Compensation for death payable if nexus between injuries sustained in Motor Accident is Established

Late T. P. Vishvnath Naiyar S Vs. United India Insurance Company Limited,
S.B. Civil Miscellaneous Appeal No. 4047/2016
Dated: 01/02/2023

THE RAJASTHAN HIGH COURT HELD THAT

Compensation for death payable if nexus between injuries sustained in Motor Accident is Established.

BRIEF FACTS

1. One Mr. T.P. Vishvnath Naiyar met with motor vehicle accident while crossing the road on 22.11.2006. As per the eyewitness the accident was caused due to rash and negligent driving of the vehicle bearing Registration No.RJ-14-1C-4052.

2. For the accident aforesaid FIR No.224/2006 was registered with Adarsh Nagar Police Station against the driver of the offending vehicle. After investigation of the case, the Police submitted charge-sheet against the driver. Copy of the FIR and charge-sheet are exhibited documents on the record.

3. In the Accident aforesaid, Mr. T.P. Vishvnath Naiyar sustained fracture on shaft of right tibia and right fibula as well as fracture of right fifth and sixth ribs.

4. Mr. T.P. Vishvnath Naiyar filed a claim case on 18.01.2007 before the Motor Accident Claims Tribunal. On 15.12.2008, Mr. T.P. Vishvnath Naiyar died.

5. Thereafter, the appellants who are widow and two sons of Mr. T.P. Vishvnath Naiyar got themselves substituted in the claim case on 16.09.2009 and raised claim under Section 166 of The Motor Vehicle Act.

6. The owner and driver of the vehicle, though party in the claim case, did not appear to contest the claim case, only insurer contested the case. The defence of the insurer was that the driver had violated the terms and conditions of the Policy, hence the insurer is not liable.

7. The claimants examined witnesses including eye-witness of the incidents and got several documents exhibited. However, respondents led no evidence.

8. The Tribunal on consideration of the evidence on record accepted the factum of accident caused due to rash and negligent driving of the vehicle. The Tribunal further held that the vehicle was insured at the time of accident with United Insurance Company Limited. However, the Tribunal was of the view that there was no nexus between the injuries sustained during the accident and the death of Mr. T.P. Vishvnath Naiyar, therefore, the claimants were not entitled for compensation for death in the motor vehicle accident. However, the Tribunal awarded Rs.2,00,000/- for loss to the estate, Rs.50,000/- for transportation during the long treatment and Rs.50,000/- for special diet to the deceased. Total Rs.3,00,000/- was awarded along with interest @ 9% from the date of application dated 18.01.2007.

9. Learned counsel for the appellants contends that there was/is overwhelming evidence on the record to substantiate that the fracture of Mr. T.P. Vishvnath Naiyar was not cured, due to serious infection, till his death. Since fracture had not been cured, Mr. T.P. Vishvnath Naiyar, who was a patient of hypertension and glycemia remained on bed leading to further complication of kidney failure at the time of his death. Therefore, consequences of accident, i.e., fracture of leg bone was there all along till his death and that was the main reason for premature death even after two years' treatment of Mr. T.P. Vishvnath Naiyar. Learned counsel contends that the learned Tribunal has wrongly relied on the opinion of Dr. Anil Choudhary, who was one of the panelistdoctor of the insurer. According to the doctor, there was no nexus between the injury and death.

Learned counsel has drawn attention of the Court to the cross-examination of Dr. Anil Choudhary, wherein he has admitted that it is a fact that both bones of right leg of Mr. T.P. Vishvnath Naiyar were fractured and for that reason Mr. T.P. Vishvnath Naiyar was unable to move. The witness further admitted that he had not seen any document which showed that the bones of the leg had already got unioned nor he had ever seen the patient.

10. Learned counsel for the insurer-respondent contends that there is a gap of two years in between the accident and death and the doctor has opined that the death was due to failure of organ, therefore, it cannot be accepted that Mr. T.P. Vishvnath Naiyar died in a motor vehicle accident. Learned counsel has relied on the evidence of Dr. Anil Choudhary. As has been noticed above, the opinion of Dr. Anil Choudhary cannot be considered as expert opinion as neither the doctor got an opportunity to see the patient nor had ever treated the patient. 9. The main point for consideration in this appeal is whether the finding of the Tribunal that there is no nexus between the accident and death is based on material on the record.

11. The Board of doctors of S.M.S. Medical College and Hospital, Jaipur had issued opinion dated 09.06.2007 stating therein that due to infection, it was a case of non-union of right leg bones. The certificate is at Exhibit-11. Exhibits-30 to 33 are final bills of medical expenses issued by Jaipur Hospital. The bill is dated 11.12.2007 and the discharge slip dated 20.04.2008 at Exhibit-26 would show that the treatment of Mr. T.P. Vishvnath Naiyar was forinfection and non-union of the fracture bones of right leg. The discharge slip dated 11.12.2007 goes to show that Mr. T.P. Vishvnath Naiyar was suffering from infection leading to non-union of fractured right leg bones.

12. Thus, there is no material on record to substantiate that prior to his death on 15.12.2008, Mr. T.P. Vishvnath Naiyar had already got cured of the fracture of his leg which was caused during accident. Therefore, death due to development of other complications, cannot be said to have no connection with the injury caused rather, consistent material on record speaks volume that fracture of both upper and lower bones of right leg was continuing till death due to infection and that the fracture had led to non-movement of body creating further medical complication including kidney failure.

13. AFTER HEARING LEARNED ADVOCATES OF BOTH PARTS THE HIGH COURT OBSERVED THAT

i) Therefore, this Court is of the view that death of Mr. T.P. Vishvnath Naiyar was a consequence of the motor vehicle accident, and the learned Tribunal has erred in not considering the material on record in a correct perspective.

ii) In The State of Haryana and Ors vs. Sukhpal and Ors., reported in 2008 ACJ 158, the death of injured took place after one year and seven months. The injured had suffered fracture of spine and became paraplegic with 100% disablement, the Hon'ble Punjab and Haryana High Court rejected the contention that the death was natural.

iii) In National Insurance Company Limited vs. Anthony (since deceased) & Ors, reported in IV (2015) ACC 750 (Madras), initially the claim case was filed to obtain compensation for injuries. During pendency of the claim case the injured died and before death, he was under continuous medical treatment. The Hon'ble Madras High Court held that only due to non-production of post-mortem report, the claim for compensation would not be defeated.

iv) At the time of his death, Mr. T.P. Vishvnath Naiyar had his own business named as Honda Care. Though the claimants have stated in the claim petition that he was earning Rs.20,000/- per month, however, copy of the income tax returns filed by Mr. T.P. Vishvnath Naiyar shows that his yearly income in the financial year 2005-2006 was Rs.1,05,741/- taken in round figure of Rs.1,10000/-.

v) The date of birth of Mr. T.P. Vishvnath Naiyar is 25.05.1951, as such at the time of death he was aged between 55 to 60 years. Therefore, as per the guidelines in National Insurance Company Limited vs. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, he is entitled for 10% addition under the head "future prospects". Since the deceased left three dependents, one third is deductible for his personal expenses as held in Sharla Verma (Smt) and Ors vs. Delhi Transport Corporation and Ors. reported in (2009) 6 SCC 121. Considering the age group of the deceased, multiplier of 9 would be appropriate as per the judgment in Sharla Verma's case (supra) aforesaid.

vi) Thus, calculation would be Rs.1,10,000/- plus 10% which is equal to Rs.1,21,000/-, minus one third, quotient being Rs.80,667/-, multiplied by nine, the amount comes to Rs.7,26,000/-. Besides the aforesaid, all the three claimants are entitled for Rs.40,000/- each for loss of spousal and filial consortium, Rs.25,000/- is payable for funeral expenses and the same amount of Rs.25,000/- is for loss to the estate.

vii) The appellants have produced medical expenses bill of Rs.55,000/- which is also payable to the claimants. This Court affirms the award of Rs.50,000/- for transportation charges and Rs.50,000/- for special diet during the treatment of the deceased. However, the amount of Rs.2,00,000/- as loss to the estate awarded by the Tribunal is modified and reduced to Rs.25,000/- as discussed above. This Court is not inclined to interfere with the quantum of interest awarded by the Tribunal. The compensation amount would be payable after deducting the already paid amount. The total compensation is calculated as Rs.10,51,000/- minus the amount already paid.

viii) The award of the Tribunal stands modified accordingly and this appeal is allowed.

ANALYSIS OF THE DECISION OF HON'BLE HIGH COURT

The term proximate cause refers to the nearest cause leading to the loss. It is the direct cause of a loss event. The principle of proximate cause is the cause that is primary to the occurred event. It could also be the most significant incident which cascades into the loss event.The concept of "proximate cause" refers to the manner in which the actual loss or damage occurred to the insured party and whether it was the outcome of an insured peril. The first thing that is investigated is how the loss occurred and whether the case was covered by insurance.

The Principle of Causa Proxima, also known as the Proximate Cause Principle, is among the six essential principles of insurance, as well as its focus is on identifying the causes of damage in an insurance claim which is the most proximate, nearest, or immediate of all possible causes.A cause is said to be proximate when it is the cause which is efficient and effective in creating or setting in motion a chain of events that finally brings forward an outcome. It is possible for the proximate cause to be the initial cause or the final cause; but, its definition requires that it be the cause which is most actively responsible for producing the result.When determining the extent of the insurer's liability, the proximate cause is the first factor taken into account. Thus, if the direct cause of damage is a recognised risk that is covered by insurance, the insurer is required to compensate the insured for their loss.

It denotes that the insurer is obligated to make the compensation payment to the insured party if the immediate cause of the damage is covered by the insurance policy.

APPLICATION OF PROXIMATE CAUSE

The concept of the "proximate cause" is an essential one in the world of insurance. It is used to determine the manner in which a loss or damage occurs, as well as whether it was brought about by an insured peril.
The crucial consideration to make in this scenario is the fact that the proximate cause is the sole the nearest cause, but not the remote cause. It focuses primarily on the administration of claims and, more specifically, the diagnosis of the role that a peril plays in an insurance claim.

When it comes to fire insurance, there are certain perils that are explicitly addressed insured perils, while other perils are excluded and are referred to as an exclusion. Additionally, some perils may be covered, while others may not. It is often not possible to determine whether the loss was caused by a single risk that was insured or one that was not. ln order to determine whether a claim is eligible to be paid out. When there are multiple potential dangers associated with a situation, various scenarios may play out, some of which provide protection while others do not.

PROXIMATE CAUSE INSURANCE EXAMPLE

• An intoxicated motorist causes an accident by weaving towards oncoming traffic and hitting another car. There is a connection between driving under the influence of alcohol and the accident. In this case the accident's immediate root cause is the consumption of alcohol.
• One of the customers falls because the workers did not clean up the spill that had occurred on the floor. He suffers a wrist fracture. The accident's immediate root cause can be traced back to the spill that occurred on the floor.
• When a company does not take measures to restrict the number of customers who enter their location, the space on the ground level might become very congested. Due to the jostling, a customer accidentally knocks into another customer, causing them to tumble. Even if the customer was the one who actually led to the fall, the failure of the business to properly restrict the amount of visitors in its facility is the proximate cause of the fall, as well as the victim's injuries that resulted from the fall.
• A retailer abandons a pallet of merchandise in the middle of an aisle. A client is out and about while texting on their mobile device. They crash through the pallet as well as fall to the ground. Even if the act of texting was a contributing factor to the accident, the fact that the pallet was left in the aisle was also a contributing factor.

CONCLUSION

The association between an incident and an injury is referred to as the injury's "proximate cause." In the framework of the law, in order to demonstrate legal responsibility, sometimes referred to as "liability," there has to be a significant connection between an occurrence or act and the damage that has been caused as a result. The concept of causation refers to this relationship.The occurrence or behaviour that is most directly connected to an injury is referred to as the proximate cause of the damage. This does not imply that the questionable behaviour must have occurred at the earliest possible point in time before the harm. The concept of proximate cause restricts the amount of responsibility that may be placed on a defendant because any one action can have far-reaching and unpredictable repercussions.

In the given case of motor accident the Board of doctors of S.M.S. Medical College and Hospital, Jaipur had issued opinion dated 09.06.2007 stating therein that due to infection, it was a case of non-union of right leg bones.The bill is dated 11.12.2007 and the discharge slip dated 20.04.2008 at Exhibit-26 would show that the treatment of Mr. T.P. Vishvnath Naiyar was forinfection and non-union of the fracture bones of right leg. The discharge slip dated 11.12.2007 goes to show that Mr. T.P. Vishvnath Naiyar was suffering from infection leading to non-union of fractured right leg bones. From above discussion it is clear that death of insured

Was due to infection in leg caused due to accident of motor vehicle and the accident was the proximate cause of his death. The nexus between accident and the death of the insured was established in this case.