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2011 (3) GCD 2444 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel
Hon’ble Mr. Justice J.C. Upadhyaya
Oriental Insurance Co. Ltd.
Versus
Sunandaben Narendrakumar Joshi & Ors.
First Appeal No. 1251 of 20021—Decided on 23/06/2011
Vehicular accident — Claim petition — Compensation — Quantum of — Admissibility — Finding of — Contention of appellant that deceased died of cardiac arrest, therefore, the nexus of the death of deceased on account of the accident was not proved is not acceptable — The deceased had no history of heart deceased — In the case the deceased had expired on account of cardiac arrest while under treatment in the hospital, therefor, view taken by Tribunal the death of the deceased had nexus with injury is not unreasonable — So far as quantum of compensation is concerned the Tribunal has taken into consideration the age of the deceased and all the relevant factors — While applying the multiplier or five for loss of income — In the view of matter Court rejected the contention of both Insurance Company and claimants.
Held :
It is not the matter where if a person was admitted and subsequently was discharged from the hospital and after some times he has expired on account of cardiac arrest, but, while the treatment was going on in the hospital the person has expired. Under the circumstances, in absence of any other evidence to the contrary, if the Tribunal has taken a reasonable view of getting nexus with the injury and the death of the deceased, the same cannot be said as perverse view on the part of the Tribunal.
[Para 6]
The another aspect is that since the age of the deceased was 58 years, the multiplier applied is only of five keeping in view the post retiral income one may have after retirement since the deceased is an educated person and holding the Degree of Engineering. Further, as the deceased was on the verge of retirement, non-consideration of the prospective income, could not be said as unreasonable on the part of the Tribunal. Under the circumstances, it appears that, the Tribunal has not taken any perverse view in the assessment of the income and applying the multiplier of five for the loss of income of an educated person who could earn income even after retirement for some time. Hence, we find that, the contention of the Insurance Company as well as of the claimants on the aspect of quantum, deserves to be rejected. [Para 8]
Law Laid Down :
Where deceased has no history of heart disease but dies due to cardiac arrest while under treatment for injuries sustained by him in vehicular accident the nexus and between death and injuries is established.
Jayant Patel, J.—The present appeal is filed against the judgment and award passed by the Tribunal dated 10th December, 2001 in MACP No. 503 of 1999 whereby the Tribunal has awarded compensation of Rs. 6,56,738/- with interest @ 9% per annum.
2. The relevant facts are that the deceased Narendrakumar Joshi with his wife Sunandaben Narendrakumar Joshi were going in Maruti car, bearing No. GJ-1-AR-7268, from Mandvi to Ahmedabad through Limbdi. When they reached near Limbdi at about 4.00 a.m. on 6.11.1998, a truck, bearing No. GJ-8-U-1177, driven in rash and negligent manner, dashed with the maruti car. As a result thereof, the maruti car was damaged and deceased Narendrakumar as well as his wife Sunandaben sustained injuries. Initially, they were admitted in the Limbdi Government Hospital and thereafter for further treatment they were shifted to Ahmedabad. Deceased Narendrakumar was operated by Dr. Hitesh Mehta and after the operation, in the hospital itself, within seven days, he expired. It gave rise to filing of two claim petitions, one being MACP No.503 of 1999, preferred by the legal heirs of the deceased Narendrakumar Joshi on account of his death and another was preferred by injured Sunandaben, being MACP No. 504 of 1999. The Tribunal at the conclusion of the proceedings, as stated above, awarded compensation in MACP No. 503 of 1999 and also awarded compensation in MACP No. 504 of 1999 amounting to Rs. 1,09,000/- and interest @ 9% per annum. We may record that no appeal is preferred by the Insurance Company against the award passed in MACP No. 504 of 1999 and the appeal is preferred only against the award passed in MACP No. 503 of 1999, which is the present appeal before this Court. We may also record that the Cross Objections, being Cross Objections No. 100 of 2010,have filed by the original claimants for enhancement of the compensation.
3. We have considered the judgment and the reasons stated by the Tribunal. We have also considered the record and proceedings. We have heard Ms. Fozadar, learned Advocate for Mr. Shalin N. Mehta for the appellant in the appeal preferred by the Insurance Company and Mr. J.V. Japee, learned Advocate, for the original claimants, appearing for the respective parties in the appeal and Cross Objections.
4. The first contention raised on behalf of the Insurance Company is that the nexus of the death of the deceased on account of the accident was not proved and, therefore, the Tribunal has committed error on the said aspect.
5. On examination of the said contention it appears that the Tribunal has recorded the observations on the said aspect at Para-17 of the judgment, which reads as under:
“Dr. Hitesh Mehta has stepped into the witness box and as per his evidence, the deceased was admitted in hospital on 6.11.1998 and was operated upon on 8.11.1998. Thereafter, he died on 15.11.1998. The injury certificate issued by him is on record at Exhibit-63. The contents of the injury certificate is also explained by him. It is true that as per his evidence more particularly in cross-examination, he has accepted that on 15.11.1998 the patient suffered cardiac arrest and died. But the fact remains that during the course of treatment in the hospital, the patient died. In my opinion, had the deceased not sustained any injury, he might not have got himself admitted in the hospital and took treatment and/or got operated. Unfortunately, he sustained serious injuries, he was under the treatment of Dr. Hitesh Mehta and during the treatment he died on account of cardiac arrest. Therefore, it is an unacceptable submission that there is no nexus between the injury and death of the deceased.”
6. It appears that no evidence had come on record to show that the deceased had any heart disease or any history pertaining thereto, which might have culminated into the heart attack or cardiac arrest. No other opinion of the expert has come on record on the aspect that the cardiac arrest could not be resulted on account of t
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