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FA/1042/2002 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1042 of 2002
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KIRTIDABEN
KISHORBHAI MISTRI - Appellant(s)
Versus
SAVITABEN
WD/OF SURESHBHAI JAMNADAS. & 2 - Defendant(s)
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Appearance
:
MR
JITENDRA M PATEL for
Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3
None for Defendant(s) : 1,
1.2.1, 1.2.2,1.2.3
NOTICE SERVED for Defendant(s) : 2,
MS LILU
K BHAYA for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Trilok Patel for learned advocate Mr.J.M.Patel on
behalf of appellants and learned advocate Ms.Lilu K. Bhaya for
respondent No.3.
2. The
appellants claimants have challenged award passed by MAC Tribunal,
Baroda in MACP No.555 of 1991 dated 28.8.1991 whereby the claims
Tribunal has awarded Rs.1,25,000/- compensation in favour of
respondents claimants.
3. Learned
advocate Mr.Patel appearing for the appellants ? claimants
submitted that initially, claim of Rs.2 lacs was filed because of
injury received by Kishorbhai. But, during pendency of claim
petition, he expired and therefore, heirs were brought on record as
per amendment sought vide Exh.63 to have claim compensation of Rs.8
lacs from Rs.2 lacs. He submitted that because of injury received in
accident which occurred on 16.12.1990 at about 10.00 p.m. near Anand
Plaza on RV Desai road, Baroda with Kishorbhai Mistry, Maheshbhai
Gandhi and minor Derik were standing with Scooter No.GUB-425 near
premises of Anand Plaza aside the road. Meanwhile, opponent no.1 came
in rash and negligent manner on wrong side driving his truck
No.GTP-4545 from Jayratna building and dashed his truck against the
Anand Plaza building and caused injuries to the applicants, who were
standing near the building and damage to the building as well as
scooter. According to claimants, truck was being driven by opponent
No.1 which is owned by opponent No.2 and same is insured with
opponent No.3. During said accident, they sustained grievous injuries
for which they were required to take prolonged treatment and also
required to spend a huge amount for recovery of the said accidental
injuries. The building and scooter were also severely damaged.
Therefore, claim petition was filed.
4. On
the basis of this injury, claims Tribunal has awarded Rs.1,25,000/-,
against which the Insurance Co. has not filed any appeal. But during
pendency of claim petition, Kishorbhai has expired on 14.4.1999 when
he deposed before the claims Tribunal on 10.3.1998. That Kishorbhai
died because of AIDS disease as alleged during course of amendment of
claim petition and submitting arguments thereon. Therefore, question
of nexus has to be decided by claims Tribunal with the accidental
injury to the death of Kishorbhai.
5. Learned
advocate Mr.Patel submitted that on those days, the blood was not
checked by laboratory whether it is possessed HIV positive or not and
blood was given to Kishorbhai which may have a HIV positive, which
resulted into AIDS disease. Therefore, he submitted that during the
medical treatment, they having injury in accident, this transfusion
of the blood with the Kishorbhai resulted to AIDS disease and
ultimately, Kishorbhai died. Therefore, there was a nexus between
accidental injuries and death of Kishorbhai. He submitted that if
there was no injury, question of transfusion of blood does not arise
and therefore, the claims Tribunal has committed gross error in not
believing the case of the appellant to have the nexus between
accidental injury and death of Kishorbhai. Except that, no other
submission is made by learned advocate Mr.Patel before this Court.
6. Learned
advocate Ms.Bhaya appearing on behalf of respondent No.3 raised
contention that claims Tribunal has rightly examined the issue and
also considered the opinion given by doctor and then, claims Tribunal
has come to the conclusion that there was no nexus between accidental
injuries and death of Kishorbhai. She submitted that Dr.Sheetal
Mistry has not given any positive opinion about nexus. On the
contrary, both of them have stated in their deposition that they
cannot say that only after conducting HIV positive test, blood was
given to the deceased applicant. Therefore, she submitted that
doctor, who gave blood to applicant, does not come before the claims
Tribunal and say positively that after conducting HIV test, blood
was given to the applicant, do not say positively about the cause of
death because of injury sustained by the applicant. Therefore, she
submitted that view taken by claims Tribunal cannot consider to be
unreasonable and the claims Tribunal has rightly appreciated the
evidence on record and therefore, no interference is required by this
Court.
7. I
have considered the submissions made by both the learned advocates
and also perused the award passed by claims Tribunal. Before claims
Tribunal, Kishorbhai has examined Dr.Mahesh Patel, Orthopedic Surgeon
of Baroda city and Dr.Sheetal Mistry, a private practitioner.
According to claimants, deceased applicant was hospitalized for 25
days as indoor patient and during the said period, he was operated
and iron rod was inserted, glucose as well as blood bottles were
given and for that, overwhelming evidence is produced by the
applicants before the claims Tribunal and deceased was treated by
Dr.Amul Pandya, Dr.Navin Gandhi and according to their evidence,
whenever blood was given to the deceased applicant, same was not
given after conducting test for HIV. According to Dr.Sheetal Mistry,
the deceased died of Encephalopathy with HIV. The widow of deceased
Kishorbhai, Kirtidaben was examined before the claims Tribunal and
according to her evidence, her husband was admitted in hospital of
Dr.Amul Pandya, Dr.Navneet Gandhi and Dr.Ajay Shah where blood was
given and in fact, no HIV test was carried out which is now
compulsory. The Aids is viral infection disease and doctor has given
opinion that due to transfusion of blood, Aids disease can be caused
and the same is a fatal one. After appreciating the oral evidence of
doctors, those who have deposed before the claims Tribunal, the
claims Tribunal has examined the issue while giving finding in
Para.20, 21, 22 and 23 where the claims Tribunal has discussed the
evidence led before it and also appreciated the evidence of doctor
and come to the conclusion that when Kishorbhai was examined, he has
not even suggested in his examination about the development of HIV
positive. Even Dr.Mahesh Patel and Dr.Sheetal Mistry both of them
have not given positive case about the nexus and when the doctor who
gave the blood, the applicant does not come before the claims
Tribunal and say positively that after conducting HIV test, blood was
given and when doctors who have not given blood to the applicant do
not say positively about the cause of death because of injury by
applicant in the accident. Therefore, the claims Tribunal has rightly
come to the conclusion that claimants have failed to prove nexus
between death of Kishorbhai and injury sustained by him during the
vehicular accident. The claims Tribunal has also considered the
decision relied upon by both the sides and ultimately, come to the
conclusion that no nexus between injuries and death is proved and
therefore, settled principles of law laid down by this Court in the
decision reported in 32 (1) GLR 352, the applicants are entitled to
the expenses incurred by the deceased on medical, diet and loss of
past income. Relevant observations are in Para.20, 21, 22 and 23 are
quoted as under :
?S20. I
have gone through the documents produced on the record of the case
and the opinion of Dr.Mahesh Patel as well as Dr.Kirtidaben Mistry.
To ascertain the real cause of death, certain questions were put to
the abovesaid medical expert, but, while replying the questions, none
of two doctors says or give clear cut opinion about the nexus between
the death of the original applicant and the injury caused to him
during the vehicular accident. Of course, by referring to papers
produced before these doctors, they have stated that deceased was
required to be given blood during his treatment and the HIV test in
the year 1990 was not compulsory. But, the question that again pauses
for the final consideration of this tribunal is because such type of
HIV Positive test was not compulsory in the year 1990, can this
Tribunal presume that because of absence of such HIV positive test,
the blood that had been taken or given to the deceased, the same
having HIV positive and in order to say with exactness, then, this
Tribunal has to go for presumption. Of course, the Tribunal is very
much conscious about the fact that Tribunal is not deciding a
criminal case where proof is required beyond reasonable doubt and
this Tribunal certainly besides a civil case where preponderance of
probabilities has to be seen. Again, as by this time, by a catena of
decision made clear by various High Courts as well as Apex Court of
the Land that in order to get compensation on both the heads
pecuniary as well as non-pecuniary in case where it is alleged that
deceased met with the ending of his life because of injuries
sustained by him in a vehicular accident. While taking the aforesaid
point on hand, of course, the learned advocate for the appellant has
relied upon the oral testimony as well as documentary evidence, but,
both the doctor who have been examined in this case, have not given
positive opinion about the nexus between the death of the deceased
and the injuries sustained by him. The contrary, if reference is
made to the deposition of Dr.Maheshbhai Patel, then he has stated in
his deposition para.13 that when he examined the deceased applicant
Kishorbhai, he was not having any symptoms of AIDS. It is worth to
make mention here that this doctor examined the deceased applicant
that this doctor examined this applicant on 18.8.1997. It is also not
out of place to make mention that the deceased sustained injuries in
the year 1990and according to the case of the applicants from 1992 to
1997, the deceased applicant was given blood for more than one time.
Now in fact, during the time of giving blood, the deceased had
received HIV Positive from the blood which was given to him, then,
the Dr.Mahesh Patel, who examined this applicant on 18.8.1997, if the
applicant had developed such AIDS, would have noticed about the same
on the date when he examined the applicant. It is the positive say of
Dr.Mahesh Patel that when he examined the deceased applicant on
18.8.1997, the applicant was not having any symptoms of AIDS which
definitely shows that in the year 1997, after lapse of 7 years of the
date of accident, in fact, the deceased was not having any symptoms
of AIDS, so, question of death occurred because of HIV Postiive
blood taken by the deceased which he had to take because of injury,
does not arise at all. This can also be concluded because if
Kishorbhai Mistry, as alleged, had died because of the said positive
HIV blood taken by him during his treatment, then, he would not have
certainly missed to make mention about the same in his deposition.
Meaning thereby Shri Kishorbhai in his deposition would have said
about development of HIV Positive. At the cost of repetition if may
be said that Dr.Mahesh Patel as well as Dr.Sheetal Mistry have not
given any positive opinion about the nexus. On the contrary, both of
them have stated in their deposition that the cannot say that only
after conducting HIV Positive test, blood was given to the deceased
applicant. In that view of the matter, when the doctor, who gave
blood to the applicant, does not come before this Tribunal and say
positively that after conducting HIV test, blood was given and when
the doctors, who have not given blood to the applicant, do not say
positively about the cause of death because of injuries sustained by
the applicant. This Tribunal is of the opinion that the applicants of
this claim petition have failed to prove nexus between death of
Kishorbhai and injuries sustained by him during the vehicular
accident.
21. Learned
advocate appearing for the applicants, to prove the nexus between
injury and death, try to convince this Tribunal by placing reliance
on the decision reported in 1982 GLH 28 wherein a young cyclist died
after about 17 months. There was no medical evidence regarding the
cause of death and the evidence of the applicant remained
unchallenged. So far decision reported in 1975 ACJ 215 is concerned,
in that case, the deceased had developed tetanus during treatment
succumbed to disease. On perusal of the decision reported in 1992 ACJ
321, medical evidence proves the nexus between the injury and cause
of death. In the case reported in 1999 ACJ 287, the injured applicant
hospitalized for about a year. He remained alive for 13 years after
accident and needed regular control by specialized hospitals,
continued medical attendance and supervision, regular physiotherapy
and medicine to fight urinary tract infection.
22. Here,
the facts of the aforesaid decisions differs to some extent. Meaning
thereby, as I said earlier the deceased applicant himself has stated
in his deposition that he had taken the treatment for about 2 years
and during the period from 1992 to 1998, he had not taken any
treatment. Further, the Doctors examined in support thereof, are not
cock sure as to whether the cause of death was the accidental
injuries. In the decision reported in 1982 GLH 28, there was no
medical evidence and the same has remained unchallenged. Whereas, in
the present case, no such question arises because doctors have been
examined and the same has been challenged by the learned advocate
appearing for the opponents while arguing the matter orally. So the
argument so advanced by the learned advocate for the applicants
keeping reliance on the said decision are not much helpful while
deciding the point at issue.
23. In
so far as the question of quantum is concerned as I said hereinabove
that no nexus between the injuries and cause of death is proved and
therefore, as per the settled principles of law laid down by our own
High Court in the decision reported in 32(1) GLR 352, the applicants
are entitled to the expenses incurred by the deceased on medical,
diet and loss of past income.?S
8. In
view of the aforesaid observations made by claims Tribunal and
considering the appreciation by claims Tribunal of the evidence of
doctor, according to my opinion, the claims Tribunal has rightly come
to the conclusion that there was no positive evidence come on record
to establish that because of Kishorbhai sustained injuries in
accident which ultimately resulted into death of Kishorbhai. The HIV
positive found from the blood of the Kishorbhai is a co-incident
which cannot have any nexus with the accidental injuries. Otherwise,
at the time when Kishorbhai deposed before the claims Tribunal, he
has not even suggested about development of HIV positive. Therefore,
in any view of the matter, there was no nexus at all with the
accidental injuries and death of Kishorbhai because there was not a
slightest connection with the injuries and death of Kishorbhai. In
case when the claimant receives
injuries and during medical treatment by doctor, if doctor commits a
mistake and due to that mistake, if claimant dies, it cannot be said
that there is a nexus with the accident and that claimant has died
because of receiving injury in the accident but, he expired
because of independent cause of action, a mistake or lapse committed
by doctor. This being a similar circumstances which resulted in HIV
positive to the Kishorbhai which has ultimately resulted into death
of Kishorbhai and that no connection or nexus directly established
before the claims Tribunal. Therefore, the finding given by claims
Tribunal on the basis of evidence on record, it cannot be considered
to be a baseless and perverse and according to my opinion, the claims
Tribunal has not committed any error which requires interference by
this Court. Therefore, there is no substance in the present appeal.
Accordingly, present appeal is dismissed.
(H.K.RATHOD,J.)
(vipul)
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