* THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.M.A. No. 4816 of 2004 % 19.02.2010 # Adepu Sudha and 4 others .. Appellants Vs. $ Smt. Yakub Bee and another (R1 not necessary party for this appeal) .. Respondents ! Counsel for Appellants : Sri C. Yadagiri ^ Counsel for respondent No.2: Sri G.S. Prakash Rao <GIST: >HEAD NOTE: ? CASES REFERRED : 1. AIR 1990 P&H 350 2. 1987 ACJ 411 3. 1980 AIR (SC) 1354 THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 4816 of 2004 Date: 19.02.2010 Between Adepu Sudha and 4 others. Appellants. AND Smt. Yakub Bee and another (R1 not necessary party for this appeal) Respondents. THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 4816 of 2004 Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) Aggrieved by the award dated 27.01.2004 in M.V.O.P. No. 1015 of 2000 passed by the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Warangal, in awarding only Rs.2,00,000/- compensation out of the total claim of Rs.23,00,000/- and seeking enhancement of compensation, the claimants before the Tribunal filed this appeal. 2. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. 3. The first claimant is the wife, the second claimant is the daughter, the third claimant is the son, the fourth claimant is the father and the fifth claimant is the mother of the deceased Adepu Mohan. They filed M.V.O.P. No. 1015 of 2000, under Sections 166 and 163-A of the Motor Vehicles Act and the Rules made there under, claiming compensation of Rs.23,00,000/- for the death of the deceased. 4. The case of the claimants is as follows. The claimants are the residents of Teachers Colony, Waddepally, Hanamakonda, Warangal District. On 16.06.2009, the deceased Adepu Mohan and the first claimant (hereinafter referred as PW.1) along with their daughter Adepu Deepika (the second claimant) and the mother of PW.1 Smt. M. Pushpa went to Vijayawada in a Car bearing No. AP O 2221 and got admitted the second claimant in a residential college and while they were returning to Hanamakonda in the same car on 17.06.1999 and when the Car reached Panthini village at about 1.00 AM, it is alleged that the driver of the Car drove the same at high speed in a rash and negligent manner and as a result of which the Car dashed to the road side culvert, due to the impact, all the inmates of the Car sustained injuries. The deceased sustained the following injuries: (1) Lacerated wound over forehead, (2) fracture of femur, (3) injury to head, (4) fracture of ribs and (5) sprain of right ankle and other injuries. PW.1 stopped a lorry and all the injured were shifted to MGM Hospital at Warangal. PW.1 informed her brother PW.2 about the accident and he came to the hospital. According to PWs.1 and 2, as there was no proper treatment in MGM Hospital, they went to Jaya Hospital at Hanamakonda and were admitted in the said hospital on 17.06.1999. The deceased was treated as inpatient from 17.06.1999 till 09.07.1999. According to PW.2 he was alone looking after all the admitted inpatients in the hospital and was moving from pillar to post to arrange money for the expenses in the hospital and to provide prompt treatment to all the injured. PW.1 was discharged on 21.06.1999. On 22.06.1999 operation was conducted for the fracture sustained by the deceased and plates and screws were fixed. The deceased was directed to take complete bed rest for three months. He was totally immobilized. On 22.08.1999 at about 3.00 AM the deceased complained breathlessness. PW.2 also noticed swelling over the operated portion of leg of the deceased. He was shifted to Jaya Hospital, Hanamakonda, at about 4.00 AM, but Dr. P. Kali Prasad Rao (PW.5), after examining him declared that the deceased succumbed to injuries. He issued a death certificate to that effect. 5. The further case of the claimants is that the deceased was aged about 43 years at the time of his death. He was a Mechanical Engineer and he joined in the Public Works Department of Government of Andhra Pradesh on 20.02.1980 as Junior Engineer with the pay scale of Rs.750/- - Rs.1300/- and at the time of his death he was working as Deputy Executive Engineer in the pay scale of Rs.6,950/- - Rs.14,425/- and he was drawing salary of Rs.13,384/-. The deceased had still 15 years of service. He was entitled for periodical promotions, annual increments and higher pay scales. The average income of the deceased can reasonably be fixed at Rs.18,000/- per month. The claimants filed the claim petition claiming compensation of Rs.23,00,000/- for the death of the deceased. 6. The owner of the Car is shown as the first respondent, who remained ex parte, and the Insurance Company with which the Car was insured is shown as the second respondent. 7. The second respondent filed counter on 22.02.2001, denying the material averments made by the claimants. The second respondent averred that the owner of the vehicle did not inform about the alleged accident and that the vehicle was a private vehicle and it was not supposed to ply as hired vehicle and that the deceased and his family members were traveling by hiring the vehicle and the owner of the vehicle violated the terms and conditions of the policy and that the claim is highly excessive. On 28.05.2003, the second respondent filed additional counter mainly contending inter alia that the claimants did not prove that the injuries sustained by the deceased on 16.06.1999 caused his death. It is also averred that no documents were filed to prove the age of the deceased and that the claimants would have got service benefits such as pension, gratuity and other amounts on the death of the deceased. The second respondent also denied that the accident occurred due to rash and negligent driving of the driver of the Car. 8. The Tribunal framed the following issues for trial. 1. Whether the accident is due to the rash and negligent driving of the driver of the vehicle? 2. Whether the petitioners are entitled for compensation for the death of the deceased, if so, to what amount and from whom? 3. To what relief? 9. In order to prove their case, the first claimant was examined as PW.1 and PWs.2 to 5 were examined and Exs.A1 to A24 were marked. On behalf of the second respondent RW.1 was examined and copy of the police was marked as Ex.B1. 10. Since the Tribunal, on issue No.1, came to the conclusion that the accident occurred due to rash and negligent driving of the Car by its driver, there is no need for any further discussion on the said issue. The Tribunal also held that the contention of the Insurance Company that it is not liable to pay compensation for violation of the condition of the policy is not open since the claim is accepted in other OPs. 11. On issue No.2, the Tribunal came to the conclusion that the claimants failed to prove the cause of death of the deceased and there is no basis to hold that there was any possibility of thrombosis and that the claimants conveniently avoided to conduct post-mortem examination on the dead body of the deceased and the opinion of the Doctors is only a guess work and accordingly rejected the claim of the claimants. However, the Tribunal awarded a sum of Rs.2,00,000/- to the claimants towards compensation. The said finding of the Tribunal is challenged in this appeal. 12. Learned counsel for the claimants submitted that the Tribunal failed to appreciate the natural consequences that follow due to the fracture to neck of right femur and fracture to ribs. His main submission is that when a patient sustained fracture to neck of femur, he cannot move from the bed and he has to confine to the bed. It is further submitted that no reasons are given by the Tribunal to reject the advice given by the Doctors to the deceased to take complete bed rest for three months and immobilization may cause thrombosis. It is further argued that the evidence of PWs.1, 2, 3 and 5 proves that the deceased was immobilized from the date of accident till the date of his death and there is no contra evidence in this case. It is also submitted that the Tribunal failed to understand the psychology of the relatives of PW.1 and their sentiments which forced the claimants to agree for early cremation of the dead body of the deceased without insisting for post-mortem examination. It is further submitted that in rural areas the villagers do not allow the dead body to be kept in the house without cremation for more than few hours. It is also submitted that there is nothing on record to reject the opinion of doctors that immobilization cause thrombosis. It is also argued that the Tribunal failed to consider that there was no proper treatment to prevent embolism. It is further argued that the Tribunal failed to appreciate that the legislation is a beneficial legislation and there is no need to take a negative attitude and even if two views are possible the Tribunal ought to have adopted the view which is in favour of the claimants. 13. The learned counsel for the Insurance Company supported the judgment of the Tribunal and submitted that admittedly no post-mortem examination was conducted and without conducting any post-mortem examination, the cause of death could not be ascertained. It is further argued that the contention of the claimants that the injuries sustained by the deceased resulted in death has no basis and there is nothing on record to show that the deceased died due to thrombosis. 14. The only point that arises for consideration is whether the deceased died due to the injuries sustained by him and whether the findings of the Tribunal are based on proper appreciation of the evidence. 15. Section 169 of the Motor Vehicles Act, 1988 is as follows. 169. Procedure and powers of Claims Tribunals- (1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes asmay be prescribed; and the Claims Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. 16. A reading of Chapter XII of the Motor Vehicles Act, 1988, which deals with constitution of Claims Tribunals (Section 165), application for compensation (Section 166), passing an award (Section 168), procedure and powers of Claims Tribunals (Section 169), preferring of appeals (Section 173) and Bar on jurisdiction of civil Courts (Section 175), makes it clear that separate procedure has been prescribed for awarding compensation to the victims of motor accidents or to the legal heirs of the deceased who died in motor accidents. 17. The Government of A.P., have framed rules called as A.P. Motor Vehicles Rules 1989, prescribing the forms, exemption of the application, for appearance of the parties, summoning of witnesses, recording of evidence, framing of issues and for enforcement of the award of the Tribunal. The relevant rules are as follows. 18. Rule 465 of the A.P. Motor Vehicles Rules is as follows. 465. Method of recording evidence:- The Claims Tribunal shall, as examination of witnesses proceeds, make a brief memorandum of the substance of the evidence of each witness and such memorandum shall be written and signed by the members of the Claims Tribunal and shall form part of the record. Provided that the evidence of any medical witness shall be taken down as neatly as may be word for word. 19. Rule 473 envisages that certain provisions of CPC are applicable to proceedings before the Claims Tribunal, which is as follows. 473. Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be, apply to proceedings before the Claims Tribunal namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXVIII, Rules 1 to 3. 20. Sub-Rule 3 of Rule 476 is as follows. (3) Consideration of the claim :- The Claims Tribunal shall follow the procedure of summary trial as contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) for the purpose of adjudicating and awarding a claim under Chapter X of the Motor Vehicles Act, 1988. 21. Thus, it is clear that the Tribunal has to follow the procedure of summary trial as contained in the Code of Criminal Procedure, 1973 for the purpose of adjudicating and awarding claims and while recording evidence the Tribunal has to make a brief memorandum of the substance of evidence of each witness. Thus, it is clear that the strict procedure prescribed under CPC or under the Evidence Act have not been made applicable for adjudicating the claims under the M.V. Act. 22. In case between Mrs. Vijay Chopra v. Udham Singh[1], it was held that the jurisdiction of the Tribunal is not circumscribed by the rigour of the strict rules of CPC for admitting evidence. 23. In case between Skandia Insurance Company Ltd., v. Kokilaben Chandravadan[2], it was held that when the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The court cannot but opt for the former view. 24. In N.K.V. Bro (P) Ltd., v. M. Karumai Ammal[3], the Hon’ble apex Court observed that in a claim petition under the Motor Vehicles Act the evidence should not be scrutinized in the manner as is done in a civil or in a criminal case. The proceedings before the Tribunal are of the nature of summary enquiry whereas in a criminal case, the rule is of proof beyond reasonable doubt and in a civil case the rule is preponderance of probabilities. If there is some evidence before the Claims Tribunal to prove a fact, no nicety, doubt or suspicion should weigh with it in deciding a motor accident claim case. 25. So, in the light of the above provisions and judgments, we have to appreciate the evidence in this case. 26. There are some peculiar circumstances in this case. Admittedly, the accident occurred on 17.06.1999. The deceased, PW.1 and the mother of PW.1 i.e., all the inmates of the Car sustained injuries. According to PW.1, it was horrible night and she was shocked beyond expression. However, they stopped a lorry and with great difficulty, they were shifted to MGM Hospital, at Warangal. She says that she reported about the accident to the duty doctor. PW.4 Dr. Koteshwar Rao, Professor of Orthopaedics, MGM Hospital, Warangal, also deposed that the patient informed that they sustained injuries in a motor accident. PW.1 also informed her brother PW.2. The specific case of PW.2 is that there was no proper treatment in MGM Hospital, Warangal. It has to be seen that PW.5 who was working as Civil Assistant Surgeon in MGM Hospital, Warangal was the consultant Surgeon in Jaya Hospital. It appears that PWs.1 and 2 had come under an impression that unless they shift the deceased to Jaya Hospital, he might not get proper treatment and on the same day all the injured were shifted to Jaya Hospital. According to PW.4 Dr. Koteshwar Rao, Professor of Orthopaedics, MGM Hospital, Warangal, the patient Adepu Mohan was admitted on 17.06.1999, and he left the hospital on the same day against the medical advice and absconded. It appears that since the patients left the hospital on the same day against the medical advice, no information was given to the police. Admittedly, the deceased was admitted in Jaya Hospital on 17.06.1999 in intensive care unit with injuries; (1) lacerated wound over forehead, (2) fracture of femur, (3) injury to head, (4) fracture of ribs and (5) sprain of right ankle and other injuries. He was operated on 22.06.1999 and plates and screws were applied. He was discharged on 09.07.1999. He was advised bed rest for three months. After discharge, he was brought for follow up treatment on 23.07.1999 and 06.08.1999. Ex.A4 is the discharge card, Ex.A5 is the prescription and Ex.A6 is the medical certificate issued by PW.5. Ex.A6 shows that the deceased was advised complete bed rest for three months. The Tribunal came to the conclusion that Ex.A6 did not mention the cause of death and it does not show that the deceased was immobilized. Now the question is whether the deceased was immobilized or not. According to the Tribunal, there is no satisfactory evidence to show that the deceased was immobilized and that there is no complaint of thrombosis till 20.08.1999. 27. However, a reading of the evidence gives an impression that certain facts were not disputed by the Insurance Company. There is neither rebuttal evidence nor any contra suggestion. For example, PW.1 has categorically deposed that the deceased was completely bed-ridden from the date of accident till the date of his death and completely immobilized. There is no contra suggestion to PW.1. In the absence of any contra suggestion this part of the evidence of PW.1 has to be accepted. 28. Similarly, PW.4 deposed as follows. The fracture of neck of femur takes nearly three months for curing after fixation of screw or plates. Fracture to femur may cause death for some time. It may be a consequence of heart attack or thrombosis. There may be several reasons for clotting of blood. In thrombosis it will be caused immediately during the surgery, immobilization may be caused in future. The only suggestion given to this witness is that he had not seen any record about the complications of the deceased in this case. Admittedly, the deceased was immediately shifted from MGM Hospital to Jaya Hospital. However, the above opinion given by PW.4 also becomes uncontroverted and admittedly there is no rebuttal evidence. Thus, the opinion of PW.4 that the fracture to femur may cause death and may be a consequence of heart attack or thrombosis becomes unrebutted. 29. Similarly, PW.5’s evidence that he advised bed rest for three months to the deceased and that the deceased was brought dead to the hospital and that he had not advised for post-mortem examination also becomes uncontroverted. As far as the opinion with regard to cause of death is concerned, though PW.5 is not certain about the cause of death, however, he had also opined that it may be due to vein thrombosis of the heart and immobility is also one of the cause. 30. In the absence of any contra evidence and any medical authority, the Tribunal ought not to have held that there is no basis to hold that the operation has caused the death or there is any possibility of thrombosis in this case to make any inference for the cause of the death. The Tribunal held that only to suppress the cause of death, the petitioners have avoided post-mortem to the dead body of the deceased. 31. Admittedly, the post-mortem was not conducted in this case. However, PWs.1 and 2 have explained the circumstances under which they could not take steps to conduct post-mortem examination on the body of the deceased. According to PW.2 though he went to the police station, but the Sub-Inspector of Police was not available in the police station and the police informed him that post-mortem examination might be conducted on the next day. According to PWs.1 and 2, PW.1 and second petitioner were continuously weeping and fainting frequently. In villages and rural areas or even in towns, the relatives who gather on hearing the death of any person naturally insist for early cremation. It is their belief that the dead body should not be kept in the house for a longer time and in the above circumstances it is common knowledge that the cremation would be insisted before sunset. In view of the same and in the light of the evidence of PWs.1 and 2 we cannot find fault with them for yielding to the pressure of their relatives for cremating the dead body before sunset. Therefore, we are of the view that PWs.1 and 2 have shown sufficient cause for not holding post-mortem examination on the body of the deceased. 32. Let us examine the complications that may arise due to injuries to lower limbs and spinal injuries and whether immobilization causes thrombosis. In page No.305 of the book “Medical Jurisprudence and Toxicology”, I Edition, written by Dr. K.S. Narayan Reddy, with regard to thrombosis and embolism it is noted as follows: The formation of a clotted mass of blood in the non-interrupted cardiovascular system is called thrombosis, and the clotted mass is known as thrombus. The factors which predispose to leg vein thrombosis after an injury are: (1) local tissue damage, causing injury to veins, (2) an increase in clotting time of blood which is maximum at about two weeks after injury, (3) immobility and bed rest, (4) General debility, especially in the old, leading to poor general circulation and cardiac output. Thus, it appears that deep vein thrombosis known as DVT is a common complication associated with lower limb injuries and spinal injuries and immobilization following trauma leads to venous stasis which may result in thrombosis and thrombosis proximal to the knee is a common cause of life threatening complication of pulmonary embolism. When PW.1 had categorically deposed that the deceased was completely confined to bed, immobilized and was compelled to answer calls of nature at bed, the Tribunal seems to be not justified in holding that the evidence of PW.1 does not show that the deceased suffered immobilization after the injuries and after operation. There is no basis for the finding of the Tribunal that advising bed rest is quite different from immobilization. There is no evidence in this case to show that the deceased was not immobilized. The Tribunal seems to have not considered that immobility and bet rest may cause thrombosis. Though the thrombosis usually develops in 10 to 20 days, but the possibility of its development at subsequent stage is not ruled out. It is also noted in the above referred book that the embolus which blocks the pulmonary trunk causes death in few minutes due to vagal inhibition, acute asphyxia or right-sided heart failure, and no infarction is found in the lungs. Therefore, the view of the Tribunal that the case sheet does not show that the deceased complained any thrombosis reveals that the Tribunal did not take into consideration that the thrombosis may develop at a subsequent stage and may cause result within few hours. Merely because there was no record to show that the deceased did not complaint of thrombosis that cannot be a reason to reject the evidence of PW.1, PW.4 and PW.5 and