Smt. Bilkeesh Bano and Others - Appellants @HASH Kulvinder Singh and Others

Shri. Alok Verma, J. - This Miscellaneous Appeal is filed assailing the award passed by the learned 20th Motor Accident Claims Tribunal (Fast Track), Indore in Claim Case No. 03 of 2003 (Smt. Bilkeesh Bano and others v. Kulvinder Singh and others) dated 19.11.2004.

It is undisputed that on the date of incident 23.06.2002, the offending vehicle, truck bearing registration No.MP06-E-803 was being driven by respondent No.2 and it was under ownership of respondent No.1. It is also not disputed that the offending vehicle was covered under an insurance policy issued by respondent No.3.

The brief facts relevant for disposal of this appeal are that in the intervening night on 23.06.2002 and 24.06.2002 at about 3.30 a.m., Md. Ali Barkati, husband of appellant No.1 and father of the appellants No.2 to 5 were travelling in Maruti Van which was being driven by Md. Abdul Rauf. At the time of incident, the driver of Maruti Van was driving the vehicle cautiously and they were coming from Thandla, Maharashtra to Indore. When the Maruti Van reached in front of Raj Dhaba, respondent No.2 brought the offending vehicle, driving it negligently and bringing vehicle at wrong side of the road, he collided the vehicle with the Maruti Van in which deceased Md. Ali Barkati was travelling. The deceased Md. Ali Barkati sustained serious injuries especially on his vertebral column and other persons travelling in the Maruti Van also suffered injuries. Deceased Md. Ali Barkati was admitted in the hospital. He remained under treatment for sometime and ultimately, he died on 20.08.2002. A claim petition was filed before the learned Tribunal claiming compensation of Rs. 15 lacs for death of Md. Ali Barkati in the accident.

Respondents No.1 and 2 remained ex-parte before the Tribunal. The petition was opposed by respondent No.3 on the ground that at the time of incident, the respondent No.2 was not having valid and effective driving license. Respondent No.1, the owner of the vehicle committed breach of policy conditions and also it was pleaded that owner and driver of Maruti Van bearing No.MP09-A-9983 was not made parties in this case.

After recording evidence of both the parties and after hearing their arguments, the impugned award was passed. The learned Tribunal held that death of Md. Ali Barkati was not due to the injuries, he suffered in the accident. It was held that injuries suffered by Md. Ali Barkati were properly cured when he was admitted in the hospital on 19.08.2002. On 19.08.2002, it was found that fluid was filled in his lungs and due to this condition, he died next day on 20.08.2002. The learned Tribunal found that there was no direct connection of his death with the injuries, he suffered in his vertebral column. Also against the expenditure that the appellants incurred on treatment of the deceased, the learned Tribunal granted a total amount of Rs.75,000/- rejecting some of the cash memos and receipts filed by the applicants on the ground that payments were made only after death of the deceased Md. Ali Barkati, and therefore, the Tribunal found that they did not relate to treatment given to the deceased Md. Ali Barkati.

In this appeal, the appellants raised following two questions for consideration :-

(i) Whether the learned Tribunal erred in holding that there was no connection of death of Md. Ali Barkati with the injuries, he sustained in the accident ?

(ii)Whether the learned Tribunal erred in not allowing certain bills and receipts against which payments were made after death of the deceased Md. Ali Barkati.

To determine whether there is any connection between death of the deceased Md. Ali Barkati and the injuries he suffered in the accident, the claimant examined Dr. Ashish Soni (PW-6). Dr. Ashish Soni was a practising orthopedician at Indore. He stated that Md. Ali Barkati, aged about 50 years was brought and admitted to Suyash Hospital, Indore on 24.06.2002 at about 7.26 a.m. It was stated that he suffered some injuries in an accident that took place near Maanpur. On examination, it was found that he suffered fracture in his C-5 and C-6 facets of vertebra. He was admitted in the hospital and he was given conservative treatment of traction on his neck. After remaining under treatment for about a week, he was discharged on 02.07.2002. Again on 02.08.2002, he complained of pain, and therefore, he was again admitted. He was operated on 03.08.2002. His disk between C-5 and C-6 vertebra was removed and a piece cut from ilium bone was inserted. He remained under treatment till 12.08.2002, and thereafter, he was discharged by placing collar on his neck. In para 8 of his cross-examination, he stated that after the operation, the deceased was relieved of his pain. When he was admitted, on 19.08.2002 x-ray was taken in which his vertebra column was found at proper place and fixation was also found proper. Further, he admitted that after the operation performed on the patient, he had no problem. On 19.08.2002, he was found suffering from ARDS which means ''Adult Respiratory Distress Syndrome''. Apart from this evidence of a medical professional, no other evidence was adduced by the appellants. From statement of this witness, it is apparent that when he was admitted on 19.08.2002, no problem was found on his vertebral column, where he sustained the injuries.

Learned counsel for the appellant submits that it was clear that immediately prior to his death from 20.08.2002, he underwent surgery, he suffered injury in his spinal cord and his death is directly connected to the injuries. He placed reliance on judgment of Rajasthan High Court in case of Oriental Insurance Company Ltd. v. Misri Devi, MACD 2011(1)(Raj.) 123 in which the injured suffered injuries in vertebral column. According to medical advisor, the deceased died due to injuries sustained by him in accident though he died after five months but in between, he suffered from no other disease. But in this case, after the accident effect of injuries were so severe that he was not in a position to move and the injured was bed source. This apart, there was a medical opinion also to the effect that he died due to injuries he suffered in the accident. Similarly, he cited the judgment of Rajasthan High Court in case of Habibnur Khan and others v. Govind Singh and another, 2007 ACJ 1329 in this case also the injured suffered injuries in the accident, and thereafter, he developed paraplegia. Tribunal held that it was not proved that the death was due to the injuries. In this case also it was pleaded that no postmortem was conducted on the deceased, however, the Court believing statement of wife of the deceased held that from the facts and circumstances of the case, it was proved that the deceased died due to the injuries, he suffered in the accident. Another case cited by the learned counsel for the appellant is that of Jayarathnamma and others v. Mukhtiar Singh and another, 2007 ACJ 1260 in which the deceased developed tetanus which was attributable to the negligent by the doctors. However, the Court held that there is a nexus between death of the appellant with the injuries, he suffered in the accident. He also placed reliance on judgment of Hon''ble Apex Court in case of Ramathal and others v. Managing Director, Cheran Transport Corporation, Coimbatore, (2003) SCC 53 in this case the deceased died after one year and one month of the accident and was died causing primary disease hypoxic encephalopathy. The doctors stated that the injuries suffered in the accident might be the reason behind the accident. However, in the case in hand there is a medical evidence produced by the applicant to show that the death was result of the injuries suffered by deceased Md. Ali Barkati in the accident.

Learned counsel for the respondent-insurance company submitted that the medical literature explaining disease of ARDS which he literated from Wikipedia and encyclopedia. In the literature the disease is defined as follows:

"Acute respiratory distress syndrome ("ARDS"), previously known as respiratory syndrome ("RDS"), adult respiratory distress syndrome, or shock lung, is a severe, life threatening medical condition characterised by widespread inflammation in the lungs. Although it can be triggered by a respiratory infection, such as pneumonia, it is more often a result of sepsis or significant trauma.

ARDS is a disease of the lung parenchyma that leads to impaired gas exchange. It is associated with pulmonary cytokine release, impaired endothelial barriers, loss of surfactant, fluid accumulation in the distal airspaces, and fibrotic changes. The mortality rate varies widely based on disease severity and patient age, with an average mortality somewhere between 20% and 50%.

The acronym ARDS formerly signified "adult respiratory distress syndrome" to differentiate it from "infant respiratory distress syndrome", which occurs in premature infants. However, as this type of pulmonary edema also occurs in children, ARDS has gradually shifted to mean "acute" rather than "adult". The differences from the typical syndrome remain."

From this, it is apparent that the causes of the disease are as follows :-

"The predisposing factors of ARDS are numerous and varied. Sepsis, multiple blood transfusions, pulmonary contusion, aspiration of gastric contents and drug abuse or overdose are common. Also burns, pancreatitis, smoke inhalation, pneumonia and near drowning can cause this condition. The inhalation of irritants, chemical warfare agents such as Phosgene, Chlorine Gas and such can also cause ARDS. Some cases of ARDS are linked to large volumes of fluid used during post-trauma resuscitation. Other causes include shock, near-drowning and inhalation of irritants or toxic fumes that damage the alveolar epithelium.

The list of predisposing factors is extensive and some do not necessarily seem to have anything to do with injuring the lungs. Therefore, this syndrome is best diagnosed and managed on its criteria first, with retrospective management on whatever conditions may have precipitated it."

The causes stated above were not present in the present case. No evidence is produced to show that such a medical condition can be caused due to some drug abuse during his treatment for the injuries, he suffered in his spinal cord. In such a situation, inference drawn by learned Tribunal appears to be proper and no interference is required in it.

Coming to the next question of not allowing certain bills and receipts, learned Tribunal found that Exhibit P-88 to P-92 cannot be allowed as whether the doctors who received the money was ever treated the deceased-Md. Ali Barkati was not cared and for this purpose, no oral evidence was produced. However, these receipts were not challenged by the respondent before the Tribunal. No evidence was produced by the respondent to show that these receipts were false or no amount was paid against them. The oral evidence of son of the deceased, who produced these receipts remained unchallenged as no question was asked during his cross-examination. Also no evidence was produced by the respondent of any investigator or any other person to show that these receipts were not related to the treatment of the deceased and similarly, the receipts exhibited as P-113, 114, 116 to 124 were also not challenged by the defendant. These receipts were not allowed by the learned Tribunal only on the ground that they were after death of the deceased. However, taking into consideration the financial status of the deceased and his family it was possible that the payments were made after death of the deceased. The cash memos of medical shop also show that it was a cash memo for medicines purchased for the deceased, and therefore, the learned Tribunal erred in not allowing the amount paid through receipts and bills to the applicant.

Learned counsel for the appellant on direction issued by this Court submitted a detailed statement in tabular form stating amount of each and every payments and receipts which were exhibited. The total amount is Rs. 1,23,505/- out of which the learned Tribunal allowed only Rs.75,000/-. According to the statement submitted by the counsel the amount of those bills and receipts disallowed by the Tribunal is Rs.48,505/-. According to the calculation made by the Tribunal the total amount of those receipts and bills which was allowed come to Rs. 66,440/-. After including expenses for transport and nutritious diet etc., total amount of Rs. 75,000/- was allowed. Now, total amount comes to Rs. 1,23,505/-, and therefore, adding amount for transportation, nutritious diet etc. the total amount comes to Rs. 1,35,000/-.

The Tribunal awarded Rs. 5,000/- for pain and sufferings, this amount can be increased to Rs. 10,000/- and the total amount comes to Rs.1,45,000/- which the appellant is entitled to receive.

Accordingly, this appeal is partly allowed. The amount awarded by the Tribunal is enhanced to Rs. 1,45,000/- as aforesaid. On this amount, an interest @ 6/% per annum is payable from date of presentation of application i.e. 18.02.2003. For payment of amount the respondents are liable jointly and severally.

Cost of appeal is ascertained as Rs. 2,000/-