Madras High Court
)Umadevi vs )V.Shanthi on 29 August, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.08.2018
(Reserved on 16.07.2018)
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.372 of 2014
S.Rajaram(died)
1)Umadevi
2)Mrs.Muthulakshmi
3)R.Subburaj ... Appellants
vs.
1)V.Shanthi
2)The Branch Manager,
New India Assurance Company Ltd.,
Office at 674, Periyakulam Road,
Theni. ... Respondents
(1st respondent was exparte in the lower
Court, hence notice may be dispensed with)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
the judgment and decree dated 12.10.2012 made in MCOP.No.568 of 2006 on the
file of Motor Accident Claims Tribunal, V Additional District Judge, Madurai.
!For Appellant : Mr.C.Godwin
^For R2 : Mr.J.S.Murali
:JUDGMENT
This appeal has been filed against the judgment and decree dated 12.10.2012 made in MCOP.No.568 of 2006 on the file of Motor Accident Claims Tribunal, V Additional District Judge, Madurai.
2.In an accident which occurred on 03.11.2005, one Rajaram sustained right femur supracondylar fracture, comminuted and compound fracture of both bones in the right leg, fracture of right patella and other injuries. Immediately after the accident, the said Rajaram was taken to Jawahar Hospital, Madurai, and then he was shifted to Preethi Hospital, K.K Nagar, Madurai. Initially, the said Rajaram filed a claim petition in MCOP.No.568 of 2006 on the file of Motor Accident Claims Tribunal, V Additional District Judge, Madurai. He also examined himself before the Tribunal as PW1. While so, the said Rajaram died on 15.09.2009. According to the wife, daughter and son of the deceased who are the claimants, the said Rajaram died due to the injuries sustained in the accident. Hence, they filed impleading application in I.A.No.543/2009 to implead themselves as petitioners 2 to 4 in MCOP.No.568 of 2006 and they also filed an application in I.A.No.216/2010 to amend the claim petition stating that the deceased died due to the injuries sustained in the accident. The said applications were allowed on 20.04.2010 and 09.06.2010 respectively. The 2nd respondent insurance company resisted the claim petition by filing counter affidavit. Considering the oral and documentary evidence adduced on either side, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the Ambassador Car belonging to the 1st respondent and insured with the 2nd respondent insurance company, but held that death of Rajaram was not occurred due to the injuries sustained by him in the accident and therefore, awarded only Rs.81,378/- towards medical expenses incurred by the appellants. As against the said award, the appellants/claimants have filed this appeal.
3.Learned counsel for the appellants would submit that the Tribunal has erred in holding that the deceased died not due to the injuries sustained in the accident. He further submitted that the Tribunal ought to have considered the evidence of PW7-Doctor which would show that the deceased died due to the injuries sustained in the accident.
4.Heard the learned counsel for the appellants, 2nd respondent and perused the materials available on record.
5.The only question to be decided in this case is, whether the deceased died due to the injuries sustained in the accident or not.
6.Perusal of the impugned award shows that the Tribunal has held that the evidence deposed by the deceased as PW1 and wife of the deceased as PW5 do not state anything about the cause of death. The deceased PW1 who sustained injuries on 03.11.2005 died on 15.09.2009 and cause of death was remote and unconnected one with the injuries sustained in the accident. Therefore, the Tribunal holding that the death of PW1 was not occurred due to the accidental injuries and therefore, the claimants are entitled to get compensation only as per the medical bills to the tune of Rs.81,378/-, awarded the said sum as compensation with interest at 7.5% per annum from the date of petition till the date of realisation.
7.Ex.P6-Accident Register issued by Jawahar Hospitals, Madurai, shows that the deceased PW1 sustained following injuries:-
''1)A lacerated injury vising a skin flap at the lateral aspect above right knee joint(5x12 cm) exposing muscles and tendons of depth 4 cms.
2)A lacerated injury vising a skin flap below the right knee joint (6x8 cms) exposing muscles tendons and bones of depth 3 cms.
3)Lacerated injury in the right middle finger 10x5 cm x 0.5 cm.
4)Punctured wound on the dorsal aspect of right hand medial aspect.
5)Swelling of right leg (calf) regions distal pulse; de & post tibial felt well.
6)Lacerated injury lateral aspect of right elbow joint 1x0.5 x 0.5 cm with few abrasions around.''
8.The deceased was admitted in Preethi Hospital, Madurai, which has issued Ex.P8-Admission and Discharge Summary of the deceased, which reads as under:-
''History:-
Patient alleged to have sustained injuries in RTA, while he was travelling in two wheeler hit by car at around at 7.30 pm on 3.11.05 near Thirumangalam.
No H/O LOC/Vomiting/ENT bleeding. O/E: Pt is conscious, oriented and afebrile. BP:140/90MMHG, PR:86/mts, Resp:22/mts.
L/E: Injury1.Lacerated wound about 10x5x3cms over right knee exposing tibia and femur.
Contamination + DPA pulsation + X-Ray right thigh with knee AP & Lateral: Supercondylar # (Muller Lower 3) X-Ray Right Leg AP & Lateral View: # Both Bone Leg X-Ray Right Knee AP & Lateral View: # Patella Treatment:
Procedure 1: Wound debridement and internal fixation with Procedure 2: Tibia interlocking nailing done Procedure 3: Supracondylar Nailing done Under C arm control Procedure 4: SSG done on 8.11.05. Post operative period uneventful. SSG 100% take.''
9.The above injuries undoubtedly are grievous injuries. Perusal of the impugned judgment would show that the Tribunal, taking note of the cross examination of PW5, wherein, she has deposed that her husband did not take treatment for the injuries after 21.11.2005 and she did not produce the postmortem report of her husband and that in column No.23, she did not mention that her husband did not die due to the injuries in the accident, came to the conclusion that PW5 did not prove that PW1 died due to the injuries sustained in the accident and hence awarded only medical expenses.
10.Perusal of record shows that the Tribunal has failed to consider the evidence of PW7-Doctor P.S.Shanmugam, who is a retired Professor in Orthopedics. He has deposed that the deceased Rajaram was admitted as inpatient in Jawahar Hospital on 03.11.2005 due to the injuries sustained in the accident and thereafter, he was admitted as inpatient in Preethi Hospital, Madurai between 04.11.2005 and 21.11.2005. He sustained fracture of right knee, right patella, for which, he has undergone surgery on 04.11.2005 and 08.11.2005 and a rod has been inserted to fuse the fractured bones in the right leg. Thereafter, death certificate has been issued stating that on 15.09.2009, the said Rajaram died in Preethi Hospital. PW7 Doctor has further deposed that without seeing the prescriptions, on assumption, he could not say the exact disease due to which, Rajaram died. However, since the injuries suffered by the said Rajaram were grievous, there is a possibility for death due to the injuries. It is to be noted that PW7 was not cross examined by the 2nd respondent insurance company.
11.The deceased PW1 has undergone surgeries and a rod has been inserted for the right supracondylar femur fracture. Supracondylar femoral fracture (also called distal [DIS-tuhl] femur fracture) is when the thigh bone breaks at the knee. The femur is the strongest and largest bone in the human body, so it takes a large force to break it. Usually, supracondylar femoral fractures are due to blunt force from an auto or motorcycle accident, being hit by a car, or a big fall. In the elderly, when the distal femur breaks, it can be a more serious fracture. The bone is more likely to be shattered into many pieces, and the fracture can extend into the knee joint. An intramedullary nail is a special metal rod that is placed across the fracture to keep it in position. If the thigh bones have been shattered, it is too much to repair and the pieces may need to be removed, and the knee may be replaced with a prosthesis (implant). Patients with supracondylar femur fracture are typically unable to ambulate. They have severe pain, swelling, and varying amounts of deformity above the knee.
12.Fat embolism syndrome is usually associated with surgery for large bone fractures. Fat embolism syndrome (FES) is a multi-organ disorder with potentially serious sequelae that is commonly seen in the orthopaedic patient population after femur fractures. Fat embolism syndrome is a life- threatening condition that can develop after orthopedic injury and surgery. Development of fat embolism is a known complication in case of multiple fractures especially involving long bones and that the probable cause of death of the deceased may be fat embolism.
13.A fat embolus is a fat particle that enters the circulatory system causing vascular occlusion. Fat emboli can cause a more serious condition called fat embolism syndrome (FES), in which circulating fat emboli or macroglobules result in multisystem dysfunction. Prompt supportive treatment of the patient?s respiratory system and additional pharmaceutical treatment will provide the positive clinical outcome. There is no specific therapy for fat embolism syndrome. Prevention, early diagnosis, and adequate symptomatic treatment are very important. Approximately 90% of the cases are associated with trauma, especially fracture or surgery of a large bone, such as the femur. As a result of the disrupted bone, the bone marrow fat escapes into circulation. Although this may be a cause, fat embolism may also occur due to conditions such as extensive trauma or syndromes that modify lipid metabolism.
14.One of the problems that can result from bone fractures, such as those found in traumatic injuries, is that the tissue contained in the bones could be released into the bloodstream. While much of this is harmless, some of these are cholesterol molecules. These are the breakdown products of fatty tissue contained in the bone marrow. If these flow through the bloodstream, they can cause blood clots similar to air emboli, strokes, and heart attacks. When fat is the cause of the blood clot, it is called a fat embolus.
15.The purpose of retrospective study is to determine the cause of death in systemic fat embolization. This study is based on the dispute existent in the literature between the earlier hypothesis of cerebral involvement as the main cause of death and the newer concept that the primary pulmonary insufficiency is the principal cause of death in this syndrome. Patients diagnosed as having pure cerebral embolism will recover after supportive treatment. The other patients developed respiratory failure of different degrees. Those with mild cases will recover completely, while, despite intensive therapy, those with severe conditions died.
16.It cannot be said with authority that a person should dies immediately after the accident to establish that he died only due to injuries caused in the said accident. Death due to an injury caused in an accident can be immediate or happened after a prolonged treatment depending on the physical condition and nature of injuries sustained by the injured person.
17.In the case on hand, it is claimed by the appellants that PW1 died on 15.09.2009 due to the injuries sustained in the accident occurred on 03.11.2005. No doubt, the injuries sustained by PW1 are grievous in nature. He sustained multiple fracture in right supracondylar femur fracture and a rod has been inserted in the right leg. Naturally, it gives room to suspection that PW1 might have been died due to fat embolism resulting in respiratory insufficiency. It is to be noted that prior to the accident, the deceased was hale and healthy and any cause for his death may certainly be due to the accidental injuries since it was grievous in nature. Just because, PW1 died after 3+ years from the date of accident and postmortem certificate was not marked, it cannot be said that he would not have been died due to the accidental injuries. Though the 2nd respondent insurance company contended that the deceased not died due to the accidental injuries, perusal of record shows that the evidence of PW7-Doctor that there is a possibility of death of the deceased due to the accidental injuries, remains unshattered. Needless to say, evidence of experts cannot be brushed aside unless evidence contrary thereto is adduced to disprove the same. In this case, even cross examination of PW7 has not been done in an attempt to prove the case of the 2nd respondent that the deceased not died due to the accidental injuries. The Tribunal merely relying upon the evidence of PW5- wife of deceased/PW1, has declined to award compensation. Perusal of the impugned judgment discloses that the evidence of PW7 has not even whispered. PW7 Doctor alone is the competent person to speak about the death of the deceased due to the accidental injuries.
18.Therefore, in my considered opinion, the finding of the Tribunal that the deceased not died due to the accidental injuries is erroneous and the same is set aside holding that the deceased could have died due to the injuries sustained in the accident and as the legislation is a welfare legislation, this Court is inclined to hold that the death of the deceased occurred due to the accidental injuries by giving benefit of doubt to the appellants/claimants.
19.As regards the quantum of compensation, the appellants claimed that the deceased by doing Hotel business, earned Rs.7,500/- per month. However, no proof was produced to prove the income. The accident is of the year 2006 and therefore, it would be appropriate to fix the monthly income of the deceased at Rs.3,000/-. The age of the deceased is fixed as 55 as per the entry in Ex.P20-Death Certificate. After computing annual income and applying '11' multiplier according to the age of the deceased as per Sarla Verma's case, the dependency compensation works out to Rs.2,64,000/-. The compensation of Rs.81,378/- awarded by the Tribunal towards medical expenses duly supported by Exs.P7, P9, P14, P15 and P17-Medical Bills, is confirmed. Hence, the appellants/claimants are entitled to compensation of Rs.2,64,000/- now awarded by this Court, in addition to Rs.81,378/- awarded by the Tribunal towards medical expenses, totalling to Rs.3,45,378/-(Rs.2,64,000 + Rs.81,378) with interest at 7.5% per annum from the date of claim petition till the date of deposit.
20.The 2nd respondent insurance company is directed to deposit the entire amount, with interest at 7.5% per annum from the date of claim petition till the date of deposit, less the amount already deposited, if any, to the credit of the claim petition, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellants/claimants are permitted to withdraw the same in equal share with proportionate interest, without filing any formal petition before the Tribunal.
The Civil Miscellaneous Appeal is allowed in part with the above direction. No costs.
To The V Additional District Judge, Motor Accident Claims Tribunal, Madurai.
.