Shamshunnisa and Others vs S. Gopalappa and Others

S.N. Satyanarayana, J.—Claimants in MVC. No. 230/2008 (old No. 223/2008) on the file of MACT, Chitradurga, have come up in this appeal challenging the judgment and award dated 23.3.2011 in dismissing their claim petition.

Brief facts leading to this appeal are as under:

Appellants 1 to 6 herein, who are claimants before tribunal are wife and children of deceased Rahamathulla. According to claimants, Rahamathulla had gone to his land on 22.11.2006 at about 12.15 pm. At that time, he noticed that a she-buffalo had wandered into his land. It is stated that while chasing said buffalo out of his garden land he came to road, at that time, he was hit by rider of motor cycle bearing registration No. KA-16/Q. 3024, resulting in fracture of right thigh. Claimants would submit that immediately after the accident he was taken to Basaveshwara Hospital, Chitradurga, where after taking x-ray it was noticed that injured has suffered fracture of right thigh bone, for which he was operated on his right leg with insertion of rod to unite the fractured bone. It is stated that the said injury was not healed and subsequently, injured Rahamathulla died on 11.2.2006. Hence, claim petition is filed seeking compensation for the death of Rahamathulla contending that his death is due to injuries suffered in road traffic accident dated 22.11.2006.

In the proceedings before tribunal first claimant, who is widow of deceased Rahamathulla has adduced evidence as PW. 1, wherein she had reiterated the petition averments. In support of their case claimants have examined an eye-witness to the accident by name N. Mallikarjuna as PW. 2 and they also examined one Dr. R.T. Chandrashekar, as PW. 3, who treated injured Rahamathulla at Basaveshwara Hospital. On behalf of respondents, insurer adduced evidence through one of its officers, namely V. Somashekar as RW. 1. They also produced copy of the policy, which is at Ex. R1. The tribunal on the basis of pleadings, oral and documentary evidence available on record proceeded to dismiss the claim petition on the ground that death of Rahamathulla is not attributable to injuries suffered by him in the accident dated 22.11.2006. To arrive at such a conclusion, the tribunal heavily relied on Exs. P6 and P7, which are inquest report and post mortem report. The claimants having lost their claim petition filed seeking compensation, have come up in this appeal.

Heard the learned counsel for appellants as well as contesting respondent. Perused the judgment impugned with reference to lower court record. On going through the same, it is seen that the tribunal has taken meticulous care to assess the pleadings, oral and documentary evidence available on record, more particularly to ascertain cause for the death of Rahamathulla and to ensure whether there is any nexus between the injuries suffered in the accident dated 22.11.2006 and death, which has taken place on 11.12.2006 and thereafter has come to its opinion, which is challenged in this appeal. On going through the entire judgment along with the material on record it is seen that accident dated 22.11.2006 is not in dispute. So also injures suffered by deceased Rahamathulla, which is fracture to his right thigh. The evidence of doctor, PW. 3 is accepted so far as it pertains to injury suffered by Rahamathulla to right thigh and his admission to Basaveshwara Hospital. However, curiously in this proceedings claimants have not produced the certified copy of wound certificate issued from Basaveshwara Hospital. It is seen that x-rays are also not produced. It is only post mortem report which is relied upon by the claimants. The respondents also would rely on the post mortem report to substantiate their defence that death is not due to injuries suffered in aforesaid road traffic accident.

Therefore, this Court while considering the pleadings and evidence on record would go through Ex. P7 - post mortem report, which is available on record. On going through the same, it is seen that in column designated for giving final opinion as to the cause of death, the observation of doctor is as under:

"The death was due to inter cranial hemorrhage (sub-arachnoid) produced by a blunt force residential in nature."

This would clearly indicate that death is directly attributable to head injury caused to injured Rahamathulla, whereas nowhere in the medical records there is reference to injured Rahamathulla having suffered any injury to his head in the aforesaid accident. As could be seen from the complaint and all other documents, it only indicates that injured has suffered fracture to right thigh for which he has undergone surgery. When Ex. P7 - post mortem report, which is crucial evidence in this proceedings is looked into, it would speak of the death of Rahamathulla due to injuries caused to his head. The doctor - PW. 3 would try to substantiate before the tribunal that the death of Rahamathulla is due to septicemia. To arrive at such finding, no material is seen anywhere in the post mortem report conducted by Dr. S.C. Rajkumar, who is signatory to said report, Ex. P7. In the entire report there is no reference to trace of septicemia being the cause for the death of Rahamathulla. When post mortem is silent about the alleged septicemia said to have suffered by Rahamathulla, PW. 3, namely Dr. Chandrashekar would go to the extent of saying that Rahamathulla suffered infection to injured leg the previous day of his death resulting in formation of pus in the area of surgery which has caused septicemia. The entire evidence of PW. 3 is nothing but a figment of imagination. It is clearly seen that he has deliberately given false evidence before the tribunal to demonstrate the death of Rahamathulla, which is caused due to head injury as the death due to septicemia, which the tribunal has rightly not believed. Even this Court after meticulously going through the entire medical evidence available on record find that there is no evidence on record to substantiate that death of Rahamathulla is because of the infection in the injured leg resulting in septicemia. In that view of the matter, the tribunal has rightly observed that claim petition itself is a false one and merely for the reason that less than 30 days before the death of Rahamathulla said person meeting with an accident and suffering certain injuries is considered as basis to claim as if death is due to injuries suffered in the said accident.

However, in this proceedings, this Court find that though the tribunal was right in rejecting the prayer of claimants seeking compensation for the death of Rahamathulla, the tribunal could have assessed the compensation payable for the injuries suffered in road traffic accident dated 22.11.2006, which has undoubtedly caused fracture of right thigh. In this regard, the claimants have produced some medical bills, which they have spent towards treatment of injured Rahamathulla. It is not in dispute that injured must have been in hospital for about 10 to 12 days with reference to surgery of his right thigh. In that view of the matter, this Court feel that compensation is required to be awarded globally in a sum of Rs. 50,000/- towards medical expenses, attendant charges, conveyance, food and nourishment, which the claimants have spent during his lifetime.

In the result, the appeal is allowed in part by awarding global compensation in a sum of Rs. 50,000/- towards medical expenses and other incidental expenses. The said amount of Rs. 50,000/- shall be paid by second respondent insurer along with interest at 6% p.a., from the date of petition till date of payment of entire amount, within eight weeks from the date of receipt of certified copy of judgment in this proceedings. However, the first claimant alone is entitled to receive the same for the reason, in her evidence she has stated that she has incurred expenses towards treatment of her husband. It is made clear that first claimant is not entitled to interest for delay period i.e., 853 days.