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2022 Supreme(Gau) 524
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, J.
Smt. Sarala Deka W/o Late Thanu Ram Deka – Petitioner
Versus
Sri. Dipen Chandra Das S/o Jogen Das – Respondent
MAC App. No. 135 of 2015
Decided On : 03-08-2022
Advocate Appeared:
For the Petitioner: Mr. B.K. Jain.
For the Respondent: Mr. S.K. Sarmar.
Point of Law: Mere production of a Disability Certificate or Discharge Certificate will not prove the extent of disability stated therein, unless the doctor is examined.
Headnote:
Code of Civil Procedure, 1908 - Order XLI Rule 42 - Constitution of India, 1950 – Article 136, 142 - Motor Vehicles Act, 1988 - Section 166 - Appeal - Claim compensation - Special leave to appeal by Supreme Court - Husband of appellant no. 1 and father of appellant nos. 2 to 5 was walking along National Highway 31, one Auto Van hit appellant no. 1’s husband from behind, as a result of which appellant no. 1’s husband fell down on road and injured femur of his left leg - Whether deceased had died due to affect/consequences of injury sustained by him in accident that occurred - Appellants have not been able to prove that death of deceased had occurred due to consequences relating to fracture of femur of deceased, which occurred due to a vehicular accident.
Findings of the Court:
Court finds that Apex Court in the above case was considering the fact that objection to jurisdiction of Trial Court was made before the Trial Court, but not before High Court and that principles stipulated in Order XLI Rule 42 of CPC could be applied to petitions under Article 136 of Constitution, because of wide powers of the Apex Court to do justice under Article 142 of Constitution. However, in the present case, as the respondent has not made a challenge to the impugned judgment passed by the learned Trial Court, this Court is of the view that the challenge made by the respondent to the impugned judgment cannot survive in the absence of an appeal being filed against the same. Further, Article 142 is not applicable to High Courts.
Result: Appeal dismissed.
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. B.K. Jain, learned counsel for the appellants and Mrs. R.D. Mazumdar, learned counsel for the Insurance Company (respondent no. 2).
2. The appellants have made a challenge to the judgment dated 26.02.2015 passed by the learned Court of the Additional District Judge No. 4, FTC, Kamrup (M), Guwahati in MAC Case No. 1290/2009, wherein compensation of Rs. 3,89,873/- has been awarded to the appellants/claimants along with interest @ 6% per annum, from the date of filing the claim petition till its realisation. The appellants pray that the compensation amount should be enhanced on the ground that the learned Trial Court had computed the compensation amount as if it were an injury case, instead of a death case.
3. The appellants’ case in brief is that on 09.12.2007, while the husband of the appellant no. 1 and father of the appellant nos. 2 to 5 was walking along National Highway 31 at around 7:30 p.m. one Auto Van hit the appellant no. 1’s husband from behind, as a result of which the appellant no. 1’s husband fell down on the road and injured the femur of his left leg.
4. The appellant no. 1’s husband was taken to the Gauhati Medical College and Hospital (GMCH) on 09.12.2007. However, as the husband of the appellant no. 1 was of the view that he was not getting good treatment, he went to Patna by train on 12.12.2007 with PW-2 and got himself admitted in Popular Nursing Home, Patna on 13.12.2007. The deceased remained there with PW-2 until his discharge on 27.12.2007. Thereafter, he came back to Guwahati and was again admitted at Aruna Memorial Hospital, Guwahati on 05.01.2008. The appellant no. 1’s husband was thereafter taken to International Hospital, Guwahati on 09.01.2008, where he expired on 10.01.2008 at around 4:35 p.m.
5. The appellants/claimants thereafter filed a claim petition before the Court of the Additional District Judge No. 4, FTC, Kamrup (M), Guwahati. The learned Trial Court awarded compensation amounting to Rs. 3,89,870/- to the appellants, on the basis of medical expenditure incurred, pain and suffering, loss of income and other miscellaneous expenses.
6. The appellants’ counsel submits that the learned Trial Court had awarded the compensation, by holding that the cause of death of the deceased had no connection with the injury sustained by him during the accident. However, the evidence recorded by the learned Trial Court and the evidence given by the doctor of International Hospital, Guwahati proved that the death of the deceased was due to Sepsis with Multi Organ Disfunction Syndrome (MODS), which had a nexus with the injury sustained by the deceased in the vehicular accident that occurred on 09.12.2007.
7. The appellants’ counsel submits that though the injury sustained by the deceased was related to left femur of the deceased, the cause of death which was Sepsis with MODS, had a nexus with the injury sustained by the deceased in the accident. He accordingly submits that the learned Trial Court should have calculated the compensation to be awarded to the appellants, as if the case was a death case and not an injury case. In this respect, the learned counsel for the appellants has relied upon various judgments of various High Courts and the Supreme Court of India, which are as follows:
1. Vidhyawati vs. A. Guruswamy, 2004 (7) Laws (Cal) 42 : 2005 (0) ACJ 433 (DB)
2. Jayarathnamma vs. Mukthiar Singh, 2005 (11) Laws (Kar) 46 : 2007 (0) ACJ 1260
3. Ramathal vs. M.D. Charan Transport Corporation, 2003 (7) Laws (SC) 89 : AIR 2004 SC 3445 : 2003 (10) SCC 53
4. Kiran Bala vs. Rajeev Sharma, 2013 (4) Laws (P&H) 146
8. The appellants’ counsel submits that in a claim made under Section 166 of the Motor Vehicles Act, 1988, the evidence should not be scrutinized in a manner as is done in a civil suit or a criminal case. If there is some evidence to arrive at a finding that itself is sufficient and no nicety, doubt or suspicion should weigh with the tribunal/or Court in deciding a motor
