Karnataka High Court
Padmavathi W/O Nijalingappa Patil vs Rajesh Ningappa Patil on 1 February, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
MFA NO.31235/2010 (MV)
BETWEEN:
1. Padmavathi W/o Nijalingappa Patil
Aged about 50 Years
Occ: H.H. Work
2. Basavaraj Nijalingappa Patil
S/o Nijalingappa Patil
Aged about 31 Years
Occ: Coolie / Student
3. Vijayalaxmi D/o Nijalingappa Patil
Aged about 29 Years
Occ: H.H. Work
4. Shoba D/o Nijalingappa Patil
Aged about 26 Years
Occ: H.H. Work
5. Jayashree D/o Nijalingappa Patil
Aged about 23 Years
Occ: H.H. Work
6. Soubhagya D/o Nijalingappa Patil
Aged about 21 Years
Occ: H.H. Work
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7. Ashwini D/o Nijalingappa Patil
Aged about 18 Years
8. Pooja D/o Nijalingappa Patil
Aged about 16 Years,
Since minor, represented by her
natural mother Appellant No.1
All are R/o C/o M.G. Hiremath
Kasageri Lane, Bijapur
... Appellants
(Smt. Shailaja C.D. Advocate for
Smt. Ratna Shivayogimath, Advocate)
AND:
1. Rajesh Ningappa Pujari
Age: 41 Years
Occ: Owner of Tempo, Business
R/o Jakaki, Solapur Taluka
2. The Branch Manager
The Oriental Insurance Co. Ltd.,
Bijapur
... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R2;
Notice to R1 dispensed with V/O Dated 19.10.2010)
This Miscellaneous First Appeal is filed under
Section 173(1) of Motor Vehicles Act, praying to set
aside the judgment and award dated 13.11.2009 passed
by the learned MACT No.IV, Bijapur in MVC
No.428/2005 and award compensation of
Rs.11,50,000/- as prayed in the claim petition.
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This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
The claimants are before this Court as appellants assailing the judgment and award dated 13.11.2009 in MVC No.428/2005 passed by the MACT No.IV, Bijapur.
2. For the sake of convenience the parties to the appeal are referred to as per their rank before the Tribunal.
3. The claimants are the wife and children of deceased Nijalingappa Patil. The claimants approached the Tribunal under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.13,00,000/- for the death of deceased Nijalingappa Patil in the road traffic accident, which took place on 28.07.2002 when the deceased Nijalingappa Patil was travelling in an Auto-rickshaw bearing Reg.No.MH-09/2079, a Jeep bearing Reg.No.MH-13/F-9041 came in a high speed, 4 rash and negligent manner and dashed to the aforesaid Auto-rickshaw. As a result of which, deceased Nijalingappa Patil sustained grievous injuries, he was initially admitted to BLDE Hospital at Bijapur, thereafter he was shifted to Ashwini Hospital, Solapur. It is the case of the claimants that deceased Nijalingappa Patil was admitted to Ashwini Hospital, Solapur on 29.07.2002 and he was discharged on 03.02.2003. After more than two years from the date of discharge from the Ashwini Hospital, Solapur, deceased Nijalingappa Patil died on 15.04.2005. The claimants have filed claim petition after his death claiming compensation.
4. The insurance company appeared and filed its objection contending that a false claim petition has been filed by the claimants and contended that claimants have to prove the death of deceased 5 Nijalingappa Patil is due to injury sustained by him in the road traffic accident.
5. The Tribunal held that death of deceased Nijalingappa Patil is not due to accidental injuries and accident has no nexus with the death of deceased Nijalingappa Patil, though awarded a sum of Rs.1,50,000/- towards the medical bills, etc.
6. The claimants are before this Court not being satisfied with the compensation awarded by the Tribunal by contending that the death is due to the injuries suffered by the deceased in the road traffic accident, which took place on 28.07.2002.
7. The claimants in this appeal have filed two applications viz., I.A.No.1/2014 under Order XLI Rule 27 of Code of Civil Procedure (for short 'CPC') seeking production of additional documents such as, discharge summary dated 12.07.2010 and patient bill dated 6 11.11.2010 said to have been issued by the Ashwini Sahakari Rugnalaya Ani Sanshodhan, Solapur, I.A.No.2/2014 under Section 151 of CPC seeking to refer the original case sheet and discharge summary to expert to ascertain exact cause for death.
8. Learned counsel for the insurance company opposed both I.A.No.1/2014 and I.A.No.2/2014, whereby she prayed to reject the applications.
9. Heard both learned counsel and gone through entire case paper placed on record.
10. Learned counsel for the claimants submits that the Tribunal committed an error in coming to the conclusion that the death of deceased Nijalingappa Patil has no nexus to the injuries suffered by him in the accident which took place on 28.07.2002. It is further submitted that the death of deceased Nijalingappa Patil is due to the multiple injuries suffered by him in the 7 accident. Further, she submits that I.A.No.1/2014 is filed under Order XLI Rule 27 of CPC to produce additional documents, such as, discharge summary dated 12.07.2010 and the patient bill dated 11.11.2010. Further, I.A.No.2/2014 is filed seeking for a direction to refer those documents for expert opinion. Further, she submits that if the discharge summary is referred to expert seeking his opinion, it would assist in coming to just and proper conclusion.
11. Per contra, learned counsel appearing for insurance company submits that the accident had taken place on 28.07.2002, whereas the deceased was admitted to Ashwini Hospital, Solapur on 29.07.2002 and discharged on 03.02.2003 and the death of deceased has taken place on 15.04.2005. Therefore, she submits that there is no nexus between death and the injuries due to accident in question. The evidence of P.W.2-Doctor also would not support the contention of 8 the claimants. Further, learned counsel appearing for insurance company submits and points out that discharge summary is obtained after more than five years from the date of death of deceased Nijalingappa Patil and she submits that the discharge summary is in hand writing and it cannot be considered as discharge summary. Normally, discharge summary would indicate the treatment to patient from the date he enters the hospital till he is discharged including the medicines administered to the patient. But, the document sought to be referred to handwriting expert is a hand written one, that too without any particulars as to the treatment given to the patient during the period from 29.07.2002 to 03.02.2003, which means the deceased was in hospital for more than six months. Further, she submits that discharge summary produced is duplicate one and there is no necessity to refer the same to the expert opinion.
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12. In the light of the submission of both the counsel and on going through the judgment and award, the only question which arises for consideration in this appeal is as under;
"Whether the deceased Nijalingappa Patil died due to the injuries suffered by him in the road traffic accident that took place on 28.07.2002 and whether there was nexus between the injuries and the cause of death of deceased Nijalingappa Patil on 15.04.2005?"
13. The accident took place on 28.07.2002. The deceased was admitted to Ashwini Hospital, Solapur on 29.07.2002 and he has taken treatment at the said hospital for about more than six months as an inpatient and discharged from the hospital on 03.02.2003. More than two thereafter, Nijalingappa Patil died on 15.04.2005. The death is after more than two years from the date of discharge from the Ashwini Hospital, Solapur. No doctor from the Ashwini Hospital, Solapur is examined. The doctor who examined in the case as 10 P.W.2 is not a treated doctor. Further, the claimants have not produced post-mortem report of the deceased. If they had produced post mortem report, it would have been the best evidence to indicate the reason for the death of Nijalingappa Patil. In the absence of post- mortem report, it cannot be held that deceased died due to accidental injuries suffered by him. Moreover, there is no other evidence to connect the death of deceased Nijalingappa Patil to the accidental injuries.
14. Further, the documents produced along with the application in I.A.No.1/2014 what is to be noted is that the discharge summary is a hand written one, which is not in the format of Discharge summary. The discharge summary normally indicates the entire particulars of a patient from the day he enters the hospital till he comes out from the hospital. Further, the discharge summary would indicate the treatment given by the hospital and also medicine administered to 11 the patient. The discharge summary would also indicate normally the operation and treatment given to the patient by the doctor during the period of stay of patient in the hospital. The discharge summary produced by the claimants would on its perusal indicate that it is a duplicate one which is dated 12.07.2010. The next document which is styled as patient bill dated 11.11.2010 is a certificate of fee paid, which document is also much after the date of discharge summary. Taking into consideration all these dates and the nature of discharge summary, they would not inspire the confidence of this Court and the said documents cannot be believed as true. Under these circumstances, I.A.No.1/2014 and I.A.No.2/2014 are hereby rejected.
Consequently, appeal is also dismissed as the claimants have failed to satisfy this Court with material evidence to establish the nexus of injuries suffered by the deceased Nijalingappa Patil to the death on 12 15.04.2005 by answering the point raised for consideration in favour of insurance company and against the claimants.
Sd/-
JUDGE BL