Gujarat High Court
New India Assurance Co. Ltd vs Bhaniben Rameshbhai Solanki (Harija) ... on 7 February, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/3873/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3873 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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NEW INDIA ASSURANCE CO. LTD.....Appellant(s)
Versus
BHANIBEN RAMESHBHAI SOLANKI (HARIJA) WD./O. RAMESHBHAI &
5....Defendant(s)
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Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
DELETED for the Respondent No. 5
MR MEHUL S SHAH, ADVOCATE for the Respondents No. 1 - 4
RULE SERVED BY DS for the Respondent No. 6
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 07/02/2014
Page 1 of 21
C/FA/3873/2007 JUDGMENT
ORAL JUDGMENT
1. This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), at the instance of the Insurance Company, is directed against the judgement and award dated 30th March, 2007 passed by the Motor Accident Claims Tribunal (Fast Track Court No.4), Kutch at Bhuj (hereinafter referred to as "the Tribunal) in M.A.C. Petition No.625 of 2000.
2. The respondents No.1 to 4 (original claimants) filed a claim petition before the Tribunal seeking compensation of Rs.15,00,000/- from the opponents therein. The basis for filing such petition was that Rameshbhai Rudabhai Solanki (Harijan) used to work as a cleaner on a tanker bearing registration No.GJ-12-T-9656. On 30.06.2000, the deceased was going in the said tanker from Gandhidham to Vadodara. The opponent No.1 - driver was driving the tanker in a rash and negligent manner and at an excessive speed. When he reached the place of accident, the driver lost control over the steering as a result of which, the tanker went off the road and firstly dashed against a tree and then turned turtle. The deceased sustained serious injuries on account of the accident and ultimately, succumbed to such injuries. It was the case of the claimants that the accident was caused because of sheer negligence on the part of the driver and they had, thus, claimed Rs.15,00,000/- on all counts.
3. Before the Tribunal, on behalf of the respondent No.3 - Insurance Company, it was contended that the claimants had failed to establish the nexus between the cause of death and Page 2 of 21 C/FA/3873/2007 JUDGMENT the injuries sustained during the course of the accident in the absence of which, the claimants were not entitled to any compensation for the death of the deceased. The Tribunal after considering the evidence on record, held that the death of the deceased was caused due to accidental injuries sustained by him in the vehicular accident and thereafter, proceeded to determine quantum of compensation payable to the deceased.
4. Mr. Vibhuti Nanavati, learned advocate for the appellant assailed the impugned judgement and award passed by the Tribunal by submitting that the same was against the weight of evidence on record, and that the inference drawn and the conclusions arrived at by the Tribunal are erroneous. It was submitted that the Tribunal has failed to appreciate that the claimants have failed to prove the nexus between the death of the deceased Rameshbhai and the accidental injuries. It was submitted that the Tribunal ought to have considered that the deceased Rameshbhai was discharged from the hospital after he was successfully operated on 30.08.2000 and he died on 01.09.2000, and the claimants had not offered the body of the deceased for conducting postmortem in order to prove the nexus of the death of Rameshbhai and the accidental injuries. Therefore, the finding of the Tribunal regarding nexus between the accidental injuries and the death is merely on ipsi dixit and without any justification.
4.1 Referring to the provisions of Chapter X of the Gujarat Motor Vehicle Rules, 1989 (hereinafter referred to as "the rules"), which makes provision for "Claims Tribunal", it was pointed out that rule 231 thereof provides for the procedure Page 3 of 21 C/FA/3873/2007 JUDGMENT regarding compensation on the principal of no fault. Sub- section (2) thereof postulates that the application for compensation shall be accompanied with the documents enumerated thereunder, clause (ii) whereof provides for furnishing injury certificate or postmortem report in case of death. Reference was made to sub-rule (9) of rule 231 of the rules, which lays down that the Claims Tribunal shall proceed with the application for compensation on the basis of the documents enumerated thereunder, which includes injury certificate or postmortem report in case of death. It was urged that any application either under section 163 or 163A of the Act, in the case of a fatal accident, should be accompanied by a postmortem report. Under sub-rule (v) of rule 9 of the rules, the Tribunal can proceed with the application for compensation, inter alia, on the basis of the nature of the treatment given by the Medical Officer who had treated the victim. Referring to the record of the case, it was pointed out that no postmortem of the deceased had been carried out and as such, no postmortem report had been submitted before the Tribunal and thereby, the provisions of the rules had not been satisfied. It was submitted that the claimants had submitted a list of documents at Mark 25/C on which, on behalf of the appellant, an endorsement had been made that items 8 and 9 may not be exhibited and that the other documents may be taken on record subject to proof of their evidentiary value and reserving their right of submissions and defences. On the basis of such endorsement, the Tribunal, by an order dated 23.03.2005, had exhibited the said documents. Thus, though the said documents had been exhibited, the contents thereof had not been admitted by the Insurance Company and it was for the claimants to prove the same. Referring to the record of Page 4 of 21 C/FA/3873/2007 JUDGMENT the case, it was submitted that it was only the father of the deceased who had stepped into the witness box and no independent eye witness like doctor who gave treatment to the deceased had been examined to prove the nexus between the accidental death and the injuries sustained by the deceased. Moreover, only discharge cards of the concerned hospital where the deceased had been admitted have been produced on record. It was argued that mere production of documents by saying that they were signed in his presence would not prove the contents of such documents. Under the circumstances, on account of the absence of any postmortem report or any documentary evidence regarding the cause of death, the claimants have failed to prove the nexus between the death and the injuries sustained by the deceased. It was argued that even if the postmortem report had not been obtained, the claimants ought to have examined the concerned Medical Officer who had treated the deceased to establish the nexus between the cause of death and the accidental injuries. Referring to the impugned judgement and order, it was submitted that the learned Judge has not given any reasons in support of his finding that there was a nexus between the cause of death and the accident, under the circumstances, the appeal deserves to be allowed on this count alone and the Insurance Company cannot be held liable for payment of compensation in connection with the death of the deceased. It may be noted that no contention has been raised as regards the quantum of compensation awarded by the Tribunal.
4.2 In conclusion, it was submitted that either this court would be required to re-appreciate the evidence on record and Page 5 of 21 C/FA/3873/2007 JUDGMENT to render a finding of fact as regards the nexus between the cause of death and the accident or the matter would be required to be remanded to the Tribunal for re-appreciating the evidence and furnishing proper reasons in support of the finding that the cause of death was on account of the vehicular accident.
5 Opposing the appeal, Mr. Vishal Mehta, learned advocate for Mr. Mehul Shah, learned advocate for the respondents No.1 to 4 (hereinafter referred to as "the claimants") submitted that rule 231 of the rules applies only in case of applications for compensation on the principle of "No Fault" and does not apply to the applications under section 166 of the Act. Thus, reliance placed upon the said rule for contending that the application for compensation should be accompanied by a postmortem report in case of a fatal accident, is misconceived. Referring to the medical case papers, which form part of the record, it was pointed out that due to the accident the deceased had sustained fracture of C5-C6 vertebral body. It was submitted that the medical case papers further reveal that after the Ant - Cervical Fusion operation using Titanium cage, undergone by the deceased, all reports were normal except in respect of the injury sustained by the deceased. It was pointed out that on account of the injuries sustained by him, the deceased was required to be admitted to various hospitals. Initially, he was hospitalized for a period of one month from 30.06.2000 to 31.07.2000 at the Civil Hospital, Ahmedabad. Subsequently, he was admitted to the Gondhiya Hospital, at Rajkot from 16.08.2000 to 21.08.2000. Thereafter, he was admitted in the Gokul Hospital from 21.08.2000 to 30.08.2000. After his discharge, he died on 1 st September, 2000 at his Page 6 of 21 C/FA/3873/2007 JUDGMENT residence. It was submitted that the medical case papers form part of the record of the case and have been admitted in evidence. No questions with regard to the contents of the medical case papers were put in the cross-examination of the father of the deceased so as to warrant discarding of such evidence. It was pointed out that the medical case papers show that all the organs were normal except for the spinal injuries, and hence, the spinal injury could be the only reason for the death of the deceased. It was submitted that thus, there is a proximate nexus between the death of the deceased and the injuries sustained by him in the vehicular accident and as such, the Tribunal did not commit any error in holding that the deceased had died on account of the injuries sustained by him in the vehicular accident.
5.1 Strong reliance was placed upon the decision of a Division Bench of this court in the case of Ranchhodbhai Somabhai deceased by his heirs Somabhai Vajabhai and another v. Babubhai Bhailalbhai and others, 1982 ACJ (Supp) 548, wherein the deceased had died after a period of seventeen months of illness, for the proposition that the evidence to prove the loss and the negligent act may be direct or circumstantial or both. Such evidence must be tested by the yead stick of probabilities and its intrinsic worth. While dealing with circumstantial evidence, the Tribunal must be satisfied on preponderance of probability whether the circumstances established prove the loss and negligence. It might not be possible in all cases to lead evidence of the medical personnel or all of them who might have been consulted or who might have administered treatment to the injured or deceased person. It is a matter of common knowledge that for diverse Page 7 of 21 C/FA/3873/2007 JUDGMENT reasons it may not be possible in every case to produce such evidence and that if otherwise trustworthy evidence led by the claimant with regard to the nature and consequences of the injury and the course and cost of treatment were to be disregarded merely on the ground of non-examination of medical witness, there would be miscarriage of justice. Referring to the findings recorded by the court in the above decision, it was submitted that the present case would be squarely covered by the said decision and as such, the Tribunal was justified in accepting the evidence led by the claimants.
5.2 Reliance was also placed upon the decision of a Division Bench of this court in the case of Gujarat State Road Transport Corporation v. Mariambai A. Adamji (since deceased) through LRs and another, 2003 ACJ 1353, to submit that in the facts of the said case, the deceased had died after a period of five months from the date of the accident and though the medical officer had deposed to the effect that the real injury caused to the deceased was not identified, the court had held that having regard to the facts of the case, the claimants had succeeded in proving the nexus between the injuries and the ultimate death of the deceased.
6. In the backdrop of the facts and contentions noted hereinabove, the sole question that arises for consideration is as to whether the Tribunal was justified in holding that the cause of death was on account of the accidental injuries sustained by the deceased from the vehicular accident in question.
Page 8 of 21C/FA/3873/2007 JUDGMENT
7. As can be seen from the impugned judgement and award passed by the Tribunal, the Tribunal has observed that it was satisfied that the claimants have proved the nexus between the accidental injuries sustained by the deceased at the time of accident and that the death caused on 01.09.2000. The Tribunal has recorded that on the date of the accident, that is, on 30.06.2000; the deceased was admitted in the Civil Hospital, Ahmedabad and was discharged on 31.07.2000. Again he was admitted in the Gondhia Hospital, at Rajkot on 16.08.2000 and was discharged on 21.08.2000. Again he was admitted in Gokul Hospital, at Rajkot on 21.08.2000 and was discharged on 30.08.2000 and was taken to his residence on 01.09.2000 and succumbed on 01.09.2000 due to the injuries sustained by him in the accident in question. Thus, the claimants have explained the period of treatment right from the accident upto the death of the deceased. The Tribunal, was accordingly, satisfied that as the claimants have proved the nexus between the accidental injuries and the death, and are, therefore, entitled to get compensation.
8. From the findings recorded by the Tribunal, it is apparent that except for referring to the various dates on which the deceased was admitted to the hospitals, there is no discussion as regards the nature of the injuries sustained by the deceased and the possible cause of death, for arriving at the finding that the deceased had died on account of the injuries sustained by him during the course of accident.
9. The question that arises for consideration is as to whether having regard to the evidence on record, the above finding recorded by the Tribunal can be said to be perverse.
Page 9 of 21C/FA/3873/2007 JUDGMENT
10. The record of the case reveals that on behalf of the claimants, Rudabhai Ravabhai Solanki (Harijan), father of the deceased has been examined at Exhibit 49/C. He has deposed that on account of the accident, his son Rameshbhai had sustained serious injuries and initially, he was taken to the Government Hospital, at Vadodara for preliminary treatment and from there, he was taken for further treatment to the Civil Hospital, Ahmedabad, where he was admitted. His son was given treatment at Civil Hospital, Ahmedabad from 30.06.2000 to 31.07.2000 as an indoor patient. The original discharge card has been produced on record at Exhibit-55. Thereafter, he was admitted to the Gondhia Hospital, Rajkot where he was given treatment as an indoor patient from 16.08.2000 to 21.08.2000. The discharge card issued by the Gondhia Hospital and the cardiogram report, have been produced at Exhibits 56 and 57. During the course of treatment at Gondhia Hospital, X-ray, C.T. Scan as well as the laboratory test reports have been obtained, which have been produced at Exhibit-58. Thereafter, his son was admitted to the Gokul Hospital of Dr. Prakash G. Modha, at Rajkot from 21.08.2000 to 30.08.2000. The original case papers have been produced at Exhibit-64. He has further deposed that on 31.08.2000, his son was taken home at Jangi, where he expired on 01.09.2000. He has further deposed that at Gondhia Hospital, his son was operated for implanting artificial vertebrae, and a live broadcast had been made on the Website and the same had also been reported in the newspaper. A newspaper cutting reporting about the novel operation has been annexed at Exhibit-60. The witness has also deposed that in the news report, on account of some error, his son's name has been mentioned as Ramjibhai Page 10 of 21 C/FA/3873/2007 JUDGMENT instead of Rameshbhai.
11. A perusal of the medical case papers produced on record shows that the deceased was suffering from fracture of C4-C5 with quadriplegia with bladder involvement with CLW over (R) forearm with (L) knee with traumatic amputation IInd finger (R) at distal interphalangeal joint with head injury. The report further shows that the deceased was suffering from bed sores and other related complications. The medical case papers of Navalben Manilal Virani General Hospital, managed by Ashok Gondhia Memorial Trust, at Rajkot shows that the deceased was suffering from paraplegia and was admitted specially for Ant. Cervical Fusion, Operation using Titanium Cage. The date of operation was 18.8.2000. The MRI reports, X-Rays of the chest as well as other blood reports and pathological reports of the deceased have been placed on record, which reveal that except for the problems related to the injuries sustained by him, the deceased was normal in all other aspects. The case papers also reveal signs of neurological deterioration and tingling numbness and change in habits.
12. Thus, the record reveals that the deceased on account of the injuries sustained by him, was suffering from quadriplegia viz., paralysis of all the four limbs. Immediately after the accident, he was admitted to the Civil Hospital, Ahmedabad as an indoor patient for a period of one month. Thereafter, he was admitted to the Gondhiya Hospital, at Rajkot from 16.08.2000 to 21.08.2000, after which, he was admitted in the Gokul Hospital from 21.08.2000 to 30.08.2000. After his discharge from Gokul Hospital, on 31.08.2000 he was brought to his village Jangi and ultimately, he expired on 1 st September, 2000 Page 11 of 21 C/FA/3873/2007 JUDGMENT at his residence.
13. From the cross-examination of the father of the deceased, it appears that the body of the deceased was not offered for postmortem since they were not aware that it was required to be done as he was an illiterate person. He has also stated that he had not informed the police or hospital about the death of his son because he was illiterate and was not aware that it was required to be reported. Thus, it is an admitted position that no postmortem has been carried out after the death of deceased to ascertain the cause of death. However, merely because the postmortem has not been carried out, does not mean that the claimants would be disentitled from making out a case that the deceased had died on account of the injuries sustained by him from the accident. Insofar as reliance placed upon the provisions of rule 231 of the rules is concerned, a perusal of the said rule shows that the same bears the heading "Procedure regarding compensation on the principal of no fault" and lays down the procedure to be followed in this regard. Insofar as claim petitions under section 166 of the Act are concerned, the same are governed by rule 211 of the rules and sub-rule (5) thereof provides that to every such application, the documents enumerated thereunder shall be appended. The documents stipulated under clause (ii) thereof are "medical certificate of injuries or Post-mortem Report or death certificate". Therefore, appending a post-mortem report or death certificate is not mandatory. Production of any of the documents referred to in rule 211 (5) (ii) of the rules would suffice, provided the same are sufficient to establish the case of the claimants.
Page 12 of 21C/FA/3873/2007 JUDGMENT
14. At this juncture reference may be made to the decision of this court, in the case of Ranchhodbhai Somabhai deceased by his heirs Somabhai Vajabhai and another v. Babubhai Bhailalbhai and others (supra), wherein it has been held thus:
"5. It cannot be overlooked that the trial of a claim petition is concerned with the fate of a person who has met with an accident or with the dependents of an unfortunate victim of an accident. Accident is an event in real life, its import is sudden and its immediate effect is to arouse the instinct of the preservation of life or the affected limb. The collection and preservation of meticulous particulars which may be required to be proved at the time of a claim petition to be instituted and tried months or years hence would obviously be the farthest consideration present to the mind of the persons involved in the tragedy. Besides, it might not be possible in all cases to lead evidence of the medical personnel or all of them who might have been consulted or who might have administered treatment to the injured or deceased person. It is a matter of common knowledge that for diverse reasons it may not be possible in every case to produce such evidence and that if otherwise trustworthy evidence led by the claimant with regard to the nature and consequences of the injury and the course and cost of treatment were to be disregarded merely on the ground of non- examination of medical witness, there would be miscarriage of justice.Page 13 of 21
C/FA/3873/2007 JUDGMENT [6] It is also well to bear in mind that there is an essential distinction between "burden of proof" and "onus of proof"; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus is a continuous process in the evaluation of evidence (see Raghavamma v. Chanchamma). Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witnesses, if any, and if the evidence tested in the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award. It would thus appear that though the legal burden, the burden as a matter of law and pleadings, remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses.
[13] Having regard to the evidence on record, we are clearly of the opinion that it was not correct to hold that Page 14 of 21 C/FA/3873/2007 JUDGMENT there was no direct proximate connection between the accident injury and the untimely demise of the deceased. True it is that the death was not at all at once or at a point of time proximate to the date of the accident. It is also true that there is no medical evidence regarding the cause of death. However, the direct testimony of the appellant Somabhai clearly establishes, when appreciated in the light of the medical evidence, that the death was inevitably linked with the accident injury. Tested by the yardstick of probabilities and consistency with itself, the rest of the evidence and the circumstances of the case, the appellant's evidence emerges unscathed and there is no reason to reject it. The surrounding circumstances also point in the same direction. There was no definitive break, no unexplained interval, no yawning hiatus so as to snap the link between the accident injury and its tell-tale physical consequences and the untimely death. The principal after-affect of the accident injury, namely, the urinary difficulty, is shown to have persisted throughout the interval of time between the date of accident and the date of death and treatment to relieve the deceased of the same is also shown to have been administered all along during the said period on different occasions. We cannot overlook the fact that the deceased was a young in the prime of his life. He was healthy and suffered from no disease prior to the accident. Young men do not die suddenly; some cause has to be found for their death. Where one is manifest on the record of the case, it would be ignoring the reality to close eyes to the same and to conjecture that the death could possibly Page 15 of 21 C/FA/3873/2007 JUDGMENT have resulted due to some other undisclosed cause when not scintilla of it is perceivable. The fact that no medical evidence was led to precisely establish the cause of death is a matter of no consequence on the facts and in the circumstances of the case and on the state of evidence on record. As we have pointed out earlier, it might not be possible in all cases to lead the evidence of experts. That apart, when the direct and circumstantial evidence tending to establish the link between the accident injury and death goes unchallenged, as in the present case, it would be idle to insist upon the fulfillment of such a requirement. We are, therefore, of the view that the Tribunal, in the instant case, reached the conclusion, which it was impossible to arrive at on the evidence on record, when it held that the death was not the result of the accident injury. We reverse the finding of the Tribunal on that point and hold that the death of the deceased had direct and proximate connection with the accident injury."
15. The facts of the present case are required to be examined in the light of the above decision. Thus, it is not in every case that the claimant would be in a position to lead evidence of the medical personnel who have treated the injured or deceased person. In the present case, the claim petition has been filed at Bhuj, whereas the concerned doctors who had given treatment to the deceased were from the Civil Hospital, at Ahmedabad and other hospitals at Rajkot. Thus, it may have been difficult for the claimants to secure the presence of the medical officers during the course of the proceedings before the Claims Tribunal at Bhuj. In the absence Page 16 of 21 C/FA/3873/2007 JUDGMENT of the testimony of the medical officer and a cause of death certificate, the duty of the court is to examine the medical case papers and the other documentary evidence and oral evidence which have been brought on record to ascertain as to whether there is any nexus between the cause of death and the injuries sustained by the deceased as a result of the accident. In the present case, the facts speak for themselves. The deceased had sustained grievous injuries on account of the vehicular accident as a result of which, he was suffering from quadriplegia with bladder involvement with CLW over (R) forearm with (L) knee, traumatic amputation of second finger (R) at distal interphalangeal joint with head injury. The report also reveals that the deceased was suffering from bed sores and other related complications. The record further discloses that there were signs of neurological deterioration. Initially, the deceased was admitted in the Civil Hospital, Ahmedabad from 30.06.2000 to 31.07.2000. Thereafter he was admitted in the Gondhia Hospital, at Rajkot on 16.08.2000 and was operated upon and remained as an indoor patient till 21.08.2000. On 21.08.2000, he was shifted to Gokul Hospital, at Rajkot, where he was treated till 30.08.2000. He was discharged on 31.08.2000 and was taken back to his village Jangi on 31.08.2000, where he died on 01.09.2000. Thus, the deceased was continuously admitted from one hospital to another and died immediately after he was discharged from Gokul Hospital, Rajkot on 31.08.2000.
16. Having regard to the nature of the injuries sustained by the deceased and the evidence which has come on record, which reveals that except for the complications arising out of the injuries sustained by him, in all other aspects he was Page 17 of 21 C/FA/3873/2007 JUDGMENT normal, the inevitable conclusion would be that the deceased died on account of the injuries sustained by him on account of the vehicular accident. This court in the case of Ranchhodbhai Somabhai v. Babubhai Bhailalbhai (supra), where the deceased died after nearly seventeen months from the date of the accident and where there was no medical evidence regarding the cause of death, held that tested by the yardstick of probabilities and consistency with itself, the rest of the evidence and the circumstances of the case, the appellant's evidence emerged unscathed and there was no reason to reject it. The surrounding circumstances also pointed in the same direction. Adverting to the facts of the present case, here also, there is no definitive break, no unexplained interval, and no yawning hiatus so as to snap the link between the accident injury and its tell-tale physical consequences and the untimely death. One cannot overlook the fact that the deceased was aged only 23 years and a youth in the prime of his life. He was healthy and suffered from no disease prior to the accident. As held by this court in Ranchhodbhai Somabhai v. Babubhai Bhailalbhai (supra), young men do not die suddenly; some cause has to be found for their death. Where one is manifest on the record of the case, it would be ignoring the reality to close eyes to the same and to conjecture that the death could possibly have resulted due to some other undisclosed cause when not a scintilla of it is perceivable. Reverting to the facts of the present case, from the evidence adduced on record, it is manifest that the deceased died on account of complications relating to the injuries sustained by him in the vehicular accident. Not a scintilla of any other cause for the death of the deceased is perceivable. Therefore, if the contention of the Page 18 of 21 C/FA/3873/2007 JUDGMENT appellant were to be accepted it would amount to ignoring the reality.
17. In the light of the above discussion, this court is of the view that the evidence on record, leads to the inevitable conclusion that the cause of death of the deceased is on account of the injuries sustained by him in the vehicular accident. The Tribunal, therefore, did not commit any error in holding that the deceased had died on account of the injuries sustained by him in the vehicular accident. The appeal, therefore, fails and is, accordingly, dismissed.
18. Vide order dated 10.08.2007, this court stayed the implementation and execution of the award on condition that the appellant deposits the awarded amount with costs and interest with the Tribunal within four weeks from the date of such order. It appears that pursuant to the said order, the appellant had deposited the entire amount. By an order dated 21.02.2008, this court had permitted the original applicant No.1 - widow of deceased Rameshbhai Solanki, i.e. Smt. Bhaniben Rameshbhai Solanki (Harijan) to withdraw the amount of Rs.53,000/- out of the amount deposited by the appellant-Insurance Company by account payee cheque and the concerned District Judge was directed to see that the said amount of Rs.53,000/- is given to the original applicant by account payee cheque in person and personally informing the original applicant No.1 of what amount the said cheque is given to her. As regards the balance amount of Rs.11 lakh, the District Judge, Kachchh at Bhuj was directed to invest 50% thereof in the name of original applicant No.2 - Minor Dinesh Rameshbhai Solanki (Harijan) in fixed deposit with a Page 19 of 21 C/FA/3873/2007 JUDGMENT Nationalized Bank with cumulative interest initially for a period of seven years and thereafter, to continue to renew till he attains the age of majority. In respect of the balance amount of Rs.5,50,000/-, the District Judge was directed to invest Rs.4,50,000/- in the name of original applicant No.2 - Minor Dinesh Rameshbhai Solanki (Harijan) in fixed deposit with a Nationalized Bank with cumulative interest initially for a period of five years and thereafter, to continue to renew till hearing and final disposal of the present appeal. It was, however, directed that the widow of the deceased shall be entitled to withdraw the quarterly periodical interest on the said fixed deposit and the learned District Judge, Kachchh at Bhuj was directed to see that the said amount of interest is credited directly in her Savings Bank Account. The balance amount of Rs.1,00,000/- was to be invested in fixed deposit with a Nationalized Bank in the name of original applicant No.3 - Rudabhai Ravabhai Solanki (Harijan) initially for a period of five years and he was permitted to withdraw the quarterly periodical interest accrued on the said fixed deposit.
19. The above order dated 21.02.2008 came to be challenged by the claimants before the Supreme Court by way of Special Leave to Appeal (Civil) No.18432 of 2008, which came to be disposed of by an order dated 28.01.2011 in the following terms:
"First Appeal No.3873/2007 is pending before the High Court of Gujarat at Ahmedabad. The petitioners' short grievance is that out of the total amount of Rs.11,53,000/-, petitioner No.1 has been given only Rs.53,000/- and the remaining amount has been Page 20 of 21 C/FA/3873/2007 JUDGMENT deposited in fixed deposits with the bank. Petitioner No.1 wants some more money. He would be at liberty to move an appropriate application before the High Court of Gujarat and the High Court may pass appropriate orders after hearing both the parties.
We request the High Court to dispose of First Appeal No.3873/2007 as expeditiously as possible.
The special leave petition is disposed of with these observations."
20. It appears that pursuant to the above order of the Supreme Court, the claimants have not filed any application for withdrawal of any amount.
21. It would, therefore, be open for the claimants to approach the Tribunal for necessary orders for disbursement of the amount so deposited.
(HARSHA DEVANI, J.) parmar* Page 21 of 21