Madras High Court
United India Insurance Company Ltd vs Muniasamy (Died) on 15 September, 2022
Author: R.Tharani
Bench: R.Tharani
C.M.A(MD)No.573 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.08.2022
Pronounced on : 15.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A(MD)No.573 of 2021
and
C.M.P(MD)No.5407 of 2021 and C.M.P(MD)No.5890 of 2022
United India Insurance Company Ltd.,
represented through its Office No.4, Divisional Manager,
No.62, South Masi Street,
Madurai District. ... Appellant /
Vs
Muniasamy (Died)
1.Meenatchi
2.Murugajothy
3.Minor.Kesavan
4.P.C.Saravanan ... Respondents/ Respondents
PRAYER :-
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicle Act, 1988, to set aside fair and decreetal order passed by the
learned Motor Accidents Claims Tribunal /Special Sub Court, Madurai, in
M.C.O.P.No.112 of 2017 dated 16.08.2019 as against the appellant and allow
the appeal.
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https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.573 of 2021
For Appellant : Mr.N.Dilip Kumar
For R1 to R3 : Mr.F.Deepak
JUDGMENT
This appeal is filed against the order made in M.C.O.P.No.112 of 2017 on the file of the Motor Accidents Claims Tribunal /Special Sub Court, Madurai. The appellant is the second respondent. The first respondent/ 1st claimant died. Hence the respondents 1 to 3 herein are brought on record as the legal representatives of the first respondent. 4th respondent is the first respondent in the claim petition.
2.Brief substance of the claim petition is as follows:
On 13.02.2016 at about 12.15 p.m., the first petitioner was travelling from Muthukulathur to Paramakudi, as a passenger sitting on the last seat of the right side in a bus bearing registration number TN 69 AJ 1280. The driver of the bus drove the bus in a rash and negligent manner and dashed against a Tamarind Tree. Due to the accident, the right hand of the petitioner was totally damaged. He was taken to Madurai Rajaji Government Hospital and took treatment from 13.02.2016 as in patient. Then he took treatment as 2 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 inpatient at S.P.Ortho hospital, Madurai. The petitioner was working as a load man. He claimed a sum of Rs.15 Lakhs as compensation.
3.Brief substance of the counter filed by the second respondent is as follows:
The manner of accident is wrongly stated in the petition. The petitioner has to prove that the first respondent was the owner of the vehicle and the vehicle was insured with the second respondent. The petitioners have to prove that the vehicle was having fitness certificate and the driver was having valid driving license. The bus driver drove the vehicle in a careful and conscious manner. When a bus tried to overtake a tractor, to avoid hitting the tractor, the bus driver turned the vehicle to the right side and the petitioner was keeping his hand outside the bus and hence the right hand of the petitioner was scratched by the road side tamarind tree. It was the petitioner who kept his hand outside the bus and hence the respondent is not liable to pay compensation. All the injuries are completely cured. The deceased died of some other disease. There is no nexus with the death of the deceased and the accident. Since the first petitioner died of some other disease, the other petitioners are not entitled to receive compensation. Post mortem report was 3 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 not marked. There is no loss of income for the petitioners 2 to 4. The claim is excessive.
4.Three witnesses were examined and thirteen(13) documents were marked on the side of the petitioner. No witness was examined and no document was marked on the side of the respondent. The Tribunal awarded a sum of Rs.13,39,000/- as compensation.
5.Against the award, the second respondent in the claim petition has filed this appeal on the following grounds:
(i)The Tribunal wrongly came to the conclusion that the injured died due to the injuries caused in the accident. The Tribunal failed to see that there was no post mortem conducted to know the cause of death. The deceased was admitted as inpatient in Madurai Rajaji Government Hospital for 24 days and then he took treatment in a private hospital from 04.04.2016 till 08.04.2016, that is for four days. Thereafter, the injured was admitted in the Madurai Government Hospital only on 12.06.2018 and he took treatment till 14.06.2018. The evidence of P.W.2 and the evidence of P.W.3 reveals that the injured took treatment from 09.03.2016 till 14.03.2016 and then from 4 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 04.04.2016 to 08.04.2016. At the time of death, the deceased was not under treatment for the accidental injuries. There is no nexus between the death and the road accident. The injured died after a period of two years from the date of accident and there is no medical evidence to prove that he died due to the injuries caused in the accident. The Doctor who gave disability certificate was not examined. P.W.3 has deposed that in Ex.P.26, it was shown that the deceased was having liver problem. He had also deposed that the injured was having a habit of drinking and smoking and it would have resulted in kidney and liver failure. Due to the same, he would have had cardiac arrest. The deceased died only due to the liver failure and the findings of the Tribunal is perverse.
(ii)The Tribunal failed to consider that P.W.3 has deposed that at the time of treatment, the injured was having kidney infection. He has deposed that he did not know whether the death has happened due to the accident. He has deposed that the deceased was having the habit of drinking for the past 20 years and he was admitted in the Government Hospital for breathing trouble and for jaundice. He had admitted that the injured did not die due to the accidental injuries. In Ex.P.27, it is clearly mentioned that the injured died on heart attack. P.W.3 has admitted the same and he has further admitted that the 5 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 injured was not admitted for the hand injury and related infection. The Tribunal erroneously awarded Rs.1,35,000/- towards medical expenses. The Tribunal failed to award compensation on the basis of Ex.P.16.
6.On the side of the appellant, it is stated that the accident took place in the year 2016. But the deceased died only in the year 2018. The deceased did not die due to the accidental injuries. He was having the habit of drinking and smoking for 20 years. He had liver problem. He was admitted in the hospital for jaundice, not for accidental injuries and the death is not due to the accidental injuries.
6(a).A judgment of this Court in C.M.A(MD)No.278 of 2015 dated 24.04.2017 is cited, wherein, the relevant portion is extracted hereunder:
"17. In V.Mepherson v. Shiv Charan Singh & Ors., reported in I(1998) ACC 6, the Delhi High Court, while testing the correctness of the award passed by the Motor Accident Claims Tribunal, considered as to whether personal damages awarded to the claimant/injured are inheritable or not. In the said case, the death was not due to the accident. The main contention was that the claim for enhancement for general damages after the death of the objector does not survive. 6 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 Answering the issue, the Court at Paragraph-3, observed as follows:
"3.So far as the contention of Mr.Tarun Johri that claim for damages which was on account of suffering and pain suffered by the deceased, to my mind, it would abet on the death of the injured. But so far as other claims under other heads those would not come to an end on the death of the objector. The right to sue would survive even on the death of the objector. As a matter of fact, claim on account of special diet, medicine, conveyance etc., are such which related to the loss of the property, therefore, right to sue would not abet on the death of the objector. It would survive to his legal heirs as held by the High Court of Punjab and Haryana in the case of Joti Ram & Ors. v.Chaman Lal & Ors., AIR 1985 Punjab & Haryana Page 2=1(1986) ACC
550."
24. ....this Court is of the view that the Tribunal erred in arriving at the conclusion that the death occurred, due to the injuries. There is no causa causans, which as per Black's Law Dictionary, "the immediate cause; the last link in the chain of causation". Legal representatives can at best be awarded compensation for the expenses incurred...."
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7.On the side of the respondent it is stated that the deceased sustained 50% disability. During the treatment, his liver and kidney were affected and the deceased died during the pendency of the trial. The Government failed to conduct post mortem. On the basis of the evidence of P.W.1 and Ex.P.1-First Information Report, Ex.P6 - Charge sheet and Ex.P.7 - a judgment of a Criminal Court, the Tribunal has come to the conclusion that the accident has taken place due to the rash and negligent driving of the bus driver. The bus driver admitted guilty and paid the fine. In view of the above discussion, it is decided that the accident has happened due to the rash and negligent driving of the bus driver.
8.It is seen that the deceased was injured and his right hand was fractured. He took treatment as inpatient from 13.02.2016 till 09.03.2016 in the Madurai Rajaji Government Hospital, Madurai. Then he took treatment in the S.P.Ortho Centre, Madurai from 09.03.2016 till 14.03.2016 again he was admitted in a private hospital in 04.04.2016 to 08.04.2016 and the treatment particulars are marked as Ex.P.2, Ex.P.27, Ex.P.28 and Ex.P.29. Ex.P.16 is the disability certificate, wherein the disability was fixed at 50%. Hence, it is 8 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 decided that in the accident, the deceased sustained fracture in his right hand and sustained 50% disability.
9.It is seen that again the deceased was admitted in the Madurai Rajaji Government Hospital from 12.06.2018 and died on 14.06.2018. In Ex.P.26, it is mentioned that the deceased died of kidney failure. P.W.3, Dr.Ramesh Prasad has deposed that there was a infection in the kidney due to the injuries sustained in the accident. The accident took place in the year 2016. Only the right hand was affected in the accident. How an injury in the hand can cause an infection in the kidney after a lapse of two years was not explained by P.W.3- the Doctor.
10.In Ex.P.26, it is stated that the deceased was having drinking habit for the past 20 years and that he was in the habit of smoking. It is true that the body of the deceased was kept in the mortuary. Ex.P17 is the certificate for the same. The Tribunal has decided that the Government failed to conduct post mortem. The decision of the Tribunal is not correct. Only when there is a nexus between the accident and the death, the Government may approach the Doctor for conducting post mortem on the body of the deceased. The 9 / 12 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 deceased was admitted only after a lapse of two years from the date of discharge from the hospital. There was no document to prove that the deceased was undertaking continuous treatment from 08.04.2016 till 12.06.2018. The claimant have not approached the prosecution, insisting them to conduct post mortem.
11.Hence it is decided that the claimants have failed to prove that there is some nexus between the death and the accident. Considering the fact that the deceased sustained fracture in the right hand and he sustained 50% disability, it is decided that the deceased were entitled for loss of income for the disability. Since the disability is on the right hand there will be a functional disability and loss of income.
12.Hence it is decided that the deceased was entitled to loss of income by applying multiplier method. The monthly notional income is fixed at Rs.4,500/-. For 50% disability, the deceased was entitled to Rs.2250/- per month as loss of income. The age of the deceased was fixed as 40 years and multiplier 15 is applicable. Rs.2250 x 15 x 12 = Rs.4,05,000/-. The Tribunal fixed medical expenses as Rs.1,35,000/-. Hence the award amount is modified as under:
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https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 Loss of income - Rs.4,05,000/-
(for 50% of diability)
Medical expenses - Rs.1,35,000/-
-----------------
Total - Rs.5,40,000/-
13. The Civil Miscellaneous Appeal is partly allowed. No costs.
(i) The quantum of compensation awarded by the Tribunal is reduced from Rs.13,39,000/- to Rs.5,40,000/- (Rupees Five Lakhs Forty Thousand only).
(ii) The appellant / The National Insurance Company is directed to deposit the modified compensation amount of Rs.5,40,000/- (less the amount already deposited) together with interest at the rate of 7.5% per annum to the credit of M.C.O.P.No.112 of 2017 on the file of the Motor Accidents Claims Tribunal /Special Sub Court, Madurai, within a period of eight weeks from the date of receipt of a copy of this order.
(iii) On such deposit being made, the respondents 1 and 2/ claimants are at liberty to withdraw their respective share of Rs.1,80,000/- (Rupees One Lakh and Eighty Thousand only) each with proportionate interest.11 / 12
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.573 of 2021 R.THARANI, J.
pnn
(iv) The third respondent/claimant (minor) herein is entitled for an amount of Rs.1,80,000/- Rupees One Lakh and Eighty Thousand only) with proportionate interest, which is ordered to be deposited in any one of the nationalized bank until they attain majority and the first respondent/claimant is permitted to withdraw the interest directly from the bank, once in three months in order to maintain the minors. Consequently, connected miscellaneous petitions are closed.
15.09.2022 Index: Yes / No Internet : Yes / No pnn To
1.The Motor Accidents Claims Tribunal /Special Sub Court, Madurai.
2.The Record Keeper, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
Pre - Delivery Judgment made in C.M.A(MD)No.573 of 2021 12 / 12 https://www.mhc.tn.gov.in/judis