Karnataka High Court

M/S Shriram General Insurance ... vs Giriyamma on 10 January, 2023

Bench: M.I.Arun

                                              -1-
                                                         MFA No. 3177 of 2012




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 10TH DAY OF JANUARY, 2023

                                           BEFORE
                             THE HON'BLE MR JUSTICE M.I.ARUN
                 MISCELLANEOUS FIRST APPEAL NO. 3177 OF 2012 (MV-D)

                 BETWEEN:

                 1.    M/S SHRIRAM GENERAL
                       INSURANCE COMPANY LTD.,
                       NO.5, 2ND FLOORS,
                       WHITE HOUSE,
                       ST MARKS ROAD,
                       BANGALORE - 560 001.
                       RPE BY ITS MANAGER.
Digitally
signed by V            NOW REP BY ITS
MANJUSHA               M/S. SHRIRAM GENERAL
BAI
Location: High         INSURANCE COMPANY LTD.,
Court of
Karnataka              S-5, MONARCH CHAMBER,
                       3RD FLOOR, INFANTRY ROAD,
                       SHIVAJINAGAR,
                       BANGALORE - 560 001.
                       REP. BY ITS LEGAL OFFICER.
                                                                 ...APPELLANT
                 (BY SRI. B.C.SHIVANNE GOWDA, ADVOCATE)

                 AND:

                 1.    GIRIYAMMA,
                       W/O LATE H M SRINIVASAIAH,
                       AGED ABOUT 48 YEARS,
                       R/AT C/O RAMADASEGOWDA,
                       NO 57/1, 3RD CROSS, 3RD MAIN,
                       KEMPREGOWDA NAGARA,
                       NANJAPPA BLOCK, BANGALORE - 19.
                           -2-
                                       MFA No. 3177 of 2012




2.   LOKESH H.S.,
     S/O LATE H M SRINIVASAIAH,
     AGED 29 YEARS ,
     R/AT C/O RAMADASEGOWDA,
     NO 57/1, 3RD CROSS, 3RD MAIN,
     KEMPREGOWDA NAGARA,
     NANJAPPA BLOCK, BANGALORE - 19.

3.   BALARAM H.S.,
     S/O LATE H M SRINIVASAIAH,
     AGED ABOUT 24 YEARS,
     R/AT C/O RAMADASEGOWDA,
     NO 57/1, 3RD CROSS, 3RD MAIN,
     KEMPREGOWDA NAGARA,
     NANJAPPA BLOCK, BANGALORE - 19.

4.   GURUPRASAD
     S/O LATE H M SRINIVASAIAH,
     AGED ABOUT 20 YEARS,
     R/AT C/O RAMADASEGOWDA,
     NO 57/1, 3RD CROSS, 3RD MAIN,
     KEMPREGOWDA NAGARA,
     NANJAPPA BLOCK, BANGALORE - 19.

5.   SANTHOSH B.BARAD,
     S/O BALAKRISHNA,
     MAJOR,
     R/O DOOR NO 389,
     NEAR SHAKUNTHALA HOSPITAL,
     HOSUR HOBALI.
                                           ...RESPONDENTS
(VIDE ORDER DATED 01.09.2016 NOTICE TO R1
    TO R4 IS HELD SUFFICIENT;
    R5 - SERVED AND UNREPRESENTED)

     MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.08.2011 PASSED IN MVC
NO.6779/2009 ON THE FILE OF MOTOR ACCIDENT CLAIMS
TRIBUNAL-V, COURT OF SMALL CAUSES, BANGALORE CITY,
AWARDING A COMPENSATION OF RS.3,58,000/- WITH
                                -3-
                                             MFA No. 3177 of 2012




INTEREST @ 6% P.A FROM THE DATE OF THE PETITION TILL
THE DATE OF DEPOSIT.

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

                          JUDGMENT

Aggrieved by the judgment and award dated

05.08.2011 passed in MVC No.6779/2009 by the Motor

Accident Claims Tribunal-V, Court of Small Causes,

Bangalore City (for short 'the Tribunal'), the respondent No.1

therein has preferred this appeal.

2. For the sake of convenience, the parties are

referred to herein as per their status before the Tribunal.

3. Brief facts of the case are as follows:

The deceased Srinivasaiah met with an accident on

02.04.2009 at about 4.30 p.m. when he was standing on the

top of the lorry bearing registration No.KA.06.A.8441 in

order to remove the water on the tarpal and the said lorry

was parked in front of SS Hospital, Davanagere by the side

of the road and during that that time another lorry bearing

registration No.KA.25.9218 being driven in a rash and

MFA No. 3177 of 2012

negligent manner dashed against the parked lorry. Because

of which, deceased fell down and sustained grievous injuries

and he was taken to the hospital and he died on 08.07.2009.

Petitioners who were his dependents filed MVC

No.6779/2009 and the Tribunal, has awarded a

compensation of 3,58,000/- along with interest @ 6% p.a.

from the date of petition till the date of deposit in Court

under the following heads:-

   Loss of dependency                          Rs.3,08,000/-
   Towards medical expenses                     Rs.20,000/-
   Loss of love and affection                   Rs.10,000/-
   Funeral and obsequies                          Rs.5,000/-
   Transportation of dead body                    Rs.5,000/-
   Loss of estate                                 Rs.5,000/-
   Loss of consortium                             Rs.5,000/-
   TOTAL                                       Rs.3,58,000

Aggrieved by the same, insurance company has filed

this appeal.

4. Case of respondent No.1-insurance company is

that there is no nexus between the accident and death of the

MFA No. 3177 of 2012

deceased. It is contended that the accident occurred on

02.04.2009 and the deceased suffered intra trochanteric of

left femur fracture and that does not cause death of the

person and that the Tribunal erred in coming to the

conclusion that the injuries led to his death.

5. Respondents in the instant appeal though served

have remained absent.

6. The only question that arises in the instant appeal

is that 'whether the injuries sustained by the deceased led to

his death or not?' The tribunal has reasoned that the injuries

led to his death in paragraphs 12 and 13 of the judgment.

Same is as mentioned below:

"12. In order to substantiate the nexus between the death and the accident the petitioner has led the evidence of doctor as P.W2 who has conducted the Post Mortem, he has deposed that he was working as medical officer of Huliyur Durga Primary Health Centre and he has conducted the Post Mortem on the requisition given by Huliyurdurga police. And further he has deposed that the deceased was bed ridden since he was discharge from the Siddartha Hospital

MFA No. 3177 of 2012

and he was having uncontrollable diabetes and the doctor was visiting him for treatment and the deceased died due to septicemic shock as a result of multiple injuries sustained. Wherein he has been cross examined, during the course of cross examination doctor has clearly deposed that the deceased had sustained as per medical records intra trochanteric of left femur fracture and further it has been elicited that the petitioner had sustained only one fracture in the accident and the doctor has clearly deposed that the fracture itself i.e. fracture of left intratrochantric fracture does not causes death.

From the evidence of doctor, it is clear that the injury itself does not result in death and the doctor has clearly deposed that this deceased was suffering from diabetes and he was having uncontrollable diabetes mellitus. When such is the fact, the probabilities can not be ruled out that as the deceased prior to the accident was a diabetes patient and he had suffered fracture, thereby the wound would have not healed and would have led to infection and thereby he might have died. Because, the petitioner has produce Ex.P12 which is the case sheet of Sree Siddhartha Hospital and Research Centre which goes to show that prior to the death after the accident the injured Srinivasaiah was admitted to the said hospital on 13.10.2009, he was treated for a period 17 days as an inpatient till 29.04.2009 and the said case sheet

MFA No. 3177 of 2012

contains previous history of the patient. Wherein there is a mention that the patient was a known diabetes for past 4 years, but he was not on any medication. Wherein the petitioner has produced wound certificate at Ex.P9 (a) which shows that the insured Srinivasaiah got discharge from the Chigateri hospital against medical advice on 05.04.2009, along with the said wound certificate there is a copy of case sheet which substantiate that the petitioner had sustained introtrochantric fracture and the case sheet produced at Ex.P13 confirms that he has been treated for the said fracture and it also discloses that the petitioner has got discharge from the said Siddahartha hospital on 29.04.2009.

13. It is the specific case of the petitioner that subsequent to getting discharge from the Siddartha hospital the injured was under regular treatment at Huliyurdurga Govt Hospital. The doctor who has given evidence as P.W.2 is a doctor from Huliyurdurga hospital, wherein he deposed that he has treated the petitioner regularly and he has also deposed that he treated the injured for pressure ulcer i.e. bed sour and patient was on insulin. Though the doctor has deposed that he has not treated for the fracture, but he has clearly deposed that there was infection in the wound. And as the petitioner was a known diabetic patient the probabilities can not be ruled out that the fracture or injury due to accident has added to the

MFA No. 3177 of 2012

deceased and thereby he has died. And more over after the death of deceased police has registered case under UDR and the dead body has been subjected to inquest mahazar and subsequently post mortem has been conduced and as per the opinion of the doctor the death is due to speticemic shock as a result of infected wounds. The respondents have not placed any material before the Court to say that the infected wound were not due to accident. Though there is a gap of 96 days between the accidental injuries and the death i.e. the accident has taken place on 02.04.2009 and death is on 08.07.2009. The medical documents produced by him goes to show that this petitioner was under treatment at different hospitals and even the doctor has deposed that he has treated the petitioner for the Ulcer. And the respondent has not placed any material to say that even prior to the accident the injured was ailing from any such injuries and neither they have produce any documents to say subsequent to discharge from the Siddartha hospital, Srinivasaiah had met with any other accident to aggravate the situation. Hence, the evidence of P.W2 as well as the documents placed by the petitioner clearly leads to an inference that as the deceased was a known diabetic patient the accidental injuries have aggravated the health condition of the injured, thereby he died due to accidental injuries. Hence, I answer issue NO.1 in Affirmative."

MFA No. 3177 of 2012

7. Thus, deposition of the doctor who had treated

the deceased as reasoned by the Tribunal goes to show that

the reason for the death was septicemic shock as a result of

multiple injuries sustained. It is not the case of respondent

No.1-insurance company that the deceased did not suffer

injuries as deposed by witnesses before Tribunal and that it

is also not the case of the insurance company that the

deceased had any other injuries other than those mentioned

by the doctor. The said injuries have been sustained due to

the accident. Deceased was a diabetic patient and it resulted

in the injuries not healing which resulted in septicemic shock