Karnataka High Court

Smt Muniyamma vs M/S. Bharathi Axa General ... on 17 October, 2022

Bench: H.P.Sandesh

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF OCTOBER, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.3439/2013 (MV)

BETWEEN:

1.   SMT. MUNIYAMMA
     W/O LATE ANNAYAPPA
     AGED ABOUT 55 YEARS

2.   MR. MAHANDRA
     S/O LATE ANNAYAPPA
     AGED ABOUT 41 YEARS

3.   SMT. SELVI
     D/O LATE ANNAYAPPA
     AGED ABOUT 39 YEARS

4.   MR. RAMESH
     S/O LATE ANNAYAPPA
     AGED ABOUT 36 YEARS

5.   MR. PACHIYAPPAN
     S/O LATE ANNAYAPPA
     AGED ABOUT 32 YEARS

     ALL ARE RESIDING AT
     C/O NAGARAJU
     NO.179, 9TH CROSS
     BAKSHI GARDEN, COTTONPET
     BENGALURU-560 033.                    ... APPELLANTS

              (BY SREE VIDYA, ADVOCATE FOR
              SRI T.N.VISWANATH, ADVOCATE)
                                 2



AND:

1.     M/S. BHARATHI AXA GENERAL INSURANCE CO. LTD.,
       1ST FLOOR, THE FERONS ICON SURVEY
       NO.28, NEXT TO AKMA BALLOT
       DODDANEKURELI
       OPP. OUTER RING ROAD
       BENGALURU-560 037

2.     MR. MANJUNATH K.C.,
       S/O K.M. CHANDRAPPA
       MAJOR, R/AT NO.8/A,
       S.S.LAYOUT, 9TH MAIN,
       BASAVESHWARANAGAR
       BENGALURU-560 079.                   ... RESPONDENTS

      (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R1
     [THROUGH VC]; VIDE COURT ORDER DATED 26.03.2018,
               NOTICE TO R2 IS HELD SUFFICIENT)

     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:24.11.2012
PASSED IN MVC NO.9009/2009 ON THE FILE OF THE CHIEF
JUDGE, PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE,    DISMISSING     THE   CLAIM   PETITION   FOR
COMPENSATION.

     THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel appearing for the appellants and

the learned counsel appearing for respondent No.1.

2. This appeal is filed challenging the judgment and

award of dismissal of the claim petition in M.V.C.No.9009/2009

dated 24.11.2012 passed by the Principal MACT., & Chief Judge,

Court of Small Causes, Bengaluru (SCCH-1) ('the Tribunal' for

short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimants

before the Tribunal is that the deceased met with an accident on

28.11.2009 at about 1:15 p.m, as a result, he had sustained

degloving injury which has resulted in amputation. At the first

instance, the petition was filed by the injured himself and later

on he succumbed to the injuries on 23.07.2010. Hence, the

claimants, who are the wife and children, came on record as

legal representatives of the deceased.

5. The claimants in order to substantiate their claim

examined the daughter, who is the third petitioner as P.W.1 and

also examined the Doctor as P.W.2 and got marked the

documents Exs.P1 to P11. On the other hand, the respondents

have examined one witness as RW.1 and not led any evidence.

6. The Tribunal after considering both oral and

documentary evidence dismissed the claim petition and came to

the conclusion that there is no nexus between the injuries and

cause of death. Hence, the present appeal is filed by the

appellants.

7. The main contention of the learned counsel

appearing for the appellants is that the Tribunal has not

considered the matter in a proper prospective. The fact is that he

was met with an accident on 28.11.2009, is not in dispute and

also he was an inpatient for a period of 8 days at the first

instance. Again he was admitted to the hospital on 10.12.2009

and discharged on 21.12.2009. By that time his leg was

amputated. After the amputation, he was bedridden and

ultimately he succumbed to the injuries on 23.07.2010.

8. Further, the learned counsel for the appellants would

submit that in order to substantiate their claim, they have

examined one witness as P.W.2. P.W.2 deposes before the

Court that he had sustained degloving injury of the left ankle

and foot reason till base 6 toes exposing underneath muscles

and tendons, Trimalleolar fracture of the left ankle and fracture

of 4th metatarsal left foot and the nature of injuries are grievous

in nature and amputation was done on 16.12.2009. He was on

regular treatment and discharged on 21.12.2009. The document

- Ex.P11, inpatient record is also marked. He was subjected to

cross-examination. In the cross-examination, he withstood the

cross-examination of Insurance Company and the Tribunal not

considered the same in a proper perspective. He categorically

deposes that the possibility of gangrene at later stage cannot be

ruled out. In spite of the Doctor has been examined, the

Tribunal has not considered the matter in a proper perspective.

9. The learned counsel appearing for the appellants in

support of their claim relied upon the judgment of this Court

passed in MFA No.1494/2017 (Mr. N. Murali and another v.

The Managing Director, KSRTC.,) dated 29.06.2022,

wherein, this Court held that when he took treatment for a

longer period even not subjecting for post-mortem, the Court

can consider the material on record.

10. The learned counsel also relied upon the judgment of

this Court passed in MFA No.10130/2011 (Sri M.

Basavarajappa and others v. Sri Krishnamurthy and

others) dated 25.07.2022, wherein, with regard to the claim

petition by succession.

11. The learned counsel also relied upon the judgment of

the High Court of Madras reported in LAWS (MAD)-2009-7-8,

in the case of Abdul Rahim v. Sundaresan, wherein the

Madras High Court discussed in paragraph No.2 that in a case of

injured examined earlier and subsequently died, considering the

medical records for having taken treatment, entertained the

claim petition.

12. The learned counsel also relied upon the judgment of

the High Court of Punjab and Haryana reported in 2017 ACJ

198, in the case of National Insurance Co. Ltd., v. Kailash

Mehra and others, and brought to the notice of this Court

paragraph No.4, wherein, it is held that, "Every person who is

seriously ill still believes that he will come through." The Court

has to take note of the nature of injuries and the report of the

Doctor regarding cause of death.

13. The learned counsel also relied upon the judgment of

this Court reported in 2017 ACJ 663 in the case of Chinnappa

and Others vs. ICICI Lombard General Insurance Co. Ltd.

and another, wherein this Court has observed that the Doctor,

who treated the deceased deposed that cause of death was due

to stress injuries sustained in the accident and the Court has to

take note of the nexus between the injuries and the cause of

death.

14. The learned counsel also relied upon the judgment of

this Court reported in 2018 ACJ 497 in the case of R.N.

Manjula vs. Noorulla and Others with regard to the

maintainability of the petition and it is also observed that when

there was nexus between the injuries and also cause of death,

as per the medical reports, the deceased was under continuous

treatment ever since the date of accident till his death.

15. Per contra, learned counsel for the respondent No.1-

Insurance Company vehemently contend that, though his leg

was amputated in the month of December, he died in the month

of July and in between the said period, no records are placed

before the Tribunal that to show that he was under follow-up

treatment and the same is also taken note by the Tribunal. The

counsel also would submit that the deceased was aged about 65

years as on the date of the alleged accident and in the absence

of nexus between the nature of injuries and the cause of death

and no PM report, the question of considering the same does not

arise.

16. Having heard the respective counsel and also on

perusal of the material available on record, the points that would

arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in dismissing the claim petition in coming to the conclusion that there was no nexus between the injuries and cause of death?


         (ii)    Whether the Tribunal has committed an error
                 in    not   awarding      just    and        reasonable
                 compensation       and    whether       it     requires
                 interference of this Court?
         (iii)   What order?


Point No.(i)

17. Having heard the respective counsel, there is no

dispute with regard to the accident and the injuries sustained by

the deceased in the accident. The medical records also disclose

that the deceased had sustained degloving injury and he was

inpatient at the first instance for a period of 8 days and

thereafter, again admitted to hospital on 10.12.2009 and was

subjected to surgery for amputation of his left leg and was

discharged on 21.12.2009 and he was inpatient for a period of

11 days. The discharge card also discloses that amputation was

done below the knee and prior to admission to Sham Singh

Nursing Home as per Ex.P6, he had been to Victoria Hospital i.e.,

on 09.12.2009 and the same is marked as Ex.P7.

18. Having taken note of the nature of injuries, the Court

has to take note of the material on record and the records

clearly disclose that he had suffered degloving injury over the

left ankle region till base 6 toes, exposing underneath muscles

and tendons. The X-ray also shows trimalleolar fracture of left

ankle which has resulted in amputation below the knee on

16.12.2009 and he was discharged on 21.12.2009. Hence, there

is a force in the contention of the learned counsel appearing for

the respondent No.1-Insurance Company that no documents

before the Court in between the discharge and his death.

However, the Court has to take note of the nature of injuries

sustained by him and he had suffered degloving injury over left

ankle region and also suffered trimalleolar fracture of left ankle

and was subjected to treatment for debridement of later

malleolar at St. Jhon's Hospital. The records also disclose that

he was readmitted to Sham Singh Nursing Home, wherein he

took treatment as inpatient and the Court has to take note of the

nature of injuries and the injuries sustained by the deceased are

not simple in nature and he was aged about 65 years was

inpatient twice in the month of November as well as December

and amputation was also done below the knee. Hence, merely

because, the deceased was not subjected to PM examination, the

same cannot be a ground to dismiss the claim petition.

19. No doubt, the Tribunal also considered the material

on record and found that the deceased was not under continuous

treatment for a period of 7 months, when he was admitted to

hospital twice and was subjected to amputation, the Court has to

take note of the evidence of the Doctor, who is an Expert. The

Doctor, who has been examined as P.W.2 also states with regard

to the nature of injuries sustained by him and he claims that

there are documents in the Hospital to show that he had come

for follow-up treatment after discharge and he also states that

they will not maintain the outpatient record. P.W.2 also

categorically admits that the deceased was visiting the hospital

as outpatient and also in the re-examination, he states that the

deceased was not suffering from disorders like acidity,

hypertension and the possibility of gangrene at later stage

cannot be ruled out and there are chances of bed sour which

may cause Septicemia, if he takes treatment for a prolonged

period. But, in the further examination, he admits that as along

as he was in the hospital, he did not develop Septicemia and

Gangren and though answer is elicited from the mouth of P.W.2

with regard to the nature of injuries, the Court has to take note

of the nature of injuries and the same is not taken note by the

Tribunal and the Tribunal has lost sight of degloving injury as

well as the amputation done and the fact that he was inpatient

for almost 20 days. When such being the case, even in the

absence of PM report, the Tribunal ought to have taken note of

the nature of injury and the finding of the Tribunal that there

was no nexus between the cause of death and the accident

cannot be accepted. The medical records disclose accidental

injuries which has resulted in amputation. When such being the

case, it is a fit case to reverse the findings of the Tribunal in

dismissing the claim petition in coming to the conclusion that

there was no nexus between the accidental injuries and cause of

death. Accordingly, I answer point No.(i) as 'affirmative'.

Point No.(ii)

20. With regard to the quantum of compensation is

concerned, the deceased was aged about 65 years and the

claimants are the wife, daughter and sons. In the absence of

documentary evidence, the Tribunal ought to have taken the

notional income at Rs.5,000/- per month. Out of the income of

Rs.5,000/-, 1/4th is to be deducted towards personal expenses.

After the deducting the same, the notional income would be

Rs.3,750/- per month and taking the income at Rs.3,750/- per

month, applying the relevant multiplier '7', the loss of

dependency works out to Rs.3,15,000/-.

21. Apart from that, the claimants are also entitled for

an amount of Rs.40,000/- each towards love and affection which

comes to Rs.2,00,000/- (40,000 x 5). The claimants are also

entitled for an amount of Rs.33,000/- towards loss of estate and

funeral expenses.

22. The deceased was admitted to the hospital twice i.e.,

St. Jhon's Hospital as well as Sham Singh Hospital. The medical

bills are produced to the tune of Rs.65,192/-. On perusal of

these medical bills, the main bills are inpatient bill for

Rs.39,523/- of Sham Singh Nursing Home, wherein his leg was

amputated. The other bill is of St. Jhon's Hospital for an amount

of Rs.12,661/-. Hence, the amount of Rs.65,192/- awarded by

the Tribunal is just and reasonable and it does not require any

interference. Hence, in all, the claimants are entitled for an

amount of Rs.6,13,192/- with interest at 6% per annum.

Point No.(iii)

23. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

        (ii)   The impugned judgment and award of the
               Tribunal       dated   24.11.2012            passed      in
               M.V.C.No.9009/2019          is   set    aside    granting