The United India Insurance Co. Ltd vs Kashimsab S/O Moulasab Dharwad
2022 Latest Caselaw 12157 Kant

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                                                            MFA No. 24048 of 2012


                             IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                 BENCH

                             DATED THIS THE 26TH DAY OF SEPTEMBER, 2022

                                                 BEFORE
                                THE HON'BLE MR JUSTICE H.P.SANDESH
                        MISCELLANEOUS FIRST APPEAL NO. 24048 OF 2012
                                                 (MV-D)
                        BETWEEN:

                              THE UNITED INDIA INSURANCE CO. LTD.,
                              BY ITS DIVISIONAL MANAGER
                              SUJATA COMPLEX, P.B. ROAD, HUBLI.
                                                                      ...APPELLANT

                                   (BY SMT. PREETI SHASHANK, ADVOCATE)

                        AND:

                        1.     KASHIMSAB
                               S/O. MOULASAB
                               DHARWAD
                               SINCE DECEASED BY HIS LRS
          Digitally
          signed by J
          MAMATHA
                        1(a) SMT. BIBIJAN
J         Location:
          Dharwad
                             W/O. KASHIMSAB
MAMATHA   Date:
          2022.09.27
                             DHARWAD
          16:35:34
          +0530              AGE: 58 YEARS
                             OCC: HOUSEHOLD WORK
                             R/O: SUBHAS NAGAR, OLD HUBLI.

                        1(b) SMT. SHAMSHAD BEGUM
                             W/O. GOUSE MODDEEN HOSMANI
                             AGE: 41 YEARS
                             OCC: HOUSEHOLD WORK
                             R/O: PATIL GALLI
                             YALLAPUR ONI, HUBLI.
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                                 MFA No. 24048 of 2012




1(c) HAZARAT ALI
     S/O. KASHIMSAB
     DHARWAD
     AGE: 37 YEARS
     OCC: BUSINESS AND AGRICULTURE
     R/O: SUBHAS NAGAR, OLD HUBLI-24.

1(d) AZEEZ
     S/O. KASHIMSAB
     DHARWAD
     AGE: 35 YEARS
     OCC: BUSINESS
     R/O: SUBHAS NAGAR, OLD HUBLI-24.

2.   MOHAMED RAFIQ
     S/O. BUDANSAB DHALAYAT
     AGE: 33 YEARS
     OCC: AUTO DRIVER
     R/O: ISHWAR NAGAR, 3RD CROSS
     NEKAR NAGAR ROAD, HUBLI-24.

3.   RAVI
     S/O. FAKKIRAPPA ITAGI
     AGE: MAJOR
     OCC: BUSINESS
     R/O: NANDINI NAGAR
     NEAR PRIYADARSHINI COLONY
     GOKUL ROAD, HUBLI.
                                        ...RESPONDENTS

          (R1(a) to R1(d) AND R2 ARE SERVED;
           NOTICE TO R3 IS HELD SUFFICIENT)

     THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988
AGAINST THE JUDGMENT AND AWARD DATED 05.04.2012
PASSED IN M.V.C.NO.136/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
HUBLI, AWARDING COMPENSATION OF RS.3,44,280/- AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITON TILL ITS
REALIZATION.
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                                           MFA No. 24048 of 2012


     THIS APPEAL COMING ON FOR FINAL HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

Heard the learned counsel appearing for the

appellant-Insurance Company.

2. The factual matrix of the claimants before the

Tribunal is that the deceased was proceeding in the

motorcycle and in the opposite direction, an auto rickshaw

came and dashed against him. As a result, he had

sustained grievous injury of fracture of femur and

immediately, he was taken to Dr. Bijapur Hospital, Arvind

Nagar, Hubli and then, he was shifted to K.L.E. Hospital

and even at GSS Hi-Tech Hospital, Hubli and he had

undergone operation and he was discharged. He was

under continuous treatment from the date of the accident

and therefore, was again admitted to the hospital on

21.12.2009 and was operated on 24.12.2010 and

discharged on 30.12.2009. Even after surgery also, he

has not recovered and ultimately, he died on 05.04.2010.

MFA No. 24048 of 2012

Hence, the claimants have filed the claim petition before

the Tribunal.

3. In pursuance of the claim petition, the

respondent No.1 has appeared in person and respondent

Nos.2 and 3 appeared through their counsel and

respondent No.2 filed a written statement contending that

FIR and charge-sheet discloses that the driver of the

Tribunal was not possessing driving license to drive the

auto rickshaw and respondent No.2, knowing fully well

that the driver was not possessing valid and effective

driving license, had authorized the respondent No.1 to

drive the vehicle.

4. The claimants, in order to substantiate their

claim, examined one of the claimant as P.W.1 and also

examined the Doctors as P.Ws.2 and 3 with regard to the

treatment provided to the deceased. On the other hand,

the respondent-Insurance Company also examined two

witnesses as R.Ws.1 and 2. The claimants got marked the

documents as Exs.P1 to P53 and the respondent-

MFA No. 24048 of 2012

Insurance Company got marked the documents as Exs.R1

to R3.

5. The Tribunal, after considering both oral and

documentary evidence available on record, awarded

compensation of Rs.3,44,280/-. Hence, the present

appeal is filed before this Court by the Insurance Company

contending that the deceased met with an accident on

03.07.2008 and thereafter, died on 05.04.2010 and there

is no nexus between the accidental injury and the cause of

death and no material is placed before the Court. Hence,

the Tribunal committed an error in grating compensation.

6. The other contention of the appellant-Insurance

Company is that the driver was not having driving license

as on the date of the accident and the driving license had

elapsed and the same was renewed subsequent o the

accident. To that effect, the learned counsel appearing on

behalf of the appellant-Insurance Company would

vehemently contend that the documents i.e., endorsement

issued by the A.R.T.O., Dharwad and driving license

MFA No. 24048 of 2012

particulars of Mohammad Rafiq Gudansaheb Dalath

respectively are marked as Exs.R2 and R3, which clearly

establishes the fact that there was no driving license as on

the date of the accident. The counsel also would submit

that, in the FIR, the name of the driver of the auto

rickshaw is different from the name appearing in the

charge-sheet. Hence it is a clear case of implication of the

driver and therefore, it requires interference.

7. The counsel also would submit that there was

negligence on the part of the deceased and the same has

also not been considered by the Tribunal. Inspite of

service of notice on the claimants, they have neither

appeared before the Court, nor engaged any counsel.

8. Having heard the learned counsel for the

appellant-Insurance Company and also on perusal of the

material available on record, it is not in dispute that the

accident occurred on 03.07.2008 and immediately, the

injured, who had sustained fracture of femur was taken to

hospital and he was inpatient from 04.07.2008 to

MFA No. 24048 of 2012

17.07.2008 in terms of Ex.P19 and again, he was admitted

to hospital from 18.07.2008 to 24.07.2008 and took

continuous treatment in K.L.E Hospital and thereafter, he

also took treatment at Vivekananda General Hospital from

21.12.2009 to 30.12.2009 as per Ex.P37 and discharge

card also discloses that he was subjected to surgery in the

month of December, 2009.

9. When such documents are available before the

Court that the deceased was inpatient continuously from

04.07.2008 to 30.12.2009 and he was subjected to

surgery twice which has also been spoken to by the

Doctor, who has been examined as P.W.2, no doubt, in the

cross-examination of P.Ws.2 and 3, it has emerged that,

he was also having other ailments that is diabetic and

asthama, P.W.2 in the cross-examination deposes the

same and the medical evidence also discloses that he was

suffering from other ailments i.e., diabetic and asthama

and due to the accidental injuries and non-curing of the

injuries which he had sustained, admittedly, he died on

MFA No. 24048 of 2012

05.04.2010 and before death also, he was taken to the

hospital and he was an inpatient. The post mortem report

is also produced as Ex.P38, which discloses that death is

on account of heart attack.

10. The fact that the deceased was in continuous

treatment is not in dispute. Though the learned counsel

appearing for the appellant-Insurance Company would

contend that there is no nexus between the accidental

injuries and the cause of death, the said contention cannot

be accepted, since the had sustained fracture of femur and

he was in continuous treatment as per Exs.P18, P19 and

P37 and he was subjected to surgery also twice. When

such being the case, when medical evidence is available

before the Court with regard to the fact that he was

suffering from other ailments i.e., asthama and diabetic

which led to non-curing of accidental injuries, ultimately,

the same led to heart attack. Hence, the Tribunal has

taken note of the said fact into consideration and comes to

MFA No. 24048 of 2012

the conclusion that there was a nexus between the

accidental injury and the cause of death.

11. Having taken note of the material on record,

i.e., the evidence of the Doctors, who have been examined

as P.Ws.2 and 3 and the documentary evidence i.e.,

Exs.P18, P19, P32, P37 and P38, I do not find any error

committed by the Tribunal in coming to the conclusion that

there is a nexus between the accidental injury and the

cause of death.

12. The other contention of the learned counsel for

the appellant-Insurance Company is that there was a

discrepancy in the name of the driver in the FIR and also

the charge-sheet. In order to prove the discrepancy that

the driver has been implicated, the Investigating Officer

has not been examined by the Insurance Company, except

summoning the R.T.O. No doubt, the R.T.O appeared

before the Court and the document is marked as Ex.R2

with regard to the endorsement is concerned, Ex.R3-

driving license is marked to establish the fact that as on

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MFA No. 24048 of 2012

the date of the accident, driver of the auto rickshaw was

not having driving license. There is a force in the

contention of the Insurance Company that the owner

ought to have verified whether the deceased was having

driving license to drive the vehicle, while handing over the

vehicle and the same has not been done. However, the

Apex Court in the judgment rendered in PAPPU VS.

VINOD KUMAR LAMBA (2018 (3) SCC 208) has held

that, in respect of third party claims, the Insurance

Company has to pay and recover the compensation from

the owner Hence, it is a case of pay and recovery.

13. The other contention of the Insurance Company

is that the compensation awarded is also on the higher

side. Having taken note of the quantum of compensation

granted, the very contention of the Insurance Company

cannot be accepted. The compensation awarded by the

Tribunal is only Rs.3,44,280/- i.e., towards loss of

dependency Rs.2,24,280/-, medical expenses

Rs.1,00,000/-, since he was under prolonged treatment,

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MFA No. 24048 of 2012

loss of consortium Rs.10,000/- and funeral expenses

Rs.10,000/- and the claimants have also not filed any

appeal before the Court.

14. The other contention of the learned counsel for

the appellant-Insurance Company is that contributory

negligence has not been taken into consideration by the

Tribunal. However, the Insurance Company has not

examined the driver of the auto rickshaw to prove the

same since, he is the right person to speak. Admittedly,

against the driver of the auto rickshaw, charge-sheet is

also filed. In the absence of cogent evidence, the

contention of the Insurance Company that no contributory

negligence is taken, cannot be accepted.

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

the following:

ORDER

(i) The appeal is allowed in part directing the Insurance Company to pay and recover the

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MFA No. 24048 of 2012

compensation from the owner in the same proceedings.

(ii) The amount in deposit is ordered to be transmitted to the Tribunal.

(iii) The registry is directed to transmit the trial court records, forthwith.

Sd/-

JUDGE

ST