IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.399/2004 Reserved On 18th July,2008. Date of Decision:18th August,2008 Smt.Dutt Kali and others. …Appellants. . Versus: Shashi. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the appellants: Mr.Arvind Sharma,Advocate. For Respondent . Mr.Paras Doger, Advocate. Sanjay Karol, J. The present appeal arises out of the award dated 7th October, 2004 passed by Motor Accident Claims Tribunal, Kullu, District Kullu dismissing the Claim Petition No. 30 of 2003 titled as Smt. Dutt Kali and others Vs. Shashi, filed by the legal heirs of deceased Sh.Dil Bhadur On 13th August, 2002, vehicle No. HP-41-0063 being driven by respondent No.1 herein, fell into a deep gorge and as a result of the accident one of its passengers Sh. Dil Bhadur suffered injuries. The injured was hospitalized in the surgery ward of the Zonal Hospital, Kullu w.e.f. 16th August, 2002 to 11th September, 2002. As an out door patient he got 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 his treatment from the Zonal hospital, Kullu and private hospital near Zonal Hospital, Mandi, but, however, on 2nd February, 2003 succumbed to his injuries at his residence. At the time of his death he was 56 years of age and was working as a contractor (Class-B) with I.P.H. and Public Works Department of the State of H.P. at Kaza and was paying income tax. He was survived by his wife, one major son and two minor daughters. The legal heirs of the deceased Sh.Dil Bhadur filed a petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’) claiming compensation of Rs.15,00,000/-. In the petition, it was specifically mentioned that after the discharge of the deceased from the Zonal Hospital, Kullu, District Kullu,H.P. the deceased was under regular treatment. The vehicle was not insured and the owner and the driver filed written statement disputing that the accident occurred due to rash and negligent driving but admitting that the deceased had suffered only simple injuries and had died a natural death. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the accident had taken place due to rash and negligent driving of van No.HP-41-0063 by its driver respondent No.1 in which Sh. Dil Bhadur received injuries and thereafter succumbed to it, as alleged?. ….OPP. 3 2. Whether the petitioners are entitled for compensation, if so to what amount and from whom?. …OPP. 3. Relief. In order to support its case the claimants examined Dr. Namgial (PW-1), Medical Officer, Primary Health Centre, Raison, District Kullu, Smt. Sarswati Negi (PW- 2), Senior Tax Assistant Income Tax Office, Rampur Bushahr, Sh.Baldev Kumar (PW-3), Medical Officer, Regional Hospital, Kullu, Sh. Prem Lal (PW-4), Medical Officer, Regional Hospital, Kullu, Sh. Charanjit Chaudhary (PW-5) and Smt. Dutt Kali (PW-6). Respondent examined himself as RW-1. Appreciating the material on record, the Tribunal came to the conclusion that the accident had taken place due to rash and negligent driving of the vehicle by the respondent, but, however dismissed the petition on the ground that the claimants had failed to prove that the deceased had died due to the injuries suffered by him in the accident. Hence the present appeal by the claimants. I have heard learned counsel for the parties and also perused the record. The respondent herein (who was also the respondent in the claim petition) has not filed any appeal against the finding of fact recorded by the Tribunal to the effect that the accident occurred due to the rash and negligent driving on the part of the said respondent. The 4 same is not assailed even during the course of the hearing. Hence, no interference is warranted on this question of fact. The fact that the accident took place and the deceased received injuries is not in dispute. Even according to the respondent the deceased had received simple injuries. In order to ascertain as to whether the death was a result of the injuries received by the deceased in the accident the evidence led by the claimants needs to be scrutinized. Dr. Namgial (PW-1), who was posted as Medical Officer in the Zonal Hospital, Kullu, has proved on record the discharge slip (Ext.PW-1/A) as also the medical certificate (Ext.PW-1/B). The Surgeon of the hospital had treated the deceased and subsequent to his discharge from the hospital he was brought frequently for further treatment as an out door patient. The attendants of the deceased had been advised to take him to Chandigarh. The deceased died at his residence and no post mortem was conducted. Dr. Baldev Kumar (PW-3) posted as Medical Officer had treated the deceased both as an indoor and out door patient who has deposed that the deceased was treated in the surgical ward of the hospital for the injuries (fracture left humerus). Dr. Prem Lal Thakur (PW-4) has proved the discharge slip (Ext.PW-1/A) and also follow-up treatments vide Ext.PW-1/C and Ext.PW-1/D given to the deceased. According to him, the deceased was treated for head injury 5 and fracture of left humerus. He denied the suggestion that the patient was discharged as he had recovered but admitted that the condition of the patient from the date of the admission till the last follow up treatment had, however, improved. According to him, the deceased was last treated on 13th December, 2002 when he was referred to Neuro Surgeon for the reason that due to head injuries certain “complications residual” must have occurred. Sh. Charanjit Chaudhary (PW-5) has proved the medical bills Ext. PW-5/1 to Ext.PW-5/16. Smt. Dutt kali (PW-6) categorically deposed that the regular treatment was given to the deceased and he was discharged from the hospital by the doctors for the reason that sufficient accommodation was not available and there was no space in the hospital for long treatment. The deceased was getting his treatment from various hospitals, but, however, his condition did not improve and he died as a result of the injuries sustained due to the accident. The witnesses have also deposed with regard to the dependability as also the income of the deceased. But, however, for the purpose of adjudication of the controversy in issue, the same is not being looked into. The respondent’s statement as RW-1 with regard to the injury is only to the extent that the deceased who had suffered injury was discharged from the hospital and he died a natural death. 6 From the perusal of Ext.PW-1/A it is evident that Sh.Dil Bhadur received head injury and was receiving regular treatment up to 13th December, 2002 when he was referred to the Neuro Surgeon. Medical bills mark-1 to mark-9 and Ext. PW-5/1 to Ext.PW-5/16 prove the payments made for the purchase of medicine and the treatment of the deceased. On record there is a report dated 17th August, 2002 and 12th November, 2002 of Dr. A.Mohite, Radiologist, Banga Diagnostic Centre, near Zonal Hospital, Mandi suggesting that the patient had been receiving treatment for a head injury of a serious nature. However, these reports were not proved in accordance with law and cannot be looked into. But be that as it may be, medical bills mark-8 and mark- 9 prove the payment made by the deceased for C.T. Scan of the head and Ext.PW-1/D dated 28th October, 2002 issued by the Zonal Hospital, Kullu, records Sh.Dil Bhadur to be an old case of head injury. Therefore, from the discharge slip (Ext.PW-1/A) and treatment slips (Ext.PW-1/D and Ext.PW- 1/C) it is evident that the deceased was receiving treatment for a head injury and as late as 13th December, 2002 he had been referred to a Neuro Surgeon. The discharge slip also shows that he had been examined even on 13th December, 2002. Smt. Dutt Kali (PW-6) has stated that the deceased received the treatment from home and succumbed to the injuries on 2nd February, 2003. Even though, no post mortem was got done, but, however, it is evident from the record that 7 the deceased had not fully recovered and was continuously under medical treatment for the head injury received in the accident. It is not the case of the respondent that the deceased had suffered any previous injury and was receiving any medical treatment for the same. In my view there is enough evidence to establish that the deceased had died due to the injury received by him in the accident. The court below has wrongly dis-believed the statement of PW-1 only on the ground that being a friend of the deceased he ought to have attended the cremation. PW-1 is a Government employee and may have had certain limitations. In any event that cannot be a ground for disbelieving the witness particularly when the other attending doctors PW-3 and PW-4 have corroborated his version and proved the fact that treatment was given to the deceased in the hospital. No doubt, PW-4 deposed that the condition of the deceased had improved, but, however, it is also true that just about one month prior to his death the deceased had been referred to a Neuro Surgeon because the head injury had shown the sign of “complication residual”. The accident took place on 13th August, 2002. The deceased was admitted in the surgical ward of the Zonal Hospital of the State w.e.f. 16th August, 2002 to 11th September, 2002. He continuously took treatment till 13th December, 2002 when he was referred to a Neuro Surgeon but unfortunately expired on 2nd February, 2003 i.e. within 8 less than five months from the date of accident. Regular medical treatment was being administered to the deceased. The condition was not improving and he had not recovered from the injury which was a result of an accident. Simply because he stood discharged from the hospital would not be enough to suggest that his condition had improved. For the aforesaid reasons, the findings of fact recorded by the court below as also the award dated 7th October, 2004 is set aside. It is held that the deceased died due to the injury received in the accident. However, since the Tribunal did not decide issue No.2, the matter is remanded back for adjudication thereof. Considering that the petition was filed in the year 2003, it is expected of the Tribunal to dispose of the petition at the earliest and not later than 31st December, 2008. The record along with a copy of this order be sent to the Tribunal immediately and the parties through their learned counsel are directed to appear before the Tribunal on 1st September, 2008. (Sanjay Karol), Judge. August 18, 2008.(R)