IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.71 of 2008 and M.P.No.1 of 2009 Subara Bi @ Tharama Bi .. Appellant/ II Petitioner Vs 1.Bhasheeria ..Respondent/ III Petitioner 2.National Travels Bangalore ..Respondent/ 1st Respondent 3.The Oriental Insurance Co., Ltd., Bangalore .. Respondents/ II Respondent (Notice may be dispensed with against 2nd respondent as he remained exparte in the lower court and first respondent/3rd petitioner has not joined appeal RR1 & 2 Given up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 16.10.2006, made in M.C.O.P.No.258 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Pantruti. For appellant : Mr.U.Minnavadi For respondents : Mr.T.Kumar for R3 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second petitioner against the Award and Decree, dated 16.10.2006, made in M.C.O.P.No.258 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Pantruti, awarding a compensation of Rs.59,568/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Having not been satisfied with the said Award and Decree, the appellant/second petitioner has filed the above appeal praying for additional compensation of Rs.10,00,000/-. 3.The short facts of the case are as follows: The first petitioner was working as a supervisor in Aziz Exchange Company in Dubai and earning a sum of Rs.14,000/- per month. He came to India in the month of June, 1999. He came to Bombay to get visa to go to Dubai, but was informed that he will get the visa only after a month. So, he boarded the first respondent's bus bearing registration No.KA01 C9990, at Bombay Datra bus stand on 02.01.2001, in order to go to Bangalore. While the said bus was proceeding at P.V.Road (within Karnataka State) and had passed Shingatha Village, on 03.01.2001, at 4.30 p.m. the driver of the said bus drove the bus at a high speed and in a rash and negligent manner and dashed against a lorry, lost control of the bus and dashed the bus subsequently on a road side tree. As a result of this the bus turned turtle. Due to this, the first petitioner sustained severe injuries all over his body. As a result of injuries the petitioner was not able to move his legs and arms and the portion of his body below his chest and also been paralysed. Due to this, the petitioner is unable to control his bowel movements and excretion of urine and he is bed-ridden. He spent more than Rs.2,00,000/- on medical expenses. As such, the petitioner had claimed a compensation of Rs.15,00,000/- with interest and costs from the respondents, who are the owner and the insurer of the said bus involved in the accident, under Section 166 (1) of the Motor Vehicles Act. 4.Subsequent to the filing of the petition, the first petitioner took treatment at Hospitals in Chennai, Cuddalore and Nellikuppam, but in spite of treatment, the first petitioner succumbed to his injuries on 20.12.2002. The second and third petitioners, who are the wife and sister of the deceased first petitioner have been added as necessary parties in the claim case as they are dependants of the first petitioner. 5.The second respondent, the Oriental Insurance Company Limitted, Pondicherry has resisted the claim denying the averments in the claim regarding the manner of the accident. It has been stated that there was a huge parcel (luggage) on the top of the bus and that the same had been hit by the branches of a tree, while the bus was proceeding on the road. As a result of the impact, the bus driver lost his control of the bus. As such, it has been submitted that the accident was not caused due to any fault on the part of the bus driver. https://hcservices.ecourts.gov.in/hcservices/ 6.The second respondent has also not admitted the averments in the claim regarding the nature of injuries sustained by the petitioners and has stated that this should be proved through documentary evidence. It has also been submitted that the first respondent's bus bearing registration No.KA01 C9990 had not been insured with them at the time of accident. It was also submitted that the route permit of the bus, driving licence of the driver of the first respondent and the registration documents should be produced by the petitioners to establish their case. The second respondent has also denied the averments in the claim regarding the age, income and occupation of the first petitioner. 7.It has been submitted that in the claim, it has been stated that the first petitioner came to India in the month of June, 1999 and arranged to get the visa renewed in the second week of December, 2000, in Mumbai. The second respondent has pointed out that if the petitioner had worked as a supervisor from 1973 in Dubai and it he had come to India on leave, then there was no necessity to get the visa renewed. It has been alleged that on the date of accident, the first petitioner was not in service or employment under the alleged company at Dubai. 8.The second respondent has also submitted that the first petitioner had not died due to the injuries sustained in the accident as his death had occurred only on 20.12.2002 ie.after a period of two years from the date of accident ie.03.01.2001. The second respondent has also denied the averments in the claim wherein it has been stated that the second and third petitioners had spent a sum of Rs.3,00,000/- for the medical expenses of the first petitioner and Rs.20,000/- for funeral expenses. It has also been submitted that the third petitioner being the sister of the deceased first petitioner, is not dependant under the first petitioner as she is a married woman. It has been submitted that the claim is excessive and has to be dismissed with costs. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Due to whose negligent had the accident occurred? (ii) Is the petitioner entitled to receive compensation as prayed for? If so, who is liable to pay compensation to the petitioner? 10.On the petitioners' side two witnesses were examined as PW1 and PW2 and 23 documents were marked as Exs.P1 to P23. On the respondents' side no witness was examined and no documents were marked. https://hcservices.ecourts.gov.in/hcservices/ 11.The second petitioner, PW1, in her evidence deposed that the first petitioner was her husband and the third petitioner's brother; that he had been working as a supervisor at Aziz Exchange at Harbus in Dubai for the past 20 years; that he came to India in the month of June, 1999; that subsequent to his leave, he had gone to Mumbai in the month of December, 2000 to enquire about his visa to Dubai; that as he had been informed by the authorities at Mumbai, that he would get his visa only after a month; that on the night of 02.01.2001, he had boarded a bus at Dathra bus stand in Mumbai in order to go to Nellikuppam via Bangalore; that he had travelled in the first respondent's bus ie.National Travels bus bearing registration No.KA01 C9990 in order to go to Bangalore; than when the said bus was proceeding on the P.V.Road, in Shingatha Village in Karnathaka, on 03.01.2001 at 04.30 p.m. the bus driver had driven the bus at a high speed and in a rash and negligent manner and dashed against a stationery lorry, thereby losing his control and subsequently dashing the bus against a road side tree; that she had claimed a compensation of Rs.15,00,000/- from the respondents. 12.The eye witness of the accident, one Selva Kumar was examined as PW2. The PW2, in his evidence deposed that he knew the petitioners as well as the deceased Zakir Hussain; that he had also travelled in the said bus in order to go to Nellikuppam; that on 02.01.2001 at about 4.30 p.m. he had boarded the said bus and was sitting on the seat behind the first petitioner; that on 03.01.2001 at about 08.30 a.m. in the morning, when the bus was proceeding on P.V.Road in Shingatha Village in Karnataka State, the bus driver had driven the bus at a high speed and in a rash and negligent manner; that on seeing a lorry coming on the opposite side of the same road, the driver of the bus, in order to avoid collision with the said lorry, had swerved the bus to the left side of the road; that because the bus had a heavy luggage on top, the bus driver was not able to control the bus; that due to this the bus had dashed against a road side tree and fell into a pit adjacent to the tree. 13.The Tribunal on scrutiny of the Ex.P2,the copy of the FIR, wherein it has been stated that the accident occurred on 03.01.2001 at 04.30 a.m. while the bus was proceeding on the P.V.Road and that at this point of time the driver of the bus had driven the bus at a high speed and in a rash and negligent manner and dashed the bus against a road side tree. 14.On scrutiny of Ex.P3, the Motor Vehicle Inspector's Report of the said bus, it is seen that the accident had not occurred due to any mechanical defects in the said bus. 15.The Tribunal, on scrutiny of the evidence of the PW1 and PW2 and as well as documentary exhibits marked as P2 and P3 held https://hcservices.ecourts.gov.in/hcservices/ that the accident had been caused only by the negligent of the driver of the first respondent's bus. 16.On scrutiny of Ex.P11, the copy of the Insurance Policy, it is seen that the said bus involved in the accident had been insured with the second respondent at the time of accident. Further as no evidence or documentary evidence was let in by the respondents side, to prove their contention that the said bus had not been covered under a valid policy of insurance and that the driver of the bus did not have a valid driving licence, the Tribunal held that the second respondent is liable to pay compensation to the injured first petitioner. 17.The said accident happened on 03.01.2001 and the injured petitioner had filed the claim petition on 29.10.201. While the claim case was pending before the Court, the injured petitioner died on 20.12.2002. Subsequently, the wife of the petitioner and the sister of the petitioner had requested the Court to conduct the trial of the claim case and get them compensation. 18.On scrutiny of the Ex.P1, the FIR and the Medical Treatment Certificate listed as Exs.P7 to P13 and also on scrutiny of the copy of the photo of the first petitioner marked as Exs.P14 and P15, it is evident that the first petitioner had sustained injury only due to the said accident. But, the petitioners had not marked any documentary proof to establish that the first petitioner had died only due to the injuries caused in the said accident. The petitioners had also not filed the post-mortem certificate of the deceased first petitioner. The Tribunal, on considering that the first petitioner had died on 20.12.2002 ie.after a period of two years from the date of the said accident and that even the post- mortem report of the deceased and medical evidence had not been produced by the petitioners were not able to come to a decisive conclusion that the first petitioner had died only due to the injuries caused in the said accident. The respondents had contended that the petitioners cannot claim compensation for the death of the first petitioner and are only entitled to get reimbursement of medical expenses spent for the treatment of the first petitioner and in support of their contentions had cited a Judgement in case law 2000 TLNJ, Page 370, Managing Director, Pandian Roadways Corporation Ltd., Madurai Vs. S.Rajalakshmi and others, wherein it had been ruled that "In all the above decisions, the Division bench as well as supreme court had taken note of section 306 of the Indian Succession Act and have held that claim for compensation in respect of personal injuries will not be available for the legal representatives provided the death was not caused as a result of the accident. The supreme court has also https://hcservices.ecourts.gov.in/hcservices/ pointed out that the position would be different if the suit for damages had resulted in a decree in favour of the plaintiff in which case the decree amount would from part of the estate of the deceased to which the legal representatives would be entitled to. But where no such decree has been passed the legal representatives of the claimant will not be entitled to compensation due towards personal injuries are concerned. Therefore, I have no other alternative except to allow the appeal in so far as the amount which has been awarded towards personal injuries. The legal representatives of the claimants would be entitled only to be compensated as regards the actual expenses incurred by claimant for his treatment." 19.The Tribunal on considering that the case law cited was relevant to the instant case and was in consonance with it held that the petitioners are entitled to get compensation only for the medical expenses incurred by them for treatment of the first petitioner. 20.Accordingly, the Tribunal on scrutiny of Exs.P16, P17 and P18, the medical bills marked held that the petitioners are entitled to get a sum of Rs.59,568/- being the medical expenses incurred by them for treatment of the first petitioner. 21.Resultantly, the Tribunal awarded a sum of Rs.59,568/- as compensation to the petitioners and directed the second respondent to deposit the above said award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.258 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Pantruti, within a period of one month from the date of its Order. From and out of the award amount, the Tribunal apportioned Rs.49,568/- to the second petitioner as her share and apportioned Rs.10,000/- to the third petitioner as her share. Further, after such deposit was made, the award was to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioners were permitted to receive interest on their apportioned share of award, once in six months directly from the bank. The petitioners were directed to pay the Court fees due on the award amount. The Advocate fees was fixed at Rs.2,460/- and the second respondent was directed to pay the cost of Rs.2,659/- to the petitioners. 22.Learned counsel appearing for the appellant/second petitioner has contended in his appeal that the Tribunal has https://hcservices.ecourts.gov.in/hcservices/ allowed only the medical expenses incurred for the treatment of the deceased and that the Tribunal had mistakenly held that post-mortem certificate was a necessary document. It has been pointed out that the High Court had held on a number of times, that the post-mortem certificate was not an indispensable document. It was also pointed out that the Tribunal had failed to note that the salary of the deceased was Rs.14,000/- per month. It was also contended that the Tribunal should have accepted the disability certificate marked as Ex.P8, which indicated 100% disability of the deceased first petitioner and that he was being treated till his death. As such, it was pointed out that the Tribunal should have accepted this fact of treatment and granted relief for the death of the deceased by applying the multiplier theory. 23.It has been pointed out that the appellant is taking steps to get the pay particulars of her husband from his employer at Dubai. It was also contended that the Tribunal should have granted at least Rs.20,000/- to the appellant under the head of loss of consortium and Rs.10,000/- under the head of transport expenses. As such, it has been prayed by the learned counsel appearing for the appellant to allow the appeal and grant an additional compensation of Rs.10,00,000/- to the appellant. 24.The learned counsel appearing for the appellant, in support of his contentions has cited the following Judgments made in 2003 ACJ 475, High Court of Madras, Pallavan Transport Corporation V. Saroj Goyal and others, the relevant head notes of which are as follows: "Negligence – Corporation bus came on to wrong side of its road and dashed against a motorcyclist who succumbed to his injuries – Defence that motorcyclist suddenly crossed the road from left to right – Driver of bus deposed that motorcyclist while overtaking another motor cycle came to the right side of his road and dashed against the front left side bumper of the bus despite the fact that he had halted the bus – Driver's version is not in consonance with the stand taken in the written statement – Corporation failed to produced M.V.I.'s certificate from where it could have been seen whether there was any impact or damage on left front bumper of the bus – Eyewitness corroborated claimants' version and he denied that deceased while overtaking other vehicles came to the right side of his road and dashed against the bus – Road was wide enough to drive 3 buses at a time – No case of the Corporation that there is any adjacent street in the north to say that the deceased suddenly took a right https://hcservices.ecourts.gov.in/hcservices/ turn to enter the northern side – Neither the claimants nor the Corporation have summoned police records, FIR, sketch, outcome of police investigation; thus the only evidence available to adjudicate about negligence is the deposition of the eyewitness and the bus driver – Evidence of eyewitness is more probable and acceptable – Tribunal held that the bus driver was rash and negligent in causing the accident – Tribunal's finding upheld in appeal." 2009 (1) TN MAC 465, High Court of Madras, Oriental Ins.Co.Ltd. v. N.Meenal and others, the relevant head notes of which are as follows: "Accident took place on 8.9.1994 and deceased died on 23.2.1995 – Whether death due to injuries sustained in accident or due to other reasons? - Non-conducting of post-mortem examination – Effect. Medical evidence, oral and documentary, establishing that deceased suffered complications in kidney as an exposure of fracture in femur neck, swelling in kidney, germs generation in kidney causing high blood pressure and due to high B.P. Cerebral haemorrhage causing death – Non-conducting of post-mortem therefore would not shatter medical evidence particularly in absence of contra- medical evidence on side of Appellant – Would show that deceased die due to injuries sustained in accident. Compensation – Quantum – Deceased being aged 41 years a clerk in bank, Tribunal fixing Rs.7,360 as income as per salary certificate and after deducting 1/3 applying multiplier of 15 and awarding Rs.8,83,260 towards pecuniary Loss, and Total Compensation at Rs.9,24,435,held, proper. MOTOR VEHICLES ACT, 1988, Ss.166, 168 & 173 – Appeal against award of compensation by Insurer – Accident took place on 8.9.1994, but injure died on 2.3.1995 – Contention that Deceased not died on account of injuries sustained in Road Accident but due to other reasons – Stand of claimants that death was due to compilation which occurred aftermath the accident and that death is attributable to bad consequences of injuries sustained by deceased – Evidence of Doctor/P.W.2, who treated deceased, that deceased's right knee damaged https://hcservices.ecourts.gov.in/hcservices/ and was suffering from pain in right kidney region and that deceased was affected by Pyonephrosis and due to cerebral haemorrhage he died – P.W.2 in his chief-examination said that due to accident deceased's right side kidney got swelled, germs found in kidney and germs generation caused high blood pressure and hence his kidney could not be removed and due to high B.P. Cerebral haemorrhage occurred and deceased died – Medical Certificate issued by P.W.2 would show that deceased was treated for fracture in neck of femur (rt.) and his right kidney damaged and he had intermittent pain in right kidney area and that high blood pressure caused cerebral haemorrhage – In Discharge Summary – Ex.P.6 through it is not directly referable to kidney complication, it stated that in right hip joint, swelling, tenderness and pain movements were found – Since there was swelling in right hip joint it may be discerned that no only it is exposure of fracture inside but also other inflammations in internal organs in right hip region – Therefore, in a nutshell it can be stated that even at time of accident his right knee got affected and was not specifically diagnosed but complication subsisted – Concentration seems to have been made on fracture neck of femur (rt.) - Another Medical Certificate available in Ex.P.6 shows that from 10.9.1994 to 10.01.1995 injured was advised to take sick leave as he had undergone hemiarthroplasty – For injuries suffered on 8.9.1994 deceased died on 23.02.1995 and no post-mortem examination conducted on deceased, hence it is responsibility of Court to go deep into matter and find out whether death was caused by injuries sustained in accident for ends of justice – Close connection between medical evidence as found in oral testimony of P.W.2 and entries available in Ex.P6 – Evidence of P.W.2 not rebutted by Appellant and no steps taken in that regard – Case bereft of medical evidence on side of Insurer/Appellant – When medical evidence established that deceased suffered complications in kidney and cerebral haemorrhage occurred, which was outcome of kidney swelling and generation of germs by means of high Blood Pressure, even though no post-mortem was conducted, it would not shatter strength of medical evidence – Absence of https://hcservices.ecourts.gov.in/hcservices/ contra-medical evidence would probabilise claimant's version – Nothing on record to brush aside evidence of P.W.2 which is natural, convincing and satisfactory – Therefore, held, although death is not end product of accident directly it is resultant of accident – No infirmity either factual or legal found in award passed by Tribunal. MOTOR ACCIDENT CLAIM – Compensation – Quantum – Determination – Fatal Accident – Deceased : Aged 41 years, a clerk in bank earning Rs.7,360 p.m. - Injuries : Accident took place on 8.9.1994 in which deceased suffered injuries in right knee and hip joint : Swelling in kidney and germs generations found : High Blood pressure causing cerebral haemorrhage due to which deceased died on 23.2.1995 – Claim : Rs.15,76,250 – Claimants : Wife and minor children – Award of Tribunal : Rs.9,25,425 – Appeal against – Loss of Dependency/Pecuniary Loss : Taking monthly income at Rs.7,360 p.m. as per Salary Certificate and after deducting 1/3rd towards Personal Expenses, annual Dependency arrived at Rs.58,884 : Applying multiplier of 15 Tribunal awarded Rs.8,83,260 – Medical Expenses : Rs.26,175.50 – Loss of Consortium : Rs.10,000 – Funeral Expenses : Rs.5,000 – Total Compensation : Rs.9,24,435 awarded by Tribunal, held, proper – Interest : 9% p.a." 2008 ACJ 158, High Court of Punjab and haryana at Chandigarh, State of Haryana and others V. Sukhpal and others, the relevant head notes of which are as follows: "Motor Vehicles Act, 1939, section 110-A [Section 166 of 1988 Act] – Claim application – Fatal accident – Death of injured after 1 year and 7 months of the accident – Deceased suffered fracture of spine and became paraplegic with 100 per cent disablement – Deceased remained hospitalised for about a year and died after 7 months of discharge – Contention that as the death occurred after 7 months of his discharge from the hospital, injured died a natural death – No evidence that deceased suffered any other injury or ailment like heart disease or stroke – Whether the Tribunal was justified in concluding that death occurred due to injuries sustained by the deceased in accident and awarding compensation https://hcservices.ecourts.gov.in/hcservices/ to the claimants accordingly –