Karnataka High Court
The Oriental Insurance Company Ltd. vs Gourawwa D/O Ramesh Desai on 31 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31 S T DAY OF AUGUST, 2020
B EFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
M.F .A.NO.22795/2013 (MV)
BETWEEN :
THE ORIENTAL INSU RANCE COMPANY LTD.,
B RANCH OFFICE, KRISHNA GHAT,
B OJANHAL ROAD, MUDHOL,
REPRES ENTED B Y ITS ASST . MANAGER,
REGIONAL OFFICE, 2 N D FLOOR,
SUMANGALA COMPLEX , HUB LI.
... APPELLANT
(B Y SRI S.K.KAYAKAMAT H, ADVOCAT E)
AN D :
1. GOU RAWWA D/O RAMESH DESAI,
GOU RAWWA SADASHIV NA IK,
AGE : 26 YEARS, OCC: HOUSEHOLD WORK,
R/ O DEVANAKATTI, TQ: RAIB AG,
DIST: B ELGAUM.
2. SMT .GANGAWWA D/O RAMESH
GANGAWWA W/O SURENDRA NAIK,
AGE : 24 YEARS, OCC: HOUSEHOLD WORK,
R/ O MEKHALI, TQ: RAIB AG,
DIST: B ELGAUM.
3. KU MARI BHARAT I D/O RAMESH DESAI,
AGE : 21 YEARS, OCC: HOUSEHOLD WORK,
R/ O MEKHALI, TQ: RAIB AG,
DIST: B ELGAUM.
2
4. SMT .AKKAWWA W/O GOVIND DESAI,
AGE : 94 YEARS, OCC: HOUSEHOLD WORK,
R/ O - DO -.
5. MAST ER GOVIND S/O RAMESH DESAI,
AGE : 15 YEARS, OCC: HOUSEHOLD,
R/ O - DO -.
(SINCE RESPONDENT NO.5 IS MINOR
REPRES ENT ED BY SIST ER PETIT IONER
NO.2 AS GUARDIA N.)
6. SRI RAJESAB B ABALAL SARAKWAS,
AGE : 37 YEARS, OCC: SUGAR FACTORY SERVICE,
R/ O SAMEERWADI, TQ: MU DHOL,
DIST: B AGALKOT.
7. SRI B ALAPPA SH IV ARUDRA DATTAWADE,
AGE : MAJOR, OCC: AGRICU LT URE,
OWNER OF HERO HONDA NO.CT L-7634,
R/ O NANDIKURLI, TQ: RAIB AG,
DIST: B ELGAUM.
... RESPONDENTS
(B Y SRI L,K.GU RAV, ADVOCATE : R.5 IS MIN OR R/ BY
R2 : R6 AND R.7 ARE SERVED.)
THIS MISCEL LANEOU S FIRST APPE AL IS FILED
U NDER SECTION 173( 1) OF T HE MOT OR VEHICLES ACT,
1988 PRAY ING THIS COU RT TO SET ASIDE THE
JU DGMENT AND AWARD DATED 04.03.20 13 PASSED IN
MVC.NO.960/2010 ON THE F ILE O F PR INCIPAL CIV IL
JU DGE AND M.A.C.T B ELGAUM, AT B ELGAUM.
THIS A PPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COU RT DEL IVERED THE F OLLOW ING:
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: JUDGMENT :
This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the respondent-Insurance Company being aggrieved by the judgment and award dated 04.03.2013 passed by the Principal Senior Civil Judge & Additional Motor Accident Claims Tribunal, Belgaum at Belgaum, (hereinafter referred to as "the Tribunal" for short), in M.V.C.No.960/2010.
3. Parties will be referred to as per their ranking before the Claims Tribunal.
4. Facts giving rise to the filing of the appeal briefly stated are that, on 06.01.2000 at about 11.15 p.m. the deceased was proceeding on his Hero Honda motorcycle bearing 4 registration No.CTL-7634 and when he approached Marchandi Stream a TATA Maxi Cab bearing registration No.KA.29/8888 being driven by its driver in a rash and negligent manner come from opposite side dashed into Hero Honda motorcycle, in which the deceased traveling and causing the accident. Due to which, the deceased died after taking treatment for few days.
5. The claimants being the legal representatives of the deceased filed a claim petition under Section 166 of the Act before the Tribunal in MVC.No.960/2010 on the ground that the claimant was the only breadwinner of the family and was earning Rs.5,000/- per month from landed properties and the tractor and claimed a compensation of Rs.10,00,000/- along with interest on account of death of deceased for the injuries sustained in the accident.
6. On issuance of notice, the 2nd respondent-Insurance Company appeared and 5 filed its statement of objections denying the age, occupation, income and also injuries sustained by the deceased prior to his death. It is further contended that the deceased was riding his motorcycle along with two other co-passengers, due to which he could not able to control the motorcycle and this was violation of law. It is also contended that the rider of the motorcycle did not having a valid and effective driving licence to drive the motorcycle.
7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
8. In order to prove the case, claimant No.1 examined herself as P.W.1 and a doctor who had treated the deceased as PW.2 and marked 8 documents as Exs.P.1 to P.8. On the other hand the respondent-Insurance Company though did not examine any witness but marked one 6 document as Ex.R.1-Insurance policy, on its behalf.
9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident had occurred due to the rash and negligent driving of the driver of the Tata Maxi Cab-407/offending vehicle and death of the deceased was due to the injuries sustained by him in the road accident and further held that the claimants were entitled to a compensation at Rs.5,01,000/- along with interest at the rate of 6% per annum. Being aggrieved, this appeal has been filed by the Insurance Company challenging the liability and quantum of compensation.
10. Heard learned counsel Sri S.K.Kayakamath, appearing for the Insurance Company and learned counsel Sri L.K.Gurav appearing for claimants.
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11. Learned counsel for the appellant- Insurance Company would contend that the accident had occurred on 06.01.2000 and the deceased was died on 08.08.2000. There was no postmortem of the deceased conducted to know the cause of death. The Tribunal came to the conclusion that the death had resulted due to the injuries sustained by road accident without any basis as the deceased had suffered only fracture of upper end tibia and lower end of femur.
12. On the other hand learned counsel appearing for the claimants would support the judgment and award passed by the Tribunal and would submit that the death was only due to the injuries sustained in the road accident.
13. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the record. 8
14. Admittedly, the accident took place on 06.01.2000. The injuries sustained by the deceased in the accident was a fracture of right knee joint and right shoulder, for which, the deceased took treatment at Ganga Surgical and Fracture Clinic, Gokak from 27.04.2000 to 24.05.2000. There is no other evidence produced by the claimants to show that the deceased was on continuous treatment right from 06.01.2000 up to the date of his death i.e., on 08.08.2000. Ex.P.7-discharge care with the history of the deceased issued by Ganga Surgical and Fracture Clinic, Gokak, which shows that the deceased had sustained fracture of right shoulder and right knee in the vehicular accident about four months ago and was treated in Miraj Hospital. But there is no document produce to show that, the deceased had taken treatment at Miraj Hospital.
15. The evidence of the doctor-PW.2, in his examination has only stated that he has seen the 9 deceased after the road accident and the fracture of the deceased was non-united when the patient to his hospital for further treatment. But the fact remains that the claimants did not produce any evidence to show that the deceased had taken treatment except for Ex.P.7, which is between 27.04.2000 to 24.05.2000. The injuries sustained by the deceased in the road accident as stated hereinabove are not the injuries that can cause death of the deceased. It is not the evidence of the doctor-PW.2 that, the cause of death are the injuries sustained by him.
16. The Tribunal without there being any evidence on its own Ipse Dixit holds that the death of the deceased is due to the injuries sustained by him. There is no evidence of nexus between the death of the deceased and injuries sustained by him. Hence, finding of the Tribunal taking the cause of death is due to the injuries 10 sustained by him in the road accident and award the compensation is erroneous and is set aside.
17. However, that would not mean to claimants would not be entitled to any compensation whatsoever. The claimants have produced medical bills at Ex.P.8 claiming to have spent Rs.32,576/- for the treatment of the deceased prior to his death. Hence, the claimants are entitled to the said amount.
18. Though the claimants would not be entitled to any compensation on account of loss of dependency but would be entitled to a sum of Rs.40,000/- towards consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards loss of funeral expenses in terms of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi And Others reported in AIR 2017 SC 5157.
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19. Thus, the claimants are entitled to a total compensation at Rs.1,02,576/- as against Rs.5,01,000/- awarded by the Tribunal. Hence, the compensation of Rs.5,01,000/- awarded by the Tribunal is reduced to Rs.1,02,576/-. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part. The amount in deposit before this Court, if any, shall be transmitted to the Tribunal forthwith.
Sd/-
JUDG E EM/-