Madhya Pradesh High Court
National Insurance Company Limited vs Rajaram Singh Gurjar(D) Lrs Smt.Kamla on 15 December, 2016
-( 1 )- M.A. No.610/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Vivek Agarwal, J.)
M.A. No.610/2007
.....Appellant : National Insurance Co.Ltd.
Versus
.....Respondents : Rajaram Gurjar (Dead) Th. L.Rs. & Ors.
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Shri N.S.Tomar, learned counsel for the appellant.
Shri R.P.Gupta, learned counsel for the L.Rs. of respondent No.1.
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JUDGMENT
(15/12/2016) This Misc. Appeal has been filed by the Insurance Company being aggrieved by the award passed by the Seventh Additional Motor Accidents Claims Tribunal, Gwalior, in Claim Case No.110/2005 on the ground that death of the injured had taken place not due to the accident, and therefore, the claim petition was not maintainable and has been wrongly allowed.
2. It is an admitted fact that accident had taken place on 8.10.2003 wherein the deceased had sustained several injuries and was admitted in the hospital for treatment. The death of the injured had taken place on 21.2.2006 i.e. almost after two years and 4 months of the date of incident. It is submitted that since there is no proximate correlation between the accident and the death of the claimant, therefore, claim is not payable. It is further mentioned that no amendment was made in the claim petition originally filed by the injured-deceased subsequent to death of the injured, therefore, on this count also, there is no justification in allowing the claim petition. Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Umedchand Golcha Vs. Dayaram and others as reported in -( 2 )- M.A. No.610/2007 2002(1) M.P.L.J. 249 wherein this Court has held that the claim for personal injury would abate on the death of original claimant but not the claim which pertains to the loss to the estate of the injured. It is further mentioned that the legal representatives can seek amendment in the claim petition and assert the claim for loss to the estate. In case they did not seek amendment in the claim petition, in absence of pleadings pointing out loss to the estate of the deceased, the claim petition is liable to be dismissed. Similarly, reliance has been placed on the judgment of this Court in the case of Bhagwati Bai & Anr. Vs. Bablu @ Mukund & Ors. as reported in 2006(4) M.P.L.J. 579 wherein it has been held that if a claimant dies during the pendency of the claim petition, then claim for personal injury would abate. Further, it has been held that the legal representatives of the deceased/claimant cannot prosecute the application for compensation except as regards the claim for pecuniary loss to the estate of the claimant. In this backdrop, learned counsel for the appellant has submitted that since there was no amendment in the claim petition except bringing the legal heirs of claimant Rajaram Singh Gurjar on record, therefore, claimants are not entitled to any relief and their claim petition deserves to be dismissed. Learned counsel for the Insurance Company further submitted that since postmortem was not performed, therefore, the claim was not maintainable and also that valid driving licence was not available, therefore, Insurance Company is not liable to pay the compensation. It has also been argued that since there are no pleadings regarding loss of estate, the appeal should be allowed and the award passed by the Claims Tribunal should be set aside.
3. Learned counsel for the respondents/claimants has refuted the contentions made by the learned counsel for the Insurance Company and has submitted that even after death of the claimant, his legal heirs are entitled to claim compensation and that has been rightly awarded. It is also submitted that death was -( 3 )- M.A. No.610/2007 directly attributable to the accident and the deceased had taken treatment upto a day prior to the date of death. It is further submitted that due to the complications arising out of the said accident deceased had to take treatment for long and ultimately he succumbed to those injuries. It is also mentioned that postmortem is not necessary and the burden was on the Insurance Company to prove that there was no proximate cause between the accident and the cause of death. Similarly, it is submitted that burden was on the Insurance Company to prove that valid driving licence was not available with the driver on the date of incident, but said burden was not discharged by the Insurance Company, therefore, the claim petition is maintainable and should be allowed. Learned counsel for the claimants/respondents has relied on the judgment of this Court in the case of New India Assurance Company and others Vs. Smt. Shakuntalabai as reported in 1987 JLJ 462 wherein it has been held that maxim falsus in uno falsus in omnibus has no application in India and as such a witness cannot be branded liar and his evidence discarded on the sole ground that a part of his testimony was not reliable. Further reliance has been placed on the judgment of the Supreme Court in the case of Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and others as reported in AIR 1951 SC 120 and Madhusudan Das v. Smt. Narayani Bai & Ors. as reported in AIR 1983 SC 114 wherein it was held that proximity must be attached to the trial Courts opinion on the credibility of the witnesses and the appellate Court must be very slow in discarding the evidence of any witness in appeal if he was found reliable by the trial Court and his testimony was accepted. Thus, the issue that no postmortem was conducted would not give any edge to the appellant/Insurance Company inasmuch as the Claims Tribunal had considered and dealt with the aspect of death on account of continuous treatment of the deceased and he died because of those injuries on 21.2.2006 i.e. after prolong treatment. Learned -( 4 )- M.A. No.610/2007 counsel for the respondents has also placed reliance on the judgment of this Court in the Case of Smt. Sham Kunwar and others Vs. Kamal Singh and others as reported in 2000 (1) T.A.C. 129 (MP) wherein it has been held that burden is squarely on the Insurance Company to prove breach of conditions of policy and that driver had no valid driving licence. Similarly, reliance has been placed on the judgment of this Court in the case of Jagdish Vs. Rajkumar as reported in 2001(1) MPWN 166 wherein it is held that if record of licensing authority is not proved by the Insurer, it cannot be presumed that driver did not possess any driving licence.
4. Reliance has been placed by the learned counsel for the respondents on the judgment of Bombay High Court in the case of Baburao Venkatrao Kotgire and Anr. Vs. Venkati Jaiwanta Thote & Ors. as reported in I (1993) ACC 308 in support of the contention that burden was on the Insurance Company to prove that driver had no valid licence. On the issue of postmortem learned counsel for the respondents has placed reliance on the judgment in the case of National Insurance Co. Ltd. Vs. Anthony (since deceased) and others as reported in 2015 ACJ 2392 wherein it has been held that when the claimants proved the death of the deceased occurred due to septicaemia because of infections in injured areas and that deceased was continuously taking treatment and when there was no contrary evidence, it was held that tribunal was justified in allowing compensation for the death due to the accident.
5. As far as issue of driving licence and postmortem is concerned, there is no conflict in regard to the fact that onus was on the Insurance Company to prove that death of the injured had not taken place because of the accident and the driver of the offending vehicle was not possessing valid driving licence and these burdens have not been discharged by the appellant/Insurance Company, but one issue which is germane to the whole controversy is whether the claimants after death of the -( 5 )- M.A. No.610/2007 deceased were entitled to the claim in the light of the amendments made in the claim petition subsequent to the death of the injured. It is apparent from para 12 of the amended claim petition that a sum of Rs.5,00,000/- was sought on account of loss of income due to death of the injured. Learned Claims Tribunal has taken this as claim for loss of estate and has dealt with it in para 18 and 19 of the award and after appreciating the evidence of the doctor and medical records as were filed by the claimants has come to a conclusion that death of the deceased was necessarily due to the impact of the injuries contacted by him due to accident for which the deceased had taken long and continuous treatment at various hospitals and thereafter considering notional income of Rs.3,000/- per month for a driver and deducting 1/3rd, compensation has been worked out. Learned Claims Tribunal has also held that claimants are entitled to claim expenditure on treatment to the extent that bills were submitted and proved and not beyond that limit. Accordingly, compensation of Rs.3,80,282 has been awarded. As it is apparent that pleadings have been amended and loss of estate was claimed and has been awarded, the ratio of the judgment in the case of Umedchand Golcha (supra) will not be of any assistance in favour of the Insurance Company. Similarly, the ratio of Bhagwati Bai (supra) is also not of any assistance to the appellant/Insurance Company inasmuch as claimants are entitled to loss of estate and Insurance Company has failed to prove that how the amounts awarded by the Claims Tribunal are beyond the scope of the pleadings or excessive. Thus, the appeal fails and is dismissed.
(Vivek Agarwal) Judge ms/-