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2024 DIGILAW 1415 (AP)

Gopisetty Kasu v. Tharivitla Pavan Sagar

2024-10-04

V SRINIVAS

body2024
JUDGMENT : V Srinivas, J. This appeal is directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-XIII Additional District Judge at Gajuwaka (hereinafter called as ‘the Tribunal’) in M.V.O.P.No.493 of 2015 dated 04.02.2019. 2. The appellants, who are wife, son, and daughter of Gopisetty Sriramulu (hereinafter referred to as “deceased”) respectively, are the claimants before the Tribunal. The respondent Nos.1 and 2 are owner and insurer of Yamaha FZ-16 Motorcycle bearing No.AP 31 BV 5518 (hereinafter referred to as “crime motorcycle”). 3. For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal. 4. The case of the claimants, in the petition before the Tribunal is that: i). On 22.03.2013 at about 10.00 p.m., while the deceased crossing the road near track at Nathayyapalem Junction, NH-16 Road, Gajuwaka, Visakhapatnam, the crime motorcycle driven by the 1st respondent in a rash and negligent manner at high speed without blowing horn, dashed against the deceased, resulted, the deceased received head injury. On that he was shifted to R.K. Hospital, Gajuwaka, in-turn referred to K.G.H., Visakhapatnam for better treatment, then shifted to St. Joseph Hospital, therefrom shifted to Simhadri Hospital at Visakhapatnam, and again shifted to St. Joseph Hospital, Visakhapatnam, where he succumbed on 04.10.2014. ii). Being dependents, the claimants claimed compensation of Rs.18,30,000/- against the driver-cum- owner and insurer of the crime motorcycle. 5. The respondent No.1 filed counter denying the averments in the petition and pleaded that the accident occurred was not due to the negligence on the part of the 1st respondent, it is only due to the negligence of the deceased and that the crime motorcycle is insured with the 2nd respondent, thereby, prays to dismiss the petition. 6. The respondent No.2 filed counter denying the averments in the petition and pleaded that the death of the deceased was not due to the alleged injuries sustained by him on 22.03.2013; that the claimants are not entitled for any compensation as there is no survival of cause of action long after healing of the alleged personal injuries sustained by the deceased, thereby, there is no nexus for the injuries and death of the deceased on 04.10.2014; that the crime motor cycle was not validly insured with this respondent by the time of accident and thereby, prays to dismiss the petition. 7. 7. The Tribunal settled the following issues for enquiry basing on the material: “1.Whether the deceased Gopisetty Sriramulu, S/o.Appalanarasayya died in the motor vehicle accident occurred on 22.03.2013 at about 10.00 p.m. at Nathayyapalem Junction, NH-16 Road, Gajuwaka, Visakhapatnam due to the rash and negligent driving of motorcycle bearing No.AP 31 BV 5518 Yamaha driven by its driver? 2.Whether the petitioners are entitled to the compensation, if so, to what amount and from which of the respondent? 3.What was the age and income of the deceased at the time of accident? and 4.To what relief?” 8. During enquiry before the Tribunal, on behalf of the claimant, PWs.1 to 4 were examined, Exs.A.1 to A.16 and X.1 to X.4 were exhibited. On behalf of the respondents, the legal officer of 2nd respondent examined as R.W.1, however, no documentary evidence was adduced. 9. On the material, the Tribunal, having come to the conclusion that the claimants failed to prove that the deceased died after long time due to the injuries sustained in the incident dated 22.03.2023, held that the claimant are not entitled for any compensation, thus, dismissed the petition without costs. 10. It is against the said award; the present appeal was preferred by the appellants/claimants. 11. Heard Sri A.S.C.Bose, learned counsel for the appellants/claimants and Sri M.S.Bhanu Prasada Rao, learned counsel representing Sri V.Hemanth Kumar, learned counsel for the 2nd respondent/insurer. 12. Sri A.S.C.Bose, learned counsel for the appellants/claimants submits that from the date of accident till death the deceased was in coma, which is proved by Exs.A.1 to A.16; that the Tribunal failed to consider the testimony of P.W.4; that the accident occurred due to negligence of respondent No.1 only; that the non-conducing of post mortem is not fatal to the case of the claimants; that the deceased died due to the injuries sustained in the incident; that the claimants spent nearly rupees nine lakhs for the treatment of the deceased, thereby, prays to consider the present appeal by awarding compensation. 13. 13. Sri M.S.Bhanu Prasada Rao, learned counsel representing Sri V.Hemanth Kumar, learned counsel for the 2nd respondent/insurer submits that the tribunal after considering the material placed on record, rightly concluded that the claimants categorically failed to prove the cause of death of deceased and no material was placed on record to show the nexus between the injuries and death of the deceased and thereby, prays to dismiss the appeal. 14. Now, the only point that arises for determination is “whether the findings recorded by the Tribunal is liable to be set aside, if so, to what extent?” 15. POINT: It is not in dispute about the date of incident, injuries sustained by the deceased in the incident as well involvement of crime motorcycle. But the contention of the 2nd respondent/insurer is that the claimants are not entitled for any compensation as there is no survival of cause of action long after healing of the alleged injuries sustained by the deceased as there is no nexus for the injuries and death of the deceased on 04.10.2014, when the incident said to be occurred on 22.03.2013. 16. To prove the claim, the claimants mainly relied upon the testimony of P.Ws.3 and 4. P.W.3, who is said to be employee in St. Joseph Hospital of Visakhapatnam, produced Exs.X.2 to 4 i.e., case sheet of deceased, C.T. scan film and X-Ray film. 17. P.W.4, who is consultant Nuro Surgeon of said hospital, testified that deceased was admitted into their hospital on 23.03.2013 with head injury while he was in coma, the deceased sustained Diffuse Axonal injury and Subarachnoid Bleed in the Brain, he was managed by ventilation and the deceased underwent Tracheostomy on 25.03.2013, the deceased was discharged from the Hospital on 11.04.2013 in unconscious state and he was readmitted into his hospital on 23.09.2014 with severe respiratory distress and died on 04.10.2014. 18. To fortify the cause of death of deceased due to the alleged incident, claimants relied upon Exs.A.1 to A.16. But, on perusal of Ex.A.1 copy of F.I.R., the crime was registered against respondent No.1 for the offence under Section 338 of IPC only and the same was not altered under Section 304(A) IPC. No material was placed on record to say that the claimants informed to police about the death of the deceased for alteration of section of law. But, on perusal of Ex.A.1 copy of F.I.R., the crime was registered against respondent No.1 for the offence under Section 338 of IPC only and the same was not altered under Section 304(A) IPC. No material was placed on record to say that the claimants informed to police about the death of the deceased for alteration of section of law. Furthermore, no postmortem examination was conducted to the dead body of the deceased and no claim petition was filed before the Tribunal during the lifetime of deceased for the injuries sustained in the incident. 19. Even during cross examination of P.W.1, who is wife of deceased, categorically admitted that she has not filed any certificate before the Tribunal that her husband died only because of the injuries sustained in the incident. Furthermore, P.W.3 admitted during cross examination that he has no personal knowledge over Exs.X.2 to X.4 as he produced the said documents on Ex.X.1 authorization. P.W.4, on whose testimony claimants solely relied upon to prove the death of the deceased due to the injuries sustained in the incident, unequivocally admitted during cross examination that the patient was not under his medication or his follow up from 11.04.2013 to 23.09.2024 and that he did not get any record for the said period. Thereby, the testimony of P.W.4 is of not much useful to the claimants to prove the nexus between the injuries sustained in the incident occurred on 22.03.2013 and death of the deceased on 04.10.2014. 20. As stated supra, there is no dispute about the date of incident. Except the self-serving testimony of P.W.1, nothing was placed on record from the date of incident, the deceased was in coma and taken treatment in different hospitals. More so, on perusal of Ex.A.4 charge sheet relied by the claimants, the deceased gave statement under Section 161 Cr.P.C. to the investigation officer. Thereby, the case of the claimants that from the date of incident, the deceased was in coma due to the injuries sustained in the incident has no legs to stand. Even Ex.A.7 death report of deceased issued by St. Joseph Hospital does not reveal that the deceased died on 04.10.2014 due to the injuries sustained in the incident occurred on 22.03.2013. Except the bare pleadings, the entire record is silent regarding steps taken by the claimants for the treatment of the deceased to the injuries sustained in incident. 21. Even Ex.A.7 death report of deceased issued by St. Joseph Hospital does not reveal that the deceased died on 04.10.2014 due to the injuries sustained in the incident occurred on 22.03.2013. Except the bare pleadings, the entire record is silent regarding steps taken by the claimants for the treatment of the deceased to the injuries sustained in incident. 21. Viewing from any angle, the claimants utterly failed to prove the cause of death of the deceased on 04.10.2014, when the incident said to be occurred on 22.03.2023 and in the absence of any substantial oral and documentary evidence to prove the cause of death of deceased, the Tribunal rightly discarded the case of the claimants. 22. It is needless to say that when the claimants grossly failed to prove the nexus between the injuries sustained in the incident and death of the deceased, this Court need not dwell into other aspects of rash and negligence and compensation entitled by the claimants to decide the present appeal on merits. 23. Having regard to the above discussion, this Court does not find any fault with the conclusion arrived by the Tribunal. As such, this Court is of the considered opinion that the order of the Tribunal does not suffer from any infirmities and warrants no interference. Thus, this appoint is answered accordingly. 24. In the result, M.A.C.M.A. is dismissed. There shall be no order as to costs. Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.