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2012 DIGILAW 1749 (BOM)

New India Assurance Company Ltd. v. Shivdas Pandurang Mopari, Amravati (Now dead) Legal Heirs

2012-09-13

M.N.GILANI

body2012
Judgment The judgment and award dated 29.9.2007 passed by the Motor Accident Claims Tribunal, Amravati in M.A.C.P. 1308/1998 is challenged in this appeal. 2] The facts may be stated thus: On 22.8.1987 the offending vehicle met with an accident because of its rash and negligent driving by the original respondent no.1. One Shivdas who was travelling in said vehicle sustained multiple injuries mainly injuries to Cervical Vertebrae C3 to C6 of the quadriparesis and chest. He sustained 100 % permanent disability and for that claim petition was filed. During pendency of the petition he died and therefore his legal heirs were brought on record. 3] The original respondent no.1 and 2 appeared before the Tribunal and resisted the claim. It was their case that one truck dashed against the jeep and caused accident. The original respondent no.3 – appellant herein appeared and filed written reply. It was their case that deceased was travelling as a fare-paying passenger. Further respondent no.1 i.e. driver of the offending vehicle was not holding valid driving licence. The learned Tribunal framed as many as four issues. Parties went to trial on those issues. Three witnesses were examined on behalf of the claimants. No witness in defence was examined. After considering the evidence on record and also holding that there was nexus between the injuries sustained by the deceased and his death which occurred on 1.8.1998, and assuming his income at Rs.3000/-per month and after deducting one third of the same towards his person and living expenses, the learned Tribunal awarded compensation by applying multiplier of 16 since the age of the deceased was between 35 to 45 years. 4] Mr. Dharaskar, learned counsel appearing for the appellant mainly raised two issues. Firstly, it is contended that the nexus between the injuries sustained in an accident and the death of the deceased having not been established the learned Tribunal committed an error in awarding compensation assuming that the deceased died due to injuries sustained in the motor vehicular accident. Secondly, it is contended that the respondent no.1 was not holding valid driving licence so also the deceased was fare-paying passenger. As such there was breach of term of insurance policy and therefore, no liability could have been fastened upon the appellant. Secondly, it is contended that the respondent no.1 was not holding valid driving licence so also the deceased was fare-paying passenger. As such there was breach of term of insurance policy and therefore, no liability could have been fastened upon the appellant. 5] There is voluminous evidence produced on record to suggest that the deceased had suffered serious injuries because of fracture of Cervical Vertebrae C3 to C6 of the quadriparesis and chest. The deceased was an indoor patient in CIIMS Hospital during period from 24.8.1997 to 20.9.1997. He was required to be operated upon by the Neuro Surgeon. Exhibit 68/2 to 68/18 are the medical papers. Exhibit 69 dated 20.9.1997 shows that because of these injuries the deceased had got severe chest infection. The deceased continued to remain under medical treatment which is evident from the various medical case papers placed on record including the bills showing purchase of medicines. 6] The learned Tribunal relied upon the evidence of C.W.3 Dr. Vijay Bakthar. He deposed that during the period from 20.9.1997 to 4.10.1997 the deceased was admitted to hospital and thereafter he was referred to CIMMS Nagpur. According to him when the patient was referred, he was crippled and... quadriparetic. He explained the term quadriparetic means that both the legs and hands of the patient are paralyzed. He further deposed that the patient was unable to move and he was totally bedridden and was 100% disabled. Then he opined that the primary cause of death was accidental cervical cord injury. Admittedly, there was no postmortem over the dead body. Even assuming for the sake of arguments that there was no nexus between the injuries and the cause of death of the deceased still the appellant should not have any grievance. This is for the reason that deceased had became totally paralytic and his disability was 100%. Thus had deceased survived the quantum of compensation would have been more than what has been awarded for the simple reason that there would have been no one-third deduction while assessing the loss of dependency. Thus the appellant should not have any grievance to make on this point. 7] The learned Tribunal relied on decision in case of Habibnur Khan & others ..vs.. Govind Singh and another [2007 A.C.J.1329, where death had occurred after 11 months due to injuries sustained in accident. Thus the appellant should not have any grievance to make on this point. 7] The learned Tribunal relied on decision in case of Habibnur Khan & others ..vs.. Govind Singh and another [2007 A.C.J.1329, where death had occurred after 11 months due to injuries sustained in accident. There was no postmortem report nor medical certificate to that effect that death was due to injuries sustained in the accident. It was held that strict proof of a criminal trial cannot be adopted while dealing with civil liability in a motor accident claim under a welfare legislation. The another decision relied on is Venkata Lakshmamma and others ..vs.. M.P. Subbarayudu and another] reported in 2007(1) TAC 390(AP). It was the case wherein the death had occurred after a period of one year. 8] The next contention is about the breach of term of insurance policy. The learned Tribunal has observed that no evidence to this effect has been produced on record. It is pertinent to note that on behalf of the appellant the pursis Exhibit 87 was filed declaring their intention not to examine any witness in defence. That being so, the learned Tribunal was right in answering issue no.3 in negative. 9] For the reasons aforestated, there being no merit in this appeal, it is liable to be dismissed. The appeal is dismissed accordingly. No order as to costs.