Dahiben Chandubhai Virda vs S.H.S. Exports Pvt. Ltd
2021 Latest Caselaw 18733 Guj

     C/FA/1774/2009                                  JUDGMENT DATED: 24/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 1774 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                         Sd/-

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1    Whether Reporters of Local Papers may be allowed                      NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                               NO

3    Whether their Lordships wish to see the fair copy                     NO
     of the judgment ?

4    Whether this case involves a substantial question                     NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      DAHIBEN CHANDUBHAI VIRDA & 3 other(s)
                                     Versus
                       S.H.S. EXPORTS PVT. LTD. & 3 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 1,3
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 24/12/2021

                                ORAL JUDGMENT

1. The present First Appeal under Section 173 of the Motor Vehicles Act is preferred by the appellants who are original claimants, to challenge the judgment and award passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim

C/FA/1774/2009 JUDGMENT DATED: 24/12/2021

Petition No.2118 of 1997 dated 20.02.2007 for enhancement of compensation awarded by the Tribunal. The Tribunal has awarded Rs.1,15,000/- with 9% interest p.a. to the claimants. The appeal is filed for further enhancement of Rs.4,85,000/- as mentioned in the memo of appeal.

2. The brief facts of the case are that one Chandubhai Hamirbhai Virda had filed Claim Petition No.2118 of 1997 for awarding compensation of Rs.6 lakhs with interest @ 15% p.a. as he had sustained bodily injuries on his right thigh. He also got fracture and he has also sustained injuries on head, leg, chest, ribs and other parts of body. At the relevant time of accident, he was aged about 32 years and he was earning Rs.4,000 per month, as he was working as a driver. On 06.07,1997, the case of the claimants that he was driving the truck bearing registration No.GRP-5877 on his correct side with moderate speed, at that time, the driver of the truck bearing registration No.HR-38-2443 came in wrong side with full speed in rash and negligent manner and dashed with the truck of the applicant. The offence was registered before the Bagodara Police Station vide C.R. No.92 of 1997 against the driver of the truck. The accident has occurred near Mithapur-Ghogha bridge, near Bagodara police station and therefore, the claim petition is filed by the injured for the compensation against opponents No.1, 2 and 3 who are jointly and severally liable, initially for Rs.4 lakhs and subsequently, it was enhanced to Rs.6 lakhs. It is pertinent to note that during the trial, the original applicant - Chandubhai Hamirbhai Virda has expired and therefore, his heirs and legal representatives are brought on record. The National Insurance Company has filed its written statement at Exh.13, raising several disputes and United India Insurance Company has also filed its written statement at Exh.72. Thereafter, the issues were framed at Exh.24 and evidence was led and the

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Tribunal has considered only actual medical bills of Rs.1,02,000/- and actual loss of income for four months and awarded total amount of Rs.1,15,000/- to the claimants. Though the original applicant who received injuries in the said accident, has expired during the pendency of the claim petition and therefore, the present appeal is preferred by the heirs of the original claimant.

3. Learned advocate Mr. Hemal Shah for the original claimants - appellants herein has brought to my notice from the record that deceased Chandubhai Hamirbhai Virda was taking continuous treatment from various hospital at Rajkot, Jamnagar and Mumbai during the period from 1997 to 2003 and he has pointed out the various medical papers from Exh.106 to Exh.118 and further he has referred to Exh.88 to Exh.91 which indicate that the treatment of the original claimant - Chandubhai Hamirbhai Virda was going on during the period from 1997 to 2003 and thereafter he has expired during the pendency of the claim petition. It is submitted that there is nexus between the accident and death caused due to injuries received from the accident to the original applicant. Therefore, the Tribunal ought to have granted more compensation considering the various aspects of the matter, more particularly the loss of dependency and also under the head of conventional amount. He has submitted that the postmortem is not carried out by the relatives of the injured. In support of his submissions, learned advocate for the claimants has relied on the decision in the case of Ranchhodbhai Somabhai versus Babubhai Bhailalbhai reported in 1982 (1) GLR 785, more particularly Para : 13, which reads as under :

"13. Having regard to the evidence on record, we are clearly of the opinion that it was not correct to hold that there was no direct and

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proximate connection between the accident injury and the untimely demise of the deceased. True it is that the death was not all at once or at a point of time proximate to the date of accident. It is also true that there is no medical evidence regarding the cause of death. However, the direct testimony of the appellant Sornabhhai clearly establishes, when appreciated in the light of the medical evidence, that the evidence and the circumstances also point in the same direction. There was no definitive break, no unexplained interval, no yawning hiatus so as to snap the link between the accident injury and its telltale physical consequences and the untimely death. The principal after effect of the accident injury, namely the urinary difficulty, is shown to have persisted throughout the interval of time between the date of accident and the date of death and treatment to relieve the deceased of the same is also shown to have been administered all along during the said period on different occasions. We cannot overlook the fact that the deceased was a youth in the Prime of his life. He was healthy and suffered from no disease prior to the accident. Young men do not die suddenly; some cause has to be found for their death. Where one is manifest on the record of the case, it would be ignoring the reality to close eyes to the same and to conjecture that the death could possibly have resulted due to some other undisclosed cause when not a scintilla of it is perceivable. The fact

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that no medical evidence was led to precisely establish the cause of death is a matter of no consequence on the facts and in the circumstances of the case and on the state of evidence on record. As we have pointed out earlier, it might not be possible in all cases to lead the evidence of experts. That apart, when the direct and circumstantial evidence tending to establish the link between the accident injury and death goes unchallenged, as in the present case, it would be idle to insist upon the fulfillment of such a requirement. We are, therefore, of the view that the Tribunal, in the instant case, reached the conclusion which it was impossible to arrive at on the evidence on record, when it held that the death was not the result of the accident injury. We reverse the finding of the Tribunal on that point and hold that the death of the deceased had direct and proximate connection with the accident injury."

3.1 Learned advocate for the claimants has also relied on the decision of this Hon'ble Court rendered in First Appeal No.3873 of 2007 dated 07.02.2014, more particularly Paras : 13 & 15 thereof, which read as under :

"13. From the cross-examination of the father of the deceased, it appears that the body of the deceased was not offered for postmortem since they were not aware that it was required to be done as he was an illiterate person. He has

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also stated that he had not informed the police or hospital about the death of his son because he was illiterate and was not aware that it was required to be reported. Thus, it is an admitted position that no postmortem has been carried out after the death of deceased to ascertain the cause of death. However, merely because the postmortem has not been carried out, does not mean that the claimants would be disentitled from making out a case that the deceased had died on account of the injuries sustained by him from the accident. Insofar as reliance placed upon the provisions of rule 231 of the rules is concerned, a perusal of the said rule shows that the same bears the heading "Procedure regarding compensation on the principal of no fault" and lays down the procedure to be followed in this regard. Insofar as claim petitions under section 166 of the Act are concerned, the same are governed by rule 211 of the rules and sub- rule (5) thereof provides that to every such application, the documents enumerated thereunder shall be appended. The documents stipulated under clause (ii) thereof are "medical certificate of injuries or Post-mortem Report or death certificate". Therefore, appending a post- mortem report or death certificate is not mandatory. Production of any of the documents referred to in rule 211 (5) (ii) of the rules would suffice, provided the same are sufficient to establish the case of the claimants.

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15. The facts of the present case are required to be examined in the light of the above decision. Thus, it is not in every case that the claimant would be in a position to lead evidence of the medical personnel who have treated the injured or deceased person. In the present case, the claim petition has been filed at Bhuj, whereas the concerned doctors who had given treatment to the deceased were from the Civil Hospital, at Ahmedabad and other hospitals at Rajkot. Thus, it may have been difficult for the claimants to secure the presence of the medical officers during the course of the proceedings before the Claims Tribunal at Bhuj. In the absence of the testimony of the medical officer and a cause of death certificate, the duty of the court is to examine the medical case papers and the other documentary evidence and oral evidence which have been brought on record to ascertain as to whether there is any nexus between the cause of death and the injuries sustained by the deceased as a result of the accident. In the present case, the facts speak for themselves. The deceased had sustained grievous injuries on account of the vehicular accident as a result of which, he was suffering from quadriplegia with bladder involvement with CLW over (R) forearm with (L) knee, traumatic amputation of second finger (R) at distal interphalangeal joint with head injury. The report also reveals that the deceased was

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suffering from bed sores and other related complications. The record further discloses that there were signs of neurological deterioration. Initially, the deceased was admitted in the Civil Hospital, Ahmedabad from 30.06.2000 to 31.07.2000. Thereafter he was admitted in the Gondhia Hospital, at Rajkot on 16.08.2000 and was operated upon and remained as an indoor patient till 21.08.2000. On 21.08.2000, he was shifted to Gokul Hospital, at Rajkot, where he was treated till 30.08.2000. He was discharged on 31.08.2000 and was taken back to his village Jangi on 31.08.2000, where he died on 01.09.2000. Thus, the deceased was continuously admitted from one hospital to another and died immediately after he was discharged from Gokul Hospital, Rajkot on 31.08.2000."

3.2 The learned advocate for the claimants has submitted that the Tribunal has erred in granting very meager amount by not considering the fact that the death of the original claimant has occurred due to motor accident and the claimants are entitled to get more than actually awarded by the Tribunal. He has submitted that this appeal be allowed.

4. Per contra, learned advocate Mr. Maulik Shelat for the National Insurance Company and learned advocate Mr. Palak Thakkar for the United India Insurance Company have pointed out that there is no evidence available on record to indicate that there is nexus between the accident and death of the original claimant. They have submitted that the judgment and award passed by the Tribunal

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is just and proper looking to the claim made by the claimants in the claim petition. They have submitted that no interference be made by this Court and the appeal be dismissed.

5. I have heard learned advocates for the respective parties and perused the record of the trial. While going through the judgment and award passed by the Tribunal, it comes to the notice that the above mentioned judgments have not been taken into consideration by the Tribunal while passing the impugned judgment and award. Therefore, in my opinion, the matter requires reconsideration by the Tribunal. It is found that the Tribunal has only awarded Rs.1,15,000/- towards compensation. The issue of nexus between the accident and cause of death is also required to be established and to be considered by the Tribunal. In that view of the matter, interest of justice would meet by remanding the matter back to the Tribunal.

6. In view of above, the following order is passed.

6.1 The impugned judgment and award passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim Petition No.2118 of 1997 is quashed and set aside.

6.2 The matter is remanded back to the Tribunal to decide afresh, after considering all the evidence on record, in accordance with law.

6.3 It will be open for the respective parties to lead their evidence in support of their case before the Tribunal. The Tribunal shall hear the claim petition and dispose off the same, as expeditiously as possible, preferably within a period of one year from

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today.

6.4 With above direction, the present appeal stands disposed off as partly allowed. No order as to costs.

6.5 Record and proceedings be sent back to the Tribunal concerned, forthwith.

7. It is expected that the parties will cooperate in the proceedings before the Tribunal.

Sd/-

(SANDEEP N. BHATT,J) M.H. DAVE