Smt. Nagamma vs Sri H.O Danappa
2022 Latest Caselaw 10780 Kant

                             1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JULY 2022

                        BEFORE

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              MFA No.2945/2014 (MV)

BETWEEN:

1.     Smt. Nagamma
       W/o Late Yallappa
       Aged About 36 Years

2.     Renuka
       D/o Late Yallappa
       Aged About 18 Years

3.     Raja
       D/o Late Yallappa
       Aged About 15 Years

4.     Thimmappa
       D/o Late Yallappa
       Aged About 14 Years

       Appellants No.2 to 4 are
       Minor and they are represented
       by their mother appellant No.1

       All are residing at Vadanahally
       K.R. Hally Post
       Hiriyur Taluk-572 143
       Chitradurga District.           ... APPELLANTS

(By Sri. Siddappa B.M., Advocate.)

AND:
                             2

1.   Sri H.O. Danappa
     Age Major
     Residing at S-14
     Central Town Shop
     HAL Quarters
     Marathahally
     Bangalore-560 037.

2.   The Manager
     Rayal Sundaram Alliance
     Insurance Co. Ltd.
     Sundaram Towers
     46 Whites Road
     Royapettam
     Chennai-648374.                   ... RESPONDENTS

(By Sri O. Mahesh, Advocate for R2;
 Vide order dated 24.02.2020 service of notice to R1
 held sufficient)


      This MFA is filed under Section 173(1) of M.V Act,
against the Judgment and Award dated 08.07.2011
passed in MVC No.45/2009 on the file of the Senior Civil
Judge and Member, Additional MACT, Hiriyur, dismissing
the claim petition for compensation.

      This appeal coming on for Admission this day, the
Court delivered the following:

                   JUDGMENT

Heard the learned Advocate appearing for the

appellants/claimants and the learned Advocate

appearing for the second respondent/insurer. The

owner is served and he has not appeared.

2. The wife and children of the deceased

Yallappa filed a claim petition in MVC 45/2009

claiming compensation on the ground that the

accident occurred on 19.12.2005 and in that

accident Yallappa suffered a head injury and he died

7 months later and the death is attributable to the

head injury. The said petition was dismissed in

terms of the judgment and award dated 8.7.2011 on

the file of Senior Civil Judge and MACT, Hiriyur.

3. The claimants to substantiate their

contention have produced the complaint, charge

sheet and also the post mortem report and scanning

report. The post-mortem report is marked at Ex.P8

and the scanning report is marked at Ex.P9. The

scanning report is dated 21.12.2005. The accident

occurred on 19.12.2005. On the date of the

accident, Yallappa was examined in a hospital in

Hiriyur and a wound certificate was issued to him

stating that the injuries are minor. The claimants to

substantiate their contention that the deceased died

on account of the injuries sustained in the accident

have led the evidence of one Dr Prabhu Prasad. He

is the doctor who conducted the post-mortem. In

his cross-examination reference was made to the

wound certificate issued on the date of the accident

and the doctor in his evidence stated that the

wounds suffered on the date of the accident will not

result in death. He has also stated that the said

wounds will not compel the patient to confine to bed

rest for 4-5 months. Based on this evidence, the

Tribunal has rejected the claim of the claimants that

the death was due to the injuries suffered in the

accident.

4. Learned counsel for the appellants/claimants

would submit that the death has occurred due to the

injuries sustained in the accident and for that

purpose, he would refer to the cross-examination of

PW2.

5. In the cross-examination, PW2 stated that

the death is due to cardiopulmonary arrest as a

result of acute myocardial infarction and he would

further say that the death was on account of a

blockage of blood veins.

6. The point for consideration is whether the

head injury sustained by the deceased is the cause

of cardiopulmonary arrest as a result of acute

myocardial infarction. It is apparent from the

judgment of the Tribunal that it has not taken into

consideration Ex.P9, the scanning report. The

scanning report is not disputed. Whether the

injuries noticed in the scanning report would compel

the injured person to confine to bed rest for 4-5

months or is likely to cause death is to be

considered. Unfortunately, the parties in this regard

have not led any evidence. This court is also of the

view that a proper issue in this regard is to be

framed and the focus of the parties should be drawn

to the controversy involved and parties should be

allowed to lead evidence on the said issue.

7. It is also noticed that the deceased was a

coolie and the claimants are also coolies. They will

not be conversant with medical science and may not

be possessing the requisite knowledge as to what

evidence is required to be led to substantiate their

claim.

8. Under these circumstances, this court is of

the view that the matter needs to be remanded to

the Tribunal to provide one more opportunity for the

appellants to lead evidence to establish their

contention relating to the cause of death. This court

deems it appropriate to frame the following issue:-

Whether the claimants establish that the

deceased died due to the injuries referred

in the scanning report dated 21-12-2005?

9. Learned counsel for the insurer would

contend that the remand is on account of lapse on

the part of the claimants in not adducing proper

evidence before the court. Under such

circumstances, in the event of the Tribunal finding

that the death is on account of the injuries sustained

in the accident, the insurer should not be burdened

with the liability of interest. This contention should

be addressed by the Tribunal in case the Tribunal

holds that the claimants are entitled to

compensation, by taking into consideration all the

relevant factors necessitated for remand including

the absence of the specific issue referred above.

10. It is also noticed that in terms of the

order dated 7.7.2022, this court has condoned the

delay of 927 days in filing the appeal with a condition

that in the event of the appellants succeeding in

establishing their case, they are not entitled to

interest for 927 days. Therefore, in the event the

claimants succeed, they are not entitled to interest

for 927 days referred above.

11. For the aforesaid reasons, the impugned

judgment and award dated 8.7.2011 passed in MVC

No. 45/2009 on the file of Senior Civil Judge and

Additional MACT, Hiriyur, is set aside.

Nothing is expressed on the merits of the case.

The Tribunal shall decide the case after allowing both

the parties to lead evidence on the issue referred to

above in accordance with the law.

The parties shall appear before the Tribunal on

1.8.2022 without awaiting notice from the Tribunal.

Registry to send records to the tribunal.

Sd/-

JUDGE

ckl/-