Andhra Pradesh High Court - Amravati
Gopisetty Kasu vs Tharivitla Pavan Sagar on 4 October, 2024
APHC010124152019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
FRIDAY ,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
NO: 750/2019
Between:
Gopisetty Kasu and Others ...APPELLANT(S)
AND
Tharivitla Pavan Sagar and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
A S C BOSE
Counsel for the Respondent(S):
V HEMANTH KUMAR
The Court made the following:
JUDGMENT:
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 1 st
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. 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. 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. 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. 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.
______________________
JUSTICE V.SRINIVAS
Date: 04.10.2024
Krs
THE HON'BLE SRI JUSTICE V.SRINIVAS
DATE: 04.10.2024
Krs
