Cheluvaraju vs N D Siddappa
2022 Latest Caselaw 9131 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 20TH DAY OF JUNE, 2022

                               PRESENT

              THE HON'BLE MR. JUSTICE B. VEERAPPA

                                 AND

           THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

 MISCELLANEOUS FIRST APPEAL NO.7617 OF 2015 (MV)

Between:
Cheluvaraju
S/o Late Ramanna
since dead rep. by his mother
Smt. Jayamma
W/O Late Ramanna
R/O Masjid Beedhi, Palahalli Village
Belagola Hobli
Srirangapatna Taluk
                                                ...APPELLANT
(by Sri Gopalakrishna Murthy, Advocate)

And:
1.     N.D. Siddappa
       Major
       S/O Doddaboregowda
       R/O Behind Bus Stop
       Palahalli Village, Belagola Hobli
       Srirangapatna Taluk - 570 016

2.     The Oriental Insurance Company Ltd.
       No.4/12, Naveen Complex
       1st floor, Hebbal Main Road
       Metagalli,
                                   2




     Mysuru - 570 016
     represented by its Manager
                                                     ...RESPONDENTS

(by Sri M.B. Ryakha, Advocate for R1;
 Sri A.N. Krishna Swamy, Advocate for R2)

      This MFA filed under Section 173(1) of the Motor Vehicles
Act, against the Judgment and Award dated 01.08.2015 passed
in MVC No.443 of 2011 on the file of the Additional Senior Civil
Judge, MACT, Srirangapatna, rejecting the claim petition for
compensation.

       This appeal coming on for Hearing, this day, B.Veerappa
J., delivered the following:

                         JUDGMENT

Smt. Jayamma, mother of deceased Cheluvaraju, has filed

the present appeal against the impugned judgment and award

dated 01st August, 2015 passed in MVC No.443 of 2011 by the

Motor Accident Claims Tribunal, Srirangapatna (for short,

hereinafter referred to as the "Tribunal") rejecting the claim

petition filed under Section 166 of the Motor Vehicles Act, 1988

(for short, hereinafter referred to as the "Act").

2. The injured Cheluvaraju, filed claim petition under the

provisions of the Act claiming compensation on account of

injuries sustained by him in the road accident on 22nd March,

2011 and during the pendency of the claim petition, the injured

Cheluvaraju died, thereby the mother of the deceased came as

legal representative before the Tribunal.

3. It is the case of the claimant before the Tribunal that on

22nd March, 2011 at about 6.00 pm the deceased was proceeding

as a pillion rider on motorcycle bearing registration No.KA-02-

HE-7136 along with one Umesh on Srirangapatna-Palahalli road

towards Palahalli. At that time, the offending bus bearing

registration No.KA-12-1264, came in a high speed, rash and

negligent manner and dashed to the back side of the motorcycle

resultant of which the said Cheluvaraju and the rider Umesh fell

down, thereby, Cheluvaraju sustained grievous injuries on his

right leg and all over the body. Immediately, he was shifted to

General Hospital at Srirangapatna and thereafter, he was shifted

to K.R.Hospital, Mysuru where he was under treatment as an

inpatient from 22nd March, 2011 to 08th July, 2011 and again

from 14th September, to 11th October, 2011. The injured

Cheluvaraju succumbed to injuries on 06th January, 2012. It is

further alleged that the said Cheluvaraju, at the time of his

death, was aged about 24 years and was doing coolie work and

earning a monthly income of Rs.10,000/- and was contributing

the said income to the family. It is further alleged in the claim

petition that the untimely death of the said Cheluvaraju resulted

in loss of dependency to the claimant and also resulted in loss of

estate, consortium, love, etc. and accordingly, sought for

compensation as prayed for in the claim petition.

4. The first respondent filed objection admitting that the

offending bus was involved in the accident and same was insured

with the second respondent and also the fact that the policy was

in force as on the date of the accident and denied other

averments made in the claim petition and contended that, if

ultimately, the court comes to conclusion that the claimant is

entitled for compensation, the second respondent-Insurance

Company is liable to pay the same and hence, sought to dismiss

the claim petition.

5. The second respondent-Insurance Company has filed

statement of objections denying the averments made in the

claim petition and also denied the age, occupation and income,

so also, the injury sustained by the injured and further

contended that the accident had not occurred due to rash and

negligent driving of the bus by the driver of the offending

vehicle. It is also contended that the vehicle was insured with

the second respondent and the policy was in force, but, the

driver of the offending vehicle was not having valid and effective

driving licence as on the date of alleged accident and hence,

sought to dismiss the claim petition.

6. Subsequently, additional objection was also filed and

submitted that the charge sheet filed by the police is not against

the driver of the bus. Even the post mortem of the dead body of

the deceased Cheluvaraju was not conducted. Deceased

Cheluvaraju died naturally and hence police have not filed charge

sheet under Section 304A of the Indian Penal Code and post-

mortem was not made by the concerned Doctors. It is also

contended that the second respondent is not liable to pay the

compensation, as the deceased died a natural death and not due

to the injuries sustained in the accident and hence, sought to

dismiss the claim petition.

7. Based on the aforesaid pleadings, the Tribunal framed

two points for consideration. In order to prove the case of the

claimant, the claimant-mother examined herself as PW1 and one

witness as PW2 and got marked documents as Exhibits P1 to

P24. The Administrative Officer of the second respondent was

examined as RW1 and got marked documents as Exhibits R1 and

R2. The Tribunal, considering the oral and material documents

placed on record, though recorded a finding that the claimant

proved that the accident occurred due to rash and negligent

driving of bus bearing registration No.KA-12-1264 by its driver

and thereby the deceased sustained grievous injuries, but held

that the claimant is not entitled for any award and rejected the

claim petition.

8. During the pendency of the present appeal, the

appellant filed IA.I of 2022 under Order XLI Rule 27 read with

Section 151 of the Code of Civil Procedure, seeking permission to

adduce further evidence of Dr. B.G. Sagar, Professor and HOD,

Adichunchanagiri Medical College and Hospital, Bellur Cross,

Nagamangala Taluk, Mandya District, in order to prove her case

that the deceased Cheluvaraju died on 06th January, 2012 due to

the injuries suffered in the accident. It is also stated in the

application IA.I of 2022 that since the post-mortem of deceased

Cheluvaraju was not conducted, thereby, it is necessary to

examine the treated Doctor. She further stated that the entire

case purely depend upon the cause of death, as Exhibit P19-

death certificate, issued by the K.R. Hospital, Mysuru depicts the

cause of death as Acute Gastroenteritis, Immuno Compromised

and Nutritional deficiency. Therefore, the appellant wants to

examine the Orthopedic doctor who treated her son at the time

the accident. Though with due diligence the claimant has

conducted the trial, by oversight, has examined only the doctor

who was a practicing Surgeon and since the claimant was a

rustic villager, had no idea about legal intricacies/procedure

established and had no idea of Doctor's evidence and the role of

conducting post-mortem, etc., so also, as she was in grief over

her son's untimely death who has aged only 24 years. Hence,

the appellant has sought to lead further evidence of the Doctor

mentioned in the application.

9. We have heard the learned counsel appearing for the

parties to the lis.

10. Sri Gopalakrishna Murthy, learned counsel appearing

for the appellant contended that the Tribunal erred in rejecting

the claim petition without giving sufficient opportunity to the

claimant to prove her case and decide the case on merits,

ignoring the fact that the provisions of the Motor Vehicles Act is

a beneficial legislation. It is further contended that the evidence

on record clearly depicts that the injured Cheluvaraju had filed

claim petition for injuries suffered in the road traffic accident on

22nd March, 2011 and he was on prolonged treatment at K.R.

Hospital, Mysuru as an inpatient and was discharged from

Hospital on 11th October, 2011 and shifted to his native place

and was continuously taking treatment as an out-patient,

however, the said Cheluvaraju could not recover and succumbed

to the injuries on 06th January, 2012 at his residence. Thereby,

the dead body of the deceased was not subjected to post-

mortem. It is further contended that the evidence on record

clearly depict that the claimant has spent huge amount towards

treatment, medicine, conveyance and other expenses, but the

Tribunal, ignoring the fact that the deceased died due to the

injuries suffered in the accident, has erroneously rejected the

claim petition, thereby causing injustice to the claimant, who is

the mother of the deceased. He would further submit that

though the Tribunal has framed additional issue, the same

should have been answered separately giving a finding as to

whether the death was due to the injuries suffered in the

accident that took place on 22nd March, 2011 or was it due to

other reasons. The Tribunal proceeded to reject the claim

petition mainly on the ground that the post-mortem was not

conducted and that there is no nexus between the death and

injuries suffered in the accident and thereby, had erroneously

rejected the claim petition. Therefore, he sought to allow the

appeal by providing an opportunity to the claimant to adduce

further evidence.

11. Per contra, Sri A.N. Krishnaswamy, learned counsel

appearing for the respondent-Insurance Company strongly

opposes the application and sought to justify the impugned

judgment and award passed by the Tribunal. He contended that

the Tribunal has rightly held that, the deceased died on 06th

January, 2012 i.e. seven months after he was discharged from

the Hospital and when he was at his native place, thereby, there

is no nexus between the death and the injuries suffered in the

accident and accordingly, the rejection of the claim petition is

fully justifiable. He also contended that if really the deceased

died on account of the injuries sustained in the accident, nothing

prevented the claimant-mother of the deceased to get the post-

mortem conducted and get the reasons for death and hence,

contended that in the absence of it, the present application is not

maintainable and accordingly, sought for rejection of application

as well as the main appeal.

12. In view of the aforesaid contentions raised by the

learned counsel appearing for the parties, the points that would

arise for consideration in this appeal are:

(1) Whether the appellant has made out a case to allow IA.I of 2022 filed under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure to adduce additional evidence?

(2) Whether the appellant has made out a case to interfere with the impugned judgment and award of the Tribunal rejecting the claim petition and has made out a case for remand for fresh consideration in the peculiar facts and circumstances of the case?

13. The case on hand is of an unfortunate claimant, who is

the mother of the deceased who was aged about 24 years as on

the date of the accident that occurred on 22nd March, 2011, due

to rash and negligent driving of the bus bearing registration

No.KA-12-1264 by its driver, as held by the learned Judge while

passing the impugned judgment and award. It is also not in

dispute that the Insurance company has not filed any appeal

against the adverse finding against the driver of the bus about

his rash and negligent driving. The same is evident from the

material document Exhibit P1-First Information Report and

Exhibit P5-the order sheet in CC No.194 of 2012. The accident is

not in dispute and the death of Cheluvaraju is not in dispute.

But, the only dispute to be decided is whether the deceased

succumbed to the injuries suffered in the accident while he was

under treatment as an out-patient or whether the death of

deceased is a natural death. Though the learned Judge of the

Tribunal recorded a finding that, if really, the deceased died due

to the injuries sustained in the accident, definitely the claimant

would have sent the body of the deceased to post-mortem and

same would have been informed to the jurisdictional police and

further, as according to the evidence of PW2-Dr. Mohan, he is

not aware about the admission by the deceased and not sent the

MLC. Thereby, unless and until it is proved by the claimant

through medical records the opinion of the Doctors that the

death of deceased Cheluvaraju is because of the injuries

sustained in the accident, the claimant is not entitled to relief

and accordingly, rejected the claim petition.

REGARDING POINT NO.1:

14. In order to prove as to whether there was nexus

between the death and injuries suffered in the accident and the

deceased Cheluvaraju died while he was taking treatment as an

out-patient, it is necessary to examine the treated Doctor, and

thereby, the present application in IA.I of 2022 came to be filed

by the claimant-mother of the deceased, that the evidence of the

Doctor who treated the deceased at K.R. Hospital is required

since her son died due to the injuries suffered in the accident

that took place on 22nd March, 2011 and thereby, Exhibit P19-

Death Certificate issued by the K.R. Hospital and the Doctor who

has issued the same, is necessary to be examined to prove

whether there was nexus between the death and the injuries

suffered in the accident, thereby the claimant-mother want to

examine the Doctor.

15. As the claimant has no idea about the legal

intricacies/procedure established and no idea about the Doctor's

evidence and role of conducting post-mortem, so also, as she

was in depression and grief over the death of her son (who was

24 years at the time of death), accepting the cause shown in the

affidavit accompanying the application, exercising our power

under Order XLI Rule 27 of the Code of Civil Procedure, an

opportunity is to be given to the claimant-mother to establish

her case before the Tribunal that the death of her son

Cheluvaraju was due to the injuries sustained in the accident, as

admittedly, the accident is proved as held by the Tribunal while

answering issue No.1. Thereby, the application IA.I of 2022 is to

be allowed. For the reasons stated above, the first point that

arose for consideration in this appeal is answered in the

affirmative holding that the claimant has made out her case to

allow the application IA.I of 2022 filed under Order XLI Rule 27

of Code of Civil Procedure seeking permission to lead additional

evidence and an opportunity should be given to her to prove her

case taking into consideration the scope and object of the

Legislature while enacting Motor Vehicles Act, which is a

beneficial legislation, so also on the count that the occurrence of

the accident due to the rash and negligent driving of the bus by

its driver is also proved and the fact that the claimant-mother

had to go out of Court with empty hands losing her young aged

son. Thereby, the application IA.I of 2022 is allowed.

REGARDING POINT NO.2:

16. Since this Court has allowed the application IA.I of

2022 filed under Order XLI Rule 27 of Code of Civil Procedure to

lead additional evidence, the matter requires to be remanded to

the Tribunal in order to determine the issue raised with regard to

compensation claimed by the claimant on account of death of her

son. For the reasons aforestated, the second point that arose for

consideration in this appeal is partly answered in the affirmative

holding that the matter requires consideration.

17. In the result, we pass the following:

ORDER

1) Appeal is allowed;

2) Impugned judgment and award dated 01st August,

2015 passed in MVC No.443 of 2011 by the

Tribunal rejecting the claim petition under the

provisions of Section 166 of the Act, is hereby set

aside and the matter is remanded to the learned

Senior Civil Judge, Srirangapatna for fresh

consideration with regard to determining the issue

with regard to the claim petition filed by the mother

of the deceased and to pass appropriate orders in

accordance with law.

3) All contentions raised by both the parties are kept

open and the parties are permitted to adduce

additional evidence, if any.

4) Further, the parties are directed to appear before

the Tribunal on 18th July, 2022 without waiting for

any notice from the Tribunal in this regard.

5) Registry is directed to transfer the records to the

Tribunal forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

lnn