1. This appeal has been filed by the owner and insurer of the vehicle which was involved in an accident against the award passed by the Motor Accidents Claims Tribunal, Coimbatore (East) at Erode in M. C. O. P. No. 12 of 1971 awarding a compensation of Rs. 50,000 (Rs. fifty thousand only) to the first respondent herein for the death of her son, Kulasekaran. The first respondent herein has filed a memorandum of cross-objections claiming a further compensation of Rupees 20,000.
2. On 12-7-1970, one Kulasekaran, the son of the first respondent herein aged about 23 years, studying in the final year B. E. in the Government Engineering College at Karupuur was driving a new Ambassador car which had not been registered, from Bhavani to Guruvareddiyur on the Bhavani-Mettur road. In the opposite direction a convoy of forty Ambassador cars was proceeding from Calcutta to Kerala. At about 12.15 P.M. there was a collision between the car driven by Kulasekaran and the 8th car in the convoy. WGK 9095 coming in the opposite direction. As a result of the collision the said Kulasekaran sustained injuries and ultimately died in the hospital at Madras, a few days later after undergoing operation. The driver of the 8th car in the convoy which was involved in the accident was prosecuted and found guilty under Sections 304A and 337, I. P. C. and convicted and sentenced to undergo rigorous imprisonment for six months in C. C. No. 360 of 1970 on the file of the Sub-Divisional Magistrate, Erode.
3. On the ground that the accident was solely due to the rash and negligent driving of the car WGK 9095 by its driver, the first respondent herein, filed a claim petition M. C. 0. P. No. 12 of 1971, claiming a compensation of Rs. 1,00,000/- in the said claim petition the driver, the owner and the insurer had been made parties. The owner of the vehicle, the second respondent in the O. P. contended that the car WGK 9095 was not driven in a rash and negligent manner that the vehicle was driven carefully and cautiously, that the deceased was driving the car bearing no registration number at a dangerous speed that he while attempting to overtake a stationary vehicle unmindful of the on-coming convoy of cars hit the vehicle WGK 9095 that the accident took place purely due to the rash and negligent driving of, the deceased, and his overlooking the elementary rules of the road, that the third respondent, the driver of the car WGK 9095 was not at all responsible for the accident, that if he had not turned a little to his left to avoid a head on collision, a more gruesome tragedy would have occurred, that the accident took place due to the irresponsible act of the deceased, that the third respondent never swerved his car to the right and, therefore, there was no possibility of his car hitting against the deceased's car and, therefore, neither the owner, nor the driver or the insurer of the vehicle - WGK 9095 is liable for the accident. He also contended that the deceased and the other injured were taken to the Bhavani hospital and thereafter to Erode and given treatment, that the injuries were not of such a serious nature as to cause death, that the taking of the deceased to Madras and subjecting him to an operation should be taken to be at the risk of the deceased and that, in any event, the quantum of compensation claimed is exhorbitant, imaginary and unconscionable and that the social status of the deceased his wealth and attainments of personal nature are of little value in the matter of quantification of compensation. The first respondent, Messrs Hindu Motors Ltd., who was the manufacturer of the car WGK 9095 disclaimed liability on the ground that the title of the vehicle had passed to the second respondent, Messrs Maricar Motors Ltd. The third respondent in the claim petition who is the driver of the vehicle adopted the counter statement filed by the second respondent. The fourth and fifth respondents who are the insurers of the vehicle also filed a counter adopting the second respondent's counter.
4. In the face of the above pleadings, the following questions arose for consideration before the Tribunal (1) Whether the first respondent is not a necessary party? (2) Whether the accident was due to the rash and negligent driving by the third respondent driver of the car WGK 9095 or whether the accident was due to the rash and negligent driving by the deceased? (3) To what compensation, if any, is the petitioner entitled?
5. Both parties adduced evidence before the Tribunal in respect of their respective contentions and the Tribunal after analyzing the evidence, held that the accident was solely due to the rash negligent driving of the 8th car in the convoy WGK 9095, that there was no negligence on the part of the deceased in driving his car, that the first respondent was not a necessary party to the claim petition as the title to the car which was involved in the accident had passed to the second respondent even before the accident and that the fair and reasonable compensation to be paid to the claimant was Rupees 50,000/-. In that view, the Tribunal passed an award for a sum of Rupees 50,000/- as against respondents 2 to 5.
6. Aggrieved by the award of the Tribunal the second and fifth respondents in the claim petition who are respectively the owner and the insurer of the vehicle - WGK 9095 have filed the present appeal. In this appeal the finding of the Tribunal both on the question of rashness and negligence on the part of the driver of the vehicle WGK 9095 as also the quantum of compensation fixed by the Tribunal have been challenged. The claimant not satisfied with the award passed by the tribunal, has filed cross objections claiming a further compensation of Rs. 20,000.
7. It has been submitted by the learned counsel for the appellants that the car WGK 9095 driven by the third respondent in the claim petition being one of the vehicles in a convoy of about 40 cars, there is no possibility of the car going to the western half of the road, that there is no necessity for the driver of that vehicle to turn to the right so as to collide with the vehicle driven by the deceased, that in fact the claimant herself has not given any reason as to why the vehicle should have suddenly entered the western half of the road more or less leaving the convoy, that it is not the case of the claimant that the driver of the vehicle WGK 9095 was either drunk or drowsy while driving so that it could be said that the driver was not steady and lost control of the vehicle and, therefore, it should be taken that the deceased alone was rash and negligent in driving his vehicle and ultimately coming and hitting against the car WGK 9095 which was going on the eastern side of the road as part of a convoy,
8. It is no doubt true that if the probabilities alone are to be taken into account, it is improbable that the vehicle going in a convoy on the eastern half of the road would have suddenly swerved to its right and entered the western half of the road and hit against a vehicle coming in the opposite direction. But in this case, it is not possible to go only by mere probabilities, when there is clear evidence before the court as to how the accident happened. On a careful analysis of the materials placed on record, we are inclined to agree with the finding of the Tribunal that the accident took place due to the rashness and negligence on the part of the driver of the vehicle WGK 9095. PW 2 is on a Dr. Seetharaman, the brother-in-law of the deceased. He was an occupant of the car driven by the deceased and therefore, he is an eye witness to the accident In his evidence he has referred to the circumstances, under which the ill-fated accident took place. He has deposed at himself, his wife, the deceased and, one advocate Ponnambalam, and his daughter Girija and the grandmother of the deceased, were proceeding from Salem to Guruvareddiyur in an Ambassador car driven by the deceased, that when they were proceeding on Bhavani-Mettur Road, a convoy of 20 new Ambassador cars was coming in the opposite direction, that on seeing the convoy the deceased slowed down the speed and was proceeding on the mud road at a speed of 10 kilometers per hour, that one of the cars in the convoy suddenly turned to the right and dashed against the Ambassador car driven by the deceased with the result he sustained a fracture of his right thigh bone and the car also got damaged, that immediately advocate Ponnambalam went and gave a report to the police Ex. All and the PW 5 the head constable recorded Ex. A. 11. No doubt, PW 2 is the brother-in-law of the deceased and as such some what interested in supporting the claim of the claimant. But so long as there is no other evidence adduced by the defence rebutting that evidence, the evidence of PW 2 cannot entirely be discredited on the ground of interestedness. Further, the evidence of PW 2 is corroborated by the other materials on record. While in the Erode hospital, the police had recorded a statement from the deceased which is marked as Ex. A. 1, a reading of Ex. A. 1 would disclose the fact that the deceased was keeping to his extreme left on noticing five or six cars in a convoy passing his car, that the 7th car coming in a convoy suddenly turned to the right side and dashed on the right front portion of his car. Ex. A. 1 the statement of the deceased corroborates the evidence of PW 2 in all material particulars. Further corroboration is also available from Exs. A. 2 and A. 3. Ex. A. 2 is the charge-sheet filed before the Sub-Divisional Magistrate, Erode, against the driver of the car WGK 9095, under Ss. 304A and 337, I. P. C. in C. C. No, 360 of 1970. Though the offence was denied by the accused the court has found him guilty and sentenced him to undergo rig-3rous imprisonment for a period of six months. The judgment in that case has been marked as Ex. A. 3 Ex A. 11 is the report given by the advocate Ponnambalam immediately after the accident. That report refers to the fact that on seeing a convoy of cars the deceased Kulasekaran drove his car to the extreme left and was going on the mud portion of the road and that time the Ambassador car coming in the convoy swerved suddenly to the right and dashed against the car driven by the deceased. Ex. A. 11 also corroborates the evidence of PW 2. In addition, there is Ex. A. 12, the observation mahazar prepared by PW 5, the head constable at the time of his making investigation after inspecting the scene of occurrence. Ex. A. 12 shows that the road was clear with no sands and that the Ambassador car driven by the deceased was in the mud portion of the road on the west immediately after the accident.
9. As against the said evidence adduced by the claimant, there is the evidence of RWs. 1 to 3. All of them say that the deceased alone was to be blamed for the accident, that there was a lorry stationed on the left side of the road i.e., on the western half of the road, that while overtaking the lorry the deceased was driving his vehicle at a hectic speed unmindful of the on-coming convoy and that this brought ' about the accident. But it has not been established that in fact a stationary lorry was parked on the western half of the road so as to necessitate the swerving of the vehicle driven by the deceased to his right. Even the observation mahazar Ex. A. 12 prepared by PW 5, the head constable does not refer to any stationary vehicle having been present at the scene of the occurrence. The number and the other details of the lorry which was said to have been parked on the western side of the road have not been given by RWs. 1 to 3, nor has any attempt been made by the appellants herein to examine the driver of that lorry. Therefore, there is no reliable and satisfactory evidence that a stationary lorry stood parked on the western side of the road and that the deceased while attempting to overtake that lorry caused the accident in question. It is true RW 3 had stated that all the Ambassador cars included in the convoy are new cars, that the carburetor in all the cars are sealed to prevent them from being run in excess speed and that therefore those cars could proceed only on an average speed of 40 to 45 kilometres per hour and therefore the vehicle WGK 9095 which is part of the convoy could not have been driven at an excessive speed. The Tribunal has not chosen to accept the evidence of RW 3 on the ground that it is interested. But even assuming that the evidence of RW 3 is acceptable, it cannot go against the claimant's case for even when the vehicle was being, driven at a slow speed the vehicle could have swerved to the right suddenly resulting in that vehicle dashing against the vehicle coming in the opposite direction. Therefore, we are persuaded w hold that the accident took place solely due to the rash and negligent driving of the car WGK 9095 by its driver and there is no evidence of any contributory negligence on the part of the deceased.
10. Coming to the quantum of compensation, it is seen that as against the claim for Rs. 1,00,000/-, the Tribunal has awarded a sum of Rs. 50,000, on the basis that the deceased was a student, comes from a rich family, has a good future, and could easily secure a decent job or could carry on an independent profession as an Engineer. The appellants have questioned the quantum of compensation fixed by the tribunal as excessive.
11. As regards the quantum of compensation the Tribunal itself found that there is no acceptable evidence to prove that the deceased was getting any income from sources such as poultry farming, sheep rearing, agricultural operations etc. The Tribunal however, found that the deceased who was in the final year of the B. E. course, would in course of time, get an employment as an engineer or would carry on an independent profession as an engineer as he comes from a rich family which could afford to provide him with the wherewithal for starting an independent profession as an engineer. On the facts found the deceased if had been alive would easily earn at least Rs. 500 a month, out of which the dependency of the family can be taken to be Rs. 250. Having regard to the age of the deceased we can adopt as 15 the multiplier. Thus the total 16ss of dependency comes to Rupees 45,000/(250xl2xl5). For loss of expectation of life, a sum of Rs. 5,000/- can. be awarded. Thus the sum of Rs. 50,000/-, fixed as compensation for the death of the deceased cannot be said to be excessive.
12. The appellants then contend that as the death was not the direct result of the accident, they cannot be made liable to pay compensation for the death of the deceased and that their liability should be restricted only to the injuries actually sustained as a result of the accident. We have to therefore consider whether the death of the deceased was a direct result of the accident. It is said that the compensation fixed by the Tribunal is for the death of the deceased after the operation and not for the injuries sustained by the deceased, that the injuries sustained by the deceased did not call for on warrant an operation, that it is the operation undertaken by the deceased unnecessarily in the hospital at Madras which ultimately resulted in his death and that, therefore, the liability for compensation should be fixed only with reference to the injuries actually sustained by the deceased and not with reference to the death brought about by the deceased himself.
13. It is seen from the evidence of PW 3, Dr. Ponnuswami, who attended on the deceased immediately after the accident that except for the fracture sustained on his right thigh the deceased was otherwise all right, and that he asked the parties to take the injured to Madras and to have him operated there as he felt that a mere treatment of the fracture on the thigh would have resulted in a deformity. The oral evidence on this aspect by PW 3 is as follows -
(Translation of Tamil)
Since there may happen some deformity if treatment LF taken at Eroda, I sent him to a separate doctor at Madras.
14. In cross-examination again he says -
(Translation of Tamil)
I had not any doubt about this life of the deceased. Only on account of the fact that there may happen some deformity to him I directed he should be taken to Madras.
15. The evidence of this witness suggests that the operation that was undertaken at Madras was not a must, be that it was suggested only by way of abundant caution to see that no deformity occurs. The evidence of PW 1 Dr. M. Natarajan, who operated on the deceased when he was brought to Madras indicates that the death might be due to other causes as well. He has deposed that injury No. 1 on the person of Kulasekaran that is a fracture shaft of right femur which was caused by collision of the car driven by the injured with another vehicle required play treatment by skin traction in a Thomas splint, that as the treatment did not reduce the fracture it was decided to manipulate the fracture under general anesthesia, and that he was operated for reduction of fracture on 15th July at 11 a.m. He has given the details as to what happened on that day. According to him the patient was given general anesthesia by the Anesthetist and fracture was manipulated. The reduction was completed and the anaesthesia was discontinued and the patient was waiting to be splinted. About five minutes after his recovery from anaesthesia the patient suddenly developed difficulty in breathing. A few minutes later he developed cardiac arrest, Immediate treatment for cardiac arrest was carried out by drug injections, incubation and oxygen. When the pulse did not reappear acute pulmonary embolism was diagnosed. At about 1.30 cardiac thorasic surgeon was called in and within a few minutes the cardiac thorasic surgeon opened the heart and found a big pulmonary embolism blocking the pulmonary artery. The embolism was removed and cardiac pacemaker was attached to stimulate the heart. But in spite of all the efforts he died at about 1.20 p.m. the cause of death being pulmonary embolism. PW 1 further states that pulmonary embolism in fracture cases occasionally occur by escape of bone marrow fat from the site of the fracture which escapes into blood stream and that if this is in sufficient quantity, it blocks the, pulmonary artery massively and causes death. However, he has admitted in cross-examination that embolism of pulmonary trunk by a clot of blood coming from the right side of the heart in patient with heart diseases is one of the common causes of sudden and rapid death though in this case the clot was due to fat. He has also admitted that the patient was a tall well built man physically fit with blood pressure 116/80 and that the injury found on the thigh of the deceased is a comminuted closed fracture and not a complicated fracture and that before anaesthelisation pre-medication was given that if there was a fault in the mechanism of venous administration of drug air embolism also can occur and that every person suffering from a fracture on the thigh bone need not necessarily get embolism. He also admits that no post-mortem was conducted and no pathological survey was done after the patient died. After looking into the operation notes, he has stated that as part of the emergency treatment heparin has been given intravenously, that on opening the heart the left side of the heart was found to be empty and the heart itself was blue, that the pulmonary artery was opened and drained, of few clots, that the heart was blue due to total blockage al pulmonary artery and that since there was no flow of blood from heart to lungs, there was no returned blood from the lungs to the left side of the heart. The witness has earlier stated that fat embolism could be dissolved by the administration of drugs and Heparin is used in such cases. The evidence of PW 1 indicates that the death may be either due to the accident which would have resulted in the occurrence of massive fat embolism or it may be due to air embolism arising out of the administration of drugs. Even at the time of admission, the deceased was physically fit even though he had a thigh fracture, and death cannot be said to be directly arising from the accident. Death has occurred after the heart was opened the cause of which has not been definitely fixed by PW 1.
16. In this view of the matter, we cannot say that the death was solely due to the injury. The question is whether on these facts the appellants can be asked to pay the compensation for the death of the deceased.
17. It is well established that the claimant may have his damage cut down because of his own conduct in not mitigating the damage which can be defined as a failure on the part of the claimant to take reasonable steps either to reduce the original loss or to avert further loss and that he cannot also claim damages which is too remote. Failure to mitigate loss or damage in cases of injuries can arise from the injured person not having the proper medical treatment thus aggravating the injury or acting against medical advice or it may arise from his refusal to undergo the medical treatment. In McAuley v. London Transport Executive, (1957) 2 L Rep 500 where the in jured's refusal to undergo an operation was held unreasonable so that the defendant was only liable for loss of wages up to the time when he would have returned to work had he had the operation. Jenkins, L.J. said in that case -
'Inasmuch as it is the duty ofthe party to mitigate damages, it is his duty to act on any medical advice.'
In Steele v. Robert George 1942 AC 497, the plaintiff had refused to undergo an operation and it was held that this did not affect the damages unless the defendant proved that the refusal was unreasonable. The doctrine of mitigation ensures that the wrongdoer is not put to any additional burden arising out of the conduct of the injured subsequent to the accident. Similarly, he is also protected by the doctrine of remoteness from imposition of an additional burden arising out of causes not directly flowing from the injuries sustained. If the damage sought for is too remote to the tort committed, then the wrongdoer is protected by the doctrine of remoteness. The question is whether either of these principles will apply in this case.
18. Where a workman injured by the defendant underwent medical treatment which increased his injury due to the surgeon's negligence, the defendant was held not liable for the further injury by the court of appeal in Rothwell v. Caverswall Co., (1944) 2 All ER 350 and by the House of Lords in Hogan v Bentink Collieries, (1949) 1 All ER 588 . In the later case Lord Normand said -
'I start from the proposition which seems to me to be axiomatic, that if a surgeon by lack of skil1 or failure in reasonable care, causes, additional injury to aggravate an existing injury and so renders himself liable in damages, the reasonable conclusion must be that his intervention is a new cause and that the additional injury or the aggravation of the existing injury should be attributed to it and not to the original accident. On the other hand, an operation prudently advised and carefully carried out should not be treated as a I new cause, whatever its consequences may be.'
19. However, there were dissenting judgments in both the above cases. In the first case Macdermott in his dissenting judgment observed -
'When, in order to rid himself of his incapacity for work, a workman reasonably submits himself to surgical treatment at the hands of a qualified practitioner, why should the risk of some error of judgment to some lack of efficiency on the part of the latter in the course of the treatment fall on the workman so as to rob him of his right to compensation.'
20. In the second case Scott, L. J. felt that refusing a plaintiff compensation for injury as increased by negligent medical treatment was inconsistent with another line of cases represented by Dunham v. Clare (1902) 2 KB 292 .
21. Thus the injured party is put in dilemma. He may find on the one hand that he cannot recover for further injury caused by the negligent medical treatment and on the-other if the injury which could have been prevented but for his refusal to undergo medical treatment. It is to resolve the said dilemma the courts have adopted the test of reasonableness of the conduct of the injured party. In Winfield and Folowicz on Tort, 11th Edn. at page 599 it is pointed out -
'The victim of a tort is obliged to mitigate his, loss, that is to say, he may not claim damages in respect of any part of his loss that would have been avoidable by reasonable steps on Ms part. Most of the authorities on mitigation relates to breach of contract, but the broad principles are equally applicable to tort. What is reasonable is a question of fact in each case; while the plaintiff must not be allowed to indulge his own whims or fancies at the expense of the defendant, it must also be remembered that the defendant is wrongdoer who has caused the plaintiff's difficulty. Accordingly, the standard of reasonableness is not a high one.'
22. In Halsbury's Laws of England, 3rd edition, Vol. 37, at page 141, paragraph 252, which deals with the mitigation of damages says-
'There is a duty upon those who have been tortiously injured to take all reasonable steps to minimise the damage resulting therefrom and, in so far as they may succeed in so doing; the tortfeasor is relieved of the obligation to compensate them. Where a person, acting reasonably after suffering a tortious injury so conducts himself as undesignedly to aggravate his damage such additional loss is not too remote to be recoverable from the tortfeasors.'
23. Thus, the position of law appears to be this: Though there is a duty on the person who has been tortiously injured to take all reasonable steps to mitigate the damages resulting, there from if the steps taken by him reasonably led to an unexpected aggravation of the injury and the consequent enhanced damages, the law protects him and enables him to recover the additional damages which cannot be said to be too remote to be recoverable from the tortfeasors.
24. Applying this test to the facts of this case, we find that the conduct of the injured in subjecting himself to an operation for reduction of the fracture in his thigh in the hands of an Orthopaedic surgeon like PW 1 cannot be said to be unreasonable. While subjecting himself to the operation for reduction of the fracture, he could not have reasonably anticipated or foreseen the circumstances which led to his death ultimately. Further, it has not been established that there has been any negligence on the part of PW I who undertook the operation or on the part of the anaesthetist who administered anaesthesia or on the part of the cardiac thorasic surgeon who attempted to revive the heart which had failed to function. It is true some suggestion has been put to PW 1 that the death may be due to either fat embolism arising out of the injury or air embolism arising out of the administration of drugs. But so long as the death has not definitely been found to be due to causes unconnected with the injury sustained by the deceased as a result of the accident it is not possible to say that the appellants the owner of the vehicle and the Insurance company are not liable to pay compensation for the death of the deceased. It cannot be ruled out that the death was due to the blood clots which in all probability might have been caused by the injury sustained, in this view of the matter, we have to hold that the appellants have been rightly held liable to pay compensation for the death of the deceased and not merely for actual injuries sustained by him.
25. In the result both the appeal and the cross-objections are dismissed. No costs.
26. Order accordingly.