Madras High Court
The Junior Engineer vs Yashodha (Died) on 10 December, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 10.12.2012
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
CMA No.3534 of 2012
M.P.No.1 of 2012
1. The Junior Engineer,
Highways Department,
Mechanical Section, Krishnagiri.
2. The District Collector,
Collectorate, Dharmapuri 636 705 .. Appellants
Vs.
1. Yashodha (Died)
2. Govindasamy
3. Minor Nithya rep. by
next friend father Govindasamy.
4. B.C.Munisamy .. Respondents
[R2 and R3 names amended as per order in I.A.No.878/2005 dated 26.09.2005)
Prayer: Appeal under Section 173 of Motor Vehicles Act, 1988, against the Decree and Judgment passed by the Motor Accidents Claims Tribunal (Additional District Judge), Krishnagiri, made in M.C.O.P.No.2002 of 2003 dated 19.08.2010.
For Appellant : Mr.S.Pattabiraman, GA (CS)
For Respondents 2 and 3 : Mr.K.Gandhi Kumar
JUDGMENT
Being aggrieved by the finding fixing negligence on the driver of a Road Roller bearing Regn.No.TMK-5204 owned by the Highways Department and the consequential liability to pay compensation to the legal representatives of the accident victim, who died during the pendency of the claim petition in MCOP No.2002 of 2003, instituted by the injured and the quantum of compensation of Rs.7,80,000/- with interest at the rate of 6% per annum awarded to the legal representatives, Highways Department, has filed this appeal. The accident has occurred on 03.06.2002. The injured died on 12.12.2004. Hence the appellant insurance company has submitted that there was no proximity between the injuries and death. Hence the abovesaid reasons, the Highways Department has filed the appeal.
2. According to the respondents/claimants, that on 03.06.2002, about 15.00 hrs, while the deceased was carrying a baby in a TVS 50 two wheeler on Agaram to Karimangalam road, near Ramarkottai, a Road Roller bearing Regn.No.TMK 5204, which came in the opposite direction driven in a rash and negligence manner by its driver, dashed against the TVS 50. The pillion rider fell down. The Road Roller ran over her body. Husband who was riding the motorcycle also sustained injuries. The pillion rider sustained injuries in L4 with spine burst and dislocation in L5, dislocation and lacerated injuries in the hip. She was treated in Government Hospital, Dharmapuri and in St.Johns Hospital, Bangalore. Despite continuous treatment from 03.06.2002, she died on 12.12.2004. To prove the manner of accident, injuries sustained, disability suffered, the injured herself had let in oral evidence as PW1. PW3, is the husband and P4 is the occurrence witness. PW2, PW4 and PW5 are the Doctors. Ex.P1, FIR, Ex.P2, Wound certificate issued by Government Hospital, Dharmapuri, Ex.P3, Medical Bills, Ex.P4, Scan Report, Ex.P5, Case summary, Ex.P6 and P8, Medical Prescriptions, Ex.P7, Disability certificate, Ex.P9, Case summary and Ex.P10, TPR Chart, have been marked. The injured Yasodha, who examined herself as PW1, died on 12.12.2004. Legal representatives have stepped in and contended that the death was due to the accident and the grievous injuries sustained by her.
3. On behalf of the Highways department, RW1, Sub Inspector of Police, the investigating officer has been examined. He has deposed that the accident did not occur as claimed by the respondents/claimants. According to him, the motorcyclist lost his balance and while crossing the Road Roller, the right handle bar of the motorcycle dashed against the left side wheel of the Road Roller and thus, the rider caused the accident. The Criminal case has been closed as 'Mistake of Fact'. Whereas RW2, driver of the Road Roller in his testimony has deposed that in the TVS 50, three persons travelled. Though, RW1, Sub Inspector of Police and the investigating officer in Crime No.165/2002, under Section 279, 337, 338, IPC on the file of Nagarasampatti Police Station has deposed that the handle bar of the motorcycle touched the back wheel of the Road Roller and that the motorcyclist lost his balance, fell down and sustained head injuries, quite contrary to the same, RW2, driver of the Road Roller, in his evidence has deposed that TVS-50 vehicle, carrying three persons was driven on the mud road, the motorcyclist lost his balance, fell down in a pit and thus, sustained head injuries. No document has been marked on behalf of the appellant. Testing the evidence on the principles of preponderance of probabilities, the claims tribunal held that the driver of the Road Roller, which belonged to the Highways Department was negligent in causing the accident. Considering the nature of injuries, period of treatment and the testimony of PW2, PW5 and PW6 Doctors, the Claims Tribunal held that the grievous injuries, suffered by the injured, resulted in death and that there was clear nexus. After arriving at the above said conclusion, the claims tribunal quantified the loss of contribution to the family, by applying the principles of law followed in fatal cases and awarded a sum of Rs.7,80,000/- with interest, at the rate of 7.5% per annum to the legal representatives of the deceased, which includes medical expenses to the tune of Rs.3,20,000/-.
4. Assailing the correctness of the award, Mr.S.Pattabiraman, learned State Counsel appearing for Highways Department submitted that the claims tribunal has failed to appreciate the evidence of RW1 and 2, who have categorically deposed that the motorcyclist riding a TVS 50, carrying three persons and loaded with Mango bags, could not balance the vehicle, fell down on the mud portion of the road and thus, the rider and the pillion sustained injuries. He also submitted that the claims tribunal has failed to consider that Ex.P1, FIR registered against the driver of the Road Roller has been closed as 'Mistake of Fact', after investigation by the police and that in the absence of any challenge, assailing the report of the police, the claims tribunal ought not to have fixed negligence on the driver of the Road Roller. He further submitted that the maximum speed of the Road Roller is 9 kmph. Therefore, it would not be possible on the part of the driver of the Road Roller to have driven the vehicle in an uncontrollable speed causing the accident and that in the above said circumstances, the Claims tribunal ought to have held that it was the motorcyclist, who could not control his vehicle, slipped down from the main road and thus caused the accident and that the Road Roller was not involved in the accident. According to him, the finding of negligence fixed on the driver of the Road Roller, is without evidence and perverse.
5. On the question of computation of compensation, treating that the death had occurred due to the injuries sustained in the accident, the State Counsel submitted that the accident occurred on 03.06.2002 and though, the injured herself filed the claim petition and testified as PW1, there is no proximity between the nature of injures and death, which occurred on 12.12.2004, i.e., after 2= years, warranting the claims tribunal to compute the compensation, as if there was nexus with the injuries and the death. According to him, the claims tribunal has failed to consider that there was no possibility of death, due to the injuries sustained by the victim, after nearly 2= years. Hence, he submitted that the computation of compensation awarded to the legal representatives of the deceased as erroneous.
6. Per contra, referring to the award and the testimony of the witnesses, Mr.K.Gandhikumar learned counsel for the respondents/claimants submitted that there is no perversity in the finding fixing negligence on the driver of the Road Roller. He submitted that the injured sustained a crush injury in the spinal cord and due to a lacerated injury in the mid portion, artificial apparatus was fixed for easy bowl movement. The injured during her life time was in a vegetative condition, wholly depending upon others and inspite of continuous treatment, she died on 12.12.2004. Learned counsel for the respondents submitted that to prove that she had sustained grievous injuries in the spinal cord and other parts of the body, medical evidence has been let in through the Doctors, PW2, PW5 and PW6 and despite incurring huge expenses of Rs.3,20,000/- the respondents could not save the victim. Thus, in the above said circumstances, he submitted that the respondents have proved that there was a clear nexus between the injuries and death and therefore, the claims tribunal cannot be said to have committed a mistake in computing compensation, treating it as a fatal case. He further submitted that barring the compensation awarded for medical expenses incurred, the remaining amount awarded to the respondents/claimants is not on the higher side, warranting any interference. For the reasons stated supra, he prayed for dismissal of the appeal.
Heard the learned counsel for the parties and perused the materials available on record.
7. The injured, Mrs.Yasodha, died during the pendency of the petition. As per the averments made in the petition that on 03.06.2002, when she was travelling in a TVS 50 motorcycle with her husband on Agaram to Karimangalam Road, near Ramarkottai, a Road Roller bearing Regn.No.TMK-5204 driven by its driver in a rash and negligent manner in the opposite direction, dashed against the TVS 50. She sustained multiple injuries in the spinal cord and other parts of her body. Ex.P1, FIR, has been registered on 04.06.2002, in crime No.165/2002 under Section 279, 337, 338, IPC on the file of Nagarasampatti Police Station. To prove the manner of accident, evidence has been let in through PW3, husband of Mrs.Yasodha (since died). According to him, he was riding a TVS 50, along with his wife, as the pillion and minor child Nithya. When the said vehicle was nearing Ramarkottai, a Road Roller driven by its driver in the opposite direction, in a rash and negligent manner dashed against the motorcycle and as a result, both the rider and the pillion sustained multiple injures.
8. A criminal case, in Crime No.165/2002 under Section 279, 337, 338, IPC on the file of Nagarasampatti Police Station has been registered against the driver of the Road Roller. During the tiral, the injured examined herself as PW.1 and adduced evidence regarding the manner of accident. She was examined in Chief on 07.04.2002 and Cross examined on 23.04.2002. Subsequently, she died on 12.12.2004 in Government Hospital, Dharmapuri. Upon perusal of Ex.P1, and after considering the testimony of PW1, the injured since died and PW.3, husband of the victim, the claims tribunal, has observed that it was the driver of the Road Roller, who had dashed against the handle bar of TVS 50 vehicle and due to the impact, the motorcyclist fell down. The Road Roller's wheel hit Mrs.Yasodha and she sustained grievous injuries. PW1, during her lifetime, had deposed that when the Road Roller dashed against the motorcycle, her child fell down and when she was about to lift the child, the Road Roller dashed against her, causing injuries. As regards the manner of accident, both the rider and the pillion have deposed that it was the driver of the Road Roller, who had caused the accident. On behalf of the Highways department, RW1, Sub Inspector of Police, who investigated the crime in No.165/2002 under Sections 279, 337, 338, IPC, on the basis of the information and the statement obtained from the injured, has deposed that on investigation, he has found that the accident did not occur due to rash and negligent driving of the Road Roller. According to him, during investigation, he found that when the Road Roller and motorcyclist were crossing each other, the right handle bar of the motorcycle. hit the back wheel of the Road Roller, and due to the impact, the motorcyclist lost balance and fell down. The Sub Inspector of Police has further deposed that the motorcyclist did not possess a valid and effective driving licence. In the above said circumstances, the police has closed the criminal case, as mistake of fact. When the police officer, during investigation has found that the handle bar of the two wheeler had touched the back wheel of the Road Roller, he should have fixed the negligence on the offending vehicle and proceeded with the crime. He cannot simply close the criminal case as "Mistake of Fact", as if, there was no accident. The culpability of the offender ought to have been fixed in the criminal case, which was registered against the driver of the Road Roller.
9. At this juncture, it is worthwhile to extract the defence put up by the Highways Department in the counter affidavit. The Assistant Engineer (Highways Department), Kaveripattinam in his counter affidavit, has totally denied the manner of accident and according to him, there were three persons in the motorcycle. The rider carried a heavy bag and a three year old child also travelled. The motorcycle was driven on the mud road. Due to the weight, the rider could not balance and that the two wheeler fell down in a pit on the mud road, thus resulting in injuries to the persons, who travelled in the two wheeler. RW2, driver of the Road Roller has totally denied the manner of accident. Though, RW2, has claimed negligence on the motorcyclist and further deposed that the Road Roller did not even touch the TVS 50, his testimony is not supported by RW1, Sub Inspector of Police and investigating officer, who has deposed, otherwise. According to him, when the vehicles crossed each other, the handle bar of the TVS 50 touched the rear wheel of the Road Roller and due to the impact, the rider could not balance, fell down and those, who travelled in the said vehicle, sustained injures.
10. As stated supra, both the injured/pillion rider and the rider have clearly deposed that the Road Roller dashed against the motorcycle causing imbalance and consequently, they fell down. If the motorcyclist by carrying heavy weight, had slipped from the TAR road and thus, invited the accident, on his own, then there is no reason why the Sub Inspector of Police should adduce evidence to the effect that the right handle bar, hit the back wheel of the Road Roller, when the vehicles crossed each other. The testimony of RW2 totally denying the manner of accident is not supported by any evidence, both oral or documentary. On the contra, assessment of the over all testimony let in on behalf of the respondents/claimants, including PW1, injured, since deceased, and husband PW3 and also the occurrence witness, PW4, clearly shows that it was the driver of the Road Roller, who had caused the accident. As rightly observed by the Claims Tribunal, the testimony of PW3 and PW4 witnesses to the accident, has not been shattered, in cross examination.
11. Per contra, there is no supportive evidence to substantiate the case of the appellant. Merely because RW1, Sub Inspector of Police and the investigating officer in Crime No.165/2002 under Section 279, 337, 338, IPC on the file of Nagarasampatti Police Station, has referred the crime as mistake of fact, that would not preclude the claims tribunal from adjudging the claim and record a finding of negligence, for fastening liability on the tortfeaser.
12. Needless to state that for the purpose of arriving at the guilt of an accused in the criminal case, the test is proof beyond reasonable doubt. Whereas, in motor accident claims, the tribunal is called upon to adjudicate, as to whether there was any rash and negligent act, resulting in injuries/death, which gives rise to a cause of action, for claiming compensation, to the injured/legal representatives of the deceased, as the case may be. Mistake of fact, recorded by the police for any reason is not a ground to dislodge a claim made by the injured or the legal representatives of the deceased, as the case may be. Merely because, the injured or the legal representatives of the deceased, as the case may be, have not taken any steps to assail the conclusion of the police in not pursuing the criminal case, which was closed as mistake of fact, would not disentitle the injured or the legal representatives of the deceased from claiming compensation. Only if the injured or the legal representatives of the deceased, as the case may be, is/are interested in punishing the offender, the question of pursing the criminal case, arises. It cannot also be contended that only after reversing the finding recorded by the Criminal Court, the injured or the legal representatives, have the right to claim compensation for the tortuous act of negligence. Prosecuting an offender, before the Criminal Court for the offences committed, is entirely different from claiming compensation, under tort law. Both operate in a different sphere. Even if the offender is acquitted by the Criminal Court, still the Claims Tribunal is empowered to adjudicate the question of negligence and after recording a finding, award appropriate compensation, depending upon the extent of negligence, on the part of the parties, involved in the accident.
13. What is adjudicated before the Court of law of criminal jurisdiction is whether an offence has been committed or not and that, whether there is sufficient evidence beyond reasonable doubt, to prove the guilt. Mens rea, is not the test before the claims tribunal for adjudicating negligence and consequently to compute the quantum of compensation claimed under various heads.
14. In Jacob Mathew v. State of Punjab reported in 2005 (4) CTC 540, held as follows:
10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442)- "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
11. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
1. the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24)
27. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerla (1996) 10 SCC 508, the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
48. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'."
In the above reported judgment, at Paragraphs 13 to 17, the Apex Court envisages the difference between the tort and crime, as follows:
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case-
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13)
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
16. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423, a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
15. There is a clear discrepancy in the evidence of RW1, driver of the road roller and RW2, investigating officer. Whereas, the testimony of Pws.3 and 4 occurrence witnesses, is unshattered. But for the impact of the heavy wheel of the road roller on the body, PW.1, would not have sustained such grievous injuries. The contention that the road roller cannot be driven at a great speed, causing any accident, cannot be accepted. It is the impact of a heavy object that matters, and not in all cases, speed determines the nature of injuries. Considering the manner of accident, deposed by the witnesses, the finding recorded by the Claims Tribunal cannot be faulted with. Testing the finding on the principles of preponderance of probabilities and in the light of the decision of the Supreme Court in Jacob Mathew's case, stated supra, this Court is of the view that in the absence of any strong and concrete evidence adduced by the appellant, the finding of fact regarding negligence fixed on the driver of the Road Roller, bearing Regn.No.TMK-5204, does not require reversal. Hence, it is confirmed. Consequently, there is a liability to pay compensation.
16. The next question to be considered is whether, the respondents/claimants have adduced sufficient medical evidence to prove that there was any nexus between the injuries and death, which occurred after nearly 1 = years. Before, the claims tribunal, during her lifetime, the injured was examined in chief as PW.1, on 07.04.2004 and cross examined on 23.04.2004. As per the evidence adduced during her lifetime, she had stated that she sustained an injury in the pelvic region. Ex.P2, is the wound certificate issued by Government Hospital, Dharmapuri, Ex.P4, is the CT scan report issued by Sakthi Hospital, Dharmapuri. Upon perusal of Ex.P4, scan report, the claims tribunal has observed that the nature of injuries sustained by PW1, injured, in the pelvic region and other parts of the body have been elaborately narrated. PW3, husband has deposed that the injured was admitted in Government Hospital and lateron, shifted to St.John's Hospital, Bangalore and hospitalised for six months. Ex.P5, is the discharge summary issued by St.John's Hospital and upon perusal of the same, the Claims Tribunal has observed that PW1 was admitted on 25.06.2002 and discharged on 07.11.2002. PW2, Doctor has examined the injured on 02.07.2004, five months, before her death.
17. Upon clinical examination of the injured with reference to Ex.P2, Wound certificate, Ex.P4, Scan Report, Ex.P5, Discharge summary and Discharge Record issued by St.John's Hospital, Bangalore, PW2, Doctor has opined that in the accident, PW1, had sustained a crush injury in the L4 dislocation of L5, due to which, the spinal cord had been affected. Due to the lacerated injury in the intestine, for easy bowl movement, an artificial apparatus had been fixed. Both the legs were badly affected and the injured, was not able to walk on her own. She required assistance of an attendant. PW2, Doctor, has further opined that during clinical examination, he had found that the injured was not able to sit and squat property. There was a likelihood of loss of happiness of married life and thus, he has estimated the whole body disablement at 80%.
18. The accident has occurred on 03.06.2002. Entries in Ex.P5, discharge summary and discharge record, clearly show that the injured had taken treatment for nearly five months in St.John's Hospital between 25.06.2002 and 07.11.2002. Unless the injuries are grievous, there is no need for any person to be hospitalised for a longer period. Nobody would like to be idle in the hospital, which is not only a restriction of freedom, but it also involves expenditure. The grievous injury sustained are in two places. Crush L4 injury and dislocation of L5 in the spinal cord. There is also a lacerated wound in the intestine resulting in fixation of an artificial apparatus, for easy bowl movement. Spinal cord is a very sensitive area and any grievous injury would affect the whole body movement. Infection at the situs would affect, the nervous system. The lacerated injuries, in the intestine with an artificial apparatus, would also cause infection. Perusal of the award shows that though, PW1 injured had been discharged on 07.11.2002, considering the nature of injuries and the situs, it can be presumed that the injured would have either visited the same hospital or any other hospital for review and continued medication. It is an admitted fact that medical records have been produced by the legal representatives of the deceased, to prove that PW1 had taken continuous treatment. A dislocation or fracture or crush injury in the spinal cord would certainly affect the whole body functioning of the injured. In the case on hand, the injuries noticed by the Doctors were crush injuries of L4 and L5 bones in the spinal cord. The nature of injuries and the long period of hospitalisation itself, would indicate that she was totally disabled and PW.2, Doctor, has assessed the disability at 80%. At this juncture, this Court deems it fit to reproduce the testimony of PW.2, Doctor, as hereunder:
"rhiy tpgj;jpy; KJFjz;oy; vy;nghh; vYg;g[ rpije;Jk; vy;5 vYk;g[ efh;e;Jk; mjdhy; KJFjz;Ltlk; ghjpf;fg;gl;oUe;jJ/ nkYk; tapw;wpy; vw;gl;l Fly; fpHpkhdj;jhy; mtUf;F tapw;WgFjpapy; braw;if Mrdtha; itf;fg;gl;Ls;sJ/ jw;rkak; ,uz;L fhy;fSk; rw;W gyk; Fiwthf ,Uf;fpwJ/ mtuhy; rhpahdgo jdpahf elf;f ,aytpy;iy/ gpuahzk; bra;a[k;nghJ xUthpd; cjtp njitg;gLfpwJ mtuhy; ePz;lneuk; epw;gjpYk; elg;gjpYk; mkh;e;jpUg;gjpYk; rpukkpUf;fpwJ/ Kd;g[wk; Fdpe;J bghUl;fis vLf;f ,aytpy;iy/ mtuhy; rg;gzkpl;L mku ,aytpy;iy/ Fj;Jf;fhypl;L mku ,aytpy;iy/ mjdhy; mtUf;F ,e;jpaKiw fHptiwfis cgnahfpg;gjpy; rpukhk; ,Uf;fpwJ/ nkYk; ,tUf;F tapw;W gFjpapy; braw;if Mrdtha; itf;fg;gl;oUg;gjhYk;. KJbfYk;g[ ghjpf;fg;gl;oUg;gjhYk; jhk;gj;jpa thH;f;ifapy; <Lgl rpukkpUf;fwJ/ ,tUf;F 80% Cdk; vd;W rhd;wspf;fpnwd;/"
19. Upon considering the material evidence, the Claims Tribunal, has observed that PW.1, the accident victim, had totally become disabled and forced to live in a vegetative condition, depending on others. Ultimately, she died on 12.12.2004. From the nature of injuries, in particular, the crush injury in the spinal cord, laceration in the intestine, for which, an artificial method for excretion had been made by the Doctors and the long treatment, there is every likelihood of infection, at the situs of the injuries. The nexus between the injuries and death, cannot be ruled out. Death cannot be said to be too remote or did not have a casual connection or proximity to the injuries.
20. PW.5, Doctor, in his evidence, has also deposed that both the legs were paralysised. There were big bedsores in the leg and in the body. Though a suggestion was made to PW.5, Doctor, that there was no nexus between the injuries and the death, he has specifically denied the same. At this juncture, this Court deems it fit to extract a portion of the evidence of PW.5, Doctor, "Chief Examination: cly; K:GtJk; tPf;fk; ,Ue;jJ mtUf;F Vw;gl;l tpgj;jpdhy; vd;dplk; tUtjw;F Kd;g[ 3. 4 Mz;Lfs; mth; nkw;go mwpFwpfspdhy; ghjpg;gile;jjhy; fhy;fs; braHpe;Jk; g[z;fs;///// Cross Examination: cl;fhh;e;J bry;Yk; nghJ fPnH tpGe;jhy; mtUf;F KJF jz;oy; brhy;yg;gLk; fhak; Vw;gLk; vd;why; kpft[k; Fiwt[. Mdhy; KJF jz;Ltlk; tpyf;Ftjw;F tha;g;g[ ,y;iy//////////// tpgj;J vw;gl;L 2 tUl';fs; fHpj;J ,Ue;jjhy; mth; ,wg;gpw;F Vw;gl;l fhaj;jpw;Fk; ,wg;gpw;Fk; ve;jtpjkhd rk;ke;jKk; ,y;iy vd;why; rhpay;y/"
When the injured has sustained grievous crush injuries in the spinal cord and found to have suffered 80% disablement, on account of the same, then the nexus between the injury and the death has to be held as substantiated.
21. Though the victim, Yasoda, was stated to be an agriculturist and earned Rs.4,500/-, per month, the Claims Tribunal having regard to the valuable services rendered as a house wife, fixed her monthly income at Rs.3,000/- and in the light of the decisions made in New India Assurance Co. Ltd., v. Kalpana reported in 2007 (1) TNMAC 1 (SC) and Sarala Verma v. Delhi Transport Corporation Ltd., reported in 2009 (2) TNMAC 1, applied '18' multiplier to the income of the deceased and after deducting 1/3rd towards her personal and living expenses, computed the loss of contribution at Rs.4,32,000/-. That apart, the Tribunal has awarded Rs.3,20,000/- towards medical expenses, which is duly supported by Ex.P3 Medical Bills. The Tribunal has awarded Rs.10,000/- towards loss of consortium, Rs.15,000/- towards loss of love and affection and Rs.3,000/- for funeral expenses. Considering the overall quantum of compensation awarded under various heads, this Court is of the view that there is no need to interfere with the same.
22. Hence, the Civil Miscellaneous Appeal is dismissed. The appellants are directed to deposit the entire award amount, with proportionate accrued interest, less the amount already deposited, to the credit of M.C.O.P.No.2002 of 2003, on the file of the Motor Accidents Claims Tribunal, (Additional District Judge), Krishnagiri, within a period of four weeks from the date of receipt of a copy of this order. The share of the minor shall be deposited in any one of the Nationalised Banks in fixed deposit under the reinvestment scheme initially for a period of three years. The interest accruing on the share of the minor shall be S.MANIKUMAR.J, skm paid to the guardian once in three months, till they attain majority. On such deposit being made, except the minor, the respondent/claimant is permitted to withdraw the same, by making necessary application before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is also closed.
10.12.2012 Index: Yes Internet: Yes ars/skm To The Motor Accidents Claims Tribunal, Additional District Judge, Krishnagiri.
CMA No.3534 of 2012