Andhra Pradesh High Court - Amravati

Icici Lombard General Insurance ... vs K.Ramanaiahdied And 5 Others on 24 March, 2023

           HON'BLE SRI JUSTICE M.GANGA RAO
                         AND
       HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR

                   M.A.C.M.A NO.3281 OF 2017


JUDGMENT:- (Per Hon'ble Sri Justice Dr.V.R.K.Krupa Sagar)


      This appeal under Sec.173 of Motor Vehicles Act 1988

questions the correctness of order/award dated 09-06-2017 of

the Motor Accidents Claims Tribunal-cum-III Additional District

& Sessions Judge, Nellore in M.V.O.P.No. 982 of 2009.

Appellant is the insurance company.


02.   Respondent Nos.1 to 5 are the claimants before the lower

Tribunal. Respondent No.6 is the owner of the offending vehicle.

03. A few facts are required to be noticed. Sri K.Ramanaiah

while working as Excise Sub Inspector in Buchireddypalem of

Nellore District was proceeding on his motor cycle and at 3-45

P.M during the day time on 19-05-2009 near T.B.Hospital,

Podalakur Road, Nellore, the mini lorry bearing No.AP 26Y 0437

owned by the Commissioner Municipal Corporation, Nellore and

was driven by its driver Sri B.Suman dashed him and as a

consequence the motor cycle fell down and the rider of it

sustained serious injuries on his head and all over the body

such as severe traumatic head injury with left temporal and

right frontal contusion, thin right parietal SDH, diffuse san

fracture left temporal, sphenoid, left zygomatic arch, maxilla and

roof of Orbit, soft tissue injury, orbit injury with left eye

enopthalmos, diabetes mellitus. He was treated at Bollineni

Hospital at Nellore, Apollo Super Specialty Hospital, Chennai,

Vijaya Medical & Educational Trust, Vijaya Health Centre,

Chennai. He was in coma for three months. He survived and

underwent certain surgeries for the injuries he sustained. He

was unable to attend his duties and it was found that he was

suffering from loss of memory and was unable to identify

anything and suffered lot of pain and lost his coherent speech

and became permanently disabled. With such allegations injured

himself filed claim petition seeking compensation of Rs.18 Lakhs

for his injuries stating that the offending mini lorry was owned

by Municipal Corporation, Nellore and was insured by ICICI

Lombard General Insurance Company Limited. That was

registered as M.V.O.P. 982 of 2009.

04. Two years thereafter, the claimant's wife Smt K.Padma

moved I.A.No.327 of 2011 and sought for permission to be the

guardian ad litem for her injured husband stating that her

injured husband was found not capable of prosecuting the

matter on his own. The learned Tribunal allowed the said

application. Thus, since 15.04.2011 the injured claimant was

represented by guardian/his wife.

05. During the pendency of the proceedings it was in the year

2012, the original claimant sought for enhancement of the claim

made and sought for amendment of the claim petition. That

petition for amendment was allowed by the learned Tribunal.

Therefore, the original claim of Rs.18 lakhs was substituted by

Rs.50 lakhs.

06. Thereafter, during the pendency of the case before the

learned Tribunal, the claimant Sri K.Ramanaiah died on

09.07.2015. It was on his death, his wife and children came on

record as his legal representatives by virtue of Orders dated

12.10.2015 in I.A.No.801 of 2015 and prosecuted the case before

the learned Tribunal.

07. From time to time the Insurance Company filed its written

statement / counter for the original petition and thereafter for

subsequently amended petitions. The owner of the vehicle

/Respondent No.1 did not choose to contest the proceedings.

08. The learned Tribunal, during the course of enquiry,

recorded the evidence of five witnesses as Pws.1 to 5 on behalf of

the claimant. For contesting respondent four witnesses were

examined as Rws.1 to 4. For claimant Exs.A1 to A16 and Ex.X1

were marked. For respondents Exs.B1 and B2 and Exs.X1 to X5

were marked. It seems the exhibited documents were not

properly numbered as could be seen from Para No.11 of the

impugned order. Considering the arguments on both sides the

learned Tribunal passed an award in favour of the claimant. The

same is extracted here:-

In view of answering issues 1 and 2 in the circumstances, this claim application is partly allowed awarding compensation amount of Rs.48,25,000/- in favour of petitioners 2 to 5 and against respondents 1 and 2 joint and several liability together with interest @ 7.5 % P.a from the date of petition ie., 11.09.2009 till realisation with proportionate costs. Out of compensation amount of Rs.48,25,000/- an amount of Rs.20 Lakhs is apportioned to 2nd petitioner/wife of deceased and the 2nd petitioner is permitted to withdraw an amount of Rs.10 Lakhs, keeping the balance amount of Rs.10 Lakhs in FDR for a period of two years.

An amount of Rs.9,41,666/- each is apportioned to the petitioner 3 to 5 who are children of deceased and they are permitted to withdraw the entire compensation amount apportioned to them with accrued interest thereon. This petition is ordered accordingly. Advocate Fee is fixed at Rs.2000/-.

09. Aggrieved of it the insurer/Respondent No.2 before the

lower Tribunal filed this appeal stating that the Judgment is

against law and against evidence. It did not record findings on

contested facts about the non-impleadment of necessary parties

such as the owner and insurer of motor cycle on which the

original claimant was travelling at the material point of time. It

granted Rs.4 Lakhs towards loss of estate, Rs.5 Lakhs towards

loss of love and affection and Rs.2 Lakhs towards loss of

consortium without any basis. The interest @ 7.5% P.a. was

granted and that is highly excessive and against law. It further

raised an important contention that the death of original

claimant was not as a result of the injuries he sustained in the

accident but the learned Tribunal erroneously considered the

entire case as a case of death.

10. In the present appeal learned counsel on both sides

submitted their arguments.

11. The point that falls for consideration is:-

"Whether the claim before the Motor Accidents Claims Tribunal, Nellore was a case of seeking compensation for injuries or it was a case of compensation for death and whether the award under challenge suffers from serious defects in considering the nature of the claim?

12. POINT:-

An automobile accident may result in injuries to a

person. That injured can lay a claim for compensation for the

injuries he suffered. During the pendency of such claim petition

if the injured dies his estate is represented by his legal

representatives and they could come on record and prosecute

the case. If, in the automobile accident, a person dies his legal

representatives would file a claim and seek for compensation.

Thus cases of personal injuries and cases of claim for death are

different types of cases that come before the Tribunals. The

present case in M.V.O.P.982 of 2009 is a case of a sole claimant

seeking compensation for personal injuries he suffered. The

accident occurred on 19.05.2009. The material on record

indicates serious injuries, surgical intervention, prolonged

medication for the injured. As per the evidence of wife of the

injured who testified as Pw.1, her husband, because of the

injuries, was unable to discharge duties as a Government

servant. Therefore he applied for and was given voluntary

retirement. While his normal retirement on superannuation

would have been in the year 2013 (vide evidence of Pw.5) his

retirement on voluntary basis took place much earlier to it.

Ex.A15 is the voluntary retirement proceedings. Ex.A16 show

the pension and gratuity etc. Subsequently, the original claimant

died on 09.07.2015. On his death, his legal representatives came

on record and pursued the claim. While cross-examining Pw.1 it

was suggested to her that her husband died due to some other

ailments but not due to injuries he sustained in the accident. It

was also suggested to her that as legal representatives they were

entitled for compensation for injuries sustained by original

claimant but they were not entitled for compensation as a case of

death. While cross examining one of the doctors/Pw.2, it was

elicited that the original claimant was treated by him and it was

found by the doctor that the original claimant was capable of

discharging his regular duties partially. This evidence pertains to

the year of 2009. While cross examining another doctor/Pw.3 it

was elicited that as per the letter dated 03.09.2015 the original

claimant died out of aspiration pneumonia and sepsis but not

out of any injuries sustained in the road traffic accident. Pw.5

who deposed on behalf of employer of original claimant stated

that as per official records the original claimant was on leave

from 19.05.2009 till 24.12.2011 and thereafter obtained

voluntary retirement and that was granted on 24.12.2011.

Speaking on behalf of the insurer, the Legal Manager testified as

Rw.1 and at Para 5 of his examination in chief filed in the form

of affidavit he stated that the original claimant suffered accident

on 19.05.2009 and died several years thereafter on 09-07-2015

and his legal representatives who came on record in the case did

not produce any medical record and did not produce any post-

mortem report to show that the death was due to the injuries

sustained in the motor vehicle accident. He further positively

stated that the original claimant did not die out of injuries he

sustained in the year 2009, but he died out of some other

prolonged illness and his legal representatives suppressed the

real facts and for wrongful gain prosecuted the case. His cross

examination led on behalf of claimant is extracted below in

verbatim:

The policy was in force as on the date of accident. The deceased was 3rd party to the policy. I am deposing basing on the record. I have no personal knowledge about the accident. It is not true to say that, there is no negligence on the claimant No.1 but the accident occurred on the Respondent No.1 Mini Lorry driver negligence. It is not true to say that, Ex.B2 not belongs to the claimant No.1 and it was not issued by the Doctor who treated the deceased. It is not true to say that, as the policy was in force as on the date of accident as such Respondent No.2 is liable to pay the compensation.

13. It was in the context of such material on record, one would

see how the learned Tribunal considered this matter. To say very

mildly, the order the learned Tribunal though runs in 21 Paras is

deficient in many respects. The very first paragraph of the Order

is extracted here:-

This is an application filed under Sec.166 of M.V.Act claiming an amount of Rs.50,00,000/- as compensation for the death of the deceased K.Ramanaiah (for short 'deceased') in motor accident with interest at 12% P.A from the date of petition till realisation, costs of the petition and all other reliefs as the Tribunal deem fit and proper.

14. The issues that were framed and dealt with by the Tribunal

are extracted now:

01. Whether the accident had occurred at 15.45 PM on 19.05.2009 near T.B.Hospital, Podalakur Road was due to the rash and negligent driving of the driver of the mini lorry bearing Registration No.AP 26Y -0437 and whether the petitioner had injuries as alleged by him in the said accident?

02. Whether the claimant is entitled for compensation, if so to what amount and from which of the respondent?

03. To what relief?

15. One would notice that the first issue speaks of injuries

about the original claimant and there is no issue as such about

the death of the injured. The first issue speaks of the date of

accident and there is no issue as to the cause of death of the

original claimant. The first paragraph of the impugned Order

which was extracted earlier clearly shows that the learned

Chairman of the Tribunal considered this as a case of claim of

death. We have perused the original claim petition and originals

of successive neat copies of the claim petitions and all of them

read that the claim for compensation is for the injuries sustained

by the original claimant. When was it converted into a claim of

compensation for the death cannot be diagnosed from the

impugned order. In para No.14, twice the learned Chairman

discussed the evidence. In para No.14 it is mentioned that wife of

original claimant deposed as Pw.1 and reaffirmed the assertions

made in the petition. The Tribunal found and recorded that the

claimant proved the death of the deceased occurred because of

motor accident. Then at Para 17 it stated that Rw.1 from

Insurance company admitted that the Insurance policy was in

force by the date of accident. Therefore, the other contentions

raised by the insurer are baseless. We are unable to find any

discussion whatsoever in the other paragraphs of this Order all

that evidence referred earlier by us. There is no discussion on

the medical evidence and no reasons are there to conclude that

the injuries sustained in the accident in 2009 alone is the cause

of death in the year 2015.

16. The Tribunal considered monthly income of the deceased

and deducted 1/3rd towards his personal expenses and applied

multiplier "11" and granted Rs.37 Lakhs towards loss of

dependency. Towards loss of love and affection, towards loss of

consortium and towards funeral expenses it granted various

amounts and also granted Rs.4 Lakhs towards loss of estate. All

these could be seen in Para No.18. There is absolutely no

discussion on the part of the lower Tribunal as to whether the

death of the injured that took place six years after the accident

and after filing of the claim petition was out of injuries sustained

in the accident or whether it was out of negligence of the

claimant himself during the course of treatment. As per the

evidence on record, during subsequent phase of his life, he

suffered some other ailments and thereafter he died. In such

circumstances it was for the Tribunal to find whether there was

any negligence on part of the medical and non-medical personnel

and their treatment. The claim for injuries was completely

addressed as a case of claim for death. They are totally different

in their treatment is settled law and reference can be made to

Ramkali Thakur & Ors., Vs Pancharam 1. That was also a

case of claim by injured who died during pendency of the case.

His legal representatives came on record, got the claim petition

amended and sought compensation for death attributing the

death to the injuries sustained in the accident. It is relevant to

notice what the Hon'ble Supreme Court of India held in Oriental

Insurance Company Limited Vs Kahion @ Jasmali Singh

Kahion2. Para No.9 is extracted here for benefit:

9. The Act is a beneficial and welfare legislation.

Section 166 (1)(a) of the Act provides for a statutory claim for compensation arising out of an accident by the person who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can

1 [2019] O Supreme (SC) 1813.

2 2021 SCC Online SC 691

pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under clause 1(c) of Section 166. Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would be the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries.

17. In the case at hand the impugned order is so cryptic that it

did not mention the date of death of the original claimant. The

very treatment of the dispute before it was not viewed and

approached in proper manner. The learned Tribunal was

completely not aware of the distinction between the case where

claim was for injuries and the claimant died and thereafter the

claim is being pursued by legal representatives as against the

claim for compensation for death. The various heads under

which and the manner in which compensation has to be

assessed are totally different. Ignoring all these aspects the

learned Tribunal passed the award. The challenge raised in this

appeal against such award is right on facts and law.

The upshot of the preceding discussion is that:

• the claim petition was filed by the injured himself praying for compensation for injuries.

• pending proceedings the injured died

• whether his death is out of injuries or out of any other cause?

• on death of injured, legal representatives came on record and prayer in the claim petition still seeks compensation for injuries only.

• claim was considered by the Tribunal as a case of death but not as a case of injuries. This was done without specifying law and without furnishing reasons. • Tribunal failed to consider the available evidence on record before concluding the issue of death of injured.

18. For these reasons, the impugned Award can not be

sustained. The matter has to be remitted back to the Tribunal

below for fresh consideration. Point is answered accordingly.

19. In the result, this appeal is allowed. The Order dated

09-06-2017 of the learned Motor Accidents Claims Tribunal-

cum-III Additional District & Sessions Judge, Nellore is set aside.

The matter is remanded. Both parties shall appear before the

learned Motor Accidents Claims Tribunal, Nellore on

20-04-2023. The learned Tribunal can permit amendment of

pleadings and production of further evidence to both sides

within a time to be prescribed by it and settle an additional issue

to the effect whether the death of original claimant Sri