Karnataka High Court
The Manager, Hdfc Ergo vs Mohammed Ibrahim S/O Mohammed Yusuf @ ... on 12 October, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC-K:8200
MFA No. 201825 of 2018
C/W MFA No. 201006 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 201825 OF 2018 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 201006 OF 2018 (MV-D)
IN MFA NO:201825/2018:
BETWEEN:
MOHAMMED IBRAHIM
S/O MOHAMMED YUSUF
@ ISUMUDDIN SAHEB (DEAD BY LR's)
1. RASHEEDA BEGUM
W/O LATE MOHAMMED IBRAHIM,
AGE:40 YEARS, OCC: HOUSEHOLD,
2. FARAQUNDA BEGUM
Digitally signed D/O LATE MOHAMMED IBRAHIM,
by LUCYGRACE
Location: HIGH
AGE:18 YEARS, OCC: STUDENT,
COURT OF
KARNATAKA 3. SAMIYA D/O LATE MOHAMMED IBRAHIM,
AGE:17 YEARS, OCC: STUDENT,
THE APPEALLANT NO.3 IS MINOR R/BY
NATURAL GUARDIAN MOTHER APPELLANT NO.1,
RASHEEDA BEGUM
W/O LATE MOHAMEED IBRAHIM.
ALL ARE R/O H.NO.7-18, MOMINPURA,
KALABURAGI-585 102.
...APPELLANTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
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NC: 2023:KHC-K:8200
MFA No. 201825 of 2018
C/W MFA No. 201006 of 2018
AND:
1. SYED QUBALULLAHA HUSSAINI
S/O SYED NAZEER HULLAH,
AGE: 55 YEARS, OCC: BUSINESS,
R/O H.NO.5-30M BAKSHI HAVELI,
ROZA (B), KALABURAGI-585 102.
2. GAFFUR AHMED S/O MOHD. ISMAIL,
AGE: 53 YEARS, OCC: BUSINESS,
R/O H.NO.7-3501, BILALABAD,
MOMINAPUR, KALABURAGI-585 102.
3. THE MANAGER,
THE HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE, 1ST FLOOR,
VIRUPAX KRUPA, OPP: AIMS,
MAIN GATE RD ROAD, VIDYA NAGAR,
HUBLI-580 001.
...RESPONDENTS
(BY SMT.PREETI PATIL MELKUNDI, ADV. FOR R3;
V/O DATED 29.07.2022 NOTICE TO R2 IS HELD SUFFICIENT;
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 15.03.2018 PASSED IN MVC NO.191/2013
ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL KALABURAGI AT KALABURAGI.
AND ALLOW THIS APPEAL IS ENHANCING THE COMPENSATION
AMOUNT BY Rs.6,82,000/- ONLY AS CLAIMED BY THE
APPELLANTS BEFORE THIS HON'BLE COURT. IN THE INTEREST
OF JUSTICE AND EQUITY.
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NC: 2023:KHC-K:8200
MFA No. 201825 of 2018
C/W MFA No. 201006 of 2018
IN MFA NO.201006/2018:
BETWEEN:
THE MANAGER,
HDFC ERGO GENERAL INS. CO. LTD.,
DIVISIONAL OFFICE,
1ST FLOOR, VIRUPAX KRUPA,
OPP: AMIS, MAIN GATE RD ROAD,
VIDYA NAGAR, HUBLI-580 001.
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, BANGALORE)
...APPELLANT
(BY SMT.PREETI PATIL MELKUNDI, ADVOCATE)
AND:
MOHAMMED IBRAHIM
S/O MOHAMMED YUSUF @
ISUMUDDIN SAHEB (DEAD BY L.Rs)
1. RASHEEDA BEGUM
W/O LATE MOHD. IBRAHIM,
AGE: 40 YEARS,
OCC: HOUSEHOLD
3. FARAQUNDA BEGUM
D/O LATE MOHD. IBRAHIM,
AGE: 18 YEARS, OCC: STUDENT
3. SAMIYA D/O LATE MOHD. IBRAHIM,
AGE: 17 YEARS, MINOR, OCC: STUDENT,
THE RESP. NO.3 IS MINOR UNDER
GUARDIANSHIP OF RESP.NO.1/NATURAL
MOTHER.
ALL R/O H.NO.7-18, MOMINPURA,
KALABURAGI-585 101.
4. SYED QUBALULLAH HUSSAINI,
S/O SYED NAZEER HULLAH,
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NC: 2023:KHC-K:8200
MFA No. 201825 of 2018
C/W MFA No. 201006 of 2018
AGE: 55 YEARS, OCC: BUSINESS,
R/O: HOUSE NO.5-30,
BAKSHI HAVELI, ROZA (B),
KALABURAGI-585 101.
(DRIVER OF INSURED M/C)
5. GAFFUR AHMED
S/O MOHD. ISMAIL,
AGE: 53 YEARS, OCC: BUSINESS,
R/O H.NO.7-3501,
BILALABAD, MOMINAPUR,
KALABURAGI-585 101.
...RESPONDENTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADV. FOR R1 TO R2;
[R3 IS MINOR U/G OF R1]
V/O DATED 10.08.2021 NOTICE TO R4 IS DISPENSED WITH;
V/O DATED 26.05.2022 SERVICE OF NOTICE TO R5 IS HELD
SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE
APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 15.03.2018 IN MVC NO.191/2013 PASSED BY
THE III ADDL. SENIOR CIVIL JUDGE AND M.A.C.T
KALABURAGI.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05-10-2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 15.03.2018 passed by III Addl. Senior Civil Judge and MACT, Kalaburagi, in MVC no.191/2013, these appeals are filed. -5-
NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018
2. MFA no.201006/2018 is filed by insurer challenging liability of insurer on ground of no nexus between death and injuries sustained in accident and on quantum of compensation, whereas MFA.no.201825/2018 is filed by claimants for enhancement of compensation.
3. Smt.Preeti Patil Melkundi, learned counsel for appellant submitted that as per claimants on 10.09.2012 when Mohammed Ibrahim was at Jagat Circle with his fruit cart, rider of motorcycle bearing registration no.KA-33/H- 2415 rode it in rash and negligent manner and dashed against Mohammed Ibrahim causing injuries. Immediately, he was shifted to KBN hospital, Gulbarga. Claiming compensation Mohammed Ibrahim filed claim petition claiming compensation against rider, owner and insurer of motorcycle. During pendency of claim petition, Mohammed Ibrahim died on 13.06.2014 and his legal representatives were brought on record. Since, they alleged that death -6- NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018 was due to injuries sustained in accident, tribunal re- casted issue no.1.
4. On service of notice, both rider and owner did not appear. They were placed ex-parte. Insurer filed objections opposing claim petition on all counts including denying death was due to injuries sustained in accident and alleging violation of terms and conditions of policy.
5. Based on pleadings, tribunal framed issues and recorded evidence. Claimant no.1 was examined as PW.1 and Dr.Mohammed Ibrahim as PW.2. Exs.P.1 to P.17 were got marked. Official of insurer was examined as RW.1.
6. On consideration, tribunal held that accident was due to rash and negligent riding of insured vehicle by its rider and Mohammed Ibrahim died due to injuries sustained in accident. It assessed compensation of `8,98,000/- and held insurer liable to pay same with 6% interest.
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7. Assailing said award, it was submitted that as per Ex.P.5 - wound certificate injuries sustained in accident were fracture of right tibia and fibula. Though, claimants led evidence to indicate that Mohammed Ibrahim was under treatment from date of accident i.e. 10.09.2012 to 30.09.2012 at KBN Hospital, Kalaburagi, for first time and re-admitted for treatment on 08.10.2012 till discharge on 08.05.2013. But, as per Ex.P.16, he died more than one year later on 13.06.2014. As admitted by PW.2 - doctor, death was due to Cardiac arrest secondary due to Myocardial Infraction. No Post-Mortem examination was conducted. PW.2 also admitted that at time of discharge all injuries were healed. This would establish that death of Mohammed Ibrahim was not due to injuries sustained in accident and insurer would not be liable to pay compensation. On said ground, sought for allowing appeal.
8. On other hand, Sri Bapugouda Siddappa, learned counsel for claimants/appellants submitted that as -8- NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018 per Ex.P.16, Mohammed Ibrahim died in Hospital. PW.2 had deposed that even after discharge from Hospital, he was treating him. This would provide causal connection to accidental injuries and death. Relying upon decisions of this Court in Jacob & Anr. Vs. Oriental Ins. Co., Ltd., & Anr. (MFA.no.4520/2006 disposed of on 04.03.2010) and Basavaraj (dead by LRs) Vs. Sheik Arif & Ors. (MFA.no.32243/2010 disposed of on 10.09.2014), it was submitted that claim for compensation of loss of dependency would be tenable in case of death of injured- claimant during pendency of claim petition, due to injuries sustained in accident.
9. For enhancement, it was submitted that deceased - Mohammed Ibrahim was 35 years of age, and earning `12,000/- per month from fruit selling. However, tribunal considered notional income at `6,000/- and without adding future prospects, awarded inadequate compensation and even award under other heads called for enhancement.
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NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018
10. Heard learned counsel for parties. Perused impugned judgment and award as well as copies of Exhibits and depositions made available by learned counsel.
11. From above submission, following points would arise for consideration :
"(i) Whether finding of tribunal that death of Mohammed Ibrahim was due to injuries sustained in accident and insurer was liable to answer death claim, calls for interference ?
(ii) Whether claimants are entitled for enhancement of compensation?"
Point no.(i) :
12. In order to establish actionable negligence against respondents, claimants relied on FIR, Complaint, Charge Sheet, Crime details form, Motor Vehicles report, Wound Certificate, Discharge cards, Treatment Reports, Death Certificate and Endorsement marked as Exs.P.1 to P.17. Admittedly, prosecution records, FIR, Complaint and Charge sheet - Exs.P1 and P.2 reveals offence for causing
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NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018 injuries by rash and negligent driving. Exs.P.6 and 7 - discharge summaries issued by KBN Hospital, Kalaburagi, show inpatient treatment from 10.09.2012 to 30.09.2012 and 08.10.2012 to 08.05.2013. Exs.P.8 to P.15 - lab reports dated 09.10.2012 do indicate pus formation. Ex.P.16 - death certificate of Mohammed Ibrahim shows place of death as District Hospital Kalaburagi and Ex.P.17 is letter written by claimants to District Surgeon submitted through advocate after filing claim petition seeking for issuance of discharge summary and case-sheet stating that Mohammed Ibrahim was under treatment at time of his death on 13.06.2014. Even if records were not furnished in response to it, nothing prevented claimants from seeking for summoning to get Hospital records.
13. PW.1 admitted that her husband was admitted in Hospital only twice. She also admitted that no records were produced indicating hospitalisation in government Hospital. And further admitted that no Post-Mortem examination was conducted. PW.2 also admitted twice in
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NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018 his deposition that all injuries sustained by deceased were healed at time of discharge. He also stated that death was due to Cardio-respiratory failure and secondary to Myocardial Infraction and admission of Mohammed Ibrahim was not as MLC. Despite, stating that he had treated deceased apart from during hospitalisation, no records or particulars were produced. Even in this appeal, there was ample opportunity for furnishing of records. Thus, adverse inference has to be drawn. Consequently, point no.1 is answered in affirmative. Point no.(ii):
14. In view of finding on point no.1 above that death was not due to injuries sustained in accident, claimants would at best be entitled for compensation only as injury claim. In view of death of claimant, there cannot be award of compensation towards 'pain and suffering' and 'loss of amenities' etc. But, claimants would be entitled for reimbursement and other incidental expenses. But, claimants have not produced medical bills, prescriptions or
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NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018 receipts for having spent money. Considering duration of inpatient treatment period mentioned in Exs.P.6 and 7 which would be 231 days, it would be appropriate to award lumpsum amount of `1,00,000/- towards 'medical and other incidental expenses'.
15. From above findings, instead of dismissing claim petition for failure to establish nexus between injuries and death, it would be appropriate to restrict award to 'medical and incidental expenses'. Point no.2 answered accordingly.
16. Consequently, following :
ORDER
(i) MFA no.201006/2018 filed by insurer is allowed in part, impugned award dated 15.03.2018 passed by III Addl. Senior Civil Judge and MACT, Kalaburagi, in MVC no.191/2013 is modified. Claimants are held entitled for award of Rs.1,00,000/-
only with interest at 6% p.a. from date of petition till payment.
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NC: 2023:KHC-K:8200 MFA No. 201825 of 2018 C/W MFA No. 201006 of 2018
(ii) Amount in deposit is ordered to be transmitted to tribunal for payment. Balance if any shall be deposited within period of six weeks. If amount deposited is in excess, same shall be refunded to insurer.
(iii) In view of order passed in insurer's appeal as above, MFA.no.201825/2018 is disposed of.
(iv) On deposit, compensation shall be released to claimants.
Sd/-
JUDGE psg* List No.: 1 Sl No.: 23