Bombay High Court
Bhajanlal S/O Haguruji Ramteke & ... vs Hardsih S/O Kisanchand ... on 28 April, 2016
Bench: A.S. Chandurkar
574-J-FA-228-07 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.228 OF 2007
1. Bhajanlal s/o Hagruji Ramteke
aged about 60 years.
Occ. Driver
2. Rukhmabai w/o Bhajanlal Ramteke,
aged about 54 years,
Occ. Household,
3. Latika wd/o Avinash Ramteke
aged about 30 years,
Occ. Household,
4. Master Dishant s/o Avinash Ramteke
aged about 8 years,
Occ. Student.
The appellant No.4 being minor
represented through his mother
natural guardian appellant no.3.
R/o Naya Nagar, Rani Talab,
Kamptee, Dist. Nagpur ... Appellants.
-vs-
1. Hardesh s/o Kishanchand Mulchandani,
aged about 34 years,
R/o Near Devi Mandir, Jaripatka,
Nagpur.
(Owner of Truck MH 31/W-2918)
2. Divisional Manager,
The Orient Insurance Co. Ltd.
Mount Road, Sadar, Nagpur,
(Insurance of Truck MH/W-2918)
3. Teomal s/o Tejmal Agarwal
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574-J-FA-228-07 2/7
aged about 70 years, Occ. Business,
R/o 39, Mecosabagh, Nagpur,
Dist. Nagpur (since deceased)
3a. Raju Hindustani (Raju Teomal Agarwal),
aged about 45 years, Occ. Business,
R/o Aakal Builders, Bairamji Town,
Chhaoni, Nagpur.
4. The New Insurance Co. Ltd.
Through the Divisional Manager,
The New India Insurance Co. Ltd.
Rajkamal Building, Panchasheel Cinema
Chowk, Nagpur, Distt. Nagpur. ig
(Insurer of Tiper MH 31/W-3099)
5. Mahendra Doma Marathe
(Deleted) ... Respondents.
Shri D. C. Chahande, Advocate for appellants.
Shri A. R. Kaple, Advocate for respondent No.2.
Shri P. S. Khubalkar, Advocate for respondent 3(a).
Shri A. J. Pophaly, Advocate for respondent No.4.
CORAM : A.S.CHANDURKAR, J.
DATE : April 28, 2016
Oral Judgment :
The claimants have filed the present appeal under Section 173 of
the Motor Vehicles Act, 1988 (for short the said Act) seeking enhancement in
the amount of compensation that has been granted by the Claims Tribunal in
Claim Petition No.667 of 1999.
It is the case of the appellants that the son of appellant No.1
namely Avinash was driving a tipper on 16/10/1997 which was proceeding
towards Khapa. His vehicle was dashed by a truck which was insured with
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the respondent No.2 Insurance Company. Said Avinash sustained injuries
and was admitted in hospital. He was discharged on 29/10/1997. On
30/12/1997 said Avinash expired. Hence on 22/02/1999, a claim petition
under Section 166 of the said Act was filed by the appellant. An amount of
Rs.3,84,000/- was claimed towards compensation.
2. The respondent No.2 Insurance Company filed its written
statement below Exhibit-29 and disputed its liability on the ground that the
death of said Avinash was not caused due to the accident. Written statement
was also filed by the respondent No.4 which was alleged to be the Insurer of
the tipper.
The claimants led their evidence. The claimant No.1 was
examined below Exhibit-46 and a Medical Practitioner was examined at
Exhibit-58. After considering the aforesaid evidence, the learned Member of
the Claims Tribunal held that it was not proved that said Avinash expired on
account of injuries suffered in the accident. An amount of Rs.20,000/- came
to be granted with 8% interest. Being aggrieved with the amount of
compensation, the present appeal has been filed.
3. Shri D. C. Chahande, the learned counsel for the appellant
submitted that the evidence on record was sufficient to indicate that Avinash
expired on account of injuries sustained in the accident. He submitted that
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even though the post mortem report was not placed on record, it could be
seen that said Avinash sustained injuries from the accident which occurred
on 16/10/1997. According to him, the discharge card at Exhibit-59 along
with deposition of witness No.2 clearly indicated that the death had occurred
due to injuries sustained in the accident.
It was then submitted that the finding with regard to composite
negligence recorded by the Claims Tribunal was not based on the evidence
on record. As per the spot panchanama at Exhibit-48, the tipper which was
being driven by Avinash was found on the left side of the road. The truck
being the heavier vehicle, the negligence of its driver was on higher side. It
was therefore submitted that considering the age of the deceased and his
monthly income, the appellants were entitled for higher amount of
compensation. He referred to the averments in paragraph 5 of the claim
application.
4. Shri A. R. Kaple, the learned counsel for the respondent No.2
opposed aforesaid submissions. According to him, there was no nexus
between the accident and the cause of death of Avinash. The death
certificate did not indicate the cause of death. The discharge card at Exhibit-
59 did not mention the year in which it was issued. There was no post
mortem report placed on record. He submitted that the witness at Exhibit-58
also did not support the case of the appellants. He therefore submitted that
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the Claims Tribunal rightly held that it has not been proved that the death of
said Avinash occurred on account of the accident that took place on
16/10/1997.
Shri P. S. Khubalkar, the learned counsel for respondent No.3(a)
and Shri A. J. Pophaly, the learned counsel for the respondent No.4
supported the impugned judgment.
5.
With the assistance of learned counsel for the parties I have
perused the records of the case and I have given due consideration to their
respective submissions. The appellant No.1 examined himself at Exhibit-46.
He was the father of said Avinash. He stated that after the accident, his son
was treated at Mayo hospital and was discharged as per certificate at Exhibit-
57. He was then treated at Kamtee by one Dr Nagarkar. He stated that his
son died on 30/12/1997 while being taken to the hospital. In his cross
examination, he admitted that there was no post mortem conducted and that
medical papers for the period of injury were not produced.
Another witness examined was Dr Laddhad at Exhibit-58. He
referred to his letter dated 30th December at Exhibit-59. He further stated
that he could not tell whether the injuries had any nexus with the accident.
He also could not recollect when the said letter was received.
574-J-FA-228-07 6/7
6. Perusal of discharge card which is at Exhibit-47 indicates that said
Avinash was admitted on 16/10/1997. It was noted that when he was
discharged on 29/10/1997, the condition of patient was healthy. The
document at Exhibit-59 which was issued by Dr Laddhad refers to the date
as 30th December. This witness has stated that he was not aware when this
letter was issued. This letter does not further the case of the appellants as it
repeats what has been mentioned in the discharge card at Exhibit-47. It is
not in dispute that no post mortem was conducted as a result of which the
cause of death has not come on record.
If the discharge card at Exhibit-47 dated 29/10/1997 is
considered along with the fact that Avinash expired on 30/12/1997, it
cannot be said that the conclusion recorded by the learned Member of the
Claims Tribunal that the cause of death of Avinash was not brought on
record is without any substance. On the basis of the material on record that
is the only conclusion that could have been drawn. Though it was urged on
behalf of the appellant that mere absence of the post mortem report could
not be a factor to disallow the claim, considering the recitals in the discharge
card, said submission cannot be accepted.
7. In view of aforesaid discussion, I do not find that the Claims
Tribunal committed any error when it granted an amount of Rs.20,000/- to
the claimants towards loss of estate. As the cause of death has not come on
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record and there is no evidence to link the same with the accident that
occurred on 16/10/1997, the impugned judgment is liable to be maintained.
In view of aforesaid, the judgment dated 13/11/2006 in Claim
Petition No.667 of 1999 stands confirmed.
The first appeal is dismissed but with no order as to costs.
JUDGE
Asmita
