T P Vishvnath Naiyar Though Lr vs United India Insurance Co Ltd And ...
2023 Latest Caselaw 1116 Raj/2

[2022/RJJP/002770]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 4047/2016

1. Late T. P. Vishvnath Naiyar S/o T.K.P. Naiyar, aged about 58
years,
1/1. Smt. Radha W/o Shri T.P. Vishvnath Naiyar, aged about 55
years,
1/2. Vinod Naiyar S/o Late Shri T.P. Vishvnath Naiyar, aged
about 31 years,
1/3. Vineet Naiyar S/o Late Shri T.P. Vishvnath Naiyar, aged
about 25 years,
All R/o 622 Kailash Path, Devi Nagar, New Sanganer Road,
Jaipur.


                                                                    ----Appellant
                                    Versus
1. United India Insurance Company Limited, Regional Office,
Shahara Chamber Tonk Road, Jaipur.
2. Suphul Kumar Vishvash son of Shri Devendra Nath Vishvash,
resident of House No.5, Minashi Colony, Nayala Road, Kanota,
Tehsil Bassi, District Jaipur
(Owner of the Car No.RJ-14 1C 4052)
3. Shankar Lal Sharma son of Shri Bhairu Ram Sharma Resident
of New Colony, Pathvara Samriya, Jaipur
(Driver of Car No.RJ-14 1C 4052)
4. Dinesh Sachdeva Through Suphul Kumar Vishvash son of
Devendra Nath Vishvash, House No.5, Minashi Colony Nayala
Road, Konota Tehsil Bassi, District Jaipur
(Insurance Car Holder No.RJ-14 1C 4052)
                                                                  ----Respondent

For Appellant(s) : Mr. Dileep Singh Jadaun, Adv.

For Respondent(s)          :    Ms. Chitra Goel, Adv.



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

                                JUDGMENT
JUDGMENT RESERVED ON                            :                08.12.2022

DATE OF PRONOUNCEMENT                           :                01.02.2023




 [2022/RJJP/002770]                    (2 of 7)                    [CMA-4047/2016]

1. The appellants are not satisfied with the quantum of

compensation decided by the Motor Accident Claims Tribunal

Jaipur City, Jaipur in Claim Petition No.504/2015 vide award dated

05.05.2016. Hence this appeal Under Section 173 of The Motor

Vehicles Act, 1988.

2. One Mr. T.P. Vishvnath Naiyar met with motor vehicle

accident while crossing the road on 22.11.2006. As per the eye-

witness the accident was caused due to rash and negligent driving

of the vehicle bearing Registration No.RJ-14-1C-4052. For the

accident aforesaid FIR No.224/2006 was registered with Adarsh

Nagar Police Station against the driver of the offending vehicle.

After investigation of the case, the Police submitted charge-sheet

against the driver. Copy of the FIR and charge-sheet are exhibited

documents on the record.

3. In the Accident aforesaid, Mr. T.P. Vishvnath Naiyar sustained

fracture on shaft of right tibia and right fibula as well as fracture of

right fifth and sixth ribs. Mr. T.P. Vishvnath Naiyar filed a claim

case on 18.01.2007 before the Motor Accident Claims Tribunal. On

15.12.2008, Mr. T.P. Vishvnath Naiyar died. Thereafter, the

appellants who are widow and two sons of Mr. T.P. Vishvnath

Naiyar got themselves substituted in the claim case on 16.09.2009

and raised claim under Section 166 of The Motor Vehicle Act.

4. The owner and driver of the vehicle, though party in the

claim case, did not appear to contest the claim case, only insurer

contested the case. The defense of the insurer was that the driver

had violated the terms and conditions of the Policy, hence the

insurer is not liable.

[2022/RJJP/002770] (3 of 7) [CMA-4047/2016]

5. The claimants examined witnesses including eye-witness of

the incidents and got several documents exhibited. However

respondents led no evidence.

6. The Tribunal on consideration of the evidence on record

accepted the factum of accident caused due to rash and negligent

driving of the vehicle. The Tribunal further held that the vehicle

was insured at the time of accident with United Insurance

Company Limited. However, the Tribunal was of the view that

there was no nexus between the injuries sustained during the

accident and the death of Mr. T.P. Vishvnath Naiyar, therefore, the

claimants were not entitled for compensation for death in the

motor vehicle accident. However, the Tribunal awarded

Rs.2,00,000/- for loss to the estate, Rs.50,000/- for transportation

during the long treatment and Rs.50,000/- for special diet to the

deceased. Total Rs.3,00,000/- was awarded along with interest @

9% from the date of application dated 18.01.2007.

7. Learned counsel for the appellants contends that there

was/is overwhelming evidence on the record to substantiate that

the fracture of Mr. T.P. Vishvnath Naiyar was not cured, due to

serious infection, till his death. Since fracture had not been cured,

Mr. T.P. Vishvnath Naiyar, who was a patient of hypertension and

glycemia remained on bed leading to further complication of

kidney failure at the time of his death. Therefore, consequences of

accident, i.e., fracture of leg bone was there all along till his

death and that was the main reason for premature death even

after two years' treatment of Mr. T.P. Vishvnath Naiyar. Learned

counsel contends that the learned Tribunal has wrongly relied on

the opinion of Dr. Anil Choudhary, who was one of the panelist

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doctor of the insurer. According to the doctor, there was no nexus

between the injury and death.

Learned counsel has drawn attention of the Court to the

cross-examination of Dr. Anil Choudhary, wherein he has admitted

that it is a fact that both bones of right leg of Mr. T.P. Vishvnath

Naiyar were fractured and for that reason Mr. T.P. Vishvnath Naiyar

was unable to move. The witness further admitted that he had not

seen any document which showed that the bones of the leg had

already got unioned nor he had ever seen the patient.

8. Learned counsel for the insurer-respondent contends that

there is a gap of two years in between the accident and death and

the doctor has opined that the death was due to failure of organ,

therefore, it cannot be accepted that Mr. T.P. Vishvnath Naiyar died

in a motor vehicle accident. Learned counsel has relied on the

evidence of Dr. Anil Choudhary.

As has been noticed above, the opinion of Dr. Anil Choudhary

cannot be considered as expert opinion as neither the doctor got

an opportunity to see the patient nor had ever treated the patient.

9. The main point for consideration in this appeal is whether the

finding of the Tribunal that there is no nexus between the accident

and death is based on material on the record.

10. The Board of doctors of S.M.S. Medical College and Hospital,

Jaipur had issued opinion dated 09.06.2007 stating therein that

due to infection, it was a case of non-union of right leg bones. The

certificate is at Exhibit-11. Exhibits-30 to 33 are final bills of

medical expenses issued by Jaipur Hospital. The bill is dated

11.12.2007 and the discharge slip dated 20.04.2008 at Exhibit-26

would show that the treatment of Mr. T.P. Vishvnath Naiyar was for

[2022/RJJP/002770] (5 of 7) [CMA-4047/2016]

infection and non-union of the fracture bones of right leg. The

discharge slip dated 11.12.2007 goes to show that Mr. T.P.

Vishvnath Naiyar was suffering from infection leading to non-union

of fractured right leg bones.

11. Thus, there is no material on record to substantiate that

prior to his death on 15.12.2008, Mr. T.P. Vishvnath Naiyar had

already got cured of the fracture of his leg which was caused

during accident. Therefore, death due to development of other

complications, cannot be said to have no connection with the

injury caused rather, consistent material on record speaks volume

that fracture of both upper and lower bones of right leg was

continuing till death due to infection and that the fracture had led

to non-movement of body creating further medical complication

including kidney failure.

12. Therefore, this Court is of the view that death of Mr. T.P.

Vishvnath Naiyar was a consequence of the motor vehicle accident

and the learned Tribunal has erred in not considering the material

on record in a correct perspective.

13. In The State of Haryana and Ors vs. Sukhpal and Ors.,

reported in 2008 ACJ 158, the death of injured took place after

one year and seven months. The injured had suffered fracture of

spine and became paraplegic with 100% disablement, the Hon'ble

Punjab and Haryana High Court rejected the contention that the

death was natural. In National Insurance Company Limited

vs. Anthony (since deceased) & Ors, reported in IV (2015)

ACC 750 (Madras), initially the claim case was filed to obtain

compensation for injuries. During pendency of the claim case the

injured died and before death, he was under continuous medical

[2022/RJJP/002770] (6 of 7) [CMA-4047/2016]

treatment. The Hon'ble Madras High Court held that only due to

non-production of postmortem report, the claim for compensation

would not be defeated.

14. At the time of his death, Mr. T.P. Vishvnath Naiyar had his

own business named as Honda Care. Though the claimants have

stated in the claim petition that he was earning Rs.20,000/- per

month, however, copy of the income tax returns filed by Mr. T.P.

Vishvnath Naiyar shows that his yearly income in the financial

year 2005-2006 was Rs.1,05,741/- taken in round figure of

Rs.1,10000/-. The date of birth of Mr. T.P. Vishvnath Naiyar is

25.05.1951, as such at the time of death he was aged between 55

to 60 years. Therefore, as per the guidelines in National

Insurance Company Limited vs. Pranay Sethi and Ors.,

reported in (2017) 16 SCC 680, he is entitled for 10% addition

under the head "future prospects". Since the deceased left three

dependents, one third is deductable for his personal expenses as

held in Sharla Verma (Smt) and Ors vs. Delhi Transport

Corporation and Ors. reported in (2009) 6 SCC 121.

Considering the age group of the deceased, multiplier of 9 would

be appropriate as per the judgment in Sharla Verma's case (supra)

aforesaid.

Thus, calculation would be Rs.1,10,000/- plus 10% which is

equal to Rs.1,21,000/-, minus one third, quotient being

Rs.80,667/-, multiplied by nine, the amount comes to

Rs.7,26,000/-. Besides the aforesaid, all the three claimants are

entitled for Rs.40,000/- each for loss of spousal and filial

consortium, Rs.25,000/- is payable for funeral expenses and the

same amount of Rs.25,000/- is for loss to the estate.

[2022/RJJP/002770] (7 of 7) [CMA-4047/2016]

15. The appellants have produced medical expenses bill of

Rs.55,000/- which is also payable to the claimants. This Court

affirms the award of Rs.50,000/- for transportation charges and

Rs.50,000/- for special diet during the treatment of the deceased.

However, the amount of Rs.2,00,000/- as loss to the estate

awarded by the Tribunal is modified and reduced to Rs.25,000/- as

discussed above.

This Court is not inclined to interfere with the quantum of

interest awarded by the Tribunal.

The compensation amount would be payable after deducting

the already paid amount. The total compensation is calculated as

Rs.10,51,000/- minus the amount already paid.

16. The award of the Tribunal stands modified accordingly and

this appeal is allowed.

(BIRENDRA KUMAR),J

Ashwani /-23

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