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2005 DIGILAW 763 (KAR)

JAYARATHNAMMA v. MUKTHIAR SINGH

2005-11-21

H.G.RAMESH, P.VISHWANATHA SHETTY

body2005
P. VISHWANATHA SHETTY, J. ( 1 ) THE appellants in this appeal are the widow and minor children of one Shanmukhappa. In this appeal, they have called in question the correctness of the judgment and award dated 19th september 1997, made in MVC No. 577/93 by the District Judge and Motor Accident Claims tribunal, Chitradurga (hereinafter referred to as "tribunal") awarding only a sum of Rs. 3,000/towards the death of said Shanmukhappa. ( 2 ) THE facts in brief: The deceased Shanmukhappa while travelling in a lorry bearing Regn. No. DL-1g-3668 met with an accident on account of collision with lorry bearing Regn. No. DL-1g-4078. On account of his death, his wife and two minor children filed claim petition before the Tribunal seeking award of compensation of Rs. 3,20,000/ -. The Tribunal on consideration of evidence on record having found that the accident in question has taken place on account of rash and negligent driving of the lorry by its driver bearing Regn. No. DL-1g-4078, has awarded only a sum of Rs. 3,000/-towards medical expenses incurred on behalf of the deceased. However, the Tribunal rejected the claim of the claimants for award of compensation under the heads loss of dependency and consortium on the ground that death was not as a result of injuries sustained by the deceased in the accident in question. Aggrieved by the said conclusion reached by the tribunal, this appeal is filed. ( 3 ) SRI Harshavardhan, learned Counsel appearing for the appellants challenging the correctness of the impugned judgment and award strongly submitted that the finding recorded by the tribunal that death was not as a result of injuries sustained by the deceased in the accident in question is totally perverse, arbitrary and has been recorded in disregard of evidence on record. Elaborating his submission, the learned Counsel pointed out that the evidence of widow of the deceased who was examined as PW-2 shows that immediately after the accident, the deceased was admitted to Government Hospital at Chitradurga and in the said hospital, he was an inpatient for three days and thereafter, he was shifted to Government Medical College Hospital, Bellary and he was an inpatient for about 8 days and he died in the hospital. Therefore, he submits that though the nature of injuries sustained may not outwardly indicate that the injuries sustained are of such serious nature which would have resulted in death of the deceased, according to the learned Counsel, the Tribunal on the basis of evidence on record should have taken the view that death had taken place as a result of injuries sustained by the deceased in the accident in question. Therefore, the learned Counsel points out that the Tribunal having overlooked this aspect of the matter, the finding recorded by the Tribunal that death was not as a result of injuries sustained by the deceased requires to be reversed in this appeal. So far as quantum of compensation is concerned, the learned Counsel pointed out that the evidence of PW-2 shows that the deceased was working as a Coolie and his income was Rs. 1,500/- per month. He also pointed out that there is no dispute that the deceased was aged 32 years on the date of the accident and therefore, while assessing the compensation, multiplier of 17' is required to be applied. He also submitted that compensation on emotional head is also required to be awarded. ( 4 ) HOWEVER, Sri M. U. Poonacha, learned Counsel appearing for Insurance Company strongly supported the impugned judgment and award. He pointed out that since the deceased was discharged from the Government Hospital at Chitradurga against the medical advise, it must be held that death was not as a result of injuries sustained by the deceased in the accident in question. Relying upon Ex. P24, the learned Counsel pointed out that the statement made in Ex. P24 by the Sub-Inspector of Police at Bellary shows that the deceased succumbed to death on account of Tetanus due to the injuries sustained by the deceased. ( 5 ) IN the light of rival contentions advanced by the learned Counsel appearing for the parties, the two questions that would arise for our consideration in this appeal are: i) Whether the Tribunal was justified in recording a finding that death was not as a result of injury sustained by the deceased? ii) If the answer to the 1st question is in favour of the claimants, what is the quantum of compensation required to be awarded to the claimants? ii) If the answer to the 1st question is in favour of the claimants, what is the quantum of compensation required to be awarded to the claimants? ( 6 ) RE : question No. 1: The evidence of PW-2 discloses that the deceased was admitted to Government Hospital, chitradurga on the date of the accident. e. on 3-11-1992 and he was in the said hospital as an inpatient for three days. Thereafter, he was discharged from Govern ment Hospital, Chitradurga, and was admitted to Government Medical College Hospital at Bellary. No doubt, the discharge certificate shows that the deceased was discharged against medical advise. From that, it cannot be inferred that there was negligence on the part of the persons who discharged the deceased from the Government Hospital at Chitradurga. The deceased is from Sriramasetthihalli Village, sandur Taluk, Bellary District. The fact that the discharge was against the medical advise indicates that the nature of injuries sustained by the deceased was of serious nature. Under these circumstances, it is not possible to take a view that there was negligence in giving treatment to the deceased and the death of deceased took place on account of such negligence. Therefore, the fact that the deceased was shifted from smaller hospital at Chitradurga to Medical College hospital at Bellary indicates that all efforts were made to give the best treatment to the deceased. It may be that the deceased being a resident of Sriramasettihalli Village, Sandur Taluk, Bellary district which is nearer to Medical College Hospital, Bellary, he was shifted to Medical College hospital at Bellary. Further, it cannot be disputed that Medical College at Bellary had better facilities for treatment than the Government Hospital at Chitradurga. Ex. P24 shows that the deceased died on account of Tetanus. The term "tetanus" is described in WEBSTER's DICTIONARY as follows: Tetanus is an infectious, often fatal disease, due to a specific bacterium, Clostridium tetani, which gains entrance to the body through wounds, characterized by more or less violent tonic spasm and rigidity of many or all the voluntary muscles. In the instant case, there cannot be any dispute that the deceased had developed Tetanus as a result of the injuries sustained by him in the accident in question. In the instant case, there cannot be any dispute that the deceased had developed Tetanus as a result of the injuries sustained by him in the accident in question. It is not the case of the insurance Company that the deceased was not admitted to the Government Medical College hospital, Bellary and that he did not die in the hospital. The averments made in the petition is supported by evidence of PW-2 who is the widow of the deceased. There is proximity to the date of the accident and the date of death. It cannot be disputed that but for the injuries sustained by the deceased in the accident in question, there was no occasion to admit him to hospital for treatment. There is no material placed on behalf of the respondent to show that the death of the victim of accident has taken place on account of negligence of Shanmukappa or his legal heirs who were attending on him. When the evidence on record shows that the deceased was admitted to Government Hospital, Chitradurga and thereafter, from the said hospital, he was removed to government Medical College Hospital, Bellary and he died in the hospital, the only inference that can be drawn in the absence of any other evidence is that the deceased had died as a result of the injuries sustained by him in the accident in question. It is necessary to point out that when the victim of the accident is admitted to a hospital neither he nor his close relatives including his legal heirs will not have direct control or the capacity to assess or review the nature of treatment given to the victim of the accident in the hospital. In such situations, even if there is any lapse on the part of the doctors treating the victim of the accident, that cannot be a ground to deprive either the victim of the accident and in case of his death, his legal heirs the compensation to which they are entitled to in law. In such situations, even if there is any lapse on the part of the doctors treating the victim of the accident, that cannot be a ground to deprive either the victim of the accident and in case of his death, his legal heirs the compensation to which they are entitled to in law. The entire matter will have to be viewed keeping in view that the provisions under the Act are made for award of compensation to relieve the hardship either the victim of the accident or the legal heirs that are likely to be put in case of death of the victim of the accident and the object of the legislation being beneficial intended to protect the victim of the accident. But for the injuries sustained by deceased Shanmukappa, in the normal course, there was no scope for him to develop Tetanus which is stated to have been the cause for his death. If the matter is so viewed, we have no hesitation to take a view on the basis of evidence on record that Shanmukappa had died as a result of the injuries sustained by him in the accident. Under these circumstances, we have no reason to disbelieve the evidence of PW-2 that the deceased was admitted to Government Medical College Hospital, Bellary and he died in the hospital. Therefore, we are of the view that the Tribunal was not Justified in holding that death was not as a result of the injuries sustained by the deceased. ( 7 ) RE : question No. 2: The next question that would arise for consideration is what should be the quantum of compensation. The evidence of PW-2 shows that the deceased was working as a Coolie and he was getting a monthly income of Rs. 1,500/ -. We are of the view that the statement made that the deceased was getting an income of Rs. 1,500/- per month is fair and reasonable. Out of monthly income of Rs. 1,500/- he was earning, 1/3rd requires to be deducted towards his personal expenses. In that event, his family contribution per month would be Rs. 1,000/-, and Rs. 12. 000/per year. The correct multiplier to be applied is 17' as per the Schedule given to the Act. In that event, loss of dependency to the family would be Rs. 2,04,000/ -. To that, the widow appellant no. In that event, his family contribution per month would be Rs. 1,000/-, and Rs. 12. 000/per year. The correct multiplier to be applied is 17' as per the Schedule given to the Act. In that event, loss of dependency to the family would be Rs. 2,04,000/ -. To that, the widow appellant no. 1 is entitled to a sum of Rs. 10,000/- towards loss of consortium, the claimants are entitled for award of Rs. 10,000/- towards loss of estate and Rs. 8,000/- towards funeral expenses and transportation expenses of the deceased from Government Hospital, Chitradurga to Government medical College Hospital, Bellary. Rs. 3,000/- is awarded towards medical expenses. Thus in all, the claimants are entitled to Rs. 2,35,000/- with Interest at 6% from the date of the petition till the date of payment. ( 8 ) IN the light of discussion made above, we make the following: order i) The judgment and award dated 19th September 1997, is hereby modified and in its place, a judgment and award is made awarding a sum of Rs. 2,35,000/- with interest at 6% p. a. from the date of petition till payment. ii) The respondent No. 2 Insurance Company is given eight weeks time to deposit the amount awarded from the date of receipt of a copy of this judgment. In the event of respondent No. 2 failing to deposit the amount within the time specified as stated above, the Insurance Company is liable to pay interest at 9% p. a. after the expiry of period prescribed above till the date of payment. iii) The compensation awarded shall be apportioned by all the claimants in equal proportion. iv) The Tribunal is directed to invest 85% of the compensation awarded in favour of 1st appellant in a fixed deposit for a period of six years in any nationalised bank or in a postal deposit scheme, whichever is beneficial to her and as may be suggested by her. However, she is entitled to draw the periodical interest that would accrue on the said deposit. v) The Tribunal is further directed to invest the entire compensation falling to the share of appellants-2 and 3 in a fixed deposit for a minimum period of six years or till they attain the age of 21 years, whichever is later, in any nationalised bank or in a postal deposit scheme, as may be suggested by appellant No. 1. v) The Tribunal is further directed to invest the entire compensation falling to the share of appellants-2 and 3 in a fixed deposit for a minimum period of six years or till they attain the age of 21 years, whichever is later, in any nationalised bank or in a postal deposit scheme, as may be suggested by appellant No. 1. However, the 1st appellant is entitled to draw the periodical interest that would accrue on the said investment till they attain the age of majority and after they attain the age of majority, the said appellants are entitled to draw the interest. ( 9 ) IN terms stated above, this appeal is partly allowed and disposed of. However, no order is made as to costs.