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2013 DIGILAW 4070 (MAD)

M. Saraswathy v. Union of India

2013-11-29

S.VIMALA

body2013
JUDGMENT 1. The wife of the deceased is the appellant. The daughter and son are the second and third respondents. 2. Mathiyazhagan, aged 48, a Secondary Grade Teacher, suffered seven lacerated injuries, three abrasions and three contusions, which included fracture of eight right rib, on account of fall from Train No.6106 (Quilon Mail) running from Rajapalayam. He suffered 30% permanent disability. He was taking treatment from 02.05.1998 to 26.10.1999. 2.1. Originally, the injured himself filed the Application, under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 123 (c) (2) and Section 124-A of the Railways Act, 1989, for compensation in respect of the injuries sustained by him, contending that the injuries were on account of untoward incident that occurred to him. Due to the pendency of petition to condone the delay of 124 days, in CMP No.35 of 2000, the Application was pending for registration. During that time, the injured died on 16.06.2001. The Legal Representatives, i.e., the appellant and respondents 2 and 3, filed petition, to implead themselves and that CMP was allowed. It is the specific case of the injured that he travelled in Quilon Mail on 01.05.1998 with Ticket No.00252. 2.2. It is the case of the claimants that the injuries sustained on 01.05.1998 was the cause for the death on 16.06.2001 and in view of the nexus between the injuries and the death, the Railway Administration is responsible for compensating the loss. 3. The case of the Railways stands on two contentions:- (i) There was no untoward incident, as defined under Section 123 (c) and 124-A of the Railways Act. It is not an accidental fall as defined in Section 123 (c) of the Railways Act and therefore, the Railway is not liable to pay the compensation. (ii) The death was not an outcome of the injuries sustained. The injured invited his own death by not engaging the services of the Specialist to treat his ailment and also getting himself discharged from the hospital against medical advice. 4. The fall from train is not under dispute. Though in the reply statement, the alleged incident on 01.05.1998 is disputed, they have admitted the same before the Tribunal that the injured sustained injuries due to the fall from the train on 01.05.1998. This admission has been recorded in paragraph 5 of the order of the Tribunal. 4. The fall from train is not under dispute. Though in the reply statement, the alleged incident on 01.05.1998 is disputed, they have admitted the same before the Tribunal that the injured sustained injuries due to the fall from the train on 01.05.1998. This admission has been recorded in paragraph 5 of the order of the Tribunal. Therefore, the only issue disputed is, whether the death was on account of the injuries sustained. 5. Learned counsel for the appellant submitted that the issue as to whether injury was the cause for death can be better answered by a qualified Doctor and this aspect has been proved by the evidence of P.W.2, the Doctor, who treated the injured. It is also contended that in the absence of contra evidence to the effect that the injury sustained cannot cause death, the evidence of P.W.2, the Doctor, examined should be accepted. 5.1. Per contra, the learned counsel for the first respondent / Railways submitted that neither the injured took treatment from a specialist nor the Doctor, who treated the injured, is a specialist and therefore, the evidence of P.W.2 (Doctor) cannot be accepted, as correct. It is also contended that as the injured got himself discharged against medical advice and omitted to take treatment from a specialist, then the conclusion is that, his death was out of his own negligence and not out of the accident. 5.2. Whether this contention is reasonable and it can be accepted, is the point to the considered? 6. When it is stated that the injured invited his own death, whether it could have been out of volition or on account of frustration, because of circumstances beyond the control of the party. What is the natural human expectation - Is it to die or is it to live? Except the suicidal death, which is taken either momentarily or on account of extreme frustration, no human being want to die. This is better illustrated in the following observation, given in the Article titled “Who wants to live forever?” written by Jayne C. Lucke and Wayne Hall. “.... Human civilization has been fascinated with overcoming death. Immortality, eternal youth or at least the prospect of reaching biblical age have had a strong lure for religion, art and popular beliefs. .... This is better illustrated in the following observation, given in the Article titled “Who wants to live forever?” written by Jayne C. Lucke and Wayne Hall. “.... Human civilization has been fascinated with overcoming death. Immortality, eternal youth or at least the prospect of reaching biblical age have had a strong lure for religion, art and popular beliefs. .... ...for the first time, modern science may provide the knowledge and tools to interfere with the ageing processes and fulfill this age-old dream. This possibility has triggered an intense debate among scientists and ethicists about the potential of anti-ageing therapies and their ethical and social consequences. Given that anti-ageing therapies could dramatically change the social fabric of modern societies, it is quite astonishing that these debates have neglected the views of the larger public. .... Several promising scientific developments may lead to interventions that could extend human life expectancy beyond the longest lifespan observed so far: 122 years, a record held by a French woman. Researchers are trying to use the enzyme telomerase to overcome the limit of somatic cell divisions to stop or slow cell senescence (Flanary, 2002; Hayflick, 2003). Others are searching for substances that mimic the effects of caloric restriction, which has been shown to extend the lifespan of mice by up to 30% (Ingram et al, 2004). The Human Genome Project has also provided new targets for pharmaceutical therapies that could slow ageing or prevent various age-related diseases (Guarente, 2003). On the basis of such developments, intervening in the biological process of ageing is now discussed in the scientific literature as a real future possibility (Aaron & Schwartz, 2004; de Grey et al, 2002a). As a result, scientists, ethicists and demographers have begun to consider the probable outcomes of life extension research. Some, such as the trans humanists, believe that humans may attain immortality in the near future and that this is a goal worth pursuing (Elliot, 2003). At the opposite end of the spectrum, critics of life extension research doubt that even small increases in the maximum human lifespan would be possible (Olshansky & Carnes, 2001) and argue that we should focus our efforts on increasing average lifespan instead.” 6.1. The expectation of every human being is to live for ever i.e., even beyond the maximum life span, except in few cases under exceptional circumstances. The expectation of every human being is to live for ever i.e., even beyond the maximum life span, except in few cases under exceptional circumstances. Such being the case, why should the injured get himself discharged against medical advice or why should the injured did not avail the services of the specialist, has to be considered in proper perspective. 6.2. First of all, this defence has not been taken by the Insurance Company at the inception. Had it been taken in the pleadings, there should have been an explanation coming forth. Under these stated circumstances, only an inference could be drawn from the available materials. Availing specialist services involve huge expenditure in terms of money and time. Many a time, specialist services are special to special classes and not to all people. Being a teacher, the injured may not have had sufficient money to take the services of specialist. That does not mean that the ordinary Doctors are incompetent to offer medical services. Therefore, the evidence of P.W.2 cannot be discarded. Neither it could be concluded that the death occurred only on account of negligence of the injured himself. 6.3. In support of the contention, the decision reported in II (2005) ACC 426 : 2005 ACJ 433 : 2005 (1) CHN 22 (Vidhyawati v. A.Guruswamy), is relied upon, wherein in paragraphs 19 and 21 of the said judgment, it has been held as follows:- “19. In such a situation, the question is whether injury can be described as a cause of death. Such question can be answered effectively by the Doctors who treated him. In this case P.W. 5, a Professor of Medicine in the Department of Benaras Hindu University has in clear terms indicated that the injury on the right leg that was sustained by the patient was one of the reasons of his death. In cross-examination, the said Professor has further stated that the injuries that he found might cause infection and might perpetuate failure of several organs of the body one by one. On the face of such opinion of the Doctor, no suggestion in cross-examination to the contrary was given to the said witness nor have the respondents examined any other expert showing that in the present case injury cannot be the cause of death. 21. On the face of such opinion of the Doctor, no suggestion in cross-examination to the contrary was given to the said witness nor have the respondents examined any other expert showing that in the present case injury cannot be the cause of death. 21. As indicated above, in the absence of any medical opinion contrary to the one given by P.W. 5, this Court is left with no other alternative but to accept his version that injury was one of the causes of death. We find no reason to either ignore or disbelieve the opinion of P.W. 5, the Professor of Medicine of the University in the absence of any other opinion on the subject. Once the injury arising from the accident is found to be the primary cause of death, the claimant should be entitled to get compensation for the loss of life of the victim. It is now settled position of law that if the cause of death is integrally connected with the injury sustained in the accident and is one in the chain of causa causens, the cause of death must be attributed to the injury suffered in the accident.” 6.4. Yet another decision is the one reported in 2011 ACJ 2603 (Union of India v. Bholirai), wherein the distinction between the phrase 'caused by' and 'arising out of' has been analysed in the context of the applicability of the principles for determining causal relationship between the user of a motor vehicle and the accident which resulted in death of disablement. The decision of the High Court of Australia, which was relied upon by the Hon'ble Supreme Court, in the case of Shivaji Dayanu Patel v. Vatschala Uttam More, reported in (1991) 3 SCC 530 , reads thus:- “34. In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expression's imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expression's imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. This distinction has been lucidly brought out in the decision of the High Court of Australia in Government Insurance Office of N. S.W. v. R.J. Green's, case supra wherein Lord Barwick, CJ has stated: "Bearing in mind the general purpose of the Act I think the expression 'arising out of must be taken to require a less proxionship of the injury to the relevant use of the vehicle than is required to satisfy the words `caused by'. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression 'arise out of' as used in the Act and in the policy." 35. In the same case, Windeyer, J. has observed as under: "The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. `Caused by' connotes a `direct' or 'proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence." 6.5. Yet another decision worth quoting is the one reported in the case of Kalavati Sakharam Ingulkar vs Mahindra Ugine Steel Co. Ltd. on 6 April, 1988(1993) III-LLJ 768 Bom) : 1988 ACJ 1014. “4. .... The fact of the matter was that the workman had not fully recovered even for a day to join his duties after the injury was caused to him due to the accident till his death. The Commissioner was, therefore; not at all justified in holding that the death was not even attributable to or accelerated by the injury. If the workman was having huge stones in both the kidneys for years and nothing had happened, he could as well have survived for few more years but for the injury.” 6.6. These decisions point out the way in which the evidence has to be appreciated by interpreting the provisions with reference to the objective of the enactment. If the workman was having huge stones in both the kidneys for years and nothing had happened, he could as well have survived for few more years but for the injury.” 6.6. These decisions point out the way in which the evidence has to be appreciated by interpreting the provisions with reference to the objective of the enactment. The Motor Vehicles Act, under which the phrase, 'arising out of' has been used requires negligence to be proved. It is not the requirement under the Railways Act. Therefore, this Court can safely conclude that the proximity between the injury and the death is wider and in that view of the matter, it can be taken as nexus between injury and death is proved on the basis of the available materials. 7. The next issue to be considered is, when a decree is passed for money, whether award of interest is essential. 7.1. Neither The Railway Claims Tribunal Act, 1987 nor The Railways Act, 1989, make provision for payment of interest on any awarded amount. In cases where the Statute does not make any specific provision for payment of interest, whether the Court can grant interest invoking the provisions of Interest Act of 1978 and Section 34 of the Code of Civil Procedure. Section 3 of the Interest Act, 1978 speaks about power of the Court to allow interest. Similarly, Section 34 of the CPC empowers the Court to order interest on a decree for payment of money. 7.2. Therefore, even though the relevant statute is silent with regard to payment of interest, it cannot silence the power of the Court to grant interest invoking the pari materia provisions available under other enactments. This view is supported by the decision reported in 2009 (7) SCC 372 (Thazhathe Purayil Sarabi and others v. Union of India and another). “Normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. Interest is essentially a compensation payable on account of denial of the right to utilize the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. Interest is essentially a compensation payable on account of denial of the right to utilize the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. As regards the question as to since when is such interest payable on such a decree, though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings till the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues”. 7.3. The Supreme Court of India in the case of Thazhathe Purayil Sarabi & Ors. vs Uoi & Anr. on 14 May, 2009 held: “1.1. .... the power of the Courts to grant interest can also be referred to from the provisions of the Interest Act, 1978 and the Code of Civil Procedure. [Para 13] [79-E; 79-G-H; 80-A] 1.2. The Court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants.” 8. In the result, the order passed by the Railway Claims Tribunal is set-aside and the Civil Miscellaneous Appeal is allowed. The first respondent shall pay the compensation of Rs.4,00,000/- with interest at 7.5% from the date of petition to till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this judgment; the appellant would be entitled to a sum of Rs.3 lakhs and the respondents 2 and 3 are entitled to a sum of Rs.50,000/- each, with proportionate interest. No costs.