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Judgment
G.C. Mital, J.—This order may be read in continuation of my detailed order passed in FAQ. No. 476 of 1980 decided on 13-11-1984, vide which FAO Nos. 476, 478 and 479 of 1980 were allowed and in FAO No. 477 of 1980 the report was called from the Motor Accident Claims Tribunal, Chandigarh (for short ''the Tribunal''), under Order 41 Rule 25 read with Section 151 of the Civil Procedure Code, in view of the death of Smt. parmeshwari Devi, claimant, during the pendency of the proceedings, to determine the matter whether her legal representatives were entitled to any compensation and if so how much. The Tribunal has forwarded a detailed report dated 9-12-1985, suggesting that Rs. 7255/- should be paid as compensation to the legal representatives as follows:
(i) Special diet for 263 days from 23-6-1975, the day she was admitted to P.G.I, till 29-7-1975, when she was discharged from PGI and thereafter till 12-3-1976 as an outdoor patient when she was allowed to walk with the help of two non-weight bearing crutches at the rate of Rs. 5/- per day :- Rs. 1315/- (ii) For gratuitous service rendered by close relations during the period of 263 days ; Rs. 1350/- (iii) Expenses incurred towards the wages, food and residence of a whole-time servant/attendant during the period of 263 days; Rs. 1350/- (iv) Transportation charges of the attendants to and fro residence and FGI for 37 days during which the injured was an indoor patient; Rs. 370/- (v) Ambulance charges from the place of accident to Chandigarh and for about 7-1/2 months during which she was an outdoor patient : Rs. 1000/- (vi) For gypsum bandages for plastering the fractured leg ; Rs. 425/- (vii) Costs of tonic, pain killers etc. during the period of 263 days : Rs. 270/- 2. The learned Counsel for the claimants is totally dissatisfied with the report of the Tribunal and has argued that the large number of items have been wrongly disallowed and on the items on which compensation has been awarded, that is disproportionately low. In order to appreciate the points raised on behalf of the claimants, some salient facts of the case deserve to be noticed.
On 22-6-1975 at about 3 p.m. on G.T. road between Karnal and Gharaunda an accident took place between Flat Car No. HRR 3719 belonging to the husband of Smt. Parmeshwari Devi and driven by her son and Jeep No. HRK 1606 belonging to the Agro Industrial Corporation Ltd., Chandigarh. Besides her, her husband and the younger son were also the occupants of the car. All had received injuries. All had filed claim applications. Others were awarded compensation. I by my common order dated 13-11-1984 after reversing the finding of the Tribunal on the point of negligence and that matter is no longer in dispute before me. Since Smt. Parmeshwari Devi had died on 28-10-1983 during the pendency of her appeal and in view of certain decisions, the remand report was called to find out the loss to the estate and compensation payable to the legal representatives.
Admittedly, she was brought to PGI on the following day i.e. 23-6-1975 and remained there as an indoor patient till 29th July, 1975 when she was discharged with whole of the left leg in plaster. There were four fractures on the left leg, two on femur, one on tibia and one on fibula. As an outdoor patient she remained under treatment till 2nd December, 1975, when she was allowed to walk with two non-weight bearing crutches. On 6-3-1976 marriage of her son took place and on 12-3-1976 she was allowed to walk on one weight bearing crutch. On 24-3-1976 she fell down in the residential house, suffered fracture of the same leg and was treated in the PGI upto July, 1977. In 1978 she was got checked up from the doctors of Amritsar, Delhi and Patiala, as she continued to have stiff knee and other permanent disabilities in the leg. Thereafter, she continued under treatment of PGI till February, 1978. In July, 1979 a lump on the left breast was formed for which she was operated in that month and was discharged in February, 1980. Since her leg trouble could not improve, she was taken to Bombay and in Tara Memorial Hospital doctors on bone scanning found hot point compatible with cancer in the left femur. 10 courses of chemotherapy were given. Once again, she was taken to Bombay and 3 cycles of chemotherapy were given to the hot point of femur. By 1983 the cancer spread to lungs. The right humerus bone was pathologically fractured and she was again admitted to PG1, and on 30th August, 1983, she was discharged from there as a hopeless case and was put on Ayurvedic treatment and she ultimately died on 29th October, 1983.
The Tribunal in his report has allowed compensation till 24-3-1976, when she fell down and not thereafter on the reasoning that she was negligent and, therefore, was not entitled to compensation for the expenses incurred on the treatment of the leg which was fractured due to fall. The counsel for the claimants has argued that the Tribunal was wrong in coming to the conclusion that she had a fall due to her negligence. He has urged that she was already on crutches and the fall cannot be attributed due to her negligence and was due to her earlier leg fracture caused in the accident.
After going through the evidence to the record I am inclined to believe that the fall was not due to her negligence but was solely due to the disability in the left leg, which remained, in spite of the long treatment and operations. In Stanton v. Taylor Pearson & Carson (B.C.) Ltd. and Ors. 1967 A.C.J. 70 the leg of the claimant was broken second time, while he was using crutches. It was ruled that the fact had to be taken into consideration while assessing damages.
The facts enumerated above show that it took nearly 8-1/2 months for the injured to walk on one weight bearing crutch, within 12 days of that she fell down. She had already been incapacitated and the support of one weight bearing crutch could help her to walk without assistance of another human being but it was not without difficulty or risk. The Tribunal was of the opinion that the marriage of her son had taken place on 6-3-1976 and by 24-3-1976 her relations might have been there and if she had taken greater care not to walk she might not have fallen down. After 18 days of marriage, no relation or friend would have stayed and in spite of the best care, she could slip and fall. That is what seems to have happened and I believe the statements made in this behalf.
The law is well settled that a duty is cast on the injured to mitigate the damages and probably for that reason the injured had started moving with two crutches in December, 1975 and with one crutch in March, 1976, and the fall cannot be attributed to her due to her negligence. Accordingly, I hold that the fall was not due to negligence and was because of the permanent injury which has been caused due to leg fracture in the accident, and, therefore, the expenses incurred on treatment etc. for the fracture suffered due to fall on 24-3-1976 were also recoverable.
Next point which arises for consideration is whether the lump of the left breast, cancer of left femur which spread upto lungs, and, thereafter pathological fracture or fight humerus would be considered to be off shoots of the injury caused in the accident or not. Dr. B.D. Gupta, Professor of Radiothraphy, PGI PW 4, has stated that the breast cancer is caused due to harmonous imbalance in the body and he has further opined that weakness of the bone in a given case, may in the procees of circulation of the blood entangle cancer cells from the circulation, although he could not give definite cause. In view of the aforesaid opinion of the doctor, although no definite finding can be given but it can reasonably be inferred on the peculiar facts of this case that the development of cancer tissues was due to the long suffering which started by the accident of 1975 and the second fracture of the same leg suffered due to fall for which she had to be treated for a long time and while she was still having disability, pain and suffering, the cancer was detected after 4 years of the accident which further spread and ultimately she died.
The respondents could not lead evidence to show that the cancer was wholly un-connected with the injury sustained, as a result of the accident and in this behalf no evidence has been led by them. A Division Bench in Maricar Motors Ltd. and Others Vs. Neelambal Ramaswamy and Others, gave the following verdict:
...It is true some suggestion had been put to the Surgeon that the death may be due to either fact embolism arising out of the injury or air embolism arising out of the administration of drugs. But so long as the death has not definitely been found to be due to causes unconnected with the injury sustained by the deceased as a result of the accident, it is not possible to say that the appellants the owner of the vehicle and the Insurance company are not liable to pay compensation for the death of the deceased. It cannot be ruled out that the death was due to the blood clots which in all probability might have been caused by the injury sustained.
Therefore, it cannot be said in this case with certainty that the cancer developed due to causes not connected with the injury sustained in the accident. Hence, I am of the opinion that right from the accident till the date of death the claimants were entitled to re-imbursement of the expenses incurred in treatment, special diet, transportation charges etc., and not for the limited period of 263 days, as reported by the Tribunal.
Now adverting to the quantum of compensation, the accident took place on 22-6-1975 and the death occurred on 29-10-1983. For 8 years and 4 months, I consider that the following would be the reasonable compensation to be awarded under each head:
(i) Special diet Rs. 15,000/- (ii) For attendant Rs. 15.000/- (iii) Local Conveyance Charges Rs. 7500/- (iv) Expenses incurred for conveyance etc. and for getting checked the patient from the doctors at Amritsar, Delhi, Patiala and Rohtak Rs. 5,000/- (This also includes the services rendered by the daughter-in-law, other private doctors of Chandigarh and the Ayurvedic treatment) (v) From April 1981 to November 1981 expenses incurred for going to Bombay for treatment and other expenses incurred at Bombay in the Tata Memorial Hospital Rs. 5,000/- 12. The total compensation payable in this way comes to Rs. 47,500/-, and this will be loss to the estate, which would be payable to the legal representatives of the deceased. Since claim for pain and sufferings would be personal to the deceased, that is not being allowed to the legal heirs of the deceased.
On the amount of Rs. 47,500/-, the legal representatives would be entitled to interest at the rate of 12 per cent per annum from the date of the death of the injured i.e. 29-10-1983 till realization. Before that, since the expenses were being incurred from time to time, from the date of accident till death, it would be reasonable to order that the legal representatives would be entitled to interest at the rate of 6 per cent per annum from the date of filing of the claim application till the date of death i.e. 29-10-1983. The appeal stands disposed of in the aforesaid terms with no order as to costs.