1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and the decree dated 23.11.2005, dismissing the claim petition in M.O.P.No.905 of 2004 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VIII Additional District Judge, (F.T.C.), Visakhapatnam.

2. The appellants are the claimants and the respondents are the respondents before the Tribunal.

3. The claimants filed application under Section 166 of the Motor Vehicles Act, 1988 r/w.455 of the A.P.Motor Vehicles Rules claiming compensation of Rs.2,00,000/- for the death of late Kodanda Rao @ Kodandam (in short, ‘the deceased’) in a motor vehicle accident.

4. The case of the claimants, stated briefly, is as follows :

                  The deceased was aged about 60 years. He was a coolie and earning Rs.100/- per day. On 09.09.2003, the deceased and his wife were returning from their work at about 6.00 p.m. When they reached opposite to Vikash college, Sheelanagar, Visakhapatnam, the rider of motor cycle bearing No.A.P.32 B 3091 proceeding towards N.A.D.Kotha Road to B.H.P.V.Limited in a rash and negligent manner with high speed, dashed against the deceased. As a result, he fell down and received grievous injuries and multiple fractures. He was shifted to R.K.Hospital, Gajuwaka. Later, he was shifted to K.G.Hospital, Visakhapatnam for better treatment where he was treated from 10.09.2003 to 21.10.2003. He underwent surgery for the fracture injuries. After he was discharged from the hospital, he returned to his native place. He was again admitted in Sri Venkataeswara Nursing Home at Pundi, Srikakulam District. He took treatment there from 23.10.2003 to 25.12.2003. Subsequently, he died on 09.01.2004 due to the injures suffered by him in the accident.

5. The claimant No.1 is the wife and the claimant No.2 is the son of the deceased. The claimants did not inform to the police about the death of the deceased. The S.H.O. of the Gajuwaka police station registered a case in Cr.No.106 of 2003 under Section 338 I.P.C. against the respondent No.1 who is the driver-cum-owner of the motor cycle. The respondent No.2 is the insurer of the motor cycle.

6. The respondent No.1 remained ex parte.

7. The respondent No.2 filed counter resisting the claim petition disputing the averments and further stating that unless the mandatory provisions under Section 64 (V)(B) of the Insurance Act,1938 but, the respondent No.1 has not complied the same.

8. On behalf of the claimants, P.W.1 Kancharana Venkamma (claimant No.1) and P.W.2 Dr.Ch.Kodanda Rao were examined and Exs.A1 to A8 were marked.

                  PW1: Kancharana Venkamma (claimant No.1) PW2: Dr.Ch.Kodanda Rao

                  Ex.A1: Certified true copy of F.I.R. in Crime No.106/2003 under Section 338 I.P.C.

                  Ex.A2: Certified true copy of wound certificate. Ex.A3: Certified true copy of charge sheet.

                  Ex.A4: O.P.chit issued by K.G.Hospital.

                  Ex.A5: Certificate issued by Sri Venkateswara Nursing Home. Ex.A6: Death certificate issued by Gram Panchayat.

                  Ex.A7: Attested Xerox copy of policy. Ex.A8: 37 medical bills for Rs.9,707.50 ps.

9. On behalf of the respondent No.2, no evidence was adduced.

10. After hearing both the parties, the Tribunal dismissed the petition holding a view that the claimants could not prove that the death of the deceased had resulted from the injuries suffered in the accident caused by use of a motor cycle.

11. Aggrieved by the same, this appeal was preferred by the claimants contending that the Tribunal erred in dismissing the claim without properly appreciating the evidence and that the Tribunal ought to have observed that the deceased died of the injuries suffered in the motor vehicle accident caused due to the rash and negligent driving of the respondent No.1.

12. The learned counsel for the appellants submitted that the Tribunal erred in dismissing the whole claim without granting any amount of compensation either for the injuries suffered or for the death caused in pursuance of the injuries.

13. The learned counsel representing the respondent No.2 opposed the appeal submitting that the death was not proved to be caused due to the injuries said to be suffered in the accident.

14. P.W.1 herself is the eye-witness to the accident as she was walking along with the injured at the time of the accident. Shortly thereafter, a complaint was lodged by her and investigation was conducted thereon which resulted in filing a charge sheet against the driver of the offending vehicle. The evidence of P.W.2 read with the wound certificate clearly shows that the injured received 1) both bones of left leg upper 1/3rd fractured, 2) laceration on the over left leg, 3) laceration on the fore-head, 4) laceration over nose, 5) abrasion over right knee and 6) abrasion over right cheek. The evidence further indicates that the injured was treated in the government hospital from the date of the accident till he was discharged on 21.10.2003 and thereafter he was treated by P.W.2 from 23.10.2003 to 25.12.2003. P.W.2 deposed that he had treated the injured conservatively by prescribing medicines, but no surgery had been conducted and that some of the injuries healed up at the time of admission of the injured in the hospital and that the injured had been given antibiotics and I.V. fluids as post operative care. He further deposed that the victim had life risk and had been informed the same at the time of his discharge from the hospital and also that he had come to know that the injured succumbed to the injuries one week after the discharge. The Tribunal did not believe the evidence of P.W.2 and opined that the claimants failed to prove that the death was the result of the injuries. As can be seen from the nature of the injuries and the prolonged treatment taken and the death of the injured shortly after the discharge, it is clear that the death is highly possible due to the injury suffered as there was no record that the deceased was ill before the accident. He was a normal person, though aged about 60 years, at the time of the accident. If the nature of the injuries are such that they could be easily healed, there was no need to take such a prolonged treatment for him. Proof of death resulting from injuries need not be proved only through post-mortem examination. Such a fact can be proved by any means of evidence. The evidence placed by the claimants is sufficient in the present case to reasonably conclude, by applying the principle of proof of a fact as per the under the Evidence Act, i.e. the test of a prudent person, that the deceased died of the injuries suffered in the accident. Therefore, this Court is of the view that the claimants could reasonably establish that the death of the deceased is due to the injury suffered in the accident.

15. That apart, it is obviously error on the part of the Tribunal that no amount of compensation was ordered even in respect of the injuries suffered and the expenses incurred for such treatment. In case, if the Tribunal was of the opinion that the death is not proved to be result of the injuries suffered in the accident, it ought to have granted compensation for the injuries suffered. As such, the award passed by the Tribunal dismissing the whole claim is ex facie incorrect.

16. In view of the finding that the death was the result of the injury suffered in the accident, i.e. the victim died after suffering for a few months after the accident, the compensation is payable not only for the resultant death, but also for the expenses incurred under various heads during the period of the treatment.

17. Therefore, the claimants are entitled to compensation of medical expenses of Rs.9,700/-, as established under various bills marked as Ex.A.8, and also Rs.9,000/- under Ex.A.5.

18. That apart, the claimants are entitled to compensation of Rs.10,000/- towards loss of estate and Rs.10,000/- towards loss of consortium to the claimant No.1. The claimant No.2 being the son is also entitled to compensation towards loss of parental consortium to an extent of Rs.5,000/-.

19. They are further entitled to a reasonable amount of compensation towards attendant charges, transportation expenses, both for treatment and also for funeral ceremonies and transportation of dead body etc. Since there is no proof of exact amount incurred under these heads, a lumpsum amount of Rs.10,000/- can be awarded.

20. As the deceased was aged about 60 years, but a labourer, in the absence of proof of actual income, his income can be notionally estimated. Therefore, Rs.12,000/- can be taken as his annual income keeping in view his age. Out of the said income 1/3rd shall be deducted towards his personal expenses. So, Rs.8,000/- is his contribution to the family. The multiplier applicable to persons aged about 56 to 60 is ‘9’. The amount of compensation payable for loss of earnings is Rs.8,000 x 9 = Rs.72,000/-.

21. Thus, in total, the claimants are entitled to Rs.72,000 + 9,700 + 9,000 + 10,000 + 10,000 + 5,000 + 10,000 = Rs.1,25,700/-.

22. In the result, the appeal is allowed and award and the decree dated 23.11.2005, in M.O.P.No.905 of 2004 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VIII Additional District Judge, (F.T.C.), Visakhapatnam is set aside. The claimants are awarded Rs.1,25,700/- (rupees one lakh twenty five thousand seven hundred only) with proportionate costs throughout and interest @ 7.5% p.a. on the amount of compensation from the date of the petition till the date of realisation payable by the respondents with joint and several liability.

Pending miscellaneous petitions, if any, shall stand closed.