The Divisional Manager vs Adappa S/O Margappa Bodpatti
2021 Latest Caselaw 3510 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF OCTOBER 2021

                      PRESENT

         THE HON'BLE MR.JUSTICE R. DEVDAS
                        AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

MISCELLANEOUS FIRST APPEAL No.200052/2015 (MV)


BETWEEN:

The Divisional Manager,
Shriram General Insurance Co.
Baig Complex, Tq: Basavakalyan,
Dist. Bidar-584101.
                                         ..... Appellant
(By Sri.Subhash Mallapur, Advocate)


AND:

1.     Adappa S/o Margqappa Bodpatti,
       Age: 68 years, Occ: Coolie,
       R/o Koliwada, Humnabad-584 101.

2.     Laxmibai W/o Adappa,
       Age: 63 years, Occ: Household,
       R/o Koliwada, Humnabad-584101.
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3.      Rajeshwari @ Rameshwari
        W/o Margappa Bodpatti,
        Age: 33 years, Occ: Household,
        R/o Koliwada, Humnabad-584101.

4.      Harish S/o Margappa Bodpatti,
        Age: 8 years, Occ: Nil (Minor)
        U/G of respondent No.3,

5.      Artika D/o Margappa Bodpatti,
        Age: 5 years, Occ: Nil (Minor)
        U/G of respondent No.3,

6.   Tayyab S/o Basheer Miyan,
     Age: Major, Occ: Business,
     R/o Rajeshwar, Tq: Basavakalyan,
     Dist. Bidar-584 101.
                                       ..... Respondents
(R1-Served;
By Sri.Veeranagouda Malipatil, Advocate for R2 & R3;
R4 & R5 are minors U/g of R3;
R6-notice held sufficient v/o dated 05.04.2017)

        This MFA is filed under Section 173(1) of the
Motor Vehicles Act, praying to allow the above by setting
aside     the   award   dated    03.11.2014,   in   MVC
No.142/2011 passed by the Senior Civil Judge & MACT,
Humnabad, in the interest of justice and equity.


        This appeal coming on for hearing this day,
R.Devdas.-J., delivered the following:
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                     JUDGMENT

R. DEVDAS J., (ORAL):

The insurance company is before this court calling

in question the judgment and award dated 03.11.2014

in MVC No.142/2011 passed by the learned Senior Civil

Judge & MACT, Humnabad.

2. The main contention of the appellant is that

the accident occurred on 10.11.2009 and the deceased

Sri. Bhandi Maragappa Adayappa was discharged from

the hospital on 23.11.2009, but he died on 09.02.2010.

It is submitted that although an issue is framed by the

trial court, at issue No.1 as to whether the deceased

died due to the accident dated 10.11.2009, no reasons

are forthcoming from the impugned judgment as to the

connection between the death of the person with the

accident and on the other hand it is very clear from the

injury certificate Ex.P4 that the deceased suffered two

injuries, and one is said to be a simple injury and

another is said to be a grievous injury. The injuries are

blunt injury on the right frontal reason (cheek) and

bleeding from nose, while it was found that there was

fracture of both Maxilla and Right zygomatic bone. In

the discharge summary at Ex.P6 it was noticed that the

patient was suffering from Chronic Calcified Pancreatitis

with Fatty Liver GR-I. Further as per the post mortem

report, the cause of death was due to Cardio respiratory

failure as a result of Chronic Pancreatitis

3. Learned counsel for the appellant-insurance

company submits that it is clear from the material

available on record that there is no connection

established between the accident and the death. On the

other hand, it is clear from the material available on

record that the death of the person who suffered the

accident was caused due to cardio respiratory failure as

a result of chronic pancreatitis, which the person

suffered even before the accident.

4. Per contra, it is the submission of the

learned counsel for the respondents-claimants that

although issue was raised before the trial court, no

evidence is led or submission has been made at the

hands of the insurance company on this aspect.

5. Having heard the learned counsels and on

perusing the memorandum of appeal, we are of the

considered opinion that it was the duty of the claimants

to have lead evidence on this crucial aspect. The Trial

Court has failed to furnish cogent reasons while

answering issue No.1. If the concerned Doctors were

examined on behalf of the claimants, there could be

opportunity to the insurance company to cross examine

the experts. Therefore, we are of the considered opinion

that the matter requires to be remitted back to the Trial

Court specifically to afford an opportunity to the

claimants to adduce evidence of the Doctors to answer

issue No.1 and the insurance company would have an

opportunity to cross-examine the experts.

6. For the foregoing reasons, the appeal is

allowed in part. The impugned judgment and award is

quashed and set aside.

While the matter is remanded for specific re-

consideration of issue No.1, in the light of the

observations made hereinabove.

The parties are directed to appear before the Trial

Court on 23.11.2021 at 11:00 a.m., without waiting for

further notice.

The Trial Court shall endeavour to reconsider

issue No.1 and thereafter proceed to pass fresh

judgment as expeditiously as possible and at any rate

within a period of six months from 23.11.2021.

Office is directed to transmit the Trial Court

Records to the Trial Court, forthwith.

The amount deposited by the appellant-insurance

company shall also be transmitted to the Trial Court.

The Trial Court shall direct the said amount be

deposited in any Nationalized Bank so that the same

would earn interest to the benefit of either of the

parties.

Sd/-

JUDGE

Sd/-

JUDGE SMP/sdu