Karnataka High Court

N Nagaraju vs Tata Aig General Insurance Co Ltd on 18 October, 2022

Bench: H.P.Sandesh

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF OCTOBER, 2022

                         BEFORE

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

                M.F.A.No.5231/2013 (MV-D)

BETWEEN:

1.   N. NAGARAJU
     S/O KEMPAIAH
     AGED ABOUT 45 YEARS

2.   K. NARAYANAPPA
     S/O KEMPAIA
     AGED ABOUT 43 YEARS

3.   K. RAMESH
     S/O KEMPAIAH
     AGED ABOUT 41 YEARS

4.   K. KRISHNAPPA
     S/O KEMPAIAH
     AGED ABOUT 39 YEARS

5.   K. RADHAMMA
     D/O KEMPAIAH
     AGED ABOUT 37 YEARS

6.   K. MANJUNATH
     S/O KEMPAIAH
     AGED ABOUT 32 YEARS

7.   K. SRINIVASAPPA
     S/O KEMPAIAH
     AGED ABOUT 28 YEARS
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       ALL RESIDING AT
       MOOKANDAHALLI VILLAGE & POST,
       HOSUR TALUK, KRISHNAGIRI DISTRICT,
       TAMIL NADU - 635 109.              ... APPELLANTS

               (BY SRI KEMPANNA, ADVOCATE)
AND:

1.     TATA AIG GENERAL INSURANCE CO. LTD.,
       2ND FLOOR, J.P. AND DEVI JAMBAKESHWAR
       ARCADE,. NO.60, MILLERS ROAD
       BENGALURU - 560 042.

2.     MOHAMMED ADIL
       S/O MOHMED ILIYAZ
       NO.137, 1ST CROSS,
       SARAS MUNISHAMAPPA LAYOUT
       NEW HAR EXTENSION
       OLD MADRAS ROAD
       HOSKOTE TOWN
       BENGALURU DISTRICT-562 114.             ... RESPONDENTS

     (BY SRI O.MAHESH, ADVOCATE FOR R1 [THROUGH VC];
                       R2 IS SERVED)

       THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.02.2013
PASSED IN MVC NO.3554/2010 ON THE FILE OF THE III
ADDITIONAL    SENIOR   CIVIL   JUDGE    AND     MEMBER,     MACT,
BANGALORE,     DISMISSING      THE     CLAIM     PETITION    FOR
COMPENSATION.


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

This appeal is filed by the claimants challenging the

judgment and award dated 04.02.2013 passed in

M.V.C.No.3554/2010 on the file of the III Additional Senior Civil

Judge and MACT, Bangalore ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for the respondent

No.1.

3. The factual matrix of the case is that on 19.05.2009

when one Smt. Lakshmamma was traveling in an auto, the

driver of the crane drove the same in a rash and negligent

manner and knocked the hind portion of the auto, as a result,

the said Lakshmamma thrown out from the auto and sustained

injuries and she was shifted to NIMHANS hospital and thereafter

she was taken to Sparsha hospital, Bangalore where she was

treated as an inpatient from 20.05.2009 till 30.05.2009 and it is

also the claim of the claimants that there was no hopes of

improvement in the condition of the said Lakshmamma, she was

discharged on 30.05.2009 and the said Lakshmamma

succumbed to the injuries on 27.04.2010 in her house. The

claimants are the legal heirs of the deceased Lakshmamma.

Hence, they filed the claim petition before the Tribunal. The

Insurance Company appeared and filed the written statement

contending that there is no nexus between the accident and

cause of death of Lakshmamma. The claimants in order to

substantiate there claim, examined one witness as PW1 and the

doctor as PW2 and got marked the documents at Ex.P1 to P14

and the respondents have not led any evidence. The Tribunal

after considering both the oral and documentary evidence,

answered Issue No.1 as negative and also did not answer Issue

No.2 in coming to the conclusion that it does not arise for

consideration and dismissed the petition.

4. The main contention of the learned counsel for the

claimants that the Tribunal has committed an error in taking

note of the nature of the injuries sustained by the deceased

during the course of accident and also failed to take note of the

fact that she was immediately admitted to the NIMHANS and

thereafter she was shifted to Sparsh hospital wherein she was an

inpatient for a period of 11 days. The counsel also submits that

the Tribunal has failed to take note of the fact that the deceased

was in follow up treatment and in order to prove the said fact,

the claimants have produced the relevant documents but the

Tribunal has failed to consider the same and only came to the

conclusion that the doctor evidence says that she was stable at

the time of discharge hence, not accepted the claim petition and

committed an error in dismissing the claim petition in its

entirety. Apart from that not considered the medical evidence

available on record for having spent the amount of Rs.2,10,000/-

when the deceased was in the hospital hence, it requires

interference of this Court.

5. Per contra, the learned counsel appearing for the

Insurance Company would vehemently contend that though the

deceased was in the hospital as an inpatient at the first instance

for a period of 11 days and particularly the evidence of the

doctor is very clear that at the time of discharge, her condition

was stable and in order to prove that after discharge also she

took the continuous treatment, no documents are produced

before the Tribunal. Hence, the Tribunal has not committed any

error in dismissing the claim petition.

6. Having heard the arguments of the learned counsel

appearing for the parties and also on perusal of the material

available on record, the point that arise for the consideration of

this Court is:

(i) Whether the Tribunal has committed an error in answering Issue No.1 as negative and whether it requires interference of this Court?

7. Having heard the arguments of the learned counsel

appearing for the parties and also on perusal of the material

available on record it is not in dispute that the accident was

occurred on 19.05.2009 when the crane hit the auto in which the

deceased was traveling and she was thrown out from the auto

and sustained head injury and immediately she was taken to the

NIMHANS and after that she was shifted to Sparsh hospital. To

substantiate the same, the claimants have produced FIR for

having registered the criminal case and charge-sheet also filed

against the driver of the crane and IMV report also produced and

wound certificate is also marked as Ex.P4 and medical

documents are also got marked and spot mahazar also marked

as Ex.P6 and apart from that discharge summary issued by the

Sparsh hospital also got marked as Ex.P9 wherein final diagnosis

was made and treatment was also given and the case sheet at

Ex.P14 is also produced. The fact that the deceased met with an

accident is not in dispute since the case has been registered and

investigated the matter and filed the charge-sheet but the

Tribunal has failed take note of the said material on record and

the Issue was framed conjointly in respect of negligence as well

as the cause of death and totally the Tribunal answered Issue

No.1 as negative only in coming to the conclusion that no MLC

and no PM report. Even in the absence of PM report also, the

Court has to take note of the nature of the injuries sustained by

the injured in the accident. Particularly, the document at Ex.P9-

discharge summary disclosed that finally it was diagnosed as

injury to C5 and C6 and also unable to move when the injured

was taken to the hospital in respect of the injury to the upper

limb as well as the lower limb. No doubt, in the cross-

examination of PW2, he says that at the time of discharge, the

injured was stable as the general condition was stable and also

admitted that the discharge summary has been issued by

Neurosurgery department and it is also elicited that the condition

of the patient will be noted in the follow up treatment record,

even it is improved or worsen and if there is no any complication

in the injuries and the same will be recorded in the follow up

treatment record and no such follow up treatment record is

produced before the Court. However, the Tribunal has to take

note of the nature of injuries that the injured has sustained head

injury as well as spinal cord injury and the wound certificate

which is marked as Ex.P4 discloses that CT scan discloses neck

subluxation of C5 vertebra over C6 vertebra compression of

spinal cord partial and Ex.P14 also discloses that she took the

treatment for the same and Ex.P9 discharge summary also

reveals that CT scan is clear that Grade II posterior subluxation

of C5 over C6 causing canal stenosis and MRI scan also discloses

with regard to the posterior subluxation of C5 over C6 causing

cord compression with signal changes in the cord for C2 to D1

segment and the treatment was also given for the said injuries

and she was put on cervical traction following which there was

reduction in subluxation and she underwent C5-6 anterior

cervical discectomy and instrumented fusion on 21.05.2009

during the course of her treatment. When such material is

available before the Court, the Tribunal ought to have considered

the same meticulously but instead of that it came to the

conclusion that there was no PM report before the Court.

Admittedly the deceased died in the house and not in the

hospital, hence, the question of PM report does not arise and

even in the absence of PM report also the Court has to take

nature of the injuries but the Tribunal has not considered the

same. The material on record also discloses that though PW2 is

not a treated doctor but he was in the same hospital along with

the other doctors who are treated the deceased hence, the

evidence of PW2 cannot be discarded merely because PW2 says

that at the time of discharge, the general condition of the

deceased was good, the same cannot be a ground to dismiss the

petition. Apart from that the medical bills are produced to the

extent of Rs.2,10,000/- and the same has not been considered

by the Tribunal. Hence, the judgment and award of the Tribunal

requires to be set aside and the matter has to be considered

afresh before the Tribunal in view of the observation made by

this Court since there is no dispute with regard to the accident is

concerned and when such being the case, the Tribunal ought not

to have answered Issue No1 as negative and dismissed the claim

petition in its entirety.

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

following:

ORDER

(i) The appeal is allowed.

      (ii)    The impugned judgment and award of the
              Tribunal     dated     04.02.2013        passed       in
              M.V.C.No.3554/2010         is   set   aside   and   the

matter is remanded to the Tribunal to dispose the same afresh in view of the observations made by this Court.

(iii) The matter is of the year 2010 and the parties are directed to appear before the Tribunal on 21.11.2022 without expecting notice from the Tribunal.