Gujarat High Court
Future Generali India Insurance ... vs Manjula Aubrey Tomlinson Christi on 20 October, 2023
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1769 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ? Yes
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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FUTURE GENERALI INDIA INSURANCE CO LTD
Versus
MANJULA AUBREY TOMLINSON CHRISTI
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR. VARUN G RAI(7135) for the Defendant(s) No. 1
SERVED BY AFFIX(N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/10/2023
ORAL JUDGMENT
1. The appellant-Insurance company challenges the
judgment dated 10.8.2020 passed by MACT (Aux),
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Vadodara in MACP no.295 of 2016, mainly on the
ground that the appellant should be exonerated
from the liability of paying the compensation
since no nexus between injury sustained in
vehicular accident and the death could be
proved by the claimant.
2. The mother of the deceased - Rosemary Aubrey
Tomlinson had moved MACP on 27.4.2016 under
Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on the death of her
daughter owing to a vehicular accident. The
Tribunal partly allowed the petition granting
the amount of Rs.19,90,600/- with 9% interest.
3. The claimant, referring to the accident dated
20.7.2015, had contended before the Tribunal
that her daughter's death on 5.3.2016, during
the treatment when admitted in ESIS Hospital
at Gotri was the result of injuries sustained
in the accident, owing to rash and negligent
driving on the part of the opponent no.1
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driver of car, for which the FIR came to be
lodged as CR no. I-102/2015 with Raopura
Police Station, Vadodara City.
4. Facts of the case suggest, that on 20.7.2015
at about 9.00 a.m., the daughter of the
claimant was proceeding towards her job place,
by riding her Activa bearing registration no.
GJ-06 CS-7204. When she reached near the
nursing home, the cross roads was closed
because of the traffic, the lane on which she
was proceeding from Kirti Stambh to Kothi was
thereafter opened, she started her vehicle,
and it had been contended that at the same
time, though the lane from Akota bridge to
Dandia bazar was closed, opponent no.1 came
from Akota bridge driving his car bearing
registration no. GJ-06 EH-9905 in a rash and
negligent manner with full speed and dashed
with Activa of the deceased and thereby,
caused the accident. The complaint was given
by the injured. FIR was produced at Exh.55. At
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the time of the accident, a office colleague-
Hiten Mistry and one another whose name she
does not recall were present there.
5. In the accident, she sustained chest injury
with bilateral ribs fracture with pneumothorax
and contusion over back. She was thereafter
immediately taken to Sparsh Hospital and then
at Baroda Hospital and as there was no proper
treatment, she was shifted to Sunshine Global
Hospital, Manjalpur, Vadodara where she stayed
as an indoor patient upto 1.8.2015.
6. The claimant - mother, while reiterating the
facts averred in the claim petition, had
deposed on oath at Exh.18, stating that the
accident was informed to her by the office
colleague - Hiten Mistry. The HR of the
office-Shraddha Madam came with her car at the
place of the incident and first took her
daughter at Pratham Sparsh Hospital and owing
to lack of facility, she was taken to Baroda
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Hospital. There too, there was no sufficient
provision for the treatment and therefore, she
was shifted to Sunshine Global Hospital,
Manjalpur, where she remained as an indoor
patient. As per the claimant, because of the
grievous injuries sustained by her daughter,
she was under continuous treatment for about 7
months and on 5.3.2016, she died.
7. Her evidence is to the effect that on
20.7.2015, when she was taken to Sunshine
Global Hospital and admitted as an indoor
patient, Dr. Bhikhubhai Patel informed her
that both sides ribs were broken and she was
having difficulty in breathing. She was
brought back home on 1.8.2015, she
continuously remained in bed, she was not in a
position to sit, walk or rise on her own and
every week, she was to be taken for
examination. The mother has stated that after
a month, there was sudden cough and she was
suffering from fever. At Sunshine Global
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Hospital, Dr. Tushar Patel informed that her
daughter was suffering from Pneumonia and
therefore, was shown to the family Doctor-Dr.
Prakash Bhagade, and after a little
improvement in her health, the Doctor had
advised for exercise and therefore, they had
called the Physiotherapist at home who
assisted for about 20 days for the exercise
and according to the mother, during that
period, the daughter had started taking 2-3
steps with the assistance of other person.
While remained continuously in bed, owing to
heavy medicines. She also suffered severe
bedsores and therefore, again her physical
activities got standstill and because of the
bedsores, there was severe pain in her back
and joints.
8. The claimant further stated that again on
1.12.2015, she was admitted in Sunshine Global
Hospital where she was treated till 5.12.2015,
and the Doctor had asked for customizing a
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special belt. The mother thus stated that with
the help of belt, she could make efforts to
stand, but because of the bedsores, she was
not in a position to wear the belt and the
belt further increased sores on the back and
chest and therefore, all her activities of
standing and sitting came to a halt and
gradually, her food intake also got low, again
she started vomiting, so she was admitted on
6.2.2016 at Manjalpur Hospital where she had
undergone surgery performed by Dr. Ankur
Kothari. According to the mother, there was no
change in her health, she started vomiting
blood and the sores developed infection. The
stomach had enlarged and the consumption of
food was very less.
9. The deposition further notes that for
treatment of the bedsores, they had taken the
service of a registered nurse - Kochumol
Acharya from Sunshine Global Hospital, who
used to come daily to their home, but there
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was no improvement in the health, and on
5.3.2016, they had taken the appointment of
Dr. Madhubhaskar Iyer for taking stitches on
the sores suffered, while the mother deposed,
that on that day, from the morning, she was
facing difficulty in breathing and therefore,
they took her to ESIS Hospital, Gotri, where
Dr. Nilesh Makwana had admitted her and had
started the treatment, but during the course
of treatment, she died. The mother stated that
cause of the death is the injuries sustained
during the accident.
10. Referring to the job of the deceased, the
claimant deposed that her daughter was working
in Checkmate Services Pvt. Ltd. Fatehganj,
Vadodara as Executive (Administration) for the
last 5 years and was earning monthly income of
Rs.11,555/- and at the time of the death, her
age was 32 years and was unmarried. The
claimant stated that the daughter was hale and
hearty and because of untimely death, she lost
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her young daughter. The claimant also stated
that had she been alive, her daughter would
have progressed in her life.
11. The claimant examined, the brother of the
deceased - Rajesh Aubrey Tomlinson at Exh.24,
and (1) Dr. Dipakbhai Chimanbhai, Medical
Officer, Sunshine Global Hospital, (2) Dr.
Ankur Kothari, General Surgeon, Manjalpur
Hospital, Vadodara, (3) Dr. Prakash Bhagade,
M.D., Vinayak Hospital, Vadodara, (4) Dr.
Snehal Shah, Physiotherapist, Aashray
Physiotherapy Centre, Vadodara, (5) Dr. Nilesh
Makwana, Medical Officer, ESI Hospita, Gotri,
Vadodara at Exhs.33, 40, 43, 47 and 49
respectively.
12. Advocate Ms. Kirti S. Pathak for the
appellant-insurance Company, submitted that
the deceased died a natural death after 7
months, and there is no nexus between the
cause of death and accident. There is no
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postmortem report of the deceased to prove the
nexus between the accident injuries and death
of the deceased. Advocate Ms. Pathak would
contend that in usual course, the postmortem
report would not be required, but in such
medical cases wherein the claimant is having
multiple ailment, it would be necessary to
substantiate the "Actual Cause of Death". Ms.
Pathak would submit that medical certificate
issued by various hospitals shows that
deceased died naturally and not due to the
accident. The Doctors have not referred for
postmortem. Under such circumstances, as the
deceased did not die because of accidental
injuries, the application of the claimant
should be dismissed.
12.1 Ms. Pathak contended that the learned Tribunal
has apparently erred in overlooking medical
clinical papers which disclosed deceased
having multiple ailments.
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12.2 Advocate Ms. Pathak referring to the medical
documents on record submitted that the
admission card of Sunshine Global Hospital
dated 1.12.2015 shows the date of discharge as
5.12.2015 which specifically mentions C/o.
Hyperthyroidism and stated that clinical
papers, in the column of significant past
history refers as Hyperthyroidism. From the
medical papers, it transpires that the
deceased was suffering from multiple ailments
which clearly mentions in the medical
certification of cause of death in column (C)
answering the morbid conditions giving rise to
the cause is DM/RA/Hyperthyroidism and the
final diagnosis for the cardio respiratory
failure is with Hyperthyroidism.
12.3 Ms. Pathak submits that as per the cross-
examination of Dr. Nilesh Chauhan, the patient
had natural death. Many comorbidities, blood
infections were observed. He clearly stated
that when the deceased was taken to the
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hospital, he was not informed with regard to
"history of accident" and hence, the entire so
called nexus is got up, just to fetch
compensation from the appellant-insurance
company.
12.4 Referring to evidence of Dr. Ankur Kothari at
Exh.40, Ms. Pathak submitted that the deceased
was having multiple ailments of diabetes,
blood pressure, thyroid, had undergone knee
replacement, blood transfusion, her hemoglobin
level was also very low and the insulin was
regularly taken due to diabetes.
12.5 In context to evidence of Dr. Prakash Bhagade
at Exh.43, Ms. Pathak states that in
September, 2015, the deceased was taking
treatment of pneumonia.
12.6 Ms. Pathak submitted that the claimant had not
examined Dr. Nand Kumar Chawla, Physician who
had examined the deceased during her last
breath, who could have certainly stated that
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the deceased died naturally.
12.7 Endeavour was made by Advocate Ms. Pathak
relying upon legal research article on "Post-
Mortem Report and its particulars in Forensic
Science dated 5.11.2020" to project her
contention, that autopsy of the death helps to
determine the particular cause of death.
Postmortem carried out by Pathologists enable
to obtain a better understanding of how the
death may have occurred, thus submits that it
is a inevitable document which will be
required, usually, when a death is sudden,
suspicious or unnatural and more particularly
in matters where deceased had multiple
ailments.
12.8 Thus, Ms. Pathak submits that in the present
case, since no such postmortem of the deceased
has been done by the claimant, the mandatory
requirement of Rule 231 of the Gujarat Motor
Vehicle Rules has been clearly violated by the
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claimant and therefore also, the claim of the
claimant should be dismissed.
Rule 231 of the Gujarat Motor Vehicle
Rules reads as under:-
"231. Procedure regarding
compensation on the principle of no
fault.-
Notwithstanding anything contained
in Rules 211 to 230 and 232 in the
case of a claim for compensation
under Chapter X of the Act, the
procedure shall be as follows,
namely:-
(1) An application for compensation
shall be made to the Claims Tribunal
in Form CWF, in triplicate, and
shall contain the particulars
specified in that form.
(2) The application shall be
accompanied by a fee of ten rupees
in the form of Court fee stamps, and
the following documents, namely:-
(i) First Information Report;
(ii) Injury certificate or postmortem
report in case of death;
(iii) Heirship certificate in case
of death;
(iv) Certificate from the registering
authority regarding ownership of the
vehicle involved in the accident;
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(v) Particulars or insurance of the
vehicle involved in the accident."
12.9 Ms. Pathak tend to submit without prejudice
and without admitting any liability, that if
at all the Court comes to the conclusion to
grant any amount of compensation to mother,
then the claimant would only be entitled to
receive the amount as per medical bills.
Advocate Ms. Pathak has contended that the
claim made is not fair, contending to be a
fraud.
12.10 Ms. Pathak would contend that fraud and
justice never dwell together Frans etjus
nunquam cohabitant is a pristine maxim which
has never lost its temper over all these
centuries. Ms. Pathak referred to Lord Denning
observation, in a language without
equivocation that, "no judgment of a Court, no
order of a Minister can be allowed to stand if
it has been obtained by fraud, for, fraud
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unravels everything (Lazarus Estae Ltd. v.
Beasley, 1956 (1) QB 702). Advocate Ms. Pathak
thus argued that since fraud affects the
solemnity, regularity and orderliness of the
proceedings of the Court, and also amounts to
an abuse of the process of Court, the Courts
have been held to have inherent power to set
aside an order obtained by fraud practiced
upon the Court. Thus, stated that the claimant
has intentionally not allowed postmortem
analysis as the outcome would have been
otherwise.
12.11 Ms. Pathak submitted that even after the
accident, the deceased after the physiotherapy
treatment was able to walk and hence, the
family had also discontinued the treatment
thereafter. Dr. Nilesh Chauhan who examined
her on the date of death was not aware about
"accident history" which he admitted in his
cross-examination. No nexus was established,
no autopsy was advised by the doctor which
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becomes a necessary piece of evidence, more
particularly, when the deceased was suffering
from multiple ailment. Ms. Pathak contended
that as per lucid ample evidences on record,
the appellant-insurance company has clearly
proved that there is no nexus to death on
account of accident injuries since deceased
died naturally as per the deposition of Dr.
Nilesh Chauhan and therefore, the impugned
award should be set aside, exonerating the
insurance company from the liability to pay
the compensation.
12.12 Ms. Pathak's stress in her argument was, the
non-availability of postmortem report, to
contend outright rejection of the claim
petition. Reliance was placed by Advocate Ms.
Pathak in the case of M. Narayanappa v. Shiva
Shakthi Bio Plantic Ltd. reported in 2014 SCC
Online KAR 1363, where the accident had taken
place on 23.6.2008, while the injured died on
7.11.2008, the issue raised was that the
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postmortem was not conducted to prove that the
injured died due to accidental injuries, and
further a contention was raised that the legal
representatives had not produced any documents
to show that the injured was under treatment
till his death. The nexus between the
accidental injuries and death caused after a
long period was not proved by the legal
representatives.
In the judgment, after critical evaluation
of the oral and documentary evidence and other
material which were available on the file and
the referring to the judgment and award, it
was observed by the Court that the occurrence
of accident is not in dispute, while observing
that the claimant has not examined any
independent witness nor the Doctor and further
significantly noting, that the postmortem was
also not conducted to prove that the death of
the deceased is due to the accidental
injuries, it was observed that the Tribunal
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has rightly recorded the finding that the
claimant was not entitled for any
compensation.
12.13 Smt. Tayawwa @ Thayavva v. Sri Mayur S/o
Manohar Kardi, by Karnataka High Court,
Dharwad Bench rendered in MFA no.100093 of
2022, where contention was raised by the
counsel for the insurer was with regard to the
nexus between the injury and the cause of
death of the death to claim compensation by
his legal representative. Applying the case of
Kannamma v. Deputy General Manager, Karnataka
State Road Transport Corporation, the
claimants were made entitled for compensation
towards hospitalization and medical expense
only and not for loss for estate wherein too
non-performance of postmortem was a issue
argued. The Court observed that there were no
materials whatsoever to show that death was on
account of and as a direct consequence of the
injury suffered by the accused in the motor
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vehicle accident.
12.14 The judgment was relied upon by Advocate Ms.
Pathak in the case of Smt. Athijamma v.
Thalakkara Moiden, rendered in MFA no.2451 of
2013. The case before the Karnataka High Court
was that the insured fell inside the bus as
was dashed by a jeep and suffered injuries and
immediately after the accident, was shifted to
the hospital where he took treatment for a
period of 3 days and again for another period
of 3 days in total 6 days. The injuries
sustained was fracture of femur and
thereafter, the treatment was taken in the
year 2003 and he died in the year 2005. After
remand of the matter, the Doctors were
examined and in the cross-examination, the
Doctor could not definitely state that the
death was due to injury sustained by the
injured in the motor accident. The injured was
inpatient from 17.8.2003 to 19.8.2003 and
thereafter, was taking follow up treatment.
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Subsequently, the injured developed infection
of the fracture site and he was advised
hospitalization for further investigation, and
on 26.6.2005, the injured developed septicemia
due to infection of intertrochanteric fracture
and died due to injuries sustained.
It was observed that even after the remand
of the case, the claimant failed to prove that
the death was on account of accidental
injuries and the cause of death was also on
account of accidental injuries. Hence, the
High Court found no error committed by the
Tribunal, in not accepting the case of the
claimant, that the death was on account of
accidental injuries.
12.15 In ICICI Lombard v. Mangala wife of Dhanapal
Patil, by Karnataka Circuit Bench at Dharwad
rendered in MFA no.20365/2008 relied upon by
advocate Ms. Pathak, the insurance company in
the appeal was challenging the order and award
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passed by the Commissioner for workman
compensation, where the case was urged about
the death by the use of the vehicle for
commercial purpose, namely loading and
unloading of the mud, for laying the road
which amounted to violation of the policy
condition as the owner had not used the
vehicle for agriculture purpose.
The contention was raised that there was
no nexus to the cause of death by the use of
the vehicle, where the High Court came to the
opinion that the Commissioner was not
justified in fastening the liability on the
insurance company to indemnify the claim of
the insurer since no nexus between the death
and the use of the vehicle in question was
proved.
12.16 In Uttam Kumar (Deceased) v. Madhav Kumar,
rendered in MFA no.5537/1999, reported in
I (2006) ACC 378, a case where reference was
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made by the Division Bench to the Larger
Bench. The Division Bench of Karnataka High
Court relying on the Full Bench decision in
Kannamma v. Deputy General Manager, Karnataka
State Road Transport Corporation found that
cause of action will not survive on death of
claimant Uttam Kumar and LRs of the deceased
claimant will not be entitled to compensation.
In view of the amended provision of the Motor
Vehicles Act, 1988 and the decision of the
Hon'ble Supreme Court referred therein, the
Full Bench decision of Kannamma (supra) was
referred for consideration. In Kanamma's case,
Full Bench of the Karnataka High Court has
held as under:-
"(i) The Common Law Rule 'actio
personalis moritur cum persona' as
embodied in Section 306 of the
Succession Act since applies to
India, a claim by a person for
compensation for personal injuries
caused in a motor accident does not,
on that person's death not being the
consequence of such injuries,
survive to his/her legal
representatives;
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(ii) Cause of action for personal
injuries being founded on tort
(motor accident caused by the
tortfeasor), injured person's claims
for damages under heads recognised
by Common Law and not by Statute,
based on such tort and not
independently of it, cannot, on such
person's death, survive for
prosecution by his/her executors or
administrators (or legal
representatives) since Section
306 of the Succession Act in express
terms, declares that the cause of
action in favour of a person for
personal injuries (tort) does not
survive on such person's death to
his/her executors or legal
representatives;
(iii) A claim by a person for
compensation for personal injuries,
be it pending before the Claims
Tribunal, be it pending in the first
Appellate Court or be it pending in
the second Appellate Court, does not
survive on such person's death not
caused as a consequence of personal
injuries, to his legal
representatives;
(iv) A claim of a person for
compensation for personal injuries
if has resulted in award of the
Claims Tribunal or decree of the
Appellate Court, survives to his
legal representatives on his death,
even if such death is not the
consequence of personal injuries
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sustained by him and hence, if such
award or decree is disputed in the
first Appellate Court or the second
Appellate Court, the same could be
resisted by the legal
representatives of the claimant;
(v) A person's claim for
compensation for personal injuries
under the head loss to his/her
estate, can, on his/her death as a
consequence of such injuries, be
prosecuted by his/her legal
representatives, if they do not
include a claim for compensation
under that head, as and when they
file a claim petition under clause
(b) of Sub-section (1) of Section
110-A of the Act, on the death of
the person injured"."
Thereafter, after elaborate discussion and
detailed order, Full Bench answered reference
as under:-
"13(i) A claim petition presented
under Section 110-A of the Motor
Vehicles Act, 1939, by the person
sustaining bodily injuries in a
motor accident, claiming
compensation for personal injuries
as also for compensation towards
expenses, loss of income, etc. (loss
to the estate) cannot, on such
person's death occurring not as a
result or consequence of bodily
injuries sustained from a motor
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accident, be prosecuted by his/her
legal representatives; but
(ii) A claim petition presented
under Section 110-A of the Motor
Vehicles Act, 1939, by the person
sustaining bodily injuries in a
motor accident, claiming
compensation for personal injuries
as also for compensation towards
expenses, loss of income, etc, (loss
to the estate) can, on such person's
death occurring as a result or
consequence of bodily injuries
sustained in the motor accident, be
prosecuted by his/her legal
representatives only insofar as the
claim for compensation in that claim
petition relates to loss to estate
of the deceased person due to bodily
injuries sustained in the motor
accident.
14. On overall consideration and as
discussed above, we are in full
agreement with the well reasoned
order made by the Full Bench since
that part will not say anything
regarding Section 306 of the I.S.
Act and it is not necessary to go
into the observation. It is also not
necessary to go into the question of
fact as alleged by the LRs that the
deceased died due to the injuries
sustained in the accident and that
question can only be considered
while considering the compensation.
We answer the reference in the
affirmative and fully approve the
earlier Full Bench decision in
Kannamma's case (supra), as stated."
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So under reference, the proposition of law
laid down in Kannamma's case (supra) was
approved.
12.17 Relying upon the judgments, Advocate Ms.
Pathak sought to canvass an argument that
since the deceased has not died due to the
motor vehicle accident injuries, but has died
a natural death, the claimant, legal
representative would have no right to put up a
claim for compensation and further cannot even
ask for loss to estate or under other head
recognized by the law, since deceased, as
injured, had not moved the Court for
compensation for injuries suffered during the
accident. To answer the same, it would be apt
to refer to the judgment of this Court in the
case of Surpal Singh Ladhubha Gohil v.
Raliyatbahen Mohanbhai Savlia & Ors., reported
in 2009 (2) GLH 217 which was referred under
Section 166 of the Motor Vehicles Act, 1988,
where the claimant sustained injuries in the
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motor accident. During the pendency of the
claim petition, the original claimant died and
heirs were brought on record. The Tribunal
held that the claimants would not be entitled
to recover the amount since they have no right
to continue the proceedings on the death of
original claimant, as action for the personal
injury dies with the death of original
claimant. It was held by the Division Bench of
this Court that strict application of the
maxims "action personlis mortiur cum persona"
cannot be imported to defeat the purpose and
object of a social welfare legislation like
Motor Vehicles Act to the advantages of a
wrong doer and further held that once the
status of the claimants as legal heirs or
legal representatives are conceded and
acknowledged, to deny benefit of compensation
to them on the ground that the injury was
personal to the claimant, it will give a
premium to the wrong committed. It would
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defeat the very purpose and object of the
legislation. Even after death of the injured,
the claim petition does not abate and right to
sue survives to his heirs and legal
representatives.
13. Per contra, Advocate Mr. Varun G. Rai for the
claimant submitted that the claimant had
evidently proved her claim by way of examining
herself, her son, as well as the Doctors from
whom the deceased took treatment. The accused
was admitted in Sunshine Global Hospital for
the treatment towards the injuries sustained
by her during the accident. Dr. Dipak
Chimanbhai Parikh Authorized Medical Officer
was examined at Exh.33. Injured was discharged
from hospital on 1.8.2015. Advocate Mr. Rai
contended that due to the injuries, the
deceased was unable to sit, stand and walk,
continued to take treatment as outdoor
patient. During that period, she suffered from
fever and pneumonia and as advised by Dr.
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Tushar Patel of Sunshine Global Hospital, she
was taken to family doctor, Dr. Prakash
Bhagade who too had come to the Trial Court
for his deposition at Exh.43. Advocate Mr. Rai
further submitted that since the deceased was
unable to walk without the support, the Doctor
advised her to take physiotherapy treatment
and therefore, she took the treatment.
13.1 Advocate Mr. Rai stated that the deceased was
bed stricken, she developed bedsores and had
difficulty in her physical activities and
therefore, again, she was admitted on
1.12.2015 at Sunshine Global Hospital, where
she was treated till 5.12.2015.
13.2 For the period between 6.2.2016 to 16.2.2016,
Advocate Mr. Rai submitted that the injured
was advised to wear a special belt, but owing
to bedsores, she could not wear it. She was
admitted to Manjalpur Hospital, where Dr.
Ankur Kothari treated her as indoor patient
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upto 16.2.2016. Dr. Kothari performed surgery
on her. The injured started vomiting blood
many a times and wound infection started
increasing. Dr. Ankur Kothari examined at
Exh.40 advised for physiotherapy treatment and
referred to Dr. Snehal Shah.
13.3 Advocate Mr. Rai further stated that the
physiotherapist was examined in the Court who
gave the evidence for the period between
7.2.2016 to 19.2.2016 at Exh.47. Mr. Rai
further stated that on 5.3.2016, she breathed
her last at ESIS Hospital of Gotri, where
actually she had an appointment with Dr.
Madhubhaskar Iyer to take stitches on the
wounds, but in the morning, she developed
difficulties in breathing and as proved by Dr.
Nilesh Makwana at Exh.49 of ESIS Hospital, she
died during treatment.
13.4 Advocate Mr. Rai thus contended that the nexus
of death due to the accident injuries had been
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proved by examining all the doctors who had
treated her for the period between 20.7.2016
to 5.3.2016. Advocate Mr. Rai relied upon the
judgment of this Court in the case of
Insurance Company Ltd. v. Kalubhai Bhikhabhai
Mir Through Aabedaben wd/o Kalubhai, reported
in 2023 (1) GLR 85 to urge before the court
that in case of prolonged treatment for
fracture on right knee and pelvis fracture Rt.
femur of mid shaft etc. resulting into
paralysis and death, the Court had believed
the direct nexus with death observing that
prolonged treatment has a clear connection
with the injuries sustained in the accident.
14. Having heard the learned advocates on record,
considering the evidence of the claimant
mother as noted hereinabove, the evidence of
other witnesses would require analysis to
consider the issue whether death is directly
traceable to the injuries sustained in motor
vehicle accident.
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15. The brother of the deceased examined as
witness no.2 supported the evidence of the
claimant - mother, and affirmed that in the
accident, her sister had sustained rib
fracture, while there was no fracture on any
other part of the body. After the accident,
initially for about 10 days, she was at
Sunshine Global Hospital and thereafter, was
discharged and he also affirmed that
thereafter, the treatment was continued at
home for initial period of six months. Because
of the fever and nausea, she was taken to the
hospital where she died. But no postmortem was
conducted on her. Exh.54 is a communication on
20.7.2015 at 12.00 hrs. by the brother to
Raopura Police Station, Vadodara for
initiating police case. In document Exh.54,
the brother had referred about grievous injury
to her sister in chest and waist.
16. In the cross-examination of the claimant-
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mother, it has come on record that there was
no fracture on the hands and legs. She had
affirmed that after the discharge from the
hospital, the daughter could walk at home and
after 2-3 months because of the fever and
cough, she was admitted in the hospital and
had also admitted that while she was admitted
for treatment second time, the medical papers
do not disclose that she was admitted because
of the accidental injury and has stated that
thereafter, whenever she would fall sick, on
being referred by the family Doctor, she was
admitted in the hospital. She also affirmed
that after 5-6 months, the stomach of her
daughter got enlarged and because of vomiting,
she was admitted in the hospital and lastly,
has affirmed that on having fever and as her
stomach had enlarged, body suffered infection
and she died during the treatment.
17. She has also stated that her daughter had
studied upto Std.12. She has denied the
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suggestion that the daughter was not earning.
Her daughter was not having any mediclaim
policy.
18. The evidence of the mother reflects that after
the accident, deceased was taken to Sunshine
Global Hospital, Vadodara. Dr. Dipakbhai
Chimanbhai, Medical Officer of Sunshine Global
Hospital was examined as witness no.3 who is a
MBBS degree holder, and in medico legal
consultancy he has served for about 14 years
and has total experience of 18 years. He had
come in the Court to depose on witness summons
being served. The Doctor was shown document
Exh.34 who identified his signature on it and
referring to the document, he stated that the
injury certificate notes that both the sides
of ribs of the patient were fractured and
because of that, there was water congestion in
the chest and there were swelling on the waist
with bruises. The discharge summary was
referred to him. Doctor had deposed about the
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accident which had taken place near Maharani
Shantidevi Hospital between four wheeler and
two wheeler. Since the patient had suffered on
chest and waist, she was admitted in Sunshine
Global Hospital. According to the Doctor, she
was having difficulty in breathing as well in
sitting, while she was brought in the
hospital, she was conscious and was discharged
on 1.8.2015. The Doctor stated that at the
time of discharge, she was well, but her
medicines were continued and was advised for
rest. The Doctor deposed that because of the
fracture in the ribs, she was facing
difficulty in breathing, and confidently
agreed that because of bilateral rib fracture,
lifelong the patient would have difficulty in
breathing, while the Doctor in the evidence
could not state about the possible minimum or
maximum time for total recuperation, because
of the physical and mental condition, which
according to him is a different factor.
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19. The Doctor while referring to the document at
Exhs.35 and 36 stated that, again, the patient
was admitted on 1.12.2015 as she was having
much pain in the waist and because of that,
there were difficulties in the movement of
hands and legs. She had disc problem in L4,
L5, S1 vertebra and there was protrusion
between two vertebras and because of that, she
was facing spinal disc herniation.
20. As per the evidence of Dr. Dipakbhai
Chimanbhai, when she was initially admitted,
at that time too, she was having complaint
about waist, but there was no examination of
protrusion. It is stated that protrusion could
be because of the forceful colliding, and
thus, stated that because of the accident, she
would have protrusion, but as she was for the
treatment of rib fracture, they could not make
examination at the relevant time. Referring to
Mark 17/59, the Doctor deposed that because of
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the protrusion, team of orthopedic were called
for the treatment, while, when she was
discharged, she was advised to walk with the
help of walker. As per the Doctor, according
to the discharge certificate, there were no
marks of extraordinary injury. The powder
treatment for fungal infection was prescribed
and neosporin powder was advised to apply on
the external injuries, which according to the
Doctor, is the powder which would generally be
used for the treatment after the surgeries
which is antiseptic in nature, and, the Doctor
deposed that from first discharge to second
discharge, the patient would have been
constantly in bed in supine position and has
also affirmed that because of rib fracture and
pain in the waist, she would have been in
continuous bed rest position and because of
that, may have sustained sores.
21. The deposition of Dr. Dipakbhai further notes
that after being admitted on 1.12.2015, she
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was discharged on 5.12.2015. The patient was
months period of first discharge and second
discharge, follow up treatment continued, but
affirmed that the history does not suggest
that during these 5 months' period, there was
any follow-up treatment. The Doctor deposed
that because of the chest injury and
difficulty in breathing, the death of the
patient was possible and further has stated
that because of rib fracture, there was all
possibility of infection in the lungs.
22. The Doctor in the cross-examination has
affirmed that there are no document, which
suggests that he has physically examined the
patient. Exh.34 injury certificate does not
disclose that the injury of the patient was
grievous and affirmed that Exh.34 reflects
only of rib fracture and had also affirmed
that as per his experience in medical field
for treatment of rib fracture, there would not
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be any necessity of plaster. He also affirmed
that as per the discharge summary at Exh.35
which was 10 days after the accident, the
condition of the patient was good and the said
discharge summary does not state that the
patient was advised for a continuous oxygen
intake or other ways of treatment. He also
affirmed that after the discharge on 1.8.2015
as per Exh.36, there was no note that, again
the patient had come for the treatment. The
Doctor had also affirmed that the injury at
the waist on the patient of L5 also could be
caused by a fall in the house, and affirms
that after the discharge on 1.8.2015 till
1.12.2015, he does not have personal
information of the type of injury. The Doctor
had also affirmed that as per Exhs.35 and 36 -
discharge summary, since there was no grievous
injury, there was no MRI of the patient, but
denied the suggestion, that because of the
injury as shown in Exh.34, there would be no
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possibility of death, but could not definitely
say that the injury could lead to death and
could also not definitely state that because
of the difficulty in breathing, owing to
injury on chest, there are any probability of
a death of the person and has no knowledge as
to when the patient died. Dr. Dipakbhai
affirmed that in case of accidental death,
postmortem of a person is necessary.
23. The medical certification of cause of death
given by ESIS General Hospital, Gotri,
Vadodara, where the deceased had died in ward
no.CD/ICU on 5.3.2016 at 3.05 p.m. shows the
immediate cause of death as cardio respiratory
failure. The antecedent cause is noted as
severe anemia with septicemia and for giving
rise to such cause is the morbid condition-
DM/RA/Hypothyroidism. The death has been
marked as natural. The final diagnosis on the
date of death was also cardio respiratory
failure with DM/RA/Hypothyroidism/severe
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anemia/septicemia. The deceased was brought in
108 ambulance with onset of breathlessness and
giddiness which has been noted on the
admission card. History of the treatment on
the day with the diagnosis by the Doctor has
been placed on record, which reflects the
condition of the deceased on the date of her
death.
24. Dr. Ankur Kothari was examined as PW4 at
Exh.40. His evidence by way of deposition on
oath suggests that he is associated with
Manjalpur Hospital since 2007 and had joined
as Consultant General Surgeon Exh.41 discharge
card of Rosemary Tomlinson was referred by the
Doctor to state that he had treated her for
axillary abscess in the armpit. Exh.41 shows
final diagnosis as L auxiliary abscess with
DM/RA/anemia/oral candidiasis. She was
admitted on 6.2.2016 and as per the Doctor's
deposition on 8.2.2016, she was operated and
thereafter, discharged on 16.2.2016. He
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clarified that on 8.2.2016 with incision under
anesthesia, she was operated. Doctor specified
further that when patient was discharged, the
dressing on the injuries continued. She faced
scarcity in blood. There was fungal infection
in the mouth and she was on insulin for
diabetes. She needed exercise.
25. According to the Doctor, the patient was
facing the difficulty of diarrhea and
vomiting, which she had recovered at the time
of discharge.
26. From the evidence of the Doctor at Exh.40, it
transpires that the patient had 5.00 gram
hemoglobin and total counts were 22400 and as
suggested by the Doctor since the range of
hemoglobin was 5 gram so the patient was
having breathing problem and could not do any
heavy work and since the total count was
22400, the level of infection was high.
27. When the patient was brought before him for
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treatment, and on asking the past history, she
had informed having diabetes, blood pressure,
thyroid, knee replacement, blood transfusion
and fracture in ribs. She had also informed
that she had earlier taken treatment at
Sunshine Global Hospital. Patient had come on
wheel chair for treatment. The Doctor said it
would be difficult to opine about the total
time period for her to be totally cured.
28. Doctor in cross-examination affirmed that the
past history is not noted in the discharge
card Exh.41. The Doctor witness answered in
positive to the suggestion that the exact
reason behind axillary abscess noted in
discharge cannot be said, and affirmed that
because of the infection owing to axillary
abscess the blood level can get low.
29. The evidence of Dr. Kothari clarifies that the
deceased had suffered infection because of low
count of hemoglobin over and above other
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problem. She had informed this Doctor about
the rib fracture.
30. Learned advocate Ms. Pathak for the insurance
company submitted that the patient had past
history of diabetes, blood pressure, thyroid
and because of her heavy weight, had to
undergo knee replacement and the cause, as was
coming on record, is hypothyroidism, so
according to Ms. Pathak because of non-
production of thyroid hormones by thyroid
gland, she suffered death. It is to be noted
that the Doctor was not put to such suggestion
of cause of death being Hypothroidism. The
patient was operated for axillary abscess, was
found anaemic, fungal infection was also seen
in the mouth. The Doctor could not give the
exact reason behind axillary abscess and had
affirmed that the infection due to axillary
abscess could lead to low blood level.
31. Dr. Prakash Bhagade is the family Doctor who
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produced his affidavit-in-chief at Exh.43, who
had come on issuance of witness summons. Dr.
Bhagade is M.D. (Medicine) and works as
Consultant Physician through Vinayak Hospital.
He has good relation with the brother of the
deceased-witness no.2, for many years. He
confines his treatment to the family members
for minor or major illness.
32. Brother of deceased has informed him about the
accident suffered by Rosemary, so he had asked
them to take treatment at Sunshine Global
Hospital. As per the Doctor, Rosemary was
effected by pneumonia in September, 2015 and
she had come to his clinic. The Doctor deposed
that Rosemary could not walk or stand, so the
car was parked down the clinic and upon
examining there, had advised them to take
treatment from Sunshine Global Hospital.
Thereafter, he came to know from his friend
Rakesh, the brother of deceased about non-
improvement in her health and also about her
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death. The family Doctor in cross-examination
states that he had not given treatment to
Rosemary. She had come to see him in
September, 2015 when she was effected by
pneumonia. He affirms that postmortem was not
conducted.
33. The evidence of family Doctor is his advisory
assistance to the family.
33.1 Dr. Snehal Shah, Physiotherapist at Exh.47 is
running the therapy center since last 20 years
at Ashray Physiotherapy Centre. Referring to
the record of Rosemary, she had given the
evidence that Dr. Ankur Kothari had referred
the patient to her for physiotherapy and when
the patient had come to her at that time, she
had given her past medical history. The
witness Dr. Snehal Shah from the patient
history had noted in the examination-in-chief
by way of affidavit that Rosemary had met with
an accident in July, 2015 and had chest and
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rib injury and she was unable to sit since
last 6-7 months. She was admitted for bedsores
abscess and left side chest abdominal area.
33.2 The witness on examination had found that
Rosemary had general weakness, pain over
abscess area and was unable to rise without
support. Doctor also observed obesity and
breathlessness on exertion and had noted that
in the affidavit that she was not at all able
to sit and walk. The Doctor gave her
physiotherapy from 7.2.2016 to 19.2.2016 and
on the last day too, the Doctor states that
she was not able to walk without support and
there was no recovery in her mobility.
Rosemary discontinued her therapy on 19.2.2016
for the reasons not known to her and from his
brother, she came to know that Rosemary had
died after few days of the treatment. The
physiotherapist admits that she had not
treated Rosemary and denied the suggestion
that the physiotherapy treatment was given to
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her because of the replacement, which would
refer to knee replacement and had affirmed
that she has no personal knowledge of injury
and volunteered that she came to know about
the case history, as given by the patient and,
from the Doctor who had referred the patient
to her. She had affirmed that she had no
knowledge about the cause of death of the
patient. She had seen the patient after 7
months of accident in July, 2015 and further
voluntarily stated in reference to the case
history that the mobility of the patient has
totally stopped and she was not in a position
to walk. Further, the Doctor stated that the
patient had difficulty in breathing, and she
was also referred to her, for exercise to
improve the breathing.
33.3 Dr. Nilesh Makwana, PW7 is the person who has
been examined regarding the last status at the
time of death of Rosemary. Dr. Nilesh Makwana
is a Medical Officer in ESIS Hospital, Gotri
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since 2011. As per his evidence, deceased was
admitted in the hospital on 5.3.2016 at 2.30
in the afternoon. She was brought in 108
Ambulance by her brother and when asked about
the case history, it was informed that since
morning on that day, she was having difficulty
in breathing. The patient, since was not
conscious, could not give history of her own,
and the history was given by the person who
had brought her and accordingly, informed of
diabetes, rheumatoid arthritis, left side
axillary abscess, hypothyroidism. The Doctor
had deposed before the Court that the
situation of the patient was very serious. Her
blood pressure was very low, oxygen saturation
was 86% and on further examination, the
patient was responding on painful stimulate
and in other finding, they came to know of
swelling on legs and the patient was very
heavy. There was scarcity of iron in blood and
there was an old abscess in the left armpit.
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The heart rates were weak and the body had
gone cold, immediately physician Dr. Nandkumar
Chavla was informed and on his instructions,
the urgent investigation was required for
blood examination, x-ray of chest, ECG of
heart, but before that could be performed, the
patient's condition worsen and therefore, they
had started the treatment of injection points
and oxygen and during the treatment, the
patient became serious and had fallen
unconscious and therefore, he and Dr. Ravi
Verma started giving CPR to the patient and
engaged in life saving support. Over and above
that, they had given the patient DC shock and
during the treatment of 3 hours and 5 minutes,
the patient died.
33.4 Dr. Nilesh Makwana further stated that the
patient was having many comorbid illness.
There was infection in blood and under the
advise of Dr. Chavla, natural death of the
patient was declared. He further stated that
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blood investigation showed very high
percentage of infection. The infection was
seven times more than the normal blood
infection, which had effected the kidney. As
per the rules and regulations of the hospital,
the dead body was handed over to the relatives
and since he as well as physician Dr.
Nandkumar Chavla had not found any suspicion
regarding death, the postmortem was not
conducted and he states that when the patient
was brought before him and till the last
breath, within that short period, they could
not in length and depth ask about the prior
history of the patient and he had informed
that the patient's relatives had not informed
him about the accident, which she had faced
and he came to know about the accident only
when he received the summons of the Court. The
medical documents which he had brought were
jointly put in evidence at Exh.50 and the
Doctor was cross-examined, wherein he affirmed
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that he had seen the patient for the first
time in 2016 and according to him, age of the
patient could be between 35 to 40. He had not
seen the case papers of the patient and the
deceased had general illness and stated that
diabetes and rheumatoid arthritis are
permanent disease. He affirmed that the death
was natural.
34. Doctors examined may not categorically state
that accident injuries might have been the
cause of death. The claimant on record are
required to prove the link between injuries by
the accident and death. The Tribunals are
required to base their finding as per material
on record. The immediate cause of death may
not be because of injuries suffered in
accident. The Tribunal is expected to analyse
the material on record. The main question to
be decided would be whether there is a nexus
or connection between the accidental injuries
and the death of the deceased.
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35. In Shantaben Ambalal Sutaria & Ors. v.
Valjibhai Harjibhai Patel & Ors., reported in
1991 (1) GLR 597, the probable cause of the
death was the development of fat embolism. As
noticed, the development of fat embolism is a
common or known complication in case of
fractures involving longer bones. The Tribunal
reached the conclusion that it was not
conclusively established that the deceased had
died because of the development of fat
embolism which would be the result of the
accidental injuries. In the matter during
trial, orthopedic surgeon attached to V.S.
Hospital had testified the evidence which
shows that injured Ambalal Sutaria was brought
on 22 September 1976 and on examining injuries
and fractures, the following injuries have
been noted:-
"1. Abrasion of 1'' diametre over
left acromion and over left palm.
2. He had multiple fractures:
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(1) He had fracture of right medial
malelus
(2) He has fracture of left
acetabulum.
(3) Crack fracture of interior
Ischiopubic Ramus on left side
Ischiopubic bone is located near the
external genital organ."
35.1 Dr. Desai, the treating Doctor, visited the
patient at his residence on 27 September 1976,
who was discharged from hospital on 23
September 1976. The patient was complaining of
pain in the leg, discomfort, sleeplessness and
body ache. Doctor in his evidence could not
say exactly the cause of the death, but he
could say the possible cause of death. Doctor
further stated that in the case, the cause of
death could be fat embolism. On analysis of
the evidence, this High Court came to an
opinion summing up the evidence tendered by
Dr. Desai that doctor has categorically stated
that the cause of death of the deceased was
the development of fat embolism which is a
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known complication in case of multiple
fractures and which would not generally occur
in case of healthy man without any wound or
injury.
35.2 The High Court came to an opinion that the
said evidence was sufficient enough to warrant
the conclusion that the deceased had died
because of the development of the fat embolism
which was again the direct result of the
multiple fractures sustained by him. The
evidence of other witness and expert opinion
was examined by the Court to conclude that the
development of fat embolism was the direct
result of the accidental injuries sustained by
the deceased during the motor vehicular
accident.
36. In the present case on hand, the learned
Tribunal came to the conclusion of the
establishment of nexus between death and
accident injuries. The Tribunal concluded the
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analysis of evidence in following terms in
Paragraph 18:-
"Considering the medical case papers
(Exh.34, Exh.35, Exh.36, Exh.41 and
Exh.50) as well as the deposition of
the doctors namely Dr.Dipakbhai
Chimanbhai at Exh.33, Dr.Ankir
Kothari at Exh.40, Dr.Prakash
Bhagade at Exh.43, Dr.Snehal Shah
and Dr.Nilesh Makwana at Exh.49, it
clearly reveals that, due to this
accident the deceased had sustained
chest injury with and bilateral ribs
fracture with pneumothorax with
minimal pleural effusion and
contusion over back. She took the
treatment in Sunshine Global
Hospital, Manjalpur Hospital and
also the physiotherapy treatment.
During the course of treatment, she
had bed sore and abscesses. She was
not (sic) unable to sit and stand.
She had also difficulty in
breathing. Despite of prolonged
treatment the deceased was not cured
completely and she was bed-stricken.
Ultimately, the deceased took her
last breath on 05.03.2016 at ESI
Hospital, Gotri, Vadodara. It is
pertinent to mention here that the
deceased was young aged about 32
years and she was healthy prior to
accident. She did not have any
severe disease and/or any serious
ailment prior to accident which
could have terminated her life
abruptly. True, it is that
postmortem report of deceased is not
produced on record as no postmortem
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of deceased was conducted. However,
from the medical evidence produced
on record, it can be inferred that
the deceased had taken the treatment
continuously and she was bed ridden.
Non-conducting of postmortem would
not shatter the medical evidence,
particularly in absence of contra
medical evidence on the other side.
It is also pertinent to note that
there is no adverse elicited during
the course of recording the
deposition of the doctors. No
contrary evidence led by the
opponents. Moreover, the Ld.
Advocate for the opponent no.3-
Insurance Company is also not able
to point out anything from the
record to prove contrary to the
evidence of the claimant. No any
material brought on record by the
opponents that there was no link
between the accident and death of
deceased. Considering the overall
evidence produced on record, I come
to the conclusion that the deceased
had died due to the injuries
sustained by her in the accident,
even if she died after 7 months of
the accident. Thus, the nexus
between the accident and the death
of deceased is clearly established
by the claimant by producing the
sufficient evidence on record.
Hence, I answer issue no.2
accordingly."
37. Advocate Ms. Pathak had contended about the
need of postmortem report to know the exact
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cause for claim of compensation from insurance
company and contended that postmortem report
would be a vital and indispensable document to
prove the nexus of death to the injuries
sustained in vehicular accident.
38. This aspect can be understood by making
reference to certain judgments of Courts. In
the case of Khairullah & Anr. v. Anita & Ors.,
1994 ACJ 1017, Andhra Pradesh High Court has
dealt with the issue of postmortem.
39. The High Court has given importance to
convincing evidence of the witness. By raising
comparison to murder case for the importance
of autopsy to know the cause, concluded that
failure to conduct postmortem examination over
the dead body in the light of both oral and
documentary evidence was not a circumstance
against the claimants.
40. A case before Madras High Court in The
Oriental Insurance Company Ltd. rep. by its
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Divisional Manager, Chennai-6 v. N. Meenal,
reported in 2010 ACJ 2691 wherein claim was
resisted raising issue that the claim is not
sustainable in law or facts of the case since
the deceased did not die due to the injuries
sustained in the accident thus cause of action
does not survive to the claimants. The wife of
the deceased said in the oral testimony that
her husband sustained fracture in his right
leg and he underwent operation and even after
returning back to the residence, he still
continued medical treatment. One Dr.
Rathinasabapathy treated him whose version was
that in the accident, deceased's right knee
was damaged and was suffering from pain in the
right kidney region, he was affected by
"pyonephrosis" and certified that he was
having Hypertension due to renal damage
(right) as a result of which he had cerebral
hemorrhage and died. Deceased was admitted for
surgical treatment for hernia. In the chief
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examination, Doctor deposed that by means of
accident, deceased's right side kidney got
swelled and germs were found in the kidney and
germs generation had caused blood pressure and
hence, his kidney could not be removed, that
for the reason of high blood pressure,
cerebral hemorrhage occurred and that is why
he breathed his last. The Court summarised the
conclusion as under:-
"19. At the cost of repetition, it is
stated that the injured Nachiappan
has succumbed to the injuries. The
crucial evidence of the doctor
cannot be ignored in a light manner
since he has fortified the
consequent features which had arisen
out of the impact on the kidney at
the time of accident. He is a
qualified doctor who has put in
service in medical field for a long
time there is nothing to smell rat
in his evidence. Unless contra
evidence is forthcoming, there is no
embargo for placing reliance upon
his opinion. The medical evidence on
record in this proceeding would go a
long way to show that Nachiappan
died due to the injuries which he
sustained in the accident and this
Court does not find any infirmity in
the award passed by the Tribunal
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either factual or legal, which does
not call for any interference from
the Court. The upshot of the
Tribunal need not be upset in any
way which has to be confirmed and it
is accordingly confirmed."
41. In the above-referred judgment, a reference
was made of case in Govind Singh v. A.S.
Kailasam reported in 1975 ACJ 215 where there
was no autopsy done of the deceased. It was
held with the facts of the case as under:-
"9. ...... Lastly, it was argued
that no autopsy had been done on
Heera Bai's dead body and therefore,
it is not possible to give a
definite finding that her death was
due to tetanus resulting from the
injury sustained in the accident.
Here too, the contention must be
disregarded because the definite
evidence of the doctors is that
Heera Bai's death was due to tetanus
and the infection had been brought
about by injury sustained in the
accident. A stray answer from PW5 in
cross-examination that he cannot
correctly set out the cause of death
without a postmortem certificate is
clutched at by the first
respondent's counsel to contend that
there is no conclusive evidence in
the case to prove that Heera Bai's
death was only due to tetanus. This
answer cannot be available of
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because innumerable clinical
circumstances lead to the
irresistible conclusion that the
death was solely due to tetanus
infection."
42. Thus, in view of the referred judgments, nexus
between the injuries and death can be proved
by oral and documentary evidence. The evidence
by way of proof of vehicular accident
supported by the medical evidence as well as
the oral evidence of the claimant, to the
circumstances of the deceased which creates
confidence, establishing the nexus, then it
can be relied upon to grant compensation.
43. In the case of Gujarat State Road Transport
Corporation v. Mariambai A. Adamji (since
decd.) through his heirs and LRs Zubeda
Abdulhabib & Anr., reported in 2003 (1) GLR
574, the question raised was as to whether the
deceased died on account of the accident where
after the accident, deceased was in the
hospital for one day only, and died five
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months thereafter and evidence of wife of
deceased was that he was confined to bed till
death and was not taken to hospital due to
poverty. It was held on facts that the
Tribunal had rightly concluded that death was
due to accident.
44. In the case of Somabhai Vajabhai & Anr. v.
Babubhai Bhailalbhai & Ors., reported in 1981
Law Suit (Guj) 144, it has been held that the
deceased a young man aged about 20 was knocked
down by a tanker. The injury sustained during
the course of the accident consisted fracture
of the pelvic bone and rupture of urethra.
During the course of his hospitalization which
lasted for nearly three months, he was thrice
operated upon. The evidence on record
indicated that the after-effect of the injury
persisted even after his discharge from the
hospital and that he was required to be
hospitalized for brief periods on several
occasions thereafter. The death ultimately
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occurred nearly 17 months after the accident.
In determining the quantum of compensation,
the Tribunal acted on the footing that it was
not established that the death was caused due
to the injury sustained by the deceased in the
course of the accident. It was held that it
was not correct to hold that there was no
direct and proximate connection between the
accident injury and the untimely demise of the
deceased where the death was not all at once
or at a point of time proximate to the date of
accident, and there was no medical evidence
regarding the cause of death. However, it was
held that the direct testimony of the
appellant clearly establishes when appreciated
in the light of the medical evidence that the
death was inevitably linked with the accident
injury. Tested by the yardstick of
probabilities and consistency with the rest of
the evidence and the circumstances of the
case, the appellants evidence emerges
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unscathed finding no reason to reject it.
Having observed that the surrounding
circumstances also point in the same
direction, it was noted that there was no
definitive break, no unexplained interval, no
yawning hiatus so as to snap the link between
the accident injury and its tell-tale 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. The Division Bench
could not 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. It was observed that young men
do not die suddenly; some cause has to be
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found for their death, 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. It
was also noted that the fact that no medical
evidence was led to precisely establish the
cause of death is a matter of no consequences
on the facts and in the circumstances of the
case and on the state of evidence on record.
It was noted that it might not be possible in
all cases, to lead the evidence of experts,
and when the direct and circumstantial
evidence tending to establish the link between
the accident injury and death goes
unchallenged, it would be idle to insist upon
the fulfillment of such a requirement.
45. In the case of Ramathal & Ors. v. Managing
Director, Cheran Transport Corporation,
Coimbatore, reported in (2003) 10 SCC 53, it
has been observed as under:-
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"15. Unfortunately, the High Court
did not discuss the materials on
record in detail. It is not in
dispute that the deceased was an
indoor patient from 14-1-1991 to 21-
1-1991. He thereafter was being
treated in the Government Hospital,
Palladam. He died there. The medical
certificate shows that the cause of
the death was due to primary disease
hypoxic encephalopathy and the
immediate cause of death was due to
cardiorespiratory arrest. The doctor
examined on behalf of the claimants
categorically stated that the
accident might have been the cause
of death of the deceased. The
respondent did not bring any
material on record to show that
there was no link between the
accident and the death. The finding
of the High Court that there was no
proper medical treatment and
therefore, cause of death is not
attributable to the accident does
not appear to be based on any
material on record. In any event, it
cannot be said to be the correct
approach adopted by the High Court
particularly when the Tribunal on
the basis of the materials brought
on record by the parties came to a
contrary finding. No strong and
cogent reason has been assigned by
the High Court in support of its
judgment reversing the findings of
the Tribunal. It accepted the
submission made on behalf of the
respondent herein without analysing
the materials and without arriving
at a clear finding of fact."
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46. It was held in the above-referred judgment of
Ramathal (supra) that the finding of the High
Court that there was no proper medical
treatment and therefore, cause of death is not
attributable to the accident does not appear
to be based on any material on record. No
strong and cogent reason has been assigned by
the High Court to reverse the finding of the
Tribunal.
47. The claimants in cases like such are required
to prove death resulting from injuries
suffered in motor accident. The degree of
evidence or the type of evidence would vary in
each case. There cannot be a straight jacket
formula to be adopted to consider that the
cause of death is the injuries suffered in the
vehicular accident. Black's Law Dictionary
Ninth Edition defines 'but for cause' as the
event without which the event would not have
occurred. It is also expressed as actual
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cause; cause in fact; factual cause.
48. If death is directly traceable to the injury
in the accident for which the respondents are
responsible, then aggrieved has a right to
claim compensation.
49. In Words and Phrases Legally Defined, Indian
Reprint, 4th Edition, Volume 1 A-K by
LexisNexis on page 596 under the heading of
"resulting from injury", the concept of chain
of causation has been explained as under:-
"If death in fact resulted from the
injury, it is not relevant to say
that death was not the natural or
probable consequence thereof. The
question whether death resulted from
the injury resolves itself into an
inquiry into the chain of causation.
If the chain of causation is broken
by a novus actus interveniens, so
that the old cause goes and a new
one is substituted for it, that is a
new act which gives a fresh origin
to the after-consequence.' Dunham v
Clare [1902] 2 KB 292 at 296, CA,
per Collins MR
The claimant under the Workmen's
Compensation Act must prove an
accident arising out of and in the
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course of his employment and that
injury or death resulted from it.
The result need not be a direct or a
natural or even a probable
consequence of the accident if in
fact it is a result of the accident.
It is enough that the accident
caused or contributed to or
accelerated death and it appears
from the authorities that an
accident may contribute to the death
if the accident has caused such a
state of things in the man's body
that he has become physically more
susceptible to the cause which
ultimately kills him.' Comery v New
Hucknall Coliery Co Ltd (1919) 88
LJKB 462 at 465, CA, per Scrutton
LJ"
50. In The Law of Torts by Ratanlal & Dhirajlal,
23rd Edition 1997 in Chapter IX, "Causation" is
explained as under:-
"If the damage alleged was not
caused by the defendant's wrongful
act the question of its remoteness
will not arise. In deciding the
question whether the damage was
caused by the wrongful act, the
generally accepted test is known as
'but for' test. This means that if
the damage would not have resulted
but for the defendant's wrongful
act, it would be taken to have been
caused by the wrongful act."
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51. In The Essentials of Forensic Medicine and
Toxicology by Dr. K.S. Narayan Reddy,
Sixteenth Edition 1997, "cause of death" is
explained as under:-
"The cause of death is the disease
or injury responsible for starting
the sequence of events, which are
brief or prolonged and which produce
death. It may be divided into: (1)
Immediate cause, i.e. at the time of
terminal event, e.g.,
bronchopneumonia, peritonitis,
trauma, etc. (2) Basic cause, i.e.
pathological processes responsible
for the death at the time of the
terminal event or prior to or
leading to the event, e.g., gunshot
wound of abdomen complicated by
generalised peritonitis. (3)
Contributory cause, i.e. the
pathological process involved in or
complicating, but not causing the
terminal event. In some cases, the
basic and the immediate cause may be
identical.
The manner of death is the way in
which the cause of death was
produced. If death occurs
exclusively from disease, the manner
of death is natural. If death occurs
exclusively by injury or is hastened
due to injury in a person suffering
from natural disease, the manner of
death is unnatural or violent."
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52. The legal maxim "in jure non remota causa sed
proxima spectatur, meaning thereby, in law the
immediate, not the remote, cause of any event
is regarded.
53. The claimant is required to prove that the
respondent's negligence was the proximate and
not merely a remote cause of the event.
54. In Black's Law Dictionary, Ninth Edition,
"proximate cause" has been explained as 1. A
cause that is legally sufficient to result in
liability; an act or omission that is
considered in law to result in a consequence,
so that liability can be imposed on the actor.
[Cases: Negligence 375.] 2. A cause that
directly produces an event and without which
the event would not have occurred.
55. As explained hereinabove, if the death has
resulted from injury, to find an answer to an
inquiry into the chain of causation, if some
other new cause substitutes the old, then the
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new cause would give a fresh origin. Here in
the present case, the deceased was suffering
from diabetes, blood pressure and thyroid with
knee replacement because of the obesity, the
motor accident injuries brought a new cause
which was the proximate cause of death. Had
the accident not occurred, the daughter of the
claimant could have continued with her life as
was conducting herself prior to the accident
with her comorbidity. The motor accident
injuries shattered her life. As explained in
the medical book of Dr. K.S. Narayan Reddy, if
the death occurs exclusively by injury or is
hastened due to injury in a person suffering
from natural disease, the manner of death is
unnatural. Thus, such death itself being
unnatural, would not be necessary to be
supported by postmortem report as can be
conclusively led through the evidence by
applying 'but for' test, that motor accident
injuries had caused unnatural death.
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56. The cause to show, as accident injury being
the proximate, the claimant has examined the
Doctors who had continuously treated her from
the date of accident till her death. The
evidence of the claimant has been supported by
the Doctors examined by the claimant. When the
claimant was brought at Sunshine Global
Hospital after the accident, she was treated
for ribs fracture. The brother of the deceased
had informed the police about the case. In his
application Exh.54, he had referred about the
grievous injuries to his sister in chest as
well as waist. The deceased was treated for
ribs injury and as per the Doctor, there would
not be any treatment for such injuries in the
form of plaster and the only way the ribs
could be cured was by way of rest. The Doctor
in his deposition had also stated about the
patient being admitted in the hospital on
1.12.2015 as she was having pain in waist and
there was difficulty in movement of hands and
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legs. It was observed that she had disc
problem in L4, L5, S1 vertebra and there was
protrusion between two vertebras and because
of that, she was facing spinal disc
herniation. As per the Doctor, at the relevant
time, when she was initially admitted though
there was a complaint about the waist, they
could not make examination of the protrusion
and then again when she was admitted, the team
of orthopedic were employed for treatment and
she was advised to walk with walker. Neosporin
powder was advised for fungal infection and
Dr. Dipak from Sunshine Global Hospital stated
that from first discharge to second discharge,
follow up treatment continued. The patient was
having chest injury and difficulty in
breathing, which according to him, could be
the possible cause of the death of the
patient. The medical certificate shows the
immediate cause of death as cardio respiratory
failure and the antecedent cause is severe
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anemia with septicemia and for giving rise to
such cause is the morbid condition-
DM/RA/Hypothyroidism. Learned advocate Ms.
Pathak has stressed upon the cause of death as
Hypothyroidism and the obesity of the deceased
along with other illness of diabetes, blood
pressure and thus, according to learned
advocate, it was the immediate cause for the
illness of the deceased. The cause as shown in
the medical certificate with antecedent cause
of severe anemia with septicemia. The evidence
of Dr. Ankur Kothari stated that he had
treated the deceased for axillary abscess in
the armpit with the final diagnose as L
auxiliary abscess with DM/RA/anemia/oral
candidiasis. The operation was incision under
anesthesia and at that time, she was facing
scarcity of blood and was also having fungal
infection in the mouth and was on insulin for
diabetes. She was advised exercise.
57. It is required to be noted that the injury
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sustained was rib fracture and protrusion in
the waist. There would not be any other form
of remedy, but rest is the recourse which
could gradually help in recovery. The evidence
of the claimant shows that the deceased had to
remain completely in bed and had stated that
she was not in a position to walk. Even
according to the Doctor, there was protrusion
in the waist. When she was admitted in the
hospital, she was having the complaint of pain
in the waist. There was disc problem in L4,
L5, S1 vertebra. Bedsores were required to be
treated. The deceased also faced operation for
axillary abscess in the armpit. The family
doctor - Dr. Prakash Bhagade was consulted
when the deceased suffered from pneumonia. At
that time too, she was not in a position to
walk or stand on her own. The Doctor had
advised her to be treated from Sunshine Global
Hospital. Customized belt was advised and
assistance of physiotherapist was taken, but
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could not find any improvement and on the date
of the death, she was to be taken for stitches
on her sores, but owing to breathlessness, she
was finally taken to ESIS General Hospital.
The evidence of the physiotherapist also
corroborates the evidence of the claimant, and
ultimately on 5.3.2016 at ESIS Hospital,
Gotri, during the course of treatment of 3
hours and 5 months, she died. The Doctor had
concluded natural death, but the evidence
suggests that there was infection in the blood
which was seven times more than the normal.
The kidney was also effected. The medical
certification of the cause of death by ESIS
General Hospital, Gotri shows cardio
respiratory failure due to anemia with
septicemia with morbid conditions giving rise
to the cause is DM/RA/Hyperthyroidism. The
main cause was severe anemia with septicemia.
The claimant could prove by way of evidence
that the proximate cause of death was the
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injury sustained in the accident as because of
the rib fracture in the injury in the waist,
she could not recover and inspite of regular
continuous efforts made by the mother and the
brother to bring recovery for the deceased, it
could not be done so and the whole period from
the date of the accident to that of the death
shows that she had continuously suffered
because of the accidental injury. The claimant
may originally have past history of diabetes,
blood pressure and thyroid and she had also
undergone knee replacement because of her
heavy weight. Diabetes, blood pressure and
thyroid issues are generally faced by many in
common and such disease may at times gradually
create a risk to human health, but for an
active person and specifically in the case of
deceased who was active in her job with all
those illness, she could have managed with her
life. Diabetes and high blood pressure are
very commonly linked with obesity and risk
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factors would be associated to all those
people who are heavy weight and along with the
complaint of thyroid, but with all those
illness, a person would be in a position to
continue with his active life, but in this
case, the claimant suffered motor accident
injury and was forced to be bedridden which
increased her sufferings which led to
septicemia and ultimately resulted in cardio
respiratory failure. The proximate cause for
the death was the injury suffered in the motor
accident and that has accelerated her death.
Thus, in view of the reasons given
hereinabove, the learned Tribunal has come to
the right conclusion that the claimant could
prove the nexus.
58. Learned advocate Ms. Pathak has contended of
fraud by stating that no postmortem report was
produced on record to show the original cause
of death. The written statement of the
insurance company was produced on record in
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the Trial Court Exh.20. No pleading as to any
allegation of malice or fraudulent intention
has been made as provided under Order 6 Rule 5
of CPC, accordingly every pleading shall
contain in a concise form material facts on
which the parties relies on the claim or his
defence. Order 6 Rule 10 makes it clear that,
wherever it is material to allege malice,
fraudulent intention, knowledge or other
conditions of mind of any person, it shall be
sufficient to allege the same as a fact
without setting out circumstances from which
the same has to be inferred. The primary
necessity is to allege the same in the
pleading. Nowhere in the written statement,
the insurance company has pleaded of any fraud
or malice of the claimant. The claimant as a
mother has filed a case under Section 166(1)
(c) of the Motor Vehicles Act, where she has
made a prayer for compensation claiming that
the death of her daughter has resulted from
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the injuries sustained in vehicular accident
and she, as a legal representative of the
deceased, has claimed for the compensation and
if a person takes advantage of his legal
rights, he cannot be considered as a wrongdoer
as the legal maxim says "nullus videtur dolo
facere qui suo jure utitur". All things are
presumed to be done in the legal manner till
there is proof to the contrary. The mother as
the claimant has a right under the provisions
of Motor Vehicles Act to claim compensation
and the original onus was on her to prove the
proximate cause of the death of her daughter,
where she has, by examining the Doctor and by
way of oral and documentary evidence, proved
the chain and the medical bills on record as
well as the other documents even from the
blood bank and all the supporting documents
produced by the Doctors as well as the
physiotherapist prove the fact of
complete chain of causation, the injuries
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sustained in the motor accident is the cause
of her death. In the effect, the non-
performance of the postmortem would not defeat
the claimant's case, as all the medical
documents with the evidence of Doctors
indicate that the injured condition worsen
with passage of time and ultimately, she
succumbed to death.
59. The learned Tribunal, to decide the quantum of
compensation of the deceased who died at the
age of 32, relied upon the evidence that the
claimant's daughter was working as Executive
(Administration) with Checkmate Services Pvt.
Ltd. and was drawing the salary of Rs.11,555/-
per month. The appointment letter was produced
at Exh.64, confirmation letter at Exh.65 and
the pay slip for the months of January 2015 to
June 2015 at Exh.66 were perused and
accordingly, it was found that she was
confirmed in service vide effect dated
30.9.2011. The learned Tribunal relied upon
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the pay slip of the month of June 2015 to
consider that she was drawing salary of
Rs.11,555/- including other allowances after
deducting the professional tax of Rs.150/-.
The net earning of the deceased was considered
as Rs.11,405/- per month, 50% addition was
given as prospective rise and 50% was deducted
towards personal expenses since she was
unmarried and applying multiplier of 16, an
amount of Rs.16,41,600/- was granted under the
head of loss of dependency.
60. The claimant had produced the IPD Final Bills,
Retail Invoices of Pharmacy issued by Sunshine
Global Hospital at Exh.57, Exh.58 and the
bills/cash memo of medicines, hospital bill of
Manjalpur Hospital at Exh.60. The claimant had
also produced the prescriptions of medicines
and lab reports in support of the bills.
Considering the bills of hospital charges,
medicines etc. placed on record, an amount of
Rs.3,04,000/- was awarded to the claimant
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towards actual medical expenses.
61. Transportation and attendant charges of
Rs.15,000/- had been granted and for loss to
estate and funeral expenses Rs.30,000/- and in
total, compensation of Rs.19,90,600/- has been
computed.
62. For the foregoing reasons, the appellant
failed to show any ground to merit, thus the
appeal stands dismissed. However, there shall
be no order as to costs. Registry is directed
to send the record and proceedings back to the
concerned Tribunal.
(GITA GOPI,J)
Maulik
