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2016 DIGILAW 1165 (RAJ)

Sushila Devi v. Heeralal

2016-08-11

ARUN BHANSALI

body2016
JUDGMENT Arun Bhansali, J. This appeal for enhancement of compensation is directed against the judgment and award dated 24.03.2000 passed by the Motor Accident Claims Tribunal, Ratangarh ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs. 10,000/- as compensation along with interest @ 12% per annum w.e.f. the date of application i.e. 17.08.1994. Further direction has been given that the respondents No. 1 to 3 and 4 to 6 would be liable to pay the amount in proportion of 50% each. 2. The application was filed by Smt. Sushila Devi along with her 10 children seeking compensation for the death of their husband/father Jhabarmal, who suffered injuries and during course of treatment expired. It was, inter alia, contended that on 24.02.1994 at about 1:00 p.m., the deceased along with Jagdish Prashad and Noranglal was travelling in Maruti Car No. ML-05-0483 from Salasar to Chhapar. At about 2:00 p.m. when they reached towards Sujangarh, Jeep No. RJI-5851, which was being driven by Heeralal was seen approaching with great speed, the driver of the Maruti Car took the Car on one side, despite that the Jeep collided with the Car resulting in grievous injuries to the occupants of both the vehicles. In the accident along with Jhabarmal his wife Sushila Devi, cousin sister Bhagwani Devi, Mother Hukmi Devi also suffered injuries, Jhabarmal had fracture in pelvis and left foot and he was admitted to Government Hospital Sujangarh, where he remained admitted up to 09.03.1994. On 17.03.1994, when the Jhabarmal again was not feeling well, he was taken to Kalyan Arogya Sadan, Bajaj Gram, Sikar, and was admitted there, where at about 5:30 p.m., he died. 3. It was claimed that from the date of accident till his death, the deceased spent time in great mental and physical difficulties, the death occurred on account of rash and negligent driving by the driver of the Jeep and Car for which both are responsible along with insurance companies and the owners. 4. It was indicated that the deceased was driver with Rajasthan State Road Transport Corporation ('RSRTC'), he was aged 56 years and his monthly income was Rs. 4,007/-. A compensation to the tune of Rs. 5,00,000/- towards loss of income, Rs. 50,000/- towards medical treatment, Rs. 20,000/- towards funeral expenses and under various other heads was claimed, in all a sum of Rs. 7,04,500/- was sought as compensation. 5. 4,007/-. A compensation to the tune of Rs. 5,00,000/- towards loss of income, Rs. 50,000/- towards medical treatment, Rs. 20,000/- towards funeral expenses and under various other heads was claimed, in all a sum of Rs. 7,04,500/- was sought as compensation. 5. Reply to the application was filed by the Insurance Company indicating that the accident occurred on account of contributory negligence of both the drivers. Further plea was taken by the insurer of the Jeep indicating that the driver was not holding valid licence and, therefore, there was violation of policy condition and the Insurance Company was not liable. Further plea was taken that the vehicle was being used for hire and reward and, therefore, also the Insurance Company was not liable. 6. The Tribunal framed six issues. On behalf of the claimants AW/1- Sushila, AW/2- Noratan and AW/3- Dr. Sanwarmal were examined and 21 documents were exhibited, on behalf of the respondents, NAW/1 - Kamlesh Kumar was examined and document Exhibit-1 was exhibited. 7. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by both the drivers of the Car as well as Jeep, which resulted in injuries to Jhabarmal as indicated in Exhibit-5 & 7. Thereafter, the Tribunal examined the aspect as to whether Jhabarmal died on account of the injuries suffered in the accident and/or whether at all the accident was the proximate cause, which led to the death of Jhabarmal. The Tribunal after considering the statement of AW/3- Dr. Sanwarmal, the fact that in the document Exhibit-20, the reason of death indicated was 'Cardiorespiratory Arrest', the fact that after the accident occurred on 24.02.1994, the deceased was initially discharged from the hospital on 09.03.1994, came to the conclusion that the death did not occur on account of the injuries suffered in the accident. The statement of Dr. Sanwarmal – AW/3 indicating the accident as the cause of the death was not believed on account of the indication made in Exhibit-20. 8. Regarding the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that both the Insurance Companies were liable to make payment of the amount of compensation. The statement of Dr. Sanwarmal – AW/3 indicating the accident as the cause of the death was not believed on account of the indication made in Exhibit-20. 8. Regarding the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that both the Insurance Companies were liable to make payment of the amount of compensation. While deciding the amount of compensation the Tribunal found that the claimants were entitled to compensation only to the extent of loss to estate and based on that, compensation to the tune of Rs. 10,000/- was granted. Along with the said amount interest was ordered to be paid on the said amount. 9. It is submitted by the learned counsel for the appellants that the Tribunal committed grave error in coming to the conclusion that the death of Jhabarmal did not occur on account of the injuries suffered by him on 24.02.1994. It was submitted that the Dr. Sanwarmal – AW/3 in his statement very clearly indicated that on account of the fractures, the patient develops fat embolism, which results in sudden heart attack and can result in death of the patient. However, the said statement of the doctor was wrongly brushed aside by the Tribunal based on the certificate Exhibit-20 given by him indicating the 'Cardiorespiratory Arrest' as the cause of death. It was further submitted that the deceased was survived by 11 family members i.e. wife and 10 children, aged between 5 years to 29 years and the dismissal of the application for compensation has been most unjust to the said claimants. It was submitted that the deceased was aged 56 years and had a stable job with RSRTC as driver and on account of his death the appellants have suffered and, therefore, the claim as made, deserves to be accepted. 10. Learned counsel for the respondent both the Insurance Companies submitted that the award passed by the Tribunal does not call for any interference, inasmuch as, the Tribunal has given cogent reasons for coming to the conclusion that the accident was not the proximate cause of death of Jhabarmal and merely because he had suffered injuries and died on account of heart attack cannot be a reason for awarding compensation on account of the accident, taking the accident as a reason for death. It was submitted that the material available on record does not indicate that the death occurred as a result of the accident and, therefore, the claim on account of the accident having resulted in death has no basis. In the alternative, it is submitted that the claimants have failed to prove the amount of compensation sought by them and excessive amount without any basis has been sought and, therefore, they are not entitled to the amount claimed as compensation. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. It is not in dispute that the deceased Jhabarmal suffered fracture in pelvis and his foot on account of the accident, which occurred on 24.02.1994 and remained hospitalized from 24.02.1994 till 09.03.1994 at Government Hospital, Sujangarh. After he was discharged from the hospital on 09.03.1994, within seven days the deceased on account of his physical condition, again went to the hospital at Sikar, where he was admitted at Kalyan Arogya Sadan, Bajaj Gram, and there the said Jhabarmal died. The doctor in his certificate Exhibit-20 indicated that the deceased was admitted in the hospital on 17.03.1994 for treatment of 'fracture in leg and fracture in pelvis' and expired on 17.03.1994 due to 'Cardiorespiratory Arrest'. It is not in dispute that the fractures to the deceased occurred on account of the accident which happened on 24.02.1994. It is also not the case of any of the non-claimants that the deceased was suffering from any Cardiac problem before the accident, inasmuch as, no question was put in the cross-examination of AW/1-Sushila regarding any existing heart ailment to deceased-Jhabarmal. Dr. Sanwarmal – AW/3, in his examination-in-chief clearly indicated that when the deceased was admitted to the hospital, his condition was not good and though a physician was called, for some reason he could not attend him. It is also indicated that the 'Cardiorespiratory Arrest' happened on account of the fractures suffered by the deceased. In the cross-examination the said doctor indicated that though the cause of death indicated was 'Cardiorespiratory Arrest', on account of multiple fractures resulting in fat embolism, which appears to the cause and denied that fat embolism has anything to do the shock and reiterated that the same occurred on account of the fractures including pelvis fracture, which was suffered by the deceased. The doctor denied the suggestion that the patient did not die on account of the fractures. On further cross-examination he clarified that he had indicated in the certificate Exhibit-20 that the patient was admitted for treatment in relation to his fractures and that he died on account of the 'Cardiorespiratory Arrest'. 13. The Tribunal, as already noticed hereinbefore, merely based on the fact that it was indicated in Exhibit-20 that the patient died due to 'Cardiorespiratory Arrest' has rejected the evidence of the doctor. 14. The said determination by the Tribunal is ex-facie incorrect. The Tribunal misinterpreted the implication of the certificate, inasmuch as, the doctor had specifically indicated that on account of the fractures the patient suffered fat embolism, which resulted in 'Cardiorespiratory Arrest' but the fractures and fat embolism led to the said 'Cardiorespiratory Arrest', which aspect has been totally ignored by the Tribunal. As already noticed, this was nobody's case that the patient was already suffering from heart ailment and, therefore, the rejection of the plea that the accident resulted in death of deceased-Jhabarmal cannot be sustained. 15. The Division Bench of Gujarat High Court in the case of Shantaben Ambalal Sutaria and ors v. Valjibhai Harjibhai Patel and ors : 1992 ACJ 321 , after referring to large number of medical literature, held as under: “26. Therefore, the above said expert opinion goes to show very clearly that fact embolism is a common complication in case of multiple fractures and that the fact embolism remains the major cause of death in patients dying with fresh fractures. It is also further clear that Warthin, way back in 1913, had concluded that fat embolism was the most frequent cause of death after fracture of the long bones. In view of the above said clear medical expert opinion we are of the opinion that the learned Tribunal also was required to come to the conclusion that the deceased had died because of the development of fact embolism following the multiple fractures due to the motor vehicular accident. It appears that the view that it is not possible to conclude that the death had occurred due to fat embolism cannot be accepted regard being had to the above said expert opinion. 27. It appears that the view that it is not possible to conclude that the death had occurred due to fat embolism cannot be accepted regard being had to the above said expert opinion. 27. We want to lay emphasis upon the fact that the deceased was a healthy man aged about 54 years and even after disposing of the textile unit he was serving at the monthly pay of Rs. 1,000/- and he was able enough to ride over a two-wheeler, namely, the scooter. The evidence of the widow suggests very clearly that he was completely healthy and had no ailment or disease. The say of the widow as noticed above has gone unchallenged. The original opponents were not able to bring on record that the deceased was suffering from any other ailment or disease which could have been the cause of his death within a week or so after having sustained the accidental injuries. Moreover, as noticed above, this important aspect of the case of the applicants has not been challenged by the other side while filing the W.S. 28. Moreover, we cannot overlook the fact that the deceased was in a healthy condition and was not suffering from any other disease prior to the accident. He would not have died suddenly and some cause has to be found out and assigned for his death. We would say that the manifest cause of death would be the accidental injuries and fractures which had resulted into fat embolism. Mr. Desai has tried to urge that the deceased might have died because of the heart failure or a heart attack or any other some such fatal ailment. But there is not even a suggestion made to the widow and the daughter that the deceased was having any such ailment. In absence of any evidence showing that the deceased had died because of some other ailment or disease, it would be nothing but entering into an unfathomable arena of guesswork by saying that the deceased might be suffering from any other disease or ailment which could have been proved to be fatal. In absence of any evidence showing that the deceased had died because of some other ailment or disease, it would be nothing but entering into an unfathomable arena of guesswork by saying that the deceased might be suffering from any other disease or ailment which could have been proved to be fatal. In view of this position, we are unable to agree with the finding of the learned Tribunal that it is not conclusively proved that deceased had died due to fat embolism resulting from the accidental injuries.” In view of the above discussion, the finding of the Tribunal on issues No. 1 and 3 is reversed to the extent that it is held that the deceased-Jhabarmal died on account of injuries suffered by him in accident dated 24.02.1994. 16. In view thereof, the appellants-claimants are entitled to compensation on account of death of deceased-Jhabarmal. It is not in dispute that Jhabarmal was driver with the RSRTC, which is evident from the salary certificate Exhibit-21, wherein his salary has been indicated at Rs. 3,907/- per month, which includes his Pay, DA, HRA & WA. The deceased was aged 56 years. Further looking to the number of dependents on deceased, which are large in number i.e. 10 children, though out of 10 children, 6 sons are major, still looking to the total number of dependents, the amount of personal expenses deserves to be deducted by ?th and multiplier of 9 deserves to be applied, in view of law laid down by Hon'ble Supreme Court in the case of Sarla Verma and ors. v. Delhi Transport Corporation and anr. : (2009) 6 SCC 121 . 17. So far as the award of future prospects is concerned in view of law laid down by Hon'ble Supreme Court in the case of Rajesh v. Rajbir Singh : 2013 ACJ 1403 wherein 15% amount towards future prospects for persons beyond the age of 50 years has been awarded, the said amount also deserves to be awarded to the claimants. 18. 18. So far as the other amounts sought by the claimants are concerned, the claimants have not produced any medical bills pertaining to the treatment of the deceased and though the claimant-Smt. Sushila in her statement denied that she has not taken the reimbursement from the RSRTC, the same appears to be the only reason for not producing any bills and/or evidence regarding the expenses incurred on medical treatment of the deceased. The claimant-Smt. Sushila is entitled to a sum of Rs. 50,000/- towards loss of consortium and the children, 10 in numbers of the deceased are entitled to a sum of Rs. 10,000/- each towards the loss of love & affection. 19. Further the claimants are also entitled to the funeral expenses to the tune of Rs. 5,000/-. The amount of Rs. 10,000/- towards loss of estate awarded by the Tribunal does not call for any interference. 20. The appellants would also be entitled to interest @ 7% per annum on the amount of compensation from the date of application i.e. 30.11.1994 to the date of actual payment. The amount of compensation is determined as under: For the loss of income = Rs. 3,907 x 12 x 9 = 4,21,956 – 84,391 = 3,37,564 + 50,634 = Rs. 3,88,198/-, which is rounded of Rs. 3,88,200/-. For the loss of consortium Rs. 50,000/- For the loss of love & affection Rs. 10,000 x 10 = Rs. 1,00,000/- For funeral expenses Rs. 5,000/- For the loss of estate as awarded by the Tribunal Rs. 10,000/- Total Rs. 5,53,200/- Out of the above total amount, a sum of Rs. 3,53,200/- along with interest be paid to appellant No. 1- Smt. Sushila Devi. The appellant No. 2 to 11 be paid a sum of Rs. 20,000/- each along with interest. 21. In view of the above discussion, the appeal is allowed. The impugned judgment and award dated 24.03.2000 is modified to the extent that the appellants would be entitled to compensation to the tune of Rs. 5,53,200/- along with interest @ 7% p.a. w.e.f. 30.11.1994 till actual payment from the respondents. The amount be paid in the Saving Bank account of the claimants. The liability of respondents No. 1 to 3 and 4 to 6 would be 50% each as apportioned by the Tribunal. 5,53,200/- along with interest @ 7% p.a. w.e.f. 30.11.1994 till actual payment from the respondents. The amount be paid in the Saving Bank account of the claimants. The liability of respondents No. 1 to 3 and 4 to 6 would be 50% each as apportioned by the Tribunal. The amount if any already paid along with interest @ 12% per annum awarded by the Tribunal would be adjusted towards the amount payable to the appellants. The Insurance Companies respondent Nos. 3 and 6 are directed to make payment of the amount of compensation in equal proportion within a period of six weeks from the date of the judgment.