Lambadi Lakya And 4 Ors vs Mohd Moizuddin And Anr
2023 Latest Caselaw 2463 Tel

             THE HON'BLE SRI JUSTICE M. LAXMAN

       MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
                    No.1865 OF 2007

JUDGMENT:

1. The present Motor Accident Civil Miscellaneous Appeal is filed

challenging the order and decree dated 30.03.2007 in O.P.No.1062 of

2002 on the file of the Motor Accident Claims Tribunal (VIII

Additional District Judge) at Nizamabad, (hereinafter referred to as

'Tribunal'), wherein and whereby the petition filed by the appellants

herein seeking compensation for injuries and death of one Smt.

Lambadi Soni (hereinafter referred to as 'injured/deceased'), was

dismissed.

2. The challenge in the present appeal is made on two grounds.

The first ground is that the Tribunal went wrong in holding that

there is no accident, when there is contra evidence. The evidence on

record of the police as well as the eyewitness clearly demonstrates

that the accident is result of negligence on the part of the driver of

the offending lorry, which is owned by respondent No.1 and insured

with respondent No.2 herein. The second ground is that the

Tribunal has failed to fix the compensation relating the death of the

injured/deceased to the accident.

3. Learned counsel for respondent No.2-insurance company

contended that the appellants failed to establish that the injuries

sustained by the injured/deceased are related to the accident and

such death was on account of proximate relation of the injuries

sustained by the injured/deceased. Since there is no evidence the

Tribunal has rightly held that the accident is not proved. It is

further contended that there is no postmortem report to indicate that

the death of the injured/deceased was on account of injuries

sustained by her in the accident. According to the learned counsel

of respondent No.2, only fracture injuries were found on her body,

which cannot be attributed for her death. The evidence of P.W.3-

doctor clearly demonstrates that there is no affirmative evidence to

show that the death of the injured/deceased was result of injuries

sustained by her in the accident.

4. Heard both sides.

5. P.W.2 is eyewitness and Ex.A-1 is First Information Report

(FIR) and Ex.A-6 is charge sheet. Initially, the police found that

there is rash and negligence driving in causing the injuries to the

injured/deceased in the accident. Subsequently, FIR under Ex.A-3

was issued by the Medak Rural Police Station on complaint under

suspicious death of the injured/deceased. The said FIR under

Ex.A-3 was referred to Bhiknoor Police Station. The Police Bhiknoor

after completion of such investigation filed charge sheet under

Ex.A-7 and the same shows that the death was on account of rash

and negligent driving of the driver of the lorry, which was involved in

the accident. There is no evidence from the respondents to show

that no accident occurred. The Tribunal in spite of lack of such

evidence found that there was no rash and negligence and there was

no accident. This finding is contrary to the evidence on record. The

evidence on record clearly shows that there was accident and such

accident was result of rash and negligent driving. Such finding of

the Tribunal requires to be set aside and the same is hereby set

aside. This Court holds that the accident was on account of rash

and negligent driving of the crime vehicle.

6. Now, the question is whether the death of the injured/deceased

was relatable to injuries sustained by her in the accident. The

medical certificate under Ex.A-2 shows that the injured/deceased

sustained only Grade-II compound supra-condoler i.e., fracture of

right femur and laceration over right knee. The age of the

injured/deceased was only 45 years.

7. P.W.3 is doctor, who conducted postmortem examination of the

injured/deceased. As per, Ex.A-4 is postmortem certificate, the

cause of death was on account of renal failure and septicemia

secondary to osteomyelities. Osteomyelitis may occur on account of

infection due to germs, which can enter through blood stream or

spreading from nearby tissue. Such infections can also begin in

bone, if injury exposes the bone to germs. It can cause bone death

and it can impede blood circulation to bone. The persons with

chronic health conditions such as diabetes and kidney failure are

more prone to develop osteomyelitis. Further, septicemia infection

occurs when bacteria enters into blood stream and spreads. It can

lead to sepsis, the body reaction to the infection, which can cause

organ damage and even death.

8. There is no scientific evidence from P.W.3 whether the

septicemia was developed on account of exposure of bone to the

germs on account of injuries sustained by the injured/deceased and

there was bone death. When septicemia can be caused for various

reasons, attributing bone injury as a causative factor is one out of

many probable happening. It cannot be assertively said that such a

bone injury was causative factor for ostemyelitis. The evidence of

P.W.3 further shows that he is not clear about whether ostemyelitis

is result of injury or for any other reasons. There is no observation

of bone death and there is also no observation that whether any

infection is caused near injury. If such things are there, it cannot be

assumed septicemia was on account of injuries. From such evidence

it cannot be said that death was on account of injuries sustained by

her in the accident. The Tribunal has rightly opined in this regard.

9. The evidence on record shows that the deceased sustained

fracture of right femur and she was under treatment and she

incurred nearly Rs.7,000/- towards medical expenses under

Exs.A-13 to A-16. She was an agriculturist. Her services to

agriculture and family were deprived on account of injuries and the

same cannot be ignored.

10. Learned counsel for respondent No.2-insurance company

contended that the present action of the appellants herein claiming

compensation on account of injuries sustained by the

injured/deceased is not maintainable, in the light of maxim 'actio

personalis moritur cum persona'. The said contention is partly

sustainable. The said maxim cannot be applied in toto. In this

regard, it is apt to refer to the judgment of the Apex Court in the

case of The Oriental Insurance Company Limited vs. Kahlon @

Jasmail Singh Kahlon 1, wherein the Apex Court by relying upon the

decision of Umedchand Golcha vs. Dayaram 2 and decisions of other

High Courts and also the judgment of the Apex Court in the case of

2021 SCC OnLine SC 691

2002 (1) MPLJ 249

Parmindar Singh vs. New India Assurance Co. Ltd.3, held that the

legal representatives of the deceased injured are entitled to continue

the litigation claiming compensation on account of loss of estate.

The loss of estate includes medical expenses, travelling, attendant,

diet, doctor's fee and reasonable monthly annual accretion to the

estate for a certain period.

11. In the present case, the injured incurred medical expenses of

nearly Rs.7,000/-. As she was under treatment, she must have

incurred travelling expenses, attendant charges and expenses for

diet. Hence, this Court is inclined to grant an amount of

Rs.20,000/- as compensation altogether towards said expenses.

12. The injured/deceased was agriculturist and the year of

accident was 2002. Considering the year of accident, the notional

monthly income of injured/deceased is taken as Rs.3,500/- for two

years period, which comes to Rs.84,000/- (Rs.3,500/- X 24 months).

The said amount is awarded towards annual accretion to the estate.

13. The total amount of compensation granted to the appellants

towards injuries and death of the injured/deceased by this Court

comes to Rs.1,04,000/- [medical expenses, transportation charges,

(2019) 7 SCC 217

attendant charges and diet charges: 20,000/- + annual accretion to

the estate for a certain period: Rs.84,000/-].

14. In the result, the Motor Accident Civil Miscellaneous Appeal is

partly allowed by granting an amount of Rs.1,04,000/- towards

compensation for injuries and death of the injured/deceased to the

appellants. The amount of compensation shall carry interest at 7.5%

per annum from the date of filing of the O.P. till the date of

realization. Respondents are held jointly and severally liable for the

said compensation and they are directed to deposit the said amount

to the credit of O.P. along with accrued interest within a period of

two months from the date of receipt of a copy of this judgment. On

such deposit, the appellants are permitted to withdraw the entire

amount. The appellants are directed to pay deficit Court fee, if any,

on amount of compensation granted over and above the claimed

amount. There shall be no order as to costs. Miscellaneous

petitions pending, if any, shall stand closed.

_______________ M.LAXMAN, J Date: 19.09.2023.

GVR