necessary.
23. The medical certification of cause of death given by ESIS General Hospital, Gotri, Vadodara, where the deceased had died in ward no.CD/ICU on 5.3.2016 at 3.05 p.m. shows the immediate cause of death as cardio respiratory failure. The antecedent cause is noted as severe anemia with septicemia and for giving rise to such cause is the morbid condition- DM/RA/Hypothyroidism. The death has been marked as natural. The final diagnosis on the date of death was also cardio respiratory failure with DM/RA/Hypothyroidism/severe Page 41 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined anemia/septicemia. The deceased was brought in 108 ambulance with onset of breathlessness and giddiness which has been noted on the admission card. History of the treatment on the day with the diagnosis by the Doctor has been placed on record, which reflects the condition of the deceased on the date of her death.
24. Dr. Ankur Kothari was examined as PW4 at Exh.40. His evidence by way of deposition on oath suggests that he is associated with Manjalpur Hospital since 2007 and had joined as Consultant General Surgeon Exh.41 discharge card of Rosemary Tomlinson was referred by the Doctor to state that he had treated her for axillary abscess in the armpit. Exh.41 shows final diagnosis as L auxiliary abscess with DM/RA/anemia/oral candidiasis. She was admitted on 6.2.2016 and as per the Doctor's deposition on 8.2.2016, she was operated and thereafter, discharged on 16.2.2016. He Page 42 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined clarified that on 8.2.2016 with incision under anesthesia, she was operated. Doctor specified further that when patient was discharged, the dressing on the injuries continued. She faced scarcity in blood. There was fungal infection in the mouth and she was on insulin for diabetes. She needed exercise.
25. According to the Doctor, the patient was facing the difficulty of diarrhea and vomiting, which she had recovered at the time of discharge.
26. From the evidence of the Doctor at Exh.40, it transpires that the patient had 5.00 gram hemoglobin and total counts were 22400 and as suggested by the Doctor since the range of hemoglobin was 5 gram so the patient was having breathing problem and could not do any heavy work and since the total count was 22400, the level of infection was high.
27. When the patient was brought before him for Page 43 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined treatment, and on asking the past history, she had informed having diabetes, blood pressure, thyroid, knee replacement, blood transfusion and fracture in ribs. She had also informed that she had earlier taken treatment at Sunshine Global Hospital. Patient had come on wheel chair for treatment. The Doctor said it would be difficult to opine about the total time period for her to be totally cured.
28. Doctor in cross-examination affirmed that the past history is not noted in the discharge card Exh.41. The Doctor witness answered in positive to the suggestion that the exact reason behind axillary abscess noted in discharge cannot be said, and affirmed that because of the infection owing to axillary abscess the blood level can get low.
29. The evidence of Dr. Kothari clarifies that the deceased had suffered infection because of low count of hemoglobin over and above other Page 44 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined problem. She had informed this Doctor about the rib fracture.
30. Learned advocate Ms. Pathak for the insurance company submitted that the patient had past history of diabetes, blood pressure, thyroid and because of her heavy weight, had to undergo knee replacement and the cause, as was coming on record, is hypothyroidism, so according to Ms. Pathak because of non- production of thyroid hormones by thyroid gland, she suffered death. It is to be noted that the Doctor was not put to such suggestion of cause of death being Hypothroidism. The patient was operated for axillary abscess, was found anaemic, fungal infection was also seen in the mouth. The Doctor could not give the exact reason behind axillary abscess and had affirmed that the infection due to axillary abscess could lead to low blood level.
31. Dr. Prakash Bhagade is the family Doctor who Page 45 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined produced his affidavit-in-chief at Exh.43, who had come on issuance of witness summons. Dr. Bhagade is M.D. (Medicine) and works as Consultant Physician through Vinayak Hospital. He has good relation with the brother of the deceased-witness no.2, for many years. He confines his treatment to the family members for minor or major illness.
32. Brother of deceased has informed him about the accident suffered by Rosemary, so he had asked them to take treatment at Sunshine Global Hospital. As per the Doctor, Rosemary was effected by pneumonia in September, 2015 and she had come to his clinic. The Doctor deposed that Rosemary could not walk or stand, so the car was parked down the clinic and upon examining there, had advised them to take treatment from Sunshine Global Hospital. Thereafter, he came to know from his friend Rakesh, the brother of deceased about non- improvement in her health and also about her Page 46 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined death. The family Doctor in cross-examination states that he had not given treatment to Rosemary. She had come to see him in September, 2015 when she was effected by pneumonia. He affirms that postmortem was not conducted.
33. The evidence of family Doctor is his advisory assistance to the family.
33.1 Dr. Snehal Shah, Physiotherapist at Exh.47 is running the therapy center since last 20 years at Ashray Physiotherapy Centre. Referring to the record of Rosemary, she had given the evidence that Dr. Ankur Kothari had referred the patient to her for physiotherapy and when the patient had come to her at that time, she had given her past medical history. The witness Dr. Snehal Shah from the patient history had noted in the examination-in-chief by way of affidavit that Rosemary had met with an accident in July, 2015 and had chest and Page 47 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined rib injury and she was unable to sit since last 6-7 months. She was admitted for bedsores abscess and left side chest abdominal area. 33.2 The witness on examination had found that Rosemary had general weakness, pain over abscess area and was unable to rise without support. Doctor also observed obesity and breathlessness on exertion and had noted that in the affidavit that she was not at all able to sit and walk. The Doctor gave her physiotherapy from 7.2.2016 to 19.2.2016 and on the last day too, the Doctor states that she was not able to walk without support and there was no recovery in her mobility. Rosemary discontinued her therapy on 19.2.2016 for the reasons not known to her and from his brother, she came to know that Rosemary had died after few days of the treatment. The physiotherapist admits that she had not treated Rosemary and denied the suggestion that the physiotherapy treatment was given to Page 48 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined her because of the replacement, which would refer to knee replacement and had affirmed that she has no personal knowledge of injury and volunteered that she came to know about the case history, as given by the patient and, from the Doctor who had referred the patient to her. She had affirmed that she had no knowledge about the cause of death of the patient. She had seen the patient after 7 months of accident in July, 2015 and further voluntarily stated in reference to the case history that the mobility of the patient has totally stopped and she was not in a position to walk. Further, the Doctor stated that the patient had difficulty in breathing, and she was also referred to her, for exercise to improve the breathing.
33.3 Dr. Nilesh Makwana, PW7 is the person who has been examined regarding the last status at the time of death of Rosemary. Dr. Nilesh Makwana is a Medical Officer in ESIS Hospital, Gotri Page 49 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined since 2011. As per his evidence, deceased was admitted in the hospital on 5.3.2016 at 2.30 in the afternoon. She was brought in 108 Ambulance by her brother and when asked about the case history, it was informed that since morning on that day, she was having difficulty in breathing. The patient, since was not conscious, could not give history of her own, and the history was given by the person who had brought her and accordingly, informed of diabetes, rheumatoid arthritis, left side axillary abscess, hypothyroidism. The Doctor had deposed before the Court that the situation of the patient was very serious. Her blood pressure was very low, oxygen saturation was 86% and on further examination, the patient was responding on painful stimulate and in other finding, they came to know of swelling on legs and the patient was very heavy. There was scarcity of iron in blood and there was an old abscess in the left armpit. Page 50 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined The heart rates were weak and the body had gone cold, immediately physician Dr. Nandkumar Chavla was informed and on his instructions, the urgent investigation was required for blood examination, x-ray of chest, ECG of heart, but before that could be performed, the patient's condition worsen and therefore, they had started the treatment of injection points and oxygen and during the treatment, the patient became serious and had fallen unconscious and therefore, he and Dr. Ravi Verma started giving CPR to the patient and engaged in life saving support. Over and above that, they had given the patient DC shock and during the treatment of 3 hours and 5 minutes, the patient died.
33.4 Dr. Nilesh Makwana further stated that the patient was having many comorbid illness. There was infection in blood and under the advise of Dr. Chavla, natural death of the patient was declared. He further stated that Page 51 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined blood investigation showed very high percentage of infection. The infection was seven times more than the normal blood infection, which had effected the kidney. As per the rules and regulations of the hospital, the dead body was handed over to the relatives and since he as well as physician Dr. Nandkumar Chavla had not found any suspicion regarding death, the postmortem was not conducted and he states that when the patient was brought before him and till the last breath, within that short period, they could not in length and depth ask about the prior history of the patient and he had informed that the patient's relatives had not informed him about the accident, which she had faced and he came to know about the accident only when he received the summons of the Court. The medical documents which he had brought were jointly put in evidence at Exh.50 and the Doctor was cross-examined, wherein he affirmed Page 52 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined that he had seen the patient for the first time in 2016 and according to him, age of the patient could be between 35 to 40. He had not seen the case papers of the patient and the deceased had general illness and stated that diabetes and rheumatoid arthritis are permanent disease. He affirmed that the death was natural.
34. Doctors examined may not categorically state that accident injuries might have been the cause of death. The claimant on record are required to prove the link between injuries by the accident and death. The Tribunals are required to base their finding as per material on record. The immediate cause of death may not be because of injuries suffered in accident. The Tribunal is expected to analyse the material on record. The main question to be decided would be whether there is a nexus or connection between the accidental injuries and the death of the deceased.
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35. In Shantaben Ambalal Sutaria & Ors. v.
Valjibhai Harjibhai Patel & Ors., reported in 1991 (1) GLR 597, the probable cause of the death was the development of fat embolism. As noticed, the development of fat embolism is a common or known complication in case of fractures involving longer bones. The Tribunal reached the conclusion that it was not conclusively established that the deceased had died because of the development of fat embolism which would be the result of the accidental injuries. In the matter during trial, orthopedic surgeon attached to V.S. Hospital had testified the evidence which shows that injured Ambalal Sutaria was brought on 22 September 1976 and on examining injuries and fractures, the following injuries have been noted:-
"1. Abrasion of 1'' diametre over left acromion and over left palm.
2. He had multiple fractures:Page 54 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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(3) Crack fracture of interior Ischiopubic Ramus on left side Ischiopubic bone is located near the external genital organ."
35.1 Dr. Desai, the treating Doctor, visited the patient at his residence on 27 September 1976, who was discharged from hospital on 23 September 1976. The patient was complaining of pain in the leg, discomfort, sleeplessness and body ache. Doctor in his evidence could not say exactly the cause of the death, but he could say the possible cause of death. Doctor further stated that in the case, the cause of death could be fat embolism. On analysis of the evidence, this High Court came to an opinion summing up the evidence tendered by Dr. Desai that doctor has categorically stated that the cause of death of the deceased was the development of fat embolism which is a Page 55 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined known complication in case of multiple fractures and which would not generally occur in case of healthy man without any wound or injury.
35.2 The High Court came to an opinion that the said evidence was sufficient enough to warrant the conclusion that the deceased had died because of the development of the fat embolism which was again the direct result of the multiple fractures sustained by him. The evidence of other witness and expert opinion was examined by the Court to conclude that the development of fat embolism was the direct result of the accidental injuries sustained by the deceased during the motor vehicular accident.
36. In the present case on hand, the learned Tribunal came to the conclusion of the establishment of nexus between death and accident injuries. The Tribunal concluded the Page 56 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined analysis of evidence in following terms in Paragraph 18:-
"Considering the medical case papers (Exh.34, Exh.35, Exh.36, Exh.41 and Exh.50) as well as the deposition of the doctors namely Dr.Dipakbhai Chimanbhai at Exh.33, Dr.Ankir Kothari at Exh.40, Dr.Prakash Bhagade at Exh.43, Dr.Snehal Shah and Dr.Nilesh Makwana at Exh.49, it clearly reveals that, due to this accident the deceased had sustained chest injury with and bilateral ribs fracture with pneumothorax with minimal pleural effusion and contusion over back. She took the treatment in Sunshine Global Hospital, Manjalpur Hospital and also the physiotherapy treatment. During the course of treatment, she had bed sore and abscesses. She was not (sic) unable to sit and stand.
She had also difficulty in
breathing. Despite of prolonged
treatment the deceased was not cured completely and she was bed-stricken. Ultimately, the deceased took her last breath on 05.03.2016 at ESI Hospital, Gotri, Vadodara. It is pertinent to mention here that the deceased was young aged about 32 years and she was healthy prior to accident. She did not have any severe disease and/or any serious ailment prior to accident which could have terminated her life abruptly. True, it is that postmortem report of deceased is not produced on record as no postmortem Page 57 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined of deceased was conducted. However, from the medical evidence produced on record, it can be inferred that the deceased had taken the treatment continuously and she was bed ridden. Non-conducting of postmortem would not shatter the medical evidence, particularly in absence of contra medical evidence on the other side. It is also pertinent to note that there is no adverse elicited during the course of recording the deposition of the doctors. No contrary evidence led by the opponents. Moreover, the Ld. Advocate for the opponent no.3- Insurance Company is also not able to point out anything from the record to prove contrary to the evidence of the claimant. No any material brought on record by the opponents that there was no link between the accident and death of deceased. Considering the overall evidence produced on record, I come to the conclusion that the deceased had died due to the injuries sustained by her in the accident, even if she died after 7 months of the accident. Thus, the nexus between the accident and the death of deceased is clearly established by the claimant by producing the sufficient evidence on record.
Hence, I answer issue no.2
accordingly."
37. Advocate Ms. Pathak had contended about the need of postmortem report to know the exact Page 58 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined cause for claim of compensation from insurance company and contended that postmortem report would be a vital and indispensable document to prove the nexus of death to the injuries sustained in vehicular accident.
38. This aspect can be understood by making reference to certain judgments of Courts. In the case of Khairullah & Anr. v. Anita & Ors., 1994 ACJ 1017, Andhra Pradesh High Court has dealt with the issue of postmortem.
39. The High Court has given importance to convincing evidence of the witness. By raising comparison to murder case for the importance of autopsy to know the cause, concluded that failure to conduct postmortem examination over the dead body in the light of both oral and documentary evidence was not a circumstance against the claimants.
40. A case before Madras High Court in The Oriental Insurance Company Ltd. rep. by its Page 59 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined Divisional Manager, Chennai-6 v. N. Meenal, reported in 2010 ACJ 2691 wherein claim was resisted raising issue that 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 thus cause of action does not survive to the claimants. The wife of the deceased said in the oral testimony 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. One Dr. Rathinasabapathy treated him whose version was that in the accident, deceased's right knee was damaged and was suffering from pain in the right kidney region, he was affected by "pyonephrosis" and certified that he was having Hypertension due to renal damage (right) as a result of which he had cerebral hemorrhage and died. Deceased was admitted for surgical treatment for hernia. In the chief Page 60 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined examination, Doctor deposed that by means of accident, deceased's right side kidney got swelled and germs were found in the kidney and germs generation had caused blood pressure and hence, his kidney could not be removed, that for the reason of high blood pressure, cerebral hemorrhage occurred and that is why he breathed his last. The Court summarised the conclusion as under:-
"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 his 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 Page 61 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined 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."
41. In the above-referred judgment, a reference was made of case in Govind Singh v. A.S. Kailasam reported in 1975 ACJ 215 where there was no autopsy done of the deceased. It was held with the facts of the case as under:-
"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 PW5 in cross-examination that he cannot correctly set out the cause of death without a postmortem 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 Page 62 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined because innumerable clinical circumstances lead to the irresistible conclusion that the death was solely due to tetanus infection."
42. Thus, in view of the referred judgments, nexus between the injuries and death can be proved by oral and documentary evidence. The evidence by way of proof of vehicular accident supported by the medical evidence as well as the oral evidence of the claimant, to the circumstances of the deceased which creates confidence, establishing the nexus, then it can be relied upon to grant compensation.
43. In the case of Gujarat State Road Transport Corporation v. Mariambai A. Adamji (since decd.) through his heirs and LRs Zubeda Abdulhabib & Anr., reported in 2003 (1) GLR 574, the question raised was as to whether the deceased died on account of the accident where after the accident, deceased was in the hospital for one day only, and died five Page 63 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined months thereafter and evidence of wife of deceased was that he was confined to bed till death and was not taken to hospital due to poverty. It was held on facts that the Tribunal had rightly concluded that death was due to accident.
44. In the case of Somabhai Vajabhai & Anr. v.
Babubhai Bhailalbhai & Ors., reported in 1981 Law Suit (Guj) 144, it has been held that the deceased a young man aged about 20 was knocked down by a tanker. The injury sustained during the course of the accident consisted fracture of the pelvic bone and rupture of urethra. During the course of his hospitalization which lasted for nearly three months, he was thrice operated upon. The evidence on record indicated that the after-effect of the injury persisted even after his discharge from the hospital and that he was required to be hospitalized for brief periods on several occasions thereafter. The death ultimately Page 64 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined occurred nearly 17 months after the accident. In determining the quantum of compensation, the Tribunal acted on the footing that it was not established that the death was caused due to the injury sustained by the deceased in the course of the accident. It was held that it was not correct to hold that there was no direct and proximate connection between the accident injury and the untimely demise of the deceased where the death was not all at once or at a point of time proximate to the date of accident, and there was no medical evidence regarding the cause of death. However, it was held that the direct testimony of the appellant clearly establishes when appreciated in the light of the medical evidence that the death was inevitably linked with the accident injury. Tested by the yardstick of probabilities and consistency with the rest of the evidence and the circumstances of the case, the appellants evidence emerges Page 65 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined unscathed finding no reason to reject it. Having observed that the surrounding circumstances also point in the same direction, it was noted that there was no definitive break, no unexplained interval, no yawning hiatus so as to snap the link between the accident injury and its tell-tale physical consequences and the untimely death. The principal after-effect of the accident injury namely the urinary difficulty is shown to have persisted throughout the interval of time between the date of accident and the date of death and treatment to relieve the deceased of the same is also shown to have been administered all along during the said period on different occasions. The Division Bench could not overlook the fact that the deceased was a youth in the prime of his life. He was healthy and suffered from no disease prior to the accident. It was observed that young men do not die suddenly; some cause has to be Page 66 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined found for their death, it would be ignoring the reality to close eyes to the same and to conjecture that the death could possibly have resulted due to some other undisclosed cause when not a scintilla of it is perceivable. It was also noted that the fact that no medical evidence was led to precisely establish the cause of death is a matter of no consequences on the facts and in the circumstances of the case and on the state of evidence on record. It was noted that it might not be possible in all cases, to lead the evidence of experts, and when the direct and circumstantial evidence tending to establish the link between the accident injury and death goes unchallenged, it would be idle to insist upon the fulfillment of such a requirement.
45. In the case of Ramathal & Ors. v. Managing Director, Cheran Transport Corporation, Coimbatore, reported in (2003) 10 SCC 53, it has been observed as under:-
Page 67 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined "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."
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46. It was held in the above-referred judgment of Ramathal (supra) that 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. No strong and cogent reason has been assigned by the High Court to reverse the finding of the Tribunal.
47. The claimants in cases like such are required to prove death resulting from injuries suffered in motor accident. The degree of evidence or the type of evidence would vary in each case. There cannot be a straight jacket formula to be adopted to consider that the cause of death is the injuries suffered in the vehicular accident. Black's Law Dictionary Ninth Edition defines 'but for cause' as the event without which the event would not have occurred. It is also expressed as actual Page 69 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined cause; cause in fact; factual cause.
48. If death is directly traceable to the injury in the accident for which the respondents are responsible, then aggrieved has a right to claim compensation.
49. In Words and Phrases Legally Defined, Indian Reprint, 4th Edition, Volume 1 A-K by LexisNexis on page 596 under the heading of "resulting from injury", the concept of chain of causation has been explained as under:-
"If death in fact resulted from the injury, it is not relevant to say that death was not the natural or probable consequence thereof. The question whether death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus interveniens, so that the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after-consequence.' Dunham v Clare [1902] 2 KB 292 at 296, CA, per Collins MR The claimant under the Workmen's Compensation Act must prove an accident arising out of and in the Page 70 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined course of his employment and that injury or death resulted from it. The result need not be a direct or a natural or even a probable consequence of the accident if in fact it is a result of the accident.
It is enough that the accident caused or contributed to or accelerated death and it appears from the authorities that an accident may contribute to the death if the accident has caused such a state of things in the man's body that he has become physically more susceptible to the cause which ultimately kills him.' Comery v New Hucknall Coliery Co Ltd (1919) 88 LJKB 462 at 465, CA, per Scrutton LJ"
50. In The Law of Torts by Ratanlal & Dhirajlal, 23rd Edition 1997 in Chapter IX, "Causation" is explained as under:-
"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."Page 71 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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51. In The Essentials of Forensic Medicine and Toxicology by Dr. K.S. Narayan Reddy, Sixteenth Edition 1997, "cause of death" is explained as under:-
"The cause of death is the disease or injury responsible for starting the sequence of events, which are brief or prolonged and which produce death. It may be divided into: (1) Immediate cause, i.e. at the time of terminal event, e.g., bronchopneumonia, peritonitis, trauma, etc. (2) Basic cause, i.e. pathological processes responsible for the death at the time of the terminal event or prior to or leading to the event, e.g., gunshot wound of abdomen complicated by generalised peritonitis. (3) Contributory cause, i.e. the pathological process involved in or complicating, but not causing the terminal event. In some cases, the basic and the immediate cause may be identical.
The manner of death is the way in which the cause of death was produced. If death occurs exclusively from disease, the manner of death is natural. If death occurs exclusively by injury or is hastened due to injury in a person suffering from natural disease, the manner of death is unnatural or violent."Page 72 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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52. The legal maxim "in jure non remota causa sed proxima spectatur, meaning thereby, in law the immediate, not the remote, cause of any event is regarded.
53. The claimant is required to prove that the respondent's negligence was the proximate and not merely a remote cause of the event.
54. In Black's Law Dictionary, Ninth Edition, "proximate cause" has been explained as 1. A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. [Cases: Negligence 375.] 2. A cause that directly produces an event and without which the event would not have occurred.
55. As explained hereinabove, if the death has resulted from injury, to find an answer to an inquiry into the chain of causation, if some other new cause substitutes the old, then the Page 73 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined new cause would give a fresh origin. Here in the present case, the deceased was suffering from diabetes, blood pressure and thyroid with knee replacement because of the obesity, the motor accident injuries brought a new cause which was the proximate cause of death. Had the accident not occurred, the daughter of the claimant could have continued with her life as was conducting herself prior to the accident with her comorbidity. The motor accident injuries shattered her life. As explained in the medical book of Dr. K.S. Narayan Reddy, if the death occurs exclusively by injury or is hastened due to injury in a person suffering from natural disease, the manner of death is unnatural. Thus, such death itself being unnatural, would not be necessary to be supported by postmortem report as can be conclusively led through the evidence by applying 'but for' test, that motor accident injuries had caused unnatural death. Page 74 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023
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56. The cause to show, as accident injury being the proximate, the claimant has examined the Doctors who had continuously treated her from the date of accident till her death. The evidence of the claimant has been supported by the Doctors examined by the claimant. When the claimant was brought at Sunshine Global Hospital after the accident, she was treated for ribs fracture. The brother of the deceased had informed the police about the case. In his application Exh.54, he had referred about the grievous injuries to his sister in chest as well as waist. The deceased was treated for ribs injury and as per the Doctor, there would not be any treatment for such injuries in the form of plaster and the only way the ribs could be cured was by way of rest. The Doctor in his deposition had also stated about the patient being admitted in the hospital on 1.12.2015 as she was having pain in waist and there was difficulty in movement of hands and Page 75 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined legs. It was observed that she had disc problem in L4, L5, S1 vertebra and there was protrusion between two vertebras and because of that, she was facing spinal disc herniation. As per the Doctor, at the relevant time, when she was initially admitted though there was a complaint about the waist, they could not make examination of the protrusion and then again when she was admitted, the team of orthopedic were employed for treatment and she was advised to walk with walker. Neosporin powder was advised for fungal infection and Dr. Dipak from Sunshine Global Hospital stated that from first discharge to second discharge, follow up treatment continued. The patient was having chest injury and difficulty in breathing, which according to him, could be the possible cause of the death of the patient. The medical certificate shows the immediate cause of death as cardio respiratory failure and the antecedent cause is severe Page 76 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined anemia with septicemia and for giving rise to such cause is the morbid condition- DM/RA/Hypothyroidism. Learned advocate Ms. Pathak has stressed upon the cause of death as Hypothyroidism and the obesity of the deceased along with other illness of diabetes, blood pressure and thus, according to learned advocate, it was the immediate cause for the illness of the deceased. The cause as shown in the medical certificate with antecedent cause of severe anemia with septicemia. The evidence of Dr. Ankur Kothari stated that he had treated the deceased for axillary abscess in the armpit with the final diagnose as L auxiliary abscess with DM/RA/anemia/oral candidiasis. The operation was incision under anesthesia and at that time, she was facing scarcity of blood and was also having fungal infection in the mouth and was on insulin for diabetes. She was advised exercise.
57. It is required to be noted that the injury Page 77 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined sustained was rib fracture and protrusion in the waist. There would not be any other form of remedy, but rest is the recourse which could gradually help in recovery. The evidence of the claimant shows that the deceased had to remain completely in bed and had stated that she was not in a position to walk. Even according to the Doctor, there was protrusion in the waist. When she was admitted in the hospital, she was having the complaint of pain in the waist. There was disc problem in L4, L5, S1 vertebra. Bedsores were required to be treated. The deceased also faced operation for axillary abscess in the armpit. The family doctor - Dr. Prakash Bhagade was consulted when the deceased suffered from pneumonia. At that time too, she was not in a position to walk or stand on her own. The Doctor had advised her to be treated from Sunshine Global Hospital. Customized belt was advised and assistance of physiotherapist was taken, but Page 78 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined could not find any improvement and on the date of the death, she was to be taken for stitches on her sores, but owing to breathlessness, she was finally taken to ESIS General Hospital. The evidence of the physiotherapist also corroborates the evidence of the claimant, and ultimately on 5.3.2016 at ESIS Hospital, Gotri, during the course of treatment of 3 hours and 5 months, she died. The Doctor had concluded natural death, but the evidence suggests that there was infection in the blood which was seven times more than the normal. The kidney was also effected. The medical certification of the cause of death by ESIS General Hospital, Gotri shows cardio respiratory failure due to anemia with septicemia with morbid conditions giving rise to the cause is DM/RA/Hyperthyroidism. The main cause was severe anemia with septicemia. The claimant could prove by way of evidence that the proximate cause of death was the Page 79 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined injury sustained in the accident as because of the rib fracture in the injury in the waist, she could not recover and inspite of regular continuous efforts made by the mother and the brother to bring recovery for the deceased, it could not be done so and the whole period from the date of the accident to that of the death shows that she had continuously suffered because of the accidental injury. The claimant may originally have past history of diabetes, blood pressure and thyroid and she had also undergone knee replacement because of her heavy weight. Diabetes, blood pressure and thyroid issues are generally faced by many in common and such disease may at times gradually create a risk to human health, but for an active person and specifically in the case of deceased who was active in her job with all those illness, she could have managed with her life. Diabetes and high blood pressure are very commonly linked with obesity and risk Page 80 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined factors would be associated to all those people who are heavy weight and along with the complaint of thyroid, but with all those illness, a person would be in a position to continue with his active life, but in this case, the claimant suffered motor accident injury and was forced to be bedridden which increased her sufferings which led to septicemia and ultimately resulted in cardio respiratory failure. The proximate cause for the death was the injury suffered in the motor accident and that has accelerated her death. Thus, in view of the reasons given hereinabove, the learned Tribunal has come to the right conclusion that the claimant could prove the nexus.
58. Learned advocate Ms. Pathak has contended of fraud by stating that no postmortem report was produced on record to show the original cause of death. The written statement of the insurance company was produced on record in Page 81 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the Trial Court Exh.20. No pleading as to any allegation of malice or fraudulent intention has been made as provided under Order 6 Rule 5 of CPC, accordingly every pleading shall contain in a concise form material facts on which the parties relies on the claim or his defence. Order 6 Rule 10 makes it clear that, wherever it is material to allege malice, fraudulent intention, knowledge or other conditions of mind of any person, it shall be sufficient to allege the same as a fact without setting out circumstances from which the same has to be inferred. The primary necessity is to allege the same in the pleading. Nowhere in the written statement, the insurance company has pleaded of any fraud or malice of the claimant. The claimant as a mother has filed a case under Section 166(1)
(c) of the Motor Vehicles Act, where she has made a prayer for compensation claiming that the death of her daughter has resulted from Page 82 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the injuries sustained in vehicular accident and she, as a legal representative of the deceased, has claimed for the compensation and if a person takes advantage of his legal rights, he cannot be considered as a wrongdoer as the legal maxim says "nullus videtur dolo facere qui suo jure utitur". All things are presumed to be done in the legal manner till there is proof to the contrary. The mother as the claimant has a right under the provisions of Motor Vehicles Act to claim compensation and the original onus was on her to prove the proximate cause of the death of her daughter, where she has, by examining the Doctor and by way of oral and documentary evidence, proved the chain and the medical bills on record as well as the other documents even from the blood bank and all the supporting documents produced by the Doctors as well as the physiotherapist prove the fact of complete chain of causation, the injuries Page 83 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined sustained in the motor accident is the cause of her death. In the effect, the non- performance of the postmortem would not defeat the claimant's case, as all the medical documents with the evidence of Doctors indicate that the injured condition worsen with passage of time and ultimately, she succumbed to death.
59. The learned Tribunal, to decide the quantum of compensation of the deceased who died at the age of 32, relied upon the evidence that the claimant's daughter was working as Executive (Administration) with Checkmate Services Pvt. Ltd. and was drawing the salary of Rs.11,555/- per month. The appointment letter was produced at Exh.64, confirmation letter at Exh.65 and the pay slip for the months of January 2015 to June 2015 at Exh.66 were perused and accordingly, it was found that she was confirmed in service vide effect dated 30.9.2011. The learned Tribunal relied upon Page 84 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined the pay slip of the month of June 2015 to consider that she was drawing salary of Rs.11,555/- including other allowances after deducting the professional tax of Rs.150/-. The net earning of the deceased was considered as Rs.11,405/- per month, 50% addition was given as prospective rise and 50% was deducted towards personal expenses since she was unmarried and applying multiplier of 16, an amount of Rs.16,41,600/- was granted under the head of loss of dependency.
60. The claimant had produced the IPD Final Bills, Retail Invoices of Pharmacy issued by Sunshine Global Hospital at Exh.57, Exh.58 and the bills/cash memo of medicines, hospital bill of Manjalpur Hospital at Exh.60. The claimant had also produced the prescriptions of medicines and lab reports in support of the bills. Considering the bills of hospital charges, medicines etc. placed on record, an amount of Rs.3,04,000/- was awarded to the claimant Page 85 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023 NEUTRAL CITATION C/FA/1769/2021 JUDGMENT DATED: 20/10/2023 undefined towards actual medical expenses.
61. Transportation and attendant charges of Rs.15,000/- had been granted and for loss to estate and funeral expenses Rs.30,000/- and in total, compensation of Rs.19,90,600/- has been computed.
62. For the foregoing reasons, the appellant failed to show any ground to merit, thus the appeal stands dismissed. However, there shall be no order as to costs. Registry is directed to send the record and proceedings back to the concerned Tribunal.
(GITA GOPI,J) Maulik Page 86 of 86 Downloaded on : Mon Oct 23 20:41:28 IST 2023