National Insurance Co. Ltd vs Pushpa Devi & Ors
2024 Latest Caselaw 2116 j&K

Jammu & Kashmir High Court

National Insurance Co. Ltd vs Pushpa Devi & Ors on 14 October, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

              HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT JAMMU
                                                       Reserved on: 08.10.2024
                                                     Pronounced on: 14.10.2024
 Case :Mac App 80/2021

National Insurance Co. Ltd.                                   ...Petitioner(s)/Appellant(s)
Through:       Mr. Rajesh Kumar, Advocate.
                                                Vs
Pushpa Devi & Ors                                                           ...Respondent(s)

Through:       Mr. Vikram Pangotra, Advocate.


CORAM: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                      JUDGMENT

1. The present appeal is filed under Section 173 of Motor Vehicles Act 1988 by the appellant-National Insurance Company, being aggrieved by and dissatisfied with the judgment and award dated 18.03.2020 passed by the Motor Accident Claims Tribunal, Samba, (for short, "Tribunal") in File No. MAC 18/2011 in case titled "Pushpa Devi and Ors vs Santosh Kumari and Ors", by which the Tribunal has awarded compensation of ₹6,32,000/- along with interest @ 7.5% from the date of petition i.e., 10.01.2007 till its realization, as against the appellant.

FACTUAL MATRIX

2. The claimants/respondent Nos. 1 to 5 filed a claim petition before Tribunal, Samba, thereby alleging that on 12.10.2005, the deceased Gulzari Lal suffered injuries in a road accident while he was travelling as a pillion rider on a motor bike which was hit by Maruti Car bearing Registration No. JK02P - 4804 which was being driven rashly and negligently by its driver (respondent no.7). The deceased suffered injuries/multiple fractures on his right leg. He remained admitted in Government Medical College, Jammu with effect from 12.10.2005, till 26.11.2005 and ultimately died on 09.05.2006. It is claimed that the deceased was a transporter being the owner of a private commercial bus, besides doing agricultural work and was earning ₹8000/- per month.

3. On the basis of the pleadings of the parties, the Tribunal framed following issues for determination:-

1. Whether accident occurred on 12.10.2005 near Indira colony, Bariyan by rash and negligent driving of offending vehicle JK02R-4804 being driven rashly and negligently in the hands of erring Driver, in which deceased Gulzari Lal sustained fatal injuries? OPP

2. In case issue no. 1 is proved in affirmative, whether the petitioners are entitled to any compensation under Motor Vehicle Act and, if so, from whom and to what extent?OPP

3. Whether at the time of accident, driver of the offending vehicle was not holding a valid and effective driving license and drove the vehicle in violation of terms and conditions of the insurance policy?OPR-1

4. The Tribunal disposed of the petition in the following manner:-

"17. In view of the findings on all the issues, this claim petition succeeds and is accordingly allowed. Since the offending vehicle was insured with the respondent no. 3, so the respondent no. 3 shall pay the compensation of ₹6,32,000/- to the petitioners along with interest @ 7.5% per annum from the date of petition I.e. 10.01.2007, till the amount is realized. Payment of court fee shall be first charge on the amount of compensation. Petitioner No. 1, who is wife of the deceased, shall receive 70% of the compensation and petitioner no. 2 and 5, who are children of the deceased, shall receive 30% of the compensation in equal shares. The interim compensation paid, if any, shall be adjustable."

5. The appellant insurance company has challenged the award dated 18.03.2020, on various grounds, however, the learned counsel representing appellant has restricted his submissions to the extent of the statement of witnesses who could not correlate the death of the deceased with accident, which occurred on 12.10.2005, and that there was no medical record or evidence produced by respondent No. 1 to 5 supporting their claim that deceased Gulzari Lal died due to the injuries, so suffered by him, in an accident caused on 12.10.2005. It is also stated that no medical certificate was produced to the effect that the said injuries being such grievous in nature which could result into the death of the deceased. Moreover, no post-mortem report was produced by the respondents, the deceased had suffered fracture in the right leg and had femur injuries only in the said accident and the same could not have resulted into the death after so many months. The deceased died due to the

renal failure as such, there is no connection with the injuries which were caused to him due to an accident.

6. Learned counsel for the respondents has stated that Dr. Satpal has deposed that he knew deceased Gulzari Lal who met with an accident and was treated at GMC hospital, Jammu with effect from 12.10.2005 to 26.11.2005, and then with effect from 10.04.2006 to 12.04.2006 at Dr. Hardas Singh, Orthopedic Hospital, Amritsar. He has further deposed that deceased died due to renal failure caused by the accident in question. Moreover, Dr Vikrant Sharma has also deposed that on 19.04.2006 medical report was submitted by him in respect of one Gulzari Lal, who remained admitted with effect from 12.10.2005, as a case of Compound Type III Fracture Right Leg with Fracture Trochanter Right Femur.

7. Learned counsel for the respondents has vehemently argued that the deceased was not having any kidney disease at the time of the accident, but eventually because of the accident, it led to illness due to multiple medications.

8. The learned counsel for respondents has relied upon the judgments passed by High Court of Judicature at Madras titled as "Oriental insurance company Ltd versus N.Minal and others" decided on 08.04.2009; High Court of Judicature at Bombay Bench at Aurangabad titled as "New India Insurance Company versus Sunita and Others"; High Court of Judicature at Madras titled as "V. Gurulakshmi and Another versus Union of India" decided on 30.04.2007, whereby it was in para no. 11 held as under:-

"11. It has to be seen that first appellant in her own affidavit has stated that during his lifetime, the deceased was hale and healthy and before the accident, he did not have any kidney problem. Further, it is apparently evident on record that the deceased who had suffered crush of right leg in the untoward incident, which led to imputation of right leg below knee, and spreading of infection further resulting in septicaemia, shock and renal failure and ultimately, the death of the deceased is directly attributable to the injury sustained by him in the rail accident which took place on 3.1999."

9. Heard learned Counsels for the parties, perused the material on record and considered the submissions.

10. The learned counsel for the appellant has restricted his argument only to the extent of proximity of the accident, which led to the multiple fractures and

ultimately the death of the deceased due to renal failure. Para no. 8, 9 and 10 of the impugned award has dealt with this issue as under-

"8. Petitioner no.1 Pushpa Devi has stated that deceased was her husband who suffered injuries in an accident and later on succumbed to his injuries. He remained admitted in GMC Hospital, Jammu and thereafter he was shifted to a Amritsar Hospital. Petitioner no.2 Surinder Kumar, who is son of the deceased has supported the averments of the petitioner no.1. The petitioner Pushpa Devi has, therefore proved the averments in the petition on material aspects, which have been corroborated by petitioner no. 2 Surinder Kumar. PW Dr. Sat paul has stated that he knew deceased Gulzari Lal who met with an accident and was treated at GMC hospital Jammu w.e.f. 12.10.2005 to 26.11.2005 and then w.e.f. 10.04.2006 to 12.04.2006 at Dr Hardas Singh, orthopaedic Hospital, Amritsar. He further deposed that the injured died due to prolonged ailment of accidental injury due to renal failure.

9. It is not only the oral assertion, the petitioners get support from the documentary evidence as well. The copy of final report of case FIR No. 119/2005 registered in respect of this accident at P/S Samba, discloses the commission of offences u/s 279/337 RPC, which reveals that the offending Maruti car driven by its driver had hit the deceased causing him serious injuries who later on succumbed to the injuries. Petitioners have also placed on record certificate issued by Dr Sat Paul, and Death certificate issued by police station, Samba. PW Dr Sat Paul has stated that he had examined the deceased who died due to renal failure which was caused due to the accident. PW Dr Vikrant Sharma has stated that on 19.04.2006 medical report was submitted by him in respect of one Gulzari Lal, who remained admitted under OU-IIIrd vide MRD No. 399336 and MLC No. 4046 w.e.f. 12.10.2005 as a case of compound type III fracture right leg with fracture trochanter right femur.

10. The petition read together with the oral as well as documentary evidence does reveal that the accident in which the deceased received serious injuries, occurred on account of reckless driving of the offending vehicle by its driver. Being so, there is no escape from the conclusion that the deceased died due to rash and negligent driving of the offending vehicle by its driver. So, the petitioners have successfully discharged the burden of proving issue no. 1, which is, accordingly, decided in favour of the petitioners and against the respondents.

11. Supreme Court of India in "Anita Sharma versus the New India Assurance Company Limited" reported as AIR 2021 Supreme Court 302, held as under:-

"22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in the criminal trial are in applicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of

probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye witnesses, as may happen in criminal trial; but instead should be only to analyse the material placed on record by the parties to ascertain whether the claimants version is more likely, then not true."

High Court of Judicature at Kerala in case being Appeal No. MACA Nos. 1829 and 1992 of 2013 decided on 08.04.2022 titled "Remani and ors. Vs. P. V. Avirachan and Ors.", whereby it was in para no. 16 held as under:-

"16. The above medical records would go to show that after the accident he had been continuing treatment with intermittent admissions in the hospital. Though the medical records speak about cirrhosis liver, all the certificates also state about the & fracture demur and subsequent treatment undergone with respect to the same. As has been rightly found by the Tribunal, even though he may be having cirrhosis liver, he had been managing with medication and only because of this accident and injuries and the subsequent treatment including use of antibiotics which might have aggravated the disease and taken his life for a few months after the accident. The inference drawn by the Tribunal that the accident and the resultant injuries aggravated the illness which ended his life within a short span of five months after the accident seems to be acceptable. Under no stretch of imagination can it be concluded that the accident has no connection with the death of the deceased. Had the accident not been happened, he would have controlled the disease with medication and that is the reason why PW1 deposed that he had been regularly present in the office for his duties prior to the accident but he could not attend the office for a single day after the accident. So, I concur with the finding of the Tribunal that the accident and the resultant injuries and the treatment undergone & ultimately resulted in the death of the deceased. So, in short, the accident has a direct nexus with the death of the deceased and the respondent/insurer cannot contend that the death is not caused due to the accident and the resultant injuries. Point No.1 is so found in favour of the claimants".

12. Proceedings before the learned Tribunal are summary in nature and the Tribunal has to decide the claim petition on the touchstone of the preponderance of probabilities, unlike a criminal case, where the offence is to be proved beyond reasonable doubt. Respondents have already proved that accident had taken place due to the offending vehicle being driven in a rash and negligent manner, the deceased got multiple fractures and suffered prolonged ailments for months, and ultimately died due to the injuries suffered because of an accident which resulted in the renal failure.

13. Learned Tribunal had no reason to disbelieve the testimony of Dr. Sat Paul and Dr Vikrant. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. The claimants were merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

14. In view of above, I find no merit in the present appeal and same is accordingly dismissed.

15. This court vide its order dated 09.08.2021 had directed the appellant to deposit the entire awarded amount along with interest, accrued thereon, with the Registry of the Court, the amount so deposited was directed to be kept in FDR initially for a period of six months.

16. This court on 29.08.2024 was informed by the learned counsel for respondent nos. 1 to 5, about the death of respondent No.1. Pushpa Devi. Since her legal heirs Surinder Kumar and Anju Bala are already party respondent no. 2 and 5, in the instant appeal, as such, there was no need for laying any motion for bringing on record her legal heirs.

17. Now that the appeal stands dismissed, the amount lying deposited with the Registry of this Court, along with interest, accrued thereon, shall be released in favour of the claimants/respondent no. 2 and 5 in equal shares. The award shall stand modified accordingly in view of the death of respondent No. 01 during the pendency of the appeal.

18. There shall be no order as to costs.

(MOKSHA KHAJURIA KAZMI) JUDGE

JAMMU 14.10.2024 Sunita/PS

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