S.D. Dave, J.
1. A man aged about 54 years, healthy in every respect, was returning to his house on his scooter. He was knocked down by a speeding S.T. vehicle causing multiple fractures on his person. He was admitted in the hospital and the traction was advised. He was removed out of the hospital with a view to continue the traction at his residence. He had certain complaints during the intervening period. He dies on the 6th or 7th day of the accident and the probable cause of death, certified by the medical expert, is 'fat embolism', which is a common complication in case of multiple fractures when long bones are involved. In the award rendered by the Motor Accidents Claims Tribunal, Ahmedabad city, it is said that there was no nexus or connection between the death of the deceased and the accidental injuries. The question, therefore, in the present appeal is as to whether the claimants would be entitled to the compensation on the head of loss to the estate on the basis that there is a nexus or connection between the accidental injuries and the death.
2. The present appeal which calls for the determination of the abovesaid question arises under the following facts and circumstances.
3. One Ambalal Sutaria, a resident of the city of Ahmedabad, was returning towards his house on his scooter No. GJE 264 on 22.9.1976 at about 12.30 p.m. and when he was passing through over the road between Paldi and V.S. Hospital within the city of Ahmedabad which is popularly known as Sarkhej Road, the bus belonging to the Gujarat State Transport Corporation, i.e., the opponent No. 2 and being driven by the opponent No. 1 had come there from behind and a dash was given to the scooter. The deceased Ambalal Sutaria was thrown off from over the scooter and he had received multiple fractures. He was removed to the V.S. Hospital at Ahmedabad and some treatment was given for the multiple fractures. It appears that he was put on traction but he was not feeling comfortable and therefore he has taken discharge from the hospital on the next day, i.e., on 23.9.1976. He had expired at his residence on 28.9.1976. Between the date of discharge and the death it appears that the deceased was obliged to consult certain other doctors. The cause of death appears to be the fat embolism which is a known complication in case of multiple fractures when the long bones are involved. The claimants who are the appellants before us had, therefore, filed the M.A.C. Case No. 15 of 1979 before the learned Motor Accidents Claims Tribunal No. 1 at Ahmedabad, praying for the total compensation of Rs. 1,50,000/-.
4. It was the case of the original applicants that the accident was the result of rash and negligent action on the part of the opponent No. 1, the driver who was driving the said S.T. vehicle at the relevant time. So far as the question of quantum of compensation is concerned, it is the case of the applicants that the deceased used to earn an amount of Rs. 15,000/- per year and was aged about 53 years. It is on this basis that the applicants had claimed the total compensation of Rs. 1,50,000/- from the opponents together with the interest and the costs.
5. The abovesaid case of the applicants came to be challenged by the opponent No. 2, the Corporation, by filing the W.S. at Exh. 18. The opponent No. 1, the driver, had not filed a separate W.S. but by passing the necessary purshish he has adopted the W.S. filed on behalf of the Corporation which is at Exh. 18. In view of this position the contentions raised by the opponents can be said to be identical on every count.
6. Vide the abovesaid W.S. at Exh. 18, the opponents have denied all the allegations of the applicants regarding rash and negligent driving on the part of opponent No. 1, the driver. It is denied that the opponent No. 1 was driving the S.T. bus belonging to the opponent No. 2, the Corporation, in a rash and negligent manner. On the contrary, it has been contended that the S.T. bus was being driven slowly on the correct side of the road with all necessary care and caution. It has also been contended that the deceased had come on the spot of the accident from behind and had overtaken the bus from left hand side and had gone ahead of the bus, and thereafter he had tried to negotiate a turn on the right hand side for the purpose of crossing the road and at that time the scooter had collided with the left side bumper of the bus. It is also contended that the bus was running at a very slow speed and that the deceased who had fallen down from over the scooter had immediately got up and sat on the footpath, and later on he was removed to the hospital by the opponent No. 1, the driver. It is also contended that the bus was running at the speed of 10 to 15 kmph. at the relevant time and therefore no liability can be placed on the shoulders of the opponent No. 1, the driver.
7. It requires to be pertinently appreciated that the claimants have stated more than once, in the pleadings in so many words, that the deceased had died because of the accidental injuries. When a reference is made to column 2 of the application at Exh. 1, there is a clear recital that the death was due to the accidental injuries. The applicants had not rest contented with the abovesaid general averments in the pleadings but at para 10 of the pleadings under the caption of the 'Brief Particulars of the Accident' the applicants have stated very clearly that the accident had occurred on 22.9.1976 and thereafter the deceased was admitted in hospital and later on he has taken the discharge. It is also stated in no uncertain terms in the pleadings that the deceased had breathed his last on 28.9.1976 at about 7 a.m. but during this period he was bedridden and he was under the medical care and treatment. It is also stated very clearly in the pleadings that on 27.9.1976 there was some complication and therefore Dr. Mahendra Desai, an Orthopaedic Surgeon attached to V.S. Hospital, Ahmedabad was called. It is also further stated by the applicants that ultimately the deceased had expired on 28.9.1976 because of the fat embolism which was the direct consequence of the accidental injuries sustained by the deceased. Again under the column regarding the cause of action the applicants have averred in specific terms that the accident had occurred on 22.9.1976 because of the rash and negligent action on the part of the opponent No. 1 and that he had caused fatal injuries to the deceased, as a result of which he had ultimately died within a short time. Therefore under the column of the Cause of Action there is a specific averment made out by the claimants therein that the deceased had died because of the accidental injuries sustained by him during the motor vehicular accident. It requires to be further appreciated that though the abovesaid were the contentions raised in the pleadings they have not been denied by the opponents in the W.S. at Exh. 18. Looking to the clear averments made by the claimants in the claim petition at more than one place the opponents were obliged to deny the abovesaid averments if at all they wanted to contend that there was no nexus or connection between the death of the deceased and the accidental injuries which were received by him at the earlier juncture.
8. After having appreciated the fact that these specific averments made by the applicants in the claim petition have not been denied by the opponents, we would like to point out that the issues were framed at Exh. 28. There is a specific issue at SI. No. 3 saying that as to whether the applicants prove that the deceased had received injuries as enumerated in para 6 of the claim petition and that he had died on account of the above-said injuries. On the appreciation of the evidence on record the learned Tribunal had recorded a finding that the accident had taken place as urged by the applicants and that the deceased had received certain injuries and multiple fractures. The Tribunal has also taken the view that the accident was the result of the rash and negligent action on the part of the opponent No. 1, the driver. But so far as the main issue at Sr. No. 3 is concerned the Tribunal had reached the conclusion that the applicants were not able to establish that the deceased had died on account of the accidental injuries sustained by him. In view of this position the Tribunal had reached a further conclusion that the applicants would not be entitled to any compensation on the head of the loss to the estate. Anyhow, according to the Tribunal, the applicants were entitled to an amount of Rs. 500/- towards the medical expenses together with a further sum of Rs. 250/- as the compensation on account of the loss of income. The learned Tribunal had awarded an amount of Rs. 5,000/- on the head of pain, shock and suffering having undergone by the deceased. The ramaining claim made by the claimants was refused on the ground that the applicants were not able to establish that the deceased had died because of the accidental injuries. Being aggrieved and dissatisfied with the abovesaid judgment and award dated 19th April, 1979, that the present appeal has been filed by the appellants who are the original claimants.
9. Before the Tribunal also, though the widow and all the children of the deceased were impleaded as the applicants and though one of the married daughters Jayshreeben was impleaded as the opponent No. 3, in fact the compensation was claimed for benefit of widow Shantaben, two daughters Dr. Jyotiben and Malaben Sutaria and son Bhadresh Sutaria. Before us also, though all the claimants figured as the appellants, in fact the compensation has been claimed for the benefit of the abovesaid persons only.
10. Mr. S.N. Soparkar, the learned-advocate, appears on behalf of the appellants, while the respondents have been represented by the learned advocate Mr. P.G. Desai for the learned advocate Mr. G.N. Desai.
11. Mr. Soparkar, the learned advocate who appears on behalf of the appellants, has urged that the learned Tribunal has erred in coming to the conclusion that there is no nexus or connection between the accidental injuries and the ultimate death of the deceased. Mr. Soparkar has pointed out that the medical evidence on record goes to show very clearly that the probable cause of the death of the deceased was fat embolism. According to Mr. Soparkar, further no other possibility of the death of the deceased was projected and that the learned Tribunal ought not have been too technical and that the applicants were not required to be called upon to prove their case beyond any reasonable doubt. It is also the contention raised by Mr. Soparkar that the entire case was required to be decided on preponderance of probabilities and that if it is done the case of the applicants would emerge as an established case. Mr. Soparkar, therefore, has urged that the present appeal deserves to be allowed and the compensation requires to be awarded to the abovesaid appellants on the basis that the deceased used to earn an amount Rs. 1,000/- per month.
12. But Mr. Desai, the learned advocate who appears on behalf of the Corporation, has contended that there is absolutely no evidence that fat embolism was caused due to the multiple fractures. It is also the contention raised by Mr. Desai that there is no link of causation between the accidental injuries and the death. It. is also a further contention raised by Mr. Desai that the link of causation can never be inferred by the Tribunal or any other court awarding the compensation but the same, namely, the link of causation is required to be proved by cogent evidence on record. Arguing on the same line Mr. Desai has further urged that in the instant case no damages could have been awarded to the applicants for the accidental death of the deceased because there is absolutely no evidence of the development of fat embolism due to the accidental injuries. Mr. Desai has, therefore, urged that the learned Tribunal was perfectly justified in not recognising the claim of the applicants for the dependency loss allegedly suffered by them because of the accidental death of the deceased. Mr. Desai has, therefore, urged that there is no reason for us to interfere with the judgment and the award pronounced by the Tribunal and, therefore, the present appeal deserves to be dismissed with costs.
13. When the judgment and the award pronounced by the learned Tribunal is referred, it becomes clear that the Tribunal had reached the conclusion that the deceased who was on the scooter was knocked down by the speeding S.T. vehicle and that the accident was the result of rash and negligent driving on the part of the opponent No. 1 who was driving the S.T. bus at the relevant time. This finding as recorded by the Tribunal has not been challenged by Mr. Desai, the learned advocate who appears on behalf of the respondents. We have perused the evidence on record and we have satisfied ourselves that the learned Tribunal was perfectly justified in coming to the abovesaid conclusion. We are, therefore, of the opinion that the abovesaid finding recorded by the learned Tribunal requires to be maintained.
14. As noticed above, the main question to be decided by us is as to whether there is a nexus or connection between the accidental injuries and the death of the deceased as would have been called by the Indian courts. It would have been asked by the English courts as to whether there is a link of causation between the two. The learned Tribunal was aware that the medical evidence before the Tribunal was to the effect that the probable cause of the death was the development of fat embolism. The Tribunal was also aware of the fact that the development of fat embolism is a common or known complication in case of the fractures involving longer bones. Anyhow the Tribunal had reached the conclusion, that it was not conclusively established that the deceased had died because of the development of fat embolism which would be the result of the accidental injuries. This position becomes clear when a reference is made to some portions of the judgment rendered by the Tribunal. At para 19 the learned Tribunal has taken pains to narrate the injuries and the multiple fractures sustained by the deceased. The Tribunal has also written in extenso the injuries and fractures received by the deceased as deposed by Dr. Mahendra Desai, Orthopaedic Surgeon attached to the V.S. Hospital at Ahmedabad.
15. The learned Tribunal had preferred to say thus at para 22 of the judgment:
In view of the evidence of Dr, Desai and what is referred to from the above books, it cannot be denied that, in the present case, fat embolism could be the possible cause of death. But from the material on record it is not possible to conclude that death occurred due to fat embolism.
In the same para the observations of the Tribunal are as under:
In view of what has been stated in the textbooks referred to above and the evidence of Dr. Desai it is possible to say that when there are multiple fractures, the chances of fat embolism are greater. But even if that be so, unless there is evidence to show that death occurred as a result of fat embolism, it will not be possible to conclude that deceased died but due to injuries caused to him in this accident.
Again in the same para the Tribunal has summed up by saying thus:
Therefore, although on principle there cannot be a denial of the fact that multiple fractures may cause fat embolism and that death might occur due to fat embolism there is no evidence on record from which it can be concluded that the death of the deceased occurred as a result of fat embolism due to injuries caused by this accident and that being so, petitioners cannot claim compensation on the ground that they have suffered loss of dependency benefit owing to loss of income which the deceased would have earned had he been alive, and they also cannot claim compensation on the ground that the estate of the deceased has suffered further economic loss on account of the death of the deceased.
16. Therefore, as noticed above, the learned Tribunal has held that there was no evidence on record from which it could be concluded that the death of the deceased was due to or as a result of fat embolism due to the injuries caused by the motor vehicular accident.
17. It requires to be appreciated pertinently that though the applicants had approached the Tribunal with a clear-cut case that the deceased had died because of the development of fat embolism due to multiple fractures, sustained by him during the motor vehicular accident, the opponents have preferred not to challenge or deny the abovesaid case of the applicants. In other words, it can be concluded safely that the abovesaid case of the applicants goes unchallenged by the opponents.
18. Having referred to the relevant portions from the judgment and award of the Tribunal and after referring further to the fact that the case of the applicants in this respect has not been challenged by the opponents, we would proceed further to analyse the medical evidence on record.
19. Dr. Mahendra Desai who was the Orthopaedic Surgeon attached to the V.S. Hospital at the relevant time has testified at Exh. 41 that the deceased Ambalal Sutaria was brought to the hospital on 22nd September, 1976 and on examination he had noticed the following injuries and fractures on his person:
(1) Abrasion of 1' diameter over left acromion and over left palm.
(2) He has multiple fractures:
(i) He has fracture of right medial malleolus;
(ii) He has fracture of left acetabulum;
(iii) Crack fracture of interior ischiopubic ramus on left side ischiopubic bone is located near the external genital organ.
Dr. Desai has further stated that traction was given and that the deceased was discharged from the hospital on 23rd September, 1976. According to Dr. Desai he had visited the deceased at his residence on 27th September, 1976 during the evening hours and at that time the deceased was complaining of pain in the leg, discomfort, sleeplessness and the body-ache. Dr. Desai has further stated that he had prescribed certain analgesics for the deceased. He has further stated that he cannot say exactly what was the cause of the death but he can give the possible cause of death. He has further stated that in the instant case the cause of death could be fat embolism. As the say of Dr. Desai is of utmost importance we would like to narrate what he has stated at para 5 of the evidence at Exh. 41. Dr. Desai has stated thus:
I cannot say exactly what is the cause of death but I can only say the possible cause of death. It could be embolism. In multiple fractures, fat embolism is one of the commonest cause of death. Fat embolism ultimately affects the heart. First it affects the lungs. Embolism means when either a small amount of fat or a part of a blood clot gets detached and enters the systematic circulation it is known as embolism. It may be deposited anywhere in the lung, or heart or brain.
20. It appears that the Tribunal wanted to ascertain the real cause of death and therefore certain questions were put to the medical expert by the Tribunal. While replying these questions Dr. Desai has expressed the opinion that fat embolism would not occur in case of a healthy man without any wound or injury. He has also further stated that the fat embolism starts because the fat globules would enter into the circulation. Dr. Desai has indeed stated that when the injured was discharged from the hospital on the next day he was fairly in a satisfactory condition and was conscious and was well oriented. Anyhow the abovesaid say of Dr. Desai would go to show very clearly that according to him the possible or the probable cause of death was the development of fat embolism. It also becomes clear from this evidence tendered by Dr. Desai that fat embolism would not occur in case of a healthy man without any wound or injury. Lastly, replying to a question put to him by way of cross-examination, Dr. Desai has asserted that fat embolism is a known complication in case of multiple fractures. Therefore, if we want to sum up the evidence tendered by Dr. Desai at Exh. 41 we would say that he has categorically stated that the cause of death of the deceased was the development of fat embolism, which is a known complication in case of multiple fractures and which would not generally occur in case of a healthy man without any wound or injury.
21. In our opinion the abovesaid evidence was sufficient enough to warrant the conclusion that the deceased had died because of the development of the fat embolism, which was again the direct result of the multiple fractures sustained by him. But the matter does not rest here. There is other oral evidence in this respect and the case of the applicants was also duly sup- ported before the Tribunal by the opinion expressed by certain other experts. We would like to take up for our examination the abovesaid evidence and the expert opinion. Shantaben, the wife of the deceased, has stated in her evidence at Exh. 38 that the deceased had sustained the fractures and he was taken to the hospital, but later on the discharge was obtained and later the deceased had died in the morning of 28th September, 1976. The widow, Shantaben, has stated very clearly that her deceased husband was maintaining good health and that he was well built; he was not addicted to 'any bad vices' and that before the accident he had never the breathing trouble. Therefore Shantaben, the widow, has stated very clearly in her evidence that before the accident the deceased was in an excellent health. This say of Shantaben goes unchallenged during the cross-examination because not a single suggestion was made out to her to the effect that the deceased was not keeping well and that he had any other disease or ailment. This aspect is of utmost importance because as it would appear very clearly, it was sought to be suggested before us that the deceased might have died because of the heart failure or the heart attack or any other disease or ailment which he might be having. It would suffice at this juncture to notice that the abovesaid say of Shantaben during cross-examination goes unchallenged by the other side.
22. Dr. Jyotiben was examined at Exh. 46. Her say is that the deceased was taken to the V.S. Hospital, the traction was advised and started and it was continued at the residence. Her say further is that on the fateful day of 28th September, 1976, her father was found to be alright and he had taken a cup of tea along with the members of the family but within a short time the pulse rate had become feeble and later on it was not recordable and thereafter* immediately the deceased had died. Her say is that the artificial heart massage had not proved of any assistance. Dr. Jyotiben has also testified that Dr. Dwivedi was called at the residence on 25th September, 1976 and certain drugs were prescribed. Her say further is that on 27th September, 1976 also Dr. Mahendra Desai was called to the house and he had also prescribed certain analgesics, including 'Proxyvon'. This evidence of Dr. Jyotiben at Exh. 46 would go to show that the deceased had never recovered after the accident and though the deceased and her relations had preferred to continue the traction at the residence they were obliged to summon the medical experts at least on two occasions, for the further and better treatment of the deceased and they had also prescribed certain drugs or medicines for the deceased. No suggestion has been made to Dr. Jyotiben saying that the deceased was alright even after the accidental injuries. It is also never suggested to Dr. Jyotiben that the deceased was suffering from any other disease or ailment. We, therefore, are required to conclude that the deceased was not having any other ailment or disease which could have terminated his life when he was on traction at his house after having received the multiple fractures.
23. On behalf of the claimants reliance was placed on certain observations from the renowned work entitled 'Principles and Practice of Orthopaedics' by C. Vyaghreswarudu. This work was also pressed in service before us by the learned advocate Mr. Soparkar appearing on behalf of the appellants; page 38 of the abovesaid work describes fat embolism. It is stated that fat embolism occurs after multiple fractures, extensive burns, extensive soft tissues injury and the operation on the bones and soft tissues. We are concerned with a case of multiple fractures and the renowned author has stated that fat embolism occurs after multiple fractures also.
24. One other book entitled 'Crash Injuries' by Jacob Kulowaski, was also pressed in service, in which the necessary observations are at page 814. It was pointed out to the learned Tribunal and it has been pointed out to us also by reading page 814 of the abovesaid work that because the fat embolism is one of the three complications of fractures they may cause sudden death. There is also a reference to one other author Warthin, who had concluded that fat embolism was the most frequent cause of death after fracture of the long bones. It is further stated that despite tremendous medical and related advances in the medical science the fat embolism remains the major cause of death in patients dying with fresh fractures. We prefer to reproduce the say of Jacob Kulowaski at page 814 in his book 'Crash Injuries' which is as under:
Because fat embolism is one of the three complications of fractures that may cause sudden death (the other two being shock fatal very early usually and pulmonary embolism fatal most commonly in the third week) the complacency surrounding this topic is difficult to comprehend. According to him, Warthin (1913) concluded that fat embolism was the most frequent cause of death after fracture of the long bones. Today, despite tremendous medical and related advances, fat embolism remains the major cause of death in patients dying with fresh fractures, especially of the long bones. Many Surgeons and Orthopaedics seem to be unaware of the lethal aspects of fat embolism, or do not believe it. Yet, the diagnosis of fat embolism can be made from the history and clinical findings, substantiated by laboratory examinations, and confirmed at autopsy. Of course, as with many other conditions, it must be considered as a possibility before' it can be established as a diagnosis.
25. Lastly, the reference was also made to a work known as 'Personal Injury Problems' by Dr. Geoffrey T. Mann and Thomas D. Jorden. On page 148 of the abovesaid work under the heading of 'Fat Embolism', there is a clear mention that fat embolism most commonly occurs following the fractures on long bones that contain fatty marrow.
26. Therefore, the abovesaid expert opinion goes to show very clearly that fat embolism is a common complication in case of multiple fractures and that the fat embolism remains-the major cause of death in patients dying with fresh fractures. It is also further clear that Warthin, way back in 1913, had concluded that fat embolism was the most frequent cause of death after fracture of the long bones. In view of the above-said clear medical expert opinion we are of the opinion that the learned Tribunal also was required to come to the conclusion that the deceased had died because of the development of fat embolism following the multiple fractures due to the motor vehicular accident. It appears that the view that it is not possible to conclude that the death had occurred due to fat embolism cannot be accepted regard being had to the abovesaid expert opinion,
27. We want to lay emphasis upon the fact that the deceased was a healthy man aged about 54 years and even after disposing of the textile unit he was serving at the monthly pay of Rs. 1,000/- and he was able enough to ride over a two-wheeler, namely, the scooter. The evidence of the widow suggests very clearly that he was completely healthy and had no ailment or disease. The say of the widow as noticed above has gone unchallenged. The original opponents were not able to bring on record that the deceased was suffering from any other ailment or disease which could have been the cause of his death within a week or so after having sustained the accidental injuries. Moreover, as noticed above, this important aspect of the case of the applicants has not been challenged by the other side while filing the W.S.
28. Moreover, we cannot overlook the fact that the deceased was in a healthy condition and was not suffering from any other disease prior to the accident. He would not have died suddenly and some cause has to be found out and assigned for his death. We would say that the manifest cause of death would be the accidental injuries and fractures which had resulted into fat embolism. Mr. Desai has tried to urge that the deceased might have died because of the heart failure or a heart attack or any other some such fatal ailment. But there is not even a suggestion made to the widow and the daughter that the deceased was having any such ailment. In absence of any evidence showing that the deceased had died because of some other ailment or disease, it would be nothing but entering into an unfathomable arena of guesswork by saying that the deceased might be suffering from any other disease or ailment which could have been proved to be fatal. In view of this position, we are unable to agree with the finding of the learned Tribunal that it is not conclusively proved that deceased had died due to fat embolism resulting from the accidental injuries.
29. Mr. Desai, the learned advocate appearing on behalf of the respondent Corporation, has invited our attention to the Allahabad High Court decision in Municipal Board, Kheri v. Ram Bharosey AIR 1961 Allahabad 430. In that case, before the Lucknow Bench of the Allahabad High Court, the Municipal Board had unlawfully granted the licence to erect a flour mill near the house of the respondent. The house was damaged by the vibrations. In view of this fact learned single Judge of the Allahabad High Court had taken the view that the Board would not be liable because the damage was not a direct consequence of granting licence. The abovesaid case-law on which Mr. Desai has placed reliance would never assist him in his submission before us because we are not concerned with such a remote case,
30. Two English decisions also, on which Mr. Desai has placed reliance, would not come to his rescue in the appeal before us. The first is the House of Lords decision in Mckew v. Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 All ER 1621. In that case, before the House of Lords, the appellant the original petitioner had sustained injury in the course of his employment for which the employers were made liable. As a result, on occasions, the appellant unexpectedly lost control of his left leg which gave way beneath him. Once, while leaving a flat accompanied by his wife and child and his brother-in-law his leg collapsed and he had tried to jump so that he would land in a standing position rather than falling over down the stairs. On landing he had suffered a severe fracture of the ankle. On the question whether the respondents were liable for the injuries caused by the second accident, the House of Lords had held that in case before their Lordships the act of appellant in attempting to descend steep staircase without handrail was unreasonable and that the chain of causation was broken and ultimately the respondents were not held liable in damages for the second injury. Mr. Desai has placed heavy reliance upon the abovesaid case-law while urging that, in the instant case before us also, there is no chain of causation which would make the respondents liable in damages. But the facts in the abovesaid case before the House of Lords are eloquent. The appellant had previous injuries and while leaving the flat his leg had collapsed, he had jumped down and had suffered fracture of the ankle. It cannot be urged that this second injury was also such that the respondent would be liable to satisfy the claim of damages. In our view, therefore, this decision would not help Mr. Desai in his submission before us.
31. The other decision on which Mr. Desai has placed reliance is the decision rendered by House of Lords is Whilsher v. Essex Area Health Authority (1988) 1 All ER 871. In that decision, the facts were that the infant plaintiff was born prematurely suffering from various illnesses including oxygen deficiency. While in a special baby unit at the hospital, where the infant plaintiff was born, he was given excess oxygen. The plaintiff was later discovered to be suffering from an incurable condition of the retina resulting in near blindness. This could have been caused by excess oxygen but it also could have occurred in premature babies who were not given oxygen. In the background of these facts the House of Lords had reached the conclusion that since the plaintiff's retina condition could have been caused by any one of a number of different agents and it had not been proved that it was caused by the failure to prevent excess oxygen being given to him, the plaintiff had not discharged the burden of proof as to causation. On the basis of this case-law, Mr. Desai has tried to urge that the link of causation has not been established. But looking to the facts of the case as narrated above we feel unable to subscribe to the view which is being canvassed by Mr. Desai before us.
32. The conclusion therefore is that the following would be the highlights of the case before us:
(A) The deceased was a healthy man aged about 54 years who could move in the city of Ahmedabad on a two-wheeler, namely, the scooter.
(B) The deceased was not suffering from any other ailment or disease which could have terminated his life abruptly.
(C) The expert medical opinion establishes that the development of fat embolism is a known complication in case of multiple fractures, especially involving long bones having marrow.
(D) Though it is the specific case of the applicants that the deceased had died because of the development of fat embolism due to and following the accidental injuries and fractures, the abovesaid case was never denied by the original opponents in the pleadings.
(E) There is not even a suggestion to the medical expert that the deceased had died because of any other ailment or disease.
33. Looking to the abovesaid position when Dr. Mahendra Desai had stated that the fat embolism could be a possible cause of death the Tribunal could not have come to the conclusion that the applicants have not been able to establish conclusively the cause of death. It would therefore become clear that the finding given by the Claims Tribunal in this respect is erroneous and the same requires to be discarded by us. We accordingly say that the deceased had died because of the development of fat embolism which was the direct result of the accidental injuries sustained by the deceased during the motor vehicular accident.
34. The next question which arises for our consideration is in respect of the appropriate compensation to be awarded to the applicants on the head of loss to the estate or the loss resulting from the dependency loss. The Tribunal has accepted the evidence that the deceased used to earn an amount of Rs. 1,000/- per month. The said finding of the Tribunal is based upon the evidence in this respect and, therefore, we are inclined to accept the abovesaid finding of the Tribunal regarding the income of the deceased. Deducting an amount of Rs. 300/- as the personal expenses of the deceased the dependency loss would come to Rs. 700/-per month and amount of Rs. 8,400/- per year. The deceased was aged about 54 years and therefore it would be just and proper to adopt multiplier of eight. In view of this position the amount would come to Rs. 67,200/-. An amount of Rs. 10,000/-requires to be awarded on the head of conventional compensation for the loss of expectation of life. Thus the additional award would be in sum of Rs. 77,200/-. We maintain the figure awarded by the Tribunal on 3 heads which would come to Rs. 5,750. Thus the applicants would be entitled to the total compensation of Rs. 82,950/- together with the interest at the rate of 12 per cent per annum from the date of application till realisation. As the amount awarded by the Tribunal, namely, an amount of Rs. 5,750/-is already paid to the appellants-claimants they would be entitled to additional interest at the rate of 6 per cent per annum from the date of application till the date of payment. On the remaining amount of Rs. 77,200/- the applicants will be entitled to the interest at the rate of 12 per cent per annum from the date of application till realisation. They would also be entitled to the proportionate costs in respect of the present appeal.
35. Coming to the question of apportionment amongst the applicants, the applicant No. 1 shall be entitled to an amount of Rs. 47,200/- with proportionate costs and interest, while each of the applicant Nos. 3, 7 and 8 shall be entitled to an amount of Rs. 10,000/- with costs and interest. Out of the amount going to the share of the applicant No. 1, an amount of Rs. 10,000/- only shall be paid to her in cash. Each of the remaining applicant Nos. 3, 7 and 8 shall be paid Rs. 5,000/- only in cash. The remaining amounts with costs and interest shall be invested in fixed deposit accounts with any of the nationalised banks for a fixed period of 5 years, during which no loan or advance shall be raised thereon without the express permission of the Tribunal. Award under appeal shall stand modified accordingly.