Partly allowed

The Oriental Insurance Company Ltd. v. Darshan Singh

Madhya Pradesh HC18 Jun 2018MA/444/2006

Case brief

AI extract

What is this about?

This miscellaneous appeal by an insurance company challenged an award granting compensation for death resulting from a motor accident. The court examined if the death had a direct nexus with the accident injuries and if the claim could survive the injured person's death. The appeal was allowed, and the compensation amount was reduced to Rs. 1,14,000/-.

What did the court decide?

The appeal is allowed; the compensation awarded is reduced to Rs. 1,14,000/- carrying interest at 6% per annum.

The Oriental Insurance Company Ltd. Vs Darshan… — Motor Accident Claims | Madhya Pradesh HC (2018)

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THE HIGH COURT OF MADHYA PRADESH

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MA.444/2006.

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The Oriental Insurance Company Ltd. Vs. Darshansingh and Others.

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Gwalior, Dated: 21/06/2018.

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Shri B.K.Agarwal, learned counsel, for the appellant/Insurance Company.

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Shri R.P.Gupta, learned counsel, for the respondents.

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This misc. appeal has been filed by the insurance company being aggrieved by the award dated 27.1.2006 passed by the court of First Motor Accident Claims Tribunal Shivpuri in Claim Case No.193 of 2005 (Darshan Singh and Others Vs. Virendra Yadav and others) on the ground that the accident had taken place on 5.2.2004 causing injuries in the nature of fracture of tibia and fibula of both the legs of deceased Sukvinder Singh and he died on 11.3.2005.

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It is submitted that there is no direct nexus between the death of the deceased and the accident and besides this, the fact remains that the deceased was admitted in the government hospital for about 20 days and thereafter, he has not taken any treatment from any recognized medical practitioner. It is submitted that no Postmortem was performed on the dead body of the deceased to suggest that there was nexus between the cause of death and the accident. It is further submitted that claimants have examined (PW2) Dr. Shamshad Beig Mirza claiming himself to be a doctor without exhibiting any of his medical prescriptions/bills of the medicines which were purchased on such prescription. Merely saying that because of poor financial condition, the deceased could not take regular treatment and he was treated by said (PW2) Dr. Shamshad Beig Mirza, is not sufficient. It is further mentioned that because of pus formation in the wounds caused due to

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accident, he died on 11.3.2005.

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Learned counsel for the appellant has placed reliance on the judgment of Supreme Court in the case of Anil Vs. New India Assurance Co. Ltd MACD 2018 (1) (SC) 38 wherein, the ratio is that when there is no medical evidence to prove that the death occurred due to injuries received in the accident, the finding of the High Court declaring assessment of compensation to be perverse, has been upheld by the Hon'ble Supreme Court.

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Reliance has also been placed on the judgment of this Court in the case of Usha Jhingran and Others Vs. Budhsen and Others 1992 ACJ 110 where again in para 4, it has been held that the onus was on the claimants to have proved any medical or other expert evidence to infer that death was the direct consequence of injuries received by the deceased in the accident.

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Further the reliance has also been placed on the FULL Bench decision of this court in the case of Bhagwati Bai and another Vs. Bablu and Others 2007 ACJ 682 . In this judgment, Full Bench has held that the claim for personal injury filed under Section 166 of the Motor Vehicles Act would abate on the death of injured-claimant and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the injured.

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Section 1 of the Legal Representatives Suits Act, 1855, confers rights on the executors, administrators or representatives of any person deceased to maintain an action for any wrong committed in the lifetime of a deceased person. The said Section 1 of the Legal Representatives Suits Act, 1855, is quoted herein below:

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'Section 1. Executors may sue and be sued in certain cases for wrongs committed in lifetime of deceased.-- An action may be maintained by the executors, administrators or representatives of any person deceased, for any wrong committed in the lifetime of such person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person, so as such wrong shall have been committed within one year before his death and the damages when recovered shall be part of the personal estate of such person; and further, an action may be maintained against the executors or administrators or heirs or representatives of any person deceased for any wrong committed by him in his lifetime for which he would have been subject to an action, so as such wrong shall have been committed within one year before such person's death and the damages to be recovered in such action shall, if recovered against an executor or administrator bound to administer according to the English Law, be payable in like order of administrator as the simple contract debts of such person.

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It will be clear from Section 1 of the Legal Representatives Suits Act, 1855, quoted above that the legal representatives of any deceased person can maintain an action for any wrong committed in the lifetime of such deceased person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person, so as such wrong shall have been committed within one year before his death and the damages when recovered shall be part of the personal estate of such person. It is by virtue of this provision in Section 1 of the Legal Representatives Suits Act, 1855 that the legal representatives of the deceased person can also maintain or continue to maintain an application for compensation for personal injury suffered in the lifetime of such person in a motor accident which has occasioned pecuniary loss to the estate for which such person might

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have filed an application for compensation under Section 166(1) of the Motor Vehicles Act, 1988. But where a personal injury suffered by a person during lifetime in a motor accident has not occasioned pecuniary loss to the estate of the such person, the legal representatives of the deceased person cannot maintain or continue to maintain an application for compensation under Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988.

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Further, under Section 1 of the Legal Representatives Suits Act, 1855, an application for personal injury suffered by a person during lifetime in a motor accident can be maintained and continued by the representatives of the deceased person for the pecuniary loss occasioned to the estate of the deceased person so long as the accident has been caused within one year before his death. Moreover, the accident may have occasioned pecuniary loss to the estate of a person in many ways and it is for the Tribunal or the Court to decide the loss which has been occasioned to the estate of the person who had suffered personal injury in a motor accident depending on the pleadings and proof before the Court in each case. In Paragraph 21 of the judgment of the Division Bench of this Court in Umedchand Golcha v. Dayaram and Ors 2001 ACJ 966 (MP), the Division Bench of this Court has held :

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“Further, the question is which items can form loss to the estate of the deceased. Of course, exhaustive list of these items cannot be given, since it would depend upon pleadings and proof brought before the Court by the claimant/legal representatives. But it can be held that loss of accretion to the estate through savings or otherwise caused on account of accident permanently or temporarily can be worked out on giving facts or assessing the loss to the estate. Further, the existing state of estate may

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suffer loss by application towards medical expenses, expenditure on diet, expenditure on travelling, expenditure on attendant, expenditure on diet, expenditure on Doctor's fee, reasonable monthly/annual accretion to the estate for certain period etc. The claimant does not keep separate amount for such unforeseen expenditures during his life-lime. His income is at the most divided in three parts, namely, expenditure on himself, expenditure on family and the savings to the estate. Therefore, he has to meet such expenditure from out of his estate. There may be circumstance where it is born by his legal representatives. Therefore, it is held that the legal representatives can ask for loss to the estate of these items by production of satisfactory evidence unless Court is able to draw lifetime conclusion about such expenditures from out of the estate, from the facts and circumstances and on the basis of experience”.

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From the above ratio and looking to the fact that accident had taken place on 5.2.2004 causing fracture of tibia and fibula of both the legs, it can be safely inferred that the deceased must have incurred expenditure on treatment which can be classified as Rs.25,000/-. Since there was loss of income for a period of six months, computing the notional income as on the date of the accident, a sum of Rs.15,000/can be awarded on account of loss of income. Similarly, the deceased would have required services of attendant for this period and therefore, further sum of Rs.15,000/- can be awarded for this purpose. Besides this, a sum of Rs.15,000/- on account of healthy and nutritious diet at the rate of Rs.2500/- per month for a period of six months can be awarded. A sum of Rs.15,000/- which would have been incurred on transportation of the patient can also be awarded.

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Though, qualification of (PW2) Dr. Shamshad Beig Mirza to certify the nexus between the accident and the death is circumspect but the fact remains that he has given evidence to the effect that he had treated the deceased for a period of one year and therefore, a sum of Rs.24,000/- being incurred at the rate of Rs.2000/- per month can be safely awarded to have been spent on the fee of doctor etc. Besides that, claimants would also be entitled to a sum of Rs.5,000/- towards the cost of litigation. Thus, the amount of compensation is reduced to Rs.1,14,000/from Rs.4,01,000/- which has been awarded by the Claims Tribunal, which shall carry interest at the rate of 6% per annum from the date of filing of the claim petition before the Claims Tribunal as has been awarded by the Claims Tribunal.

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To the above extent, the appeal is allowed and compensation is reduced as mentioned above.

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Accordingly, this appeal stands disposed of.

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(Vivek Agarwal) Judge

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RKS

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Digitally signed by R. K. SHARMA Date: 2018.06.22 17:57:07 +05'30'