Karnataka High Court

Indira vs Subramanya Holla on 1 December, 2023

                                                      -1-
                                                                  NC: 2023:KHC:43487
                                                                 MFA No. 5004 of 2020




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                                BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 5004 OF 2020 (MV-D)
                       BETWEEN:

                       1.      INDIRA
                               AGED ABOUT 53 YEARS
                               W/O LATE SADASHIVA PEJATHAYA

                       2.      VISHNUMOORTHY
                               AGED ABOUT 27 YEARS
                               S/O LATE SADASHIVA PEJATHAYA

                       3.      SOWMYA
                               AGED ABOUT 23 YEARS
                               D/O LATE SADASHIVA PEJATHAYA

                               ALL ARE R/O 'PEJATHAYA HOUSE'
                               NEAR ADAMAR JUNIOR COLLEGE
                               ADMAR POST YELLOR VILLAGE
                               UDUPI TALUK AND DISTRICT            ...APPELLANTS

                       (BY SRI. PAVANA CHANDRA SHETTY H.,ADV.)

                       AND:
Digitally signed by
MALA K N               1.      SUBRAMANYA HOLLA
Location: HIGH COURT           AGED ABOUT 37 YEARS
OF KARNATAKA                   S/O RADHAKRISHNA HOLLA
                               R/O "ANUGRAHA HOUSE"
                               KADAMBODI, HOSABATTU VILLAGE
                               SURATHKAL, MANGALORE TALUK AND DIST

                       2.      ICICI LOMBARD GEN. INS. CO. LTD.,
                               MUMBAI, REP. BY ITS NEAREST DIVSIONAL
                               MANAGER, DIVISIONAL OFFICE, 2ND FLOOR
                               HIND TOWER, OPPOSITE HEAD POST OFFICE
                               UDUPI DISTRICT                    ...RESPONDENTS

                       (BY SRI.B. PRADEEP, ADV. FOR R2;
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                                            NC: 2023:KHC:43487
                                           MFA No. 5004 of 2020




      VIDE ORDER DATED 3.11.2023
      NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED. 05.10.2019,
PASSED IN MVC NO.720/2015, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
UDUPI,   PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING    ENHANCEMENT     OF
COMPENSATION.

     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

In this appeal, the petitioners have challenged

the judgment and award dated 05.10.2015 in

M.V.C.No.720/2015 passed by the Addl. M.A.C.T.

and Principal Senior Civil Judge, Udupi ('the Tribunal'

for short).

2. For the sake of convenience, the parties

shall be referred to as per their status before the

Tribunal.

3. Brief facts of the case are, on 25.01.2015 at

about 11:30 am, the husband of 1st petitioner, father

of petitioners No.2 and 3 parked his motor cycle

bearing Reg.No.KA-20/U-9679 on the eastern mud

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portion of NH-66, a car bearing Reg.No.KA-19/MA-

7128 came from Udupi side and hit against the

motor cycle, injuring him. He was treated at

Srinivas Hospital, Mukka under hospitalization and

he was discharged on 23.02.2015. After the

discharge, he was bed-ridden, unable to walk and

fell ill on 10.03.2015. He was shifted to hospital for

further treatment and he succumbed to death on

25.03.2015 on account of accidental injuries. The

petitioners have approached the Tribunal for grant of

compensation of Rs.14,59,739/-. Claim was

opposed by the Insurance Company. The Tribunal

after taking the evidence, by impugned judgment

awarded compensation of Rs.89,268/-. Aggrieved

by the same, the petitioners have filed this appeal on

various grounds.

4. Heard the arguments of Sri. Pavan Chandra

Shetty, learned counsel for the petitioners and

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Sri. B. Pradeep, learned counsel for the Insurance

Company.

5. It is the contention of learned counsel for the

petitioners that the Tribunal has erroneously came to

the conclusion that there is no nexus between the

accidental injuries and the death of the deceased

and awarded medical expenses only. The deceased

has suffered compound fracture of fibula, fracture of

right tibia and fibula fracture of (rt) L1 (stable) type.

He was completely bed-ridden and during the

treatment only he died in the hospital. The Tribunal

made a stray reliance on the post-mortem report

without considering the totality of the injuries,

passed the impugned order and he sought for

interference.

6. Per contra, learned counsel for the Insurance

Company though does not dispute the accident,

cause of the accident, injuries sustained by the

deceased, contended that there is no nexus between

NC: 2023:KHC:43487

the death of the deceased and the accidental

injuries. The petitioners themselves relied upon

post-mortem report as per Ex.P8 and the opinion of

cause of death was due to natural disease and

therefore, the Tribunal has rightly come to the

conclusion that the death was not on account of the

accidental injuries. After investigation, Police have

charge sheeted the driver for the offences

punishable under Section 279 and 338 of I.P.C.

Hence, the Tribunal considering the medical

expenses incurred by the petitioners, passed the

award and he supported the impugned judgment.

7. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the materials on record.

8. The material on record did point out that

there was an accident on 25.01.2015 wherein the

deceased has sustained fracture injuries. He was

under hospitalization for 30 days at the first instance

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from 25.01.2015 to 23.02.2015 and 15 days at the

second instance between 10.03.2015 to 25.03.2015.

He was died in Mukka Srinivas Hospital. The nature

of injuries referred to is very clear. Post-mortem

report did point out that the cause for death of the

deceased cannot be ruled out as due to natural

diseases.

9. It is pertinent to note that, the person who

conducted the autopsy on the dead body of the

deceased has not been made available before the

Tribunal to explain what was the cause of death.

During the course of cross-examination, learned

counsel for the petitioners drawn the attention of the

Court in respect of Ex.R2, the reply notice issued by

Department of Forensic Medicines, K.M.C., Manipal.

This goes to show that the dead body of the

deceased was subjected to autopsy at K.M.C.

Hospital, Manipal. Before the Tribunal, there is no

material that explains what is the effect of the

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injuries for death of the deceased. The Tribunal

recorded that death may be due to natural diseases

for the reason of the petitioners failed to prove the

nexus between the accidental injuries to the death.

10. As noticed from the records, the petitioners

are unable to place the evidence regarding autopsy,

Forensic Expert nor the treated Doctor who could

only explain the cause of death of the deceased.

Learned counsel for the petitioners is fair in his

submission that if an opportunity is given, all the

required evidence will be placed before the Tribunal

for appreciation. Hence it is case, an opportunity

may be given to the petitioners to place relevant

evidence in proof of cause of death of the deceased.

If they are able to explain the nexus between the

cause of death due to accidental injuries, then it will

be a greater assistance to the Tribunal to take

correct view. Hence, the matter requires

reconsideration before the Tribunal and it is a fit

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case for remand rather to decide the case on merits.

Hence, the appeal merits consideration, in the result,

the following:

ORDER

i) Appeal is allowed.

ii) Impugned judgment and award is set

aside.

iii) The matter is remanded back to the

Tribunal to the stage of further evidence.

iv) Petitioners to place all relevant evidence

before the Tribunal to explain cause of

death and from thereupon the Tribunal to

decide the case on merits in accordance

with law.