{"id":118852,"date":"2008-09-24T00:00:00","date_gmt":"2008-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kirtidaben-vs-savitaben-on-24-september-2008"},"modified":"2015-10-04T15:16:44","modified_gmt":"2015-10-04T09:46:44","slug":"kirtidaben-vs-savitaben-on-24-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kirtidaben-vs-savitaben-on-24-september-2008","title":{"rendered":"Kirtidaben vs Savitaben on 24 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kirtidaben vs Savitaben on 24 September, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/1042\/2002\t 9\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 1042 of 2002\n \n\n \n \n=========================================================\n\n \n\nKIRTIDABEN\nKISHORBHAI MISTRI - Appellant(s)\n \n\nVersus\n \n\nSAVITABEN\nWD\/OF SURESHBHAI JAMNADAS. & 2 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nJITENDRA M PATEL for\nAppellant(s) : 1, 1.2.1, 1.2.2,1.2.3  \nNone for Defendant(s) : 1,\n1.2.1, 1.2.2,1.2.3  \nNOTICE SERVED for Defendant(s) : 2, \nMS LILU\nK BHAYA for Defendant(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 24\/09\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.Trilok Patel for learned advocate Mr.J.M.Patel on
\nbehalf of appellants and learned advocate Ms.Lilu K. Bhaya for
\nrespondent No.3.\n<\/p>\n
2.\tThe
\nappellants claimants have challenged award passed by MAC Tribunal,
\nBaroda in MACP No.555 of 1991 dated 28.8.1991 whereby the claims
\nTribunal has awarded Rs.1,25,000\/- compensation in favour of
\nrespondents claimants.\n<\/p>\n
3.\tLearned
\nadvocate Mr.Patel appearing for the appellants ?  claimants
\nsubmitted that initially, claim of Rs.2 lacs was filed because of
\ninjury received by Kishorbhai. But, during  pendency of claim
\npetition, he expired and therefore, heirs  were brought on record as
\nper amendment sought vide Exh.63 to have claim compensation of Rs.8
\nlacs from Rs.2 lacs. He submitted that because of injury received in
\naccident which occurred on 16.12.1990 at about 10.00 p.m. near Anand
\nPlaza on RV Desai road, Baroda with Kishorbhai Mistry, Maheshbhai
\nGandhi and minor Derik were standing with Scooter No.GUB-425 near
\npremises of Anand Plaza aside the road. Meanwhile, opponent no.1 came
\nin rash and negligent manner on wrong side driving his truck
\nNo.GTP-4545 from Jayratna building and dashed his truck against the
\nAnand Plaza building and caused injuries to the applicants, who were
\nstanding near the building and damage to the building as well as
\nscooter. According to claimants, truck was being driven by opponent
\nNo.1 which is owned by opponent No.2 and same is insured with
\nopponent No.3. During said accident, they sustained grievous injuries
\nfor which they were required to take prolonged treatment and also
\nrequired to spend a huge amount for recovery of the said accidental
\ninjuries. The building and scooter were also severely damaged.
\nTherefore, claim petition was filed.\n<\/p>\n
4.\tOn
\nthe basis of this injury, claims Tribunal has awarded Rs.1,25,000\/-,
\nagainst which the Insurance Co. has not filed any appeal. But during
\npendency of claim petition, Kishorbhai has expired on 14.4.1999 when
\nhe deposed before the claims Tribunal on 10.3.1998. That Kishorbhai
\ndied because of AIDS disease as alleged during course of amendment of
\nclaim petition and submitting arguments thereon. Therefore, question
\nof nexus has to be decided by claims Tribunal with the accidental
\ninjury to the death of Kishorbhai.\n<\/p>\n
5.\tLearned
\nadvocate Mr.Patel submitted that on those days, the blood was not
\nchecked by laboratory whether it is possessed HIV positive or not and
\nblood was given to Kishorbhai which may have a HIV positive, which
\nresulted into AIDS disease. Therefore, he submitted that during the
\nmedical treatment, they having injury in accident, this transfusion
\nof the blood with the Kishorbhai resulted to AIDS disease and
\nultimately, Kishorbhai died. Therefore, there was a nexus between
\naccidental injuries and death of Kishorbhai. He submitted that if
\nthere was no injury, question of transfusion of blood does not arise
\nand therefore, the claims Tribunal has committed gross error in not
\nbelieving the case of the appellant to have the nexus between
\naccidental injury and death of Kishorbhai. Except that, no other
\nsubmission is made by learned advocate Mr.Patel before this Court.\n<\/p>\n
6.\tLearned
\nadvocate Ms.Bhaya appearing on behalf of respondent No.3 raised
\ncontention that claims Tribunal has rightly examined the issue and
\nalso considered the opinion given by doctor and then, claims Tribunal
\nhas come to the conclusion that there was no nexus between accidental
\ninjuries and death of Kishorbhai. She submitted that Dr.Sheetal
\nMistry has not given any positive opinion about  nexus. On the
\ncontrary, both of them have stated in their deposition that they
\ncannot say that only after conducting HIV positive test, blood was
\ngiven to the deceased applicant. Therefore, she submitted that
\ndoctor, who gave blood to applicant, does not come before the claims
\nTribunal and say positively that after conducting HIV test,  blood
\nwas given to the applicant, do not say positively about the cause of
\ndeath because of injury sustained by the applicant. Therefore, she
\nsubmitted that view taken by claims Tribunal cannot consider to be
\nunreasonable and the claims Tribunal has rightly appreciated the
\nevidence on record and therefore, no interference is required by this
\nCourt.\n<\/p>\n
7.\tI
\nhave considered the submissions made by both the learned advocates
\nand also perused the award passed by claims Tribunal. Before claims
\nTribunal, Kishorbhai has examined Dr.Mahesh Patel, Orthopedic Surgeon
\nof Baroda city and Dr.Sheetal Mistry, a private practitioner.
\nAccording to claimants, deceased applicant was hospitalized for 25
\ndays as indoor patient and during the said period, he was operated
\nand iron rod was inserted, glucose as well as blood bottles were
\ngiven and for that, overwhelming evidence is produced by the
\napplicants before the claims Tribunal and deceased was treated by
\nDr.Amul Pandya, Dr.Navin Gandhi and according to their evidence,
\nwhenever blood was given to the deceased applicant, same was not
\ngiven after conducting test for HIV. According to Dr.Sheetal Mistry,
\nthe deceased died of Encephalopathy with HIV. The widow of deceased
\nKishorbhai, Kirtidaben was examined before the claims Tribunal and
\naccording to her evidence, her husband was admitted in  hospital of
\nDr.Amul Pandya, Dr.Navneet Gandhi and Dr.Ajay Shah where blood was
\ngiven and in fact, no HIV test was carried out which is now
\ncompulsory. The Aids is viral infection disease and doctor has given
\nopinion that due to transfusion of blood, Aids disease can be caused
\nand the same is a fatal one. After appreciating the oral evidence of
\ndoctors, those who have deposed before the claims Tribunal, the
\nclaims Tribunal has examined the issue while giving finding in
\nPara.20, 21, 22 and 23 where the claims Tribunal has discussed the
\nevidence led before it and also appreciated the evidence of doctor
\nand come to the conclusion that when Kishorbhai was examined, he has
\nnot even suggested in his examination about the development of HIV
\npositive. Even Dr.Mahesh Patel and Dr.Sheetal Mistry both of them
\nhave not given positive case about the nexus and when the doctor who
\ngave the blood, the applicant does not come before the claims
\nTribunal and say positively that after conducting HIV test, blood was
\ngiven and when doctors who have not given blood to the applicant do
\nnot say positively about the cause of death because of injury by
\napplicant in the accident. Therefore, the claims Tribunal has rightly
\ncome to the conclusion that claimants have failed to prove nexus
\nbetween death of Kishorbhai and injury sustained by him during the
\nvehicular accident. The claims Tribunal has also considered the
\ndecision relied upon by both the sides and ultimately, come to the
\nconclusion that no nexus between injuries and death is proved and
\ntherefore, settled principles of law laid down by this  Court in the
\ndecision reported in 32 (1) GLR 352, the applicants are entitled to
\nthe expenses incurred by the deceased on medical, diet and loss of
\npast income. Relevant observations are in Para.20, 21, 22 and 23 are
\nquoted as under :\n<\/p>\n
?S20.\tI
\nhave gone through the documents produced on the record  of the case
\nand the opinion of Dr.Mahesh Patel as well as Dr.Kirtidaben Mistry.
\nTo ascertain the real cause of death, certain questions were put to
\nthe abovesaid medical expert, but, while replying the questions, none
\nof two doctors says or give clear cut opinion about the nexus between
\nthe death of the original applicant and the injury caused to him
\nduring the vehicular accident. Of course, by referring to papers
\nproduced before these doctors, they have stated that deceased was
\nrequired to be given blood during his treatment and the HIV test in
\nthe year 1990 was not compulsory. But, the question that again pauses
\nfor the final consideration of this tribunal is because such type of
\nHIV Positive test was not compulsory in the year 1990, can this
\nTribunal presume that because of absence of such HIV positive test,
\nthe blood \tthat had been taken or given to the deceased, the same
\nhaving HIV positive and in order to say with exactness, then, this
\nTribunal has to go for presumption. Of course, the Tribunal is very
\nmuch conscious about the fact that Tribunal is not deciding a
\ncriminal case where proof is required beyond reasonable doubt and
\nthis Tribunal certainly besides a civil case where preponderance of
\nprobabilities has to be seen. Again, as by this time, by a catena of
\ndecision made clear by various High Courts as well as Apex Court of
\nthe Land that in order to get compensation on both the heads
\npecuniary as well as non-pecuniary in case where it is alleged that
\ndeceased met with the ending of his life because of injuries
\nsustained by him in a vehicular accident. While taking the aforesaid
\npoint on hand, of course, the learned advocate for the appellant has
\nrelied upon the oral testimony as well as documentary evidence, but,
\nboth the doctor who have been examined in this case, have not given
\npositive opinion about the nexus between the death of the deceased
\nand the injuries sustained by him.  The contrary, if reference is
\nmade to the deposition of Dr.Maheshbhai Patel, then he has stated in
\nhis deposition para.13 that when he examined the deceased applicant
\nKishorbhai, he was not having any symptoms of AIDS. It is worth to
\nmake mention here that this doctor examined the deceased applicant
\nthat this doctor examined this applicant on 18.8.1997. It is also not
\nout of place to make mention that the deceased sustained injuries in
\nthe year 1990and according to the case of the applicants from 1992 to
\n1997, the deceased applicant was given blood for more than one time.
\nNow in fact, during the time of giving blood, the deceased had
\nreceived HIV Positive from the blood which was given to him, then,
\nthe Dr.Mahesh Patel, who examined this applicant on 18.8.1997, if the
\napplicant had developed such AIDS, would have noticed about the same
\non the date when he examined the applicant. It is the positive say of
\nDr.Mahesh Patel that when he examined the deceased applicant on
\n18.8.1997, the applicant was not having any symptoms of AIDS which
\ndefinitely shows that in the year 1997, after lapse of 7 years of the
\ndate of accident, in fact, the deceased was not having any symptoms
\nof AIDS, so,  question of death occurred because of HIV Postiive
\nblood taken by the deceased which he had to take because of injury,
\ndoes not arise at all. This can also be concluded because if
\nKishorbhai Mistry, as alleged, had died because of the said positive
\nHIV blood taken by him during his treatment, then, he would not have
\ncertainly missed to make mention about the same in his deposition.
\nMeaning thereby Shri Kishorbhai in his deposition would have said
\nabout development of HIV Positive. At the cost of repetition if may
\nbe said that Dr.Mahesh Patel as well as Dr.Sheetal Mistry have not
\ngiven any positive opinion about the nexus. On the contrary, both of
\nthem have stated in their deposition that the cannot say that only
\nafter conducting HIV Positive test, blood was given to the deceased
\napplicant. In that view of the matter, when the doctor, who gave
\nblood to the applicant, does not come before this Tribunal and say
\npositively that after conducting HIV test, blood was given and when
\nthe doctors, who have not given blood to the applicant, do not say
\npositively about the cause of death because of injuries sustained by
\nthe applicant. This Tribunal is of the opinion that the applicants of
\nthis claim petition have failed to prove nexus between death of
\nKishorbhai and injuries sustained by him during the vehicular
\naccident.\n<\/p>\n
21.\tLearned
\nadvocate appearing for the applicants, to prove the nexus between
\ninjury and death, try to convince this Tribunal by placing reliance
\non the decision reported in 1982 GLH 28 wherein a young cyclist died
\nafter about 17 months. There was no medical evidence regarding the
\ncause of death and the evidence of the applicant remained
\nunchallenged. So far decision reported in 1975 ACJ 215 is concerned,
\nin that case, the deceased had developed tetanus during treatment
\nsuccumbed to disease. On perusal of the decision reported in 1992 ACJ
\n321, medical evidence proves the nexus between the injury and cause
\nof death. In the case reported in 1999 ACJ 287, the injured applicant
\nhospitalized for about a year. He remained alive for 13 years after
\naccident and needed regular control by specialized hospitals,
\ncontinued medical attendance and supervision, regular physiotherapy
\nand medicine to fight urinary tract infection.\n<\/p>\n
22.\tHere,
\nthe facts of the aforesaid decisions differs to some extent. Meaning
\nthereby, as I said earlier the deceased applicant himself has stated
\nin his deposition that he had taken the treatment for about 2 years
\nand during the period from 1992 to 1998, he had not taken any
\ntreatment. Further, the Doctors examined in support thereof, are not
\ncock sure as to whether the cause of death was the accidental
\ninjuries. In the decision reported in 1982 GLH 28, there was no
\nmedical evidence and the same has remained unchallenged. Whereas, in
\nthe present case, no such question arises because doctors have been
\nexamined and the same has been challenged by the learned advocate
\nappearing for the opponents while arguing the matter orally. So the
\nargument so advanced by the learned advocate for the applicants
\nkeeping reliance on the said decision are not much helpful while
\ndeciding the point at issue.\n<\/p>\n
23.\tIn
\nso far as the question of quantum is concerned as I said hereinabove
\nthat no nexus between the injuries and cause of death is proved and
\ntherefore, as per the settled principles of law laid down by our own
\nHigh Court in the decision reported in 32(1) GLR 352, the applicants
\nare entitled to the expenses incurred by the deceased on medical,
\ndiet and loss of past income.?S<\/p>\n
8.\tIn
\nview of the aforesaid observations made by claims Tribunal and
\nconsidering the appreciation by claims Tribunal of the evidence of
\ndoctor, according to my opinion, the claims Tribunal has rightly come
\nto the conclusion that there was no positive evidence come on record
\nto establish that because of Kishorbhai sustained injuries in
\naccident which ultimately resulted into death of Kishorbhai. The HIV
\npositive found from the blood of the Kishorbhai is a co-incident
\nwhich cannot have any nexus with the accidental injuries. Otherwise,
\nat the time when Kishorbhai deposed before the claims Tribunal, he
\nhas not even suggested about development of HIV positive. Therefore,
\nin any view of the matter,  there was no nexus at all with the
\naccidental injuries and death of Kishorbhai because there was not a
\nslightest connection  with the injuries and death of Kishorbhai. In
\ncase when the claimant receives
\ninjuries and during medical treatment by doctor, if  doctor commits a
\nmistake and due to that mistake, if  claimant dies, it cannot be said
\nthat there is a nexus with the accident and  that claimant has died
\nbecause of receiving injury in the accident but, he expired
\nbecause of independent cause of action, a mistake or lapse committed
\nby doctor. This being a similar circumstances which resulted in HIV
\npositive to the  Kishorbhai which has ultimately resulted into death
\nof Kishorbhai and that no connection or nexus directly established
\nbefore the claims Tribunal. Therefore, the finding given by claims
\nTribunal on the basis of evidence on record, it cannot be considered
\nto be a baseless and perverse and according to my opinion, the claims
\nTribunal has not committed any error which requires interference by
\nthis Court. Therefore, there is no substance in the present appeal.
\nAccordingly, present appeal is dismissed.\n<\/p>\n
 (H.K.RATHOD,J.)
\n(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kirtidaben vs Savitaben on 24 September, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print FA\/1042\/2002 9\/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1042 of 2002 ========================================================= KIRTIDABEN KISHORBHAI MISTRI – Appellant(s) Versus SAVITABEN WD\/OF SURESHBHAI JAMNADAS. & 2 – Defendant(s) ========================================================= Appearance : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-118852","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKirtidaben vs Savitaben on 24 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kirtidaben-vs-savitaben-on-24-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kirtidaben vs Savitaben on 24 September, 2008 - 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