Karnataka High Court
Smt Athijamma vs Thalakkara Moideen on 9 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2451/2013 (MV-D)
BETWEEN:
1. SMT. ATHIJAMMA,
W/O LATE ABDUL KHADER,
AGED ABOUT 63 YEARS.
2. IBRAHIM,
S/O LATE ABDUL KHADER,
AGED ABOUT 43 YEARS.
3. SMT. ZAINABA,
W/O ABDUL FATHAH,
AGED ABOUT 38 YEARS.
4. SMT. MAIMOONA,
W/O HAMEED,
AGED ABOUT 36 YEARS.
ALL ARE R/A MANALNAGAR,
NATEKLA MANJANADY VILLAGE,
MANGALORE TALUK,
D.K. DISTRICT-575017.
...APPELLANTS
(BY SMT. NEERAJA KARANTH, ADVOCATE FOR
SRI K. SHRIHARI, ADVOCATE)
AND:
1. THALAKKARA MOIDEEN,
S/O ALAVI, MAJOR,
R/At THOOMINAL HOUSE,
2
P.O. KUNJATHUR, MANJESHWAR,
KASARGOD DISTRICT,
KERALA STATE-670121.
(OWNER VEHICLE BEARING NO.KL 10 G 6624).
2. M/S NATIONAL INSURANCE CO. LTD.,
REP BY ITS MANAGER,
III FLOOR, HIGH LANE PLAZA,
M.G. ROAD, KASARGOD,
KASARGOD DISTRICT,
KERALA STATE-671121.
(INSURER VEHICLE BEARING NO.KA 10 G 6624).
3. SAYYAD YAKOOB,
MAJOR,
R/At SHEHNAZ MANZIL,
VII/125, BAPAITHOTTY,
P.O. UPPALA, KASARGOD DISTRICT,
KERALA STATE-670121.
(OWNER VEHICLE BEARING NO.KL 10 D 3978).
4. M/S NATIONAL INSURANCE CO. LTD.,
REP BY ITS MANAGER,
III FLOOR, HIGH LANE PLAZA,
M.G. ROAD, KASARGOD,
KASARGOD DISTRICT,
KERALA STATE-671121.
(INSURER VEHICLE BEARING NO.KA 10 3978).
... RESPONDENTS
(BY SRI SHUBHAM N.M., ADVOCATE FOR
SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2 AND R4;
R1 & R3 ARE SERVED AND UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.11.2012 PASSED
IN MVC NO.1438/2003 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, MEMBER, MACT, MANGALORE DISMISSING THE
CLAIM PETITION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel appearing for the respective parties.
2. This appeal is filed by the claimants challenging the judgment and award dated 21.11.2012 passed in M.V.C.No.1438/2003, on the file of the Principal Senior Civil Judge, Member, MACT, Mangalore ('the Tribunal' for short).
3. The factual matrix of the case of the claimants before the Tribunal is that on 17.08.2003 at 2.00 p.m., when the injured was traveling in a bus bearing No.KL-10-D-3978 on NH- 17, near Tumminad, Kunjathur Village, Kasaragod Taluk, the driver of the jeep bearing No.KL-10-G-6624 drove the same negligently from opposite direction and dashed the same to the bus and as a result, the injured fell inside the bus and suffered injuries. Immediately after the accident, he was shifted to hospital wherein he took the treatment for a period of three days and again for a period of three days, in total for six days, and he had sustained the injury of fracture of femur and he was taking the follow-up treatment.
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4. The learned counsel for the appellants/claimants submits that P.W.2 and P.W.6 are the doctors, who have treated the injured. Even after the discharge also, he was continuously taking treatment and also it is the evidence of P.W.2 that the fracture was not united. P.W.5 also claims that he took the injured to the Ayurvedic Hospital for treatment and P.W.6 says that the injured was taking treatment with him. To that effect, he has issued the medical certificate Ex.P.5. Hence, the evidence of these witnesses has not been properly considered by the Tribunal. The learned counsel submits that earlier the claim petition was allowed and the same was challenged in M.F.A.No.1231/2009 and this Court set aside the matter and remanded for fresh consideration and after the remand only P.W.5 and P.W.6 are examined to substantiate the claim of the claimants. Even after the examination of P.W.5 and P.W.6 also, the Tribunal committed an error in dismissing the claim petition. Hence, it requires interference of this Court.
5. Per contra, the learned counsel for the respondent Insurance Company submits that earlier the Tribunal awarded compensation for loss of dependency and other heads and the same was challenged and this Court while remitting back the 5 matter to the Tribunal made an observation that there is no clinching evidence to connect the accidental injuries and cause of death and also taken note of the evidence of P.W.2, who admitted that he cannot tell the reason for his death, but he has sated that there are chances of leading to death on account of accidental injuries, but no document is placed on record before the Court that after the treatment of six days in 2003, he died in 2005. After the remand, though the claimant examined P.W.5 and P.W.6, their evidence not supports the case of the claimants to substantiate that on account of accidental injuries he died and hence the Tribunal has not committed any error in dismissing the claim petition.
6. Having heard the respective learned counsel and also on perusal of the material available on record, it is not in dispute that the accident was occurred on 17.08.2003 and it is also not in dispute that he had sustained the injury of fracture of femur. The records discloses that at the first instance he was an inpatient for a period of three days and again for three days, in total for six days. No doubt, the claimants after the remand of the matter, examined P.W.5 and P.W.6. P.W.5 claims that he took the injured to Ayurvedic Hospital, but with regard to the 6 taking of treatment, no document is placed on record before the Court. The learned counsel for the claimants brought to the notice of this Court the examination of P.W.6, who treated the injured at the first instance. P.W.6 claims that the injured was taking the follow-up treatment. The document at Ex.P.5 is issued that he took the follow-up treatment. To substantiate the medical certificate issued in terms of Ex.P.5 for having given the follow-up treatment to the injured, no document is placed on record. It is important to note that the injured took the treatment in 2003 and died in 2005 and in between 2003 to 2005, no documents are placed on record.
7. This Court while setting aside the earlier order and remanding the matter vide order dated 05.09.2011, discussed in detail regarding evidence on record and also taken note of Ex.P.5 medical certificate dated 20.02.2008 issued to P.W.2, wherein it is stated that he was an inpatient from 17.08.2003 to 19.08.2003 and thereafter he was taking follow-up treatment. Subsequently, the injured developed infection of the fracture site. It is also stated that he was advised hospitalization for further investigation and management. On 26.06.2005, the injured developed septicemia due to infection of the 7 intertrochanteric fracture and died due to injuries sustained by him. But, in the cross-examination of P.W.2, he admits that he has not definitely stated that death was due to injuries sustained by the injured in the motor accident. However, he volunteers that the injury, which he had sustained may lead to death. This Court also taken note of that there is no post mortem report and no satisfactory evidence to establish that the injured died on account of septicemia alone and hence directed the Tribunal to consider the matter for fresh disposal.
8. The witnesses P.W.5 and P.W.6 have been examined subsequent to the remand. P.W.5 says only with regard to he took the injured to Ayurvedic Hospital and to substantiate the same, no document is placed on record, except oral evidence of P.W.5. Apart from that, P.W.6 also says that he had given follow-up treatment to the injured and except the oral evidence of P.W.6, no documents are placed before the Tribunal with regard to taking of treatment from 2003 to 2005 and even after the remand also, no substantial material is placed before the Tribunal in order to come to a conclusion that he died on account of accidental injuries only. If the claimants fail to establish that he was in continuous treatment for accidental injuries and the 8 nature of injures also only fracture of femur and in order to substantiate the contention that he has developed septicemia also, no such material is placed before the Court except the self- statement that he had developed septicemia. No doubt, the doctor in the certificate, which was issued in 2008 says that he had developed septicemia, but no documentary evidence is placed before the Court and on what basis he gave the certificate also, no reference at all. When such being the material available on record, even after the remand also the claimants have failed to prove that the death was on account of accidental injuries and cause of death is also on account of accidental injuries and hence I do not find any error committed by the Tribunal in not accepting the case of the claimants that the death is on account of accidental injuries.
9. However, the Tribunal has not considered the material on record with regard to the treatment which he had taken at the first instance for three days and again for three days, in total for six days. The claimants have produced the medical bills to the tune of Rs.13,740/- and even though taken note of the same and he was an inpatient for a period of six days, the Tribunal not awarded any compensation under the 9 head medical expenses, which has been incurred by the injured while taking treatment and ought to have considered the medical bills with regard to the injuries which he had sustained and consequent upon the injury, he had incurred the expenses towards medical expenses. Hence, it is appropriate to award an amount of Rs.20,000/- including the medical expenses of Rs.13,740/- and other incidental expenses since he was an inpatient for a period of six days and the Insurance Company is directed to pay the compensation of Rs.20,000/-.
10. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 21.11.2012 passed in
M.V.C.No.1438/2003, is modified granting
compensation of Rs.20,000/- with interest at 9% per annum from the date of petition till deposit.
(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.10
(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE SN/MD