Rajasthan High Court - Jaipur
Smt Maya Devi And Ors vs Dhanraj And Ors on 2 September, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1555/2017
1. Smt. Maya Devi W/o Late Bhanwar Lal, aged 21 years,
R/o Banthali, Tehsil Arai, District Ajmer, At Present
Resident of Lapodiya, Tehsil Dudu, District Jaipur
2. Ramdev S/o Gordhan, aged 55 years, R/o Banthali,
Tehsil Arai, District Ajmer, At Present Resident of
Lapodiya, Tehsil Dudu, District Jaipur
3. Kesar Devi W/o Ramdev, aged 52 years, R/o Banthali,
Tehsil Arai, District Ajmer, At Present Resident of
Lapodiya, Tehsil Dudu, District Jaipur
----Appellants/Claimants
Versus
1. Dhanraj S/o Kaluram, aged 26 years, R/o Sans, Tehsil
Malpura, District Tonk (Driver)
2. Ramchandra Sahu S/o Sitaram Teli, R/o Outside Darwaja
Diggi, Tehsil Malpura, District Tonk (Owner)
3. United India Insurance Company Limited Through
Regional Manager, Regional Office Sahara Chambers, Tonk
Road, Jaipur (Insurance Company)
----Respondents/Non-Claimants
Connected With S.B. Civil Miscellaneous Appeal No. 1594/2017 United India Insurance Company Ltd. Through Regional Manager, Regional Office Sahara Chambers, Tonk Road, Jaipur
----Appellant Versus
1. Smt. Maya Devi W/o Late Shri Bhanwar Lal, R/o Village Banthali, Tehsil Arai, District Ajmer. Presently Residing At Village Lapodiya, Tehsil Dudu, District Jaipur Raj.
2. Ramdev S/o Shri Gordhan, R/o Village Banthali, Tehsil Arai, District Ajmer. Presently Residing At Village Lapodiya, Tehsil Dudu, District Jaipur Raj.
3. Kesar Devi W/o Shri Ramdev, R/o Village Banthali, Tehsil Arai, District Ajmer. Presently Residing At Village Lapodiya, Tehsil Dudu, District Jaipur Raj.
4. Dhanraj S/o Shri Kaluram, R/o Village Sans, Tehsil (Downloaded on 25/12/2022 at 06:51:15 AM) (2 of 17) [CMA-1555/2017] Malpura, District Tonk Driver Of Vehicle Bus No. Rj-14-Pb- 4615
5. Ramchandra Sahu S/o Shri Sitaram Teli, R/o Outside Darwaja, Diggi, Tehsil Malpura, District Tonk Raj. Registered Owner Of Vehicle Bus No. Rj-14-Pb-4615
----Respondents Presence: Mr. Ram Sharan Sharma for the claimants/appellants in appeal No.1555/2017 and Mr. V.P. Mathur for respondent-Insurance Company.
Mr. V.P. Mathur for appellant/non-
claimant No.3 in appeal
No.1594/2017 and Mr. Ram Sharan
Sharma for respondents/claimants
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Judgment
Reserved on : 29/08/2022
Pronounced on : 02/09/2022
Both the misc. appeals arise out of common judgment and award, hence, same are being decided together.
Both the misc. appeals have been filed against the judgment and award dated 19.01.2017 passed by the Court of Motor Accident Claims Tribunal, Camp Court, Dudu, District Jaipur (for short 'the Tribunal') in MAC No.13/2016 (296/15) by which the claim petition filed by the claimants was partly allowed and the Insurance Company was directed to pay compensation of Rs.7,48,000/- along with interest @ 7.5% per annum to them. CMA No. 1594/2017 (United India Insurance Company Ltd. Vs. Smt. Maya Devi and Ors.):
Learned counsel for the appellant Insurance Company submits that there is no nexus between the cause of death and the injuries suffered by the deceased. Counsel submits that as per the post mortem report (Ex.11), the cause of death of deceased (Downloaded on 25/12/2022 at 06:51:15 AM) (3 of 17) [CMA-1555/2017] was due to 'complicated pneumonia and respiratory distress.' Counsel submits that in the post mortem report (Ex.11), there was no mention of the fact that the deceased had sustained the injuries in Road Traffic Accident (for short 'RTA'). Counsel submits that NAW1- Dr. Akhilesh Palariya, Senior Medical Officer, was examined by the Insurance Company in support of their defence before the Tribunal and he has categorically stated that on 4.8.2015, he conducted the post mortem of the deceased as per which the cause of death was discovered to be 'complicated pneumonia and respiratory distress.' Counsel submits that in examination-in-chief, this witness has specifically admitted that the cause of death of the deceased was not immediate to the injuries suffered by him. Counsel submits that even in the cross-
examination, he has given his opinion simply on the basis of the information furnished by the family members of the deceased who told him that the deceased had remained under treatment after the accident and thereafter he was admitted in Ramsnehi Hospital & Research Center, Bhilwara. Subsequently, he had succumbed to the injuries sustained by him. In support of his contentions, learned counsel has placed reliance on the judgment of this Court in the case of Pushpendra Singh Vs. Samay Singh @ Tofani & Ors., reported in (2007) 1 RLW 339 wherein it has been held that in absence of the post-mortem report, on medical certificate, no presumption can be drawn about the cause of death. Counsel submits that under these circumstances, the claimants have miserably failed to prove the fact that the cause of the death of the deceased was due to the injuries suffered by him in the road accident occurred on 19.07.2015. Counsel also submits that there (Downloaded on 25/12/2022 at 06:51:15 AM) (4 of 17) [CMA-1555/2017] was a delay of 16 days in lodging the FIR as the FIR was lodged on 04.08.2015 and the delay has not been explained which raises serious doubts upon the truth of factum of the accident. Counsel submits that all these material aspects were overlooked by the Tribunal while allowing the claim petition filed by the claimants and awarding exorbitant amount of compensation in their favour.
Per contra, learned counsel appearing for the claimants- respondents opposed the arguments advanced by the counsel appearing for the appellant- Insurance Company and submitted that the deceased met with an accident on 19.07.2015 and thereafter, he was admitted in the Government Hospital at Ajmer but proper treatment was not available there, therefore, he was taken to Ramsnehi Hospital & Research Center, Bhilwara, where he remained under treatment as an indoor patient w.e.f. 19.07.2015 to 04.08.2015. During the course of treatment he died on 04.08.2015. Counsel submits that there is a direct nexus between the cause of death and the injuries suffered by the deceased. Counsel submits that the deceased has died due to the injuries suffered by him in the aforesaid accident. Counsel submits that the Tribunal has appreciated the evidence produced on the record and after perusing the oral as well as the medical evidence, the Tribunal has rightly held that the cause of the death of the deceased was due to injuries suffered by him in the aforesaid accident. Counsel submits that the Tribunal has correctly taken into consideration all the factors while calculating the award on the anvil of evidence produced before it. Thus, the judgment and (Downloaded on 25/12/2022 at 06:51:15 AM) (5 of 17) [CMA-1555/2017] award dated 19.01.2017 passed by the Tribunal does not call for any interference of this Court.
I have considered the rival submissions made at the Bar and gone through the impugned judgment and award dated 19.01.2017 passed by the Tribunal as well as the material available on the record.
Admittedly, the deceased met with an accident on 19.07.2015 and thereafter, he was admitted in the Government Hospital at Ajmer but since the family members of the deceased were not satisfied with the treatment given to him, hence, they took him to Ramsnehi Hospital & Research Center, Bhilwara, where he was admitted as an indoor patient in Neuro Ward and he remained under treatment w.e.f. 19.07.2015 to 04.08.2015. Several documents with regard to his treatment were produced on the record vide Ex.138 which clearly indicate that the deceased met with a road traffic accident and suffered several injuries on his person. He was operated there and remained under treatment till 04.08.2015. On 04.08.2015, he died and his post-mortem was conducted at Community Health Center, Sarwad by NAW1- Dr. Akhilesh Palariya, Senior Medical Officer.
Perusal of the post-mortem report (Ex.11) of the deceased clearly indicates that certain injuries were noticed on the body of the deceased and as per the description mentioned in the report, major portion of both lungs of the deceased were consolidated. Though, NAW1- Dr. Akhilesh Palariya, Senior Medical Officer, in the examination-in-chief, has given his opinion that the cause of the death of the deceased was due to 'complicated (Downloaded on 25/12/2022 at 06:51:15 AM) (6 of 17) [CMA-1555/2017] pneumonia and respiratory distress' and he has also admitted therein that in the post-mortem report (Ex.11), the word 'RTA' is not mentioned. This witness was thoroughly cross-examined and in his cross-examination, he has admitted that the deceased had sustained multiple injuries in the road accident; that he had remained under treatment at Ramsnehi Hospital; that due to the multiple injuries sustained by him, infection had developed in his lungs which resulted in pneumonia and respiratory failure; and that the same was the cause of death of the deceased.
The Hon'ble Apex Court in the case of Ramathal & Ors. Vs. Managing Director, Cheran Transport Corporation, (2003) 10 SCC 53 has dealt with the identical situation in para No. 15 which reads thus:-
"(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 14.01.1991 to 21.1.91. 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 to be the correct approach adopted by the High Court, (Downloaded on 25/12/2022 at 06:51:15 AM) (7 of 17) [CMA-1555/2017] 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 a clear finding of fact."
The Coordinate Bench of this Court in the case of Habibnur Khan & Ors. v. Govind Singh & Anr., reported in (2006) 1 WLC 498, has held in para Nos. 17, 18, 19 and 30 as under:-
"17. The questions calling for determination in this case are as to whether the Tribunal was right in its finding that it was not established that Habibnur Khan died because of injuries sustained in accident and as to whether the amount awarded by the Tribunal is adequate compensation?
18. Having given an anxious consideration to the rival submission and having scanned through the entire record, this court is satisfied that the learned Judge of the Tribunal was absolutely in error in taking up consideration of the questions involved in this motor accident claim case not only as a civil suit, but even to the level of the requirements of proof for removal of all doubts, as if to substantiate a charge in criminal trial. The entire approach had been from all absolutely wrong and erroneous angle. The impugned award with denial of just compensation to claimants cannot be approved and deserves to be modified.
19. Learned Tribunal formed the opinion that it was not proved that Habibnur Khan died because of the (Downloaded on 25/12/2022 at 06:51:15 AM) (8 of 17) [CMA-1555/2017] injuries sustained in the accident fundamentally for the reason that no post-mortem report was produced, nor injury report was produced, nor any other medical certificate was produced. However, at the same time, learned Judge specifically held that it could be accepted that after the accident, till his death, the deceased remained under treatment and for this reason allowed Rs. 17,700 as the loss of salary for 11 months at the rate of Rs. 1,605 per month as proved from the salary certificate Exh.
21.
30. On a comprehensive consideration of the material on record, this court has no hesitation in coming to the conclusion that Habibnur Khan died only because of the injuries sustained in the accident. Finding on the issue No. 3 in Claim Case No. 169 of 1993 as recorded by the learned Judge of the Tribunal is modified and while the finding that the deceased was travelling in the offending bus and sustained injuries in the accident and that from the time of accident till death he remained under treatment are affirmed, however, the observation that the legal representatives of the deceased be awarded only the amount towards injuries, treatment and pain and suffering of Habibnur Khan are not approved and while retaining such compensation, it is held that claimants are further entitled for reasonable compensation on account of the death of Habibnur Khan which was a result of the injuries sustained in the accident."
Similarly, Madras High Court in the case of National Insurance Co. Ltd. v. Anthony alias Rakesh (since (Downloaded on 25/12/2022 at 06:51:15 AM) (9 of 17) [CMA-1555/2017] deceased) & Ors., reported in 2014 (1) TN MAC 384 has dealt with the issue of nexus between death and the injuries sustained in the accident in para Nos.9, 10, 11, 13 and 14 as under:-
"9. The ratio in the Judgments reported in Vatsala v. Meenakshi, 2005 (1) TN MAC 62 (DB) : 2005 (1) LW 560; Maricar Motors Ltd. v. Neelambal Ramaswamy, 1982 ACJ (Supp) 570, and the Judgment in C.M.A. No. 1305/2012 are that when factually it is established that the death was not unconnected to the injury, when sufficient materials are placed before the Tribunal to show that the deceased was taking continuous treatment and when no contra evidence is produced, the claim must be allowed.
10. In the present case, as found by the Tribunal, Exhibits P-4 to P-10 were marked to show that the deceased was continuously taking treatment. The period of treatment is immaterial. The argument put forth by the Counsel for the 2nd Respondent that the Claim Petition ought to have been dismissed as abated is unsustainable and right away rejected. Even if the death is not due to the injuries, the Legal Heirs of the injured persons would be entitled to press for the claim on the account of loss to the estate of the deceased, medical treatment, conveyance, special diet.
However, in the instant case, the legal heirs of the deceased have impleaded themselves and claimed that the death of the deceased occurred only due to the septicemia because of infections in the injured areas. No contradictory evidence was let in on behalf of the 2nd Respondent. The provisions of (Downloaded on 25/12/2022 at 06:51:15 AM) (10 of 17) [CMA-1555/2017] the Motor Vehicles Act itself contemplates payment of Compensation to the legal heirs or to the victim as the case may be. Hence, the Tribunal was right in permitting the amendment and deciding the Claim Application.
11. The next contention of the Counsel for 2nd Respondent is that the death of Anthony alias Anthony Rakesh was not due to the injuries suffered by him. According to the Counsel for the 2nd Respondent unless a Post-mortem report was produced, it could not be said that the death had a nexus with the injury. The Counsel for the Claimants has relied upon the following Judgments to contend that Post-Mortem Report is not necessary to prove that the death was caused by the after effects of the injury.
13. In the Judgment reported in Khairullah v. Anita, 1994 ACJ 1017, the Andhra Pradesh High Court has held as follows:
"4. It is vehemently contended by Mr. P. Rama Rao, learned Counsel appearing for the Appellants, that no autopsy was conducted over the dead body of the deceased to arrive at the cause of death. It may be remembered that the deceased died during the course of Medical treatment after about 25 days after the accident and he succumbed to the injuries. As already stated, Exh. A-10, the in-patient discharge ticket of the Hyderabad Nursing Home, where the deceased was undergoing treatment at the time of his death, shows that due to cardio-respiratory failure the deceased had died which is a consequence and secondary to head injury. The head injury was (Downloaded on 25/12/2022 at 06:51:15 AM) (11 of 17) [CMA-1555/2017] sustained by the deceased at the time of the accident. It is not a case under Section 302, Penal Code, 1860, wherein the conducting of Post-Mortem examination to know the cause of death may be necessary. In this case, the cause of death is known from the documentary evidence, especially Exh. A-10 and also from the evidence of PW 2. The evidence of PW 2 is convincing. In the light of both oral and documentary evidence available in this case, the failure to conduct Post-Mortem examination over the dead body of the deceased cannot be taken as a circumstance against the Claimants, who are claiming Compensation for the death of the deceased."
14. The ratio in the Judgments are squarely applicable to the present facts of the case. As stated above, the deceased was under
continuous Medical treatment. Exhibits P-4 to P-10 also reveal the presence of infection which is also corroborated by the evidence of PW 3. No contradictory evidence has been let in by the 2nd Respondent. Applying the ratio in the above cases, I hold that the production of Post-Mortem Report is not compulsory as the reason for the death can be inferred from other documents namely P-4 to P-10."
The judgment relied upon by the counsel for the Insurance Company in the case of Pushpendra Singh (supra) is not applicable in the facts and circumstances of the present case. In this case, it was held in para 6 as under:-(Downloaded on 25/12/2022 at 06:51:15 AM)
(12 of 17) [CMA-1555/2017] "Learned counsel for the claimant contended that since the charge-sheet was filed against Driver Kunwar Singh in regard to the accident, court should take judicial notice of the accident. I find no substance in the submission. In my opinion, it is for the claimant to establish that the death of deceased occurred due to injuries sustained by them in an accident. In the absence of Post mortem report or medical certificate no presumption could be drawn about the cause of death. To make Vehicle owner and the Insurance Company liable for compensation the claimant has to establish that the driver had driven the vehicle rashly and negligently and caused accident that resulted into the death of deceased. Unless this burden is discharged, the claim petitions can not succeed."
Perusal of this judgment indicates that the claimants herein failed to establish the fact that the deceased died due to the injuries sustained in the accident.
But, in this case the claimants have established the fact on the record by producing cogent, oral as well as documentary evidence that the deceased met with a road accident on 19.07.2015 and he remained under treatment at Ramsnehi Hospital and Research Center, Bhilwara from 19.07.2015 to 04.08.2015. They have also established the fact that the death of the deceased was due to the injuries suffered by him in the aforesaid accident. The admission & discharge ticket of the deceased issued by the Hospital i.e. Ex. 138 also indicates that the (Downloaded on 25/12/2022 at 06:51:15 AM) (13 of 17) [CMA-1555/2017] deceased sustained multiple injuries in the road accident and the description of the word 'RTA' and the injuries sustained by the deceased, have been mentioned in the aforesaid ticket. So, there was no reason or occasion available with the Tribunal to take a different view. Thus, the Tribunal has not committed any error in holding that the death of the deceased has occurred because of the injuries sustained by him in the accident occurred on 19.07.2015.
So far as the contention raised by the counsel for the Insurance Company with regard to 16 days delay in lodging FIR is concerned, the delay has been explained in the FIR itself.
In the case of Ravi v. Badri Narayan & Ors., Civil Misc. Appeal No.1926/2011, decided on 18.02.2011, the Hon'ble Apex Court has held that delay in lodging the FIR cannot be a ground to deny justice to the victim. In para Nos. 20 and 21, the Hon'ble Apex Court has held as under:-
"20. It is well-settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to (Downloaded on 25/12/2022 at 06:51:15 AM) (14 of 17) [CMA-1555/2017] examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
In this case also, the delay has been explained in the FIR itself that the family members were busy in the treatment of the deceased.
In view of above discussion, I find no force in the submissions raised by the counsel for the appellant-Insurance (Downloaded on 25/12/2022 at 06:51:15 AM) (15 of 17) [CMA-1555/2017] Company. Hence, the misc. appeal is found to be devoid of merit and the same is hereby dismissed.
Stay application and all pending application(s), if any, also stand dismissed.
CMA No. 1555/2017 (Smt. Maya Devi & ors. Vs. Dhanraj & Ors.):
Counsel for the appellants submits that while determining the income of the deceased, the Tribunal has recorded a finding that the deceased was working as a labour and he could have earned a sum of Rs.3000/- per month. Counsel submits that the date of accident is 19.07.2015 and the prevailing minimum wages of unskilled labour was Rs.197/- per day. Hence, the income of the deceased should have been taken into consideration as Rs.5910/- per month. Counsel submits that under these circumstances the amount awarded by the Tribunal needs suitable enhancement by this Court.
Per contra, learned counsel appearing for the respondent-Insurance Company submits that the Tribunal while deciding the claim petition of the claimants has correctly taken into consideration the income of the deceased. Counsel submits that under the head of future prospects the Tribunal has granted 50%, and an exorbitant amount of Rs.1,00,000/- has been awarded under the conventional head, which is in violation of the judgment delivered by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157. Counsel submits that under these circumstance the impugned judgment and award passed by the Tribunal is liable to be modified.(Downloaded on 25/12/2022 at 06:51:15 AM)
(16 of 17) [CMA-1555/2017] I have considered the submissions of both the learned counsels made at the Bar and perused the record.
This fact is not in dispute that while determining the income of the deceased, the Tribunal has held that the deceased could have earned a sum of Rs.3,000/- per month as minimum wages but the Tribunal has lost sight of the relevant fact that the minimum wages of the unskilled labour at the relevant time when the accident occurred was Rs.197/- per day. Hence, the income of the deceased should have been taken into consideration as Rs.5,910/- per month. The Tribunal has committed an error in granting exorbitant amount of Rs.1,00,000/- to the claimants under the conventional heads. The Tribunal has further committed an error in granting 50% amount towards future prospects to the family member of the deceased because the deceased was not a permanent salaried person.
In view of the judgment delivered by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the claimants are entitled to get lump sum amount of Rs.70,000/- under the conventional heads and further, future prospects to the tune of 40% only. Thus, the award is recomputed as under:-
Annual income of the deceased Rs.197 x 30 x 12 = Rs.
70,920/-
Add 40% amount towards Rs. 70,920/- + Rs. 28,368/-
future prospects Rs. 99,288/-
Multiplier to be applied 18
Rs.99,288/- x 18 = 17,87,184/-
Less 1/3rd amount towards Rs.17,87,184/- - Rs. 5,95,728/-
personal expenses Rs. 11,91,456/-
Add towards conventional heads Rs. 70,000 Total amount of compensation Rs. 12,61,456/- (Downloaded on 25/12/2022 at 06:51:15 AM)
(17 of 17) [CMA-1555/2017]
to be awarded
Less amount awarded by the Rs. 12,61,456/- - Rs.7,48,000/-
Tribunal = Rs. 5,13,456/-
Enhanced amount of Rs.5,13,456/-
compensation
In view of the above, the claimants would be entitled to get a further sum of Rs.5,13,456/- in addition to the amount already awarded as compensation. Insurance Company is directed to pay an additional amount of Rs.5,13,456/- within a period of two months from the date of receipt of certified copy of this judgment. The enhanced amount shall carry interest @ 6% per annum from the date of filing of claim petition till the actual payment is made.
The learned Tribunal shall disburse Rs.50,000/- in the Joint Saving Bank account of the claimants and the balance amount of the enhanced compensation be invested in FDRs in any Nationalized Bank for a period of one year to be renewed every year till five years. The interest accrued be paid to the claimants on monthly basis.
Consequently, the appeal is disposed of. All pending application(s), if any stand disposed of. Record of the Tribunal be sent back forthwith. Copy of this judgment be also placed in the connected case file.
(ANOOP KUMAR DHAND),J Sharma NK/-
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