THE HON'BLE SRI JUSTICE M. LAXMAN
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
No.1865 OF 2007
JUDGMENT:
1. The present Motor Accident Civil Miscellaneous Appeal is filed challenging the order and decree dated 30.03.2007 in O.P.No.1062 of 2002 on the file of the Motor Accident Claims Tribunal (VIII Additional District Judge) at Nizamabad, (hereinafter referred to as 'Tribunal'), wherein and whereby the petition filed by the appellants herein seeking compensation for injuries and death of one Smt. Lambadi Soni (hereinafter referred to as 'injured/deceased'), was dismissed.
2. The challenge in the present appeal is made on two grounds. The first ground is that the Tribunal went wrong in holding that there is no accident, when there is contra evidence. The evidence on record of the police as well as the eyewitness clearly demonstrates that the accident is result of negligence on the part of the driver of the offending lorry, which is owned by respondent No.1 and insured with respondent No.2 herein. The second ground is that the Tribunal has failed to fix the compensation relating the death of the injured/deceased to the accident.
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3. Learned counsel for respondent No.2-insurance company contended that the appellants failed to establish that the injuries sustained by the injured/deceased are related to the accident and such death was on account of proximate relation of the injuries sustained by the injured/deceased. Since there is no evidence the Tribunal has rightly held that the accident is not proved. It is further contended that there is no postmortem report to indicate that the death of the injured/deceased was on account of injuries sustained by her in the accident. According to the learned counsel of respondent No.2, only fracture injuries were found on her body, which cannot be attributed for her death. The evidence of P.W.3- doctor clearly demonstrates that there is no affirmative evidence to show that the death of the injured/deceased was result of injuries sustained by her in the accident.
4. Heard both sides.
5. P.W.2 is eyewitness and Ex.A-1 is First Information Report (FIR) and Ex.A-6 is charge sheet. Initially, the police found that there is rash and negligence driving in causing the injuries to the injured/deceased in the accident. Subsequently, FIR under Ex.A-3 was issued by the Medak Rural Police Station on complaint under suspicious death of the injured/deceased. The said FIR under 3 Ex.A-3 was referred to Bhiknoor Police Station. The Police Bhiknoor after completion of such investigation filed charge sheet under Ex.A-7 and the same shows that the death was on account of rash and negligent driving of the driver of the lorry, which was involved in the accident. There is no evidence from the respondents to show that no accident occurred. The Tribunal in spite of lack of such evidence found that there was no rash and negligence and there was no accident. This finding is contrary to the evidence on record. The evidence on record clearly shows that there was accident and such accident was result of rash and negligent driving. Such finding of the Tribunal requires to be set aside and the same is hereby set aside. This Court holds that the accident was on account of rash and negligent driving of the crime vehicle.
6. Now, the question is whether the death of the injured/deceased was relatable to injuries sustained by her in the accident. The medical certificate under Ex.A-2 shows that the injured/deceased sustained only Grade-II compound supra-condoler i.e., fracture of right femur and laceration over right knee. The age of the injured/deceased was only 45 years.
7. P.W.3 is doctor, who conducted postmortem examination of the injured/deceased. As per, Ex.A-4 is postmortem certificate, the 4 cause of death was on account of renal failure and septicemia secondary to osteomyelities. Osteomyelitis may occur on account of infection due to germs, which can enter through blood stream or spreading from nearby tissue. Such infections can also begin in bone, if injury exposes the bone to germs. It can cause bone death and it can impede blood circulation to bone. The persons with chronic health conditions such as diabetes and kidney failure are more prone to develop osteomyelitis. Further, septicemia infection occurs when bacteria enters into blood stream and spreads. It can lead to sepsis, the body reaction to the infection, which can cause organ damage and even death.
8. There is no scientific evidence from P.W.3 whether the septicemia was developed on account of exposure of bone to the germs on account of injuries sustained by the injured/deceased and there was bone death. When septicemia can be caused for various reasons, attributing bone injury as a causative factor is one out of many probable happening. It cannot be assertively said that such a bone injury was causative factor for ostemyelitis. The evidence of P.W.3 further shows that he is not clear about whether ostemyelitis is result of injury or for any other reasons. There is no observation of bone death and there is also no observation that whether any infection is caused near injury. If such things are there, it cannot be 5 assumed septicemia was on account of injuries. From such evidence it cannot be said that death was on account of injuries sustained by her in the accident. The Tribunal has rightly opined in this regard.
9. The evidence on record shows that the deceased sustained fracture of right femur and she was under treatment and she incurred nearly Rs.7,000/- towards medical expenses under Exs.A-13 to A-16. She was an agriculturist. Her services to agriculture and family were deprived on account of injuries and the same cannot be ignored.
10. Learned counsel for respondent No.2-insurance company contended that the present action of the appellants herein claiming compensation on account of injuries sustained by the injured/deceased is not maintainable, in the light of maxim 'actio personalis moritur cum persona'. The said contention is partly sustainable. The said maxim cannot be applied in toto. In this regard, it is apt to refer to the judgment of the Apex Court in the case of The Oriental Insurance Company Limited vs. Kahlon @ Jasmail Singh Kahlon 1, wherein the Apex Court by relying upon the decision of Umedchand Golcha vs. Dayaram 2 and decisions of other High Courts and also the judgment of the Apex Court in the case of 1 2021 SCC OnLine SC 691 2 2002 (1) MPLJ 249 6 Parmindar Singh vs. New India Assurance Co. Ltd.3, held that the legal representatives of the deceased injured are entitled to continue the litigation claiming compensation on account of loss of estate. The loss of estate includes medical expenses, travelling, attendant, diet, doctor's fee and reasonable monthly annual accretion to the estate for a certain period.
11. In the present case, the injured incurred medical expenses of nearly Rs.7,000/-. As she was under treatment, she must have incurred travelling expenses, attendant charges and expenses for diet. Hence, this Court is inclined to grant an amount of Rs.20,000/- as compensation altogether towards said expenses.
12. The injured/deceased was agriculturist and the year of accident was 2002. Considering the year of accident, the notional monthly income of injured/deceased is taken as Rs.3,500/- for two years period, which comes to Rs.84,000/- (Rs.3,500/- X 24 months). The said amount is awarded towards annual accretion to the estate.
13. The total amount of compensation granted to the appellants towards injuries and death of the injured/deceased by this Court comes to Rs.1,04,000/- [medical expenses, transportation charges, 3 (2019) 7 SCC 217 7 attendant charges and diet charges: 20,000/- + annual accretion to the estate for a certain period: Rs.84,000/-].
14. In the result, the Motor Accident Civil Miscellaneous Appeal is partly allowed by granting an amount of Rs.1,04,000/- towards compensation for injuries and death of the injured/deceased to the appellants. The amount of compensation shall carry interest at 7.5% per annum from the date of filing of the O.P. till the date of realization. Respondents are held jointly and severally liable for the said compensation and they are directed to deposit the said amount to the credit of O.P. along with accrued interest within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the appellants are permitted to withdraw the entire amount. The appellants are directed to pay deficit Court fee, if any, on amount of compensation granted over and above the claimed amount. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.
_______________ M.LAXMAN, J Date: 19.09.2023.
GVR