IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.88/2012 (MV) BETWEEN:
Doddaiah S/o Late Arechandrappa Aged about 43 years R/o R.Hosakote Village Pavagada Taluk Now R/at C/o Chikkathimmaiah Upparahalli extension Tumkur Town Since deceased by LRs 1. Lakshmamma W/o Late Doddaiah Aged 50 years R/o R.Hosakote village Rajavanthi Post Pavagada, Tumkur 2. Upendra S/o Late Doddaiah R/o R.Hosakote village Rajavanthi Post Pavagada, Tumkur ... Appellants (By Sri S.P.Shankar, Senior Counsel for Smt. Mamata G Kulkarni, Advocate) AND:
1. K.R.Dyavanna S/o Rangappa Aged about 48 years R/o Jyothinagar Sira Town 2. The New India Assurance Co.Ltd., Branch Office, Tumkur Shopping Complex B.H.Road, Tumkur Town ... Respondents (By Sri G.Narasi Reddy, Advocate for R1 & Smt. Y. Aruna, Advocate for R2) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 13.10.2011 passed in MVC No.191/2008 on the file of the Principal Senior Civil Judge and CJM, Tumkur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal coming on for final hearing this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal by its judgment and award dated 13.10.2011 passed in MVC No.191/2008, whereby a sum of Rs.1,05,329/- with interest @ 6% per annum from the date of petition, till payment was awarded towards the injuries sustained by the claimant in a road traffic accident which occurred on 26.09.2007, involving a Tempo bearing Reg.No.KA-06 A-4886, which was insured with the second respondent herein.
2. It is the case of the claimant that on 26.09.2007 at about 7.00 am, he was sitting on the extreme end of the left side of the road in front of SSSK Community Centre Pavagada, waiting for a Bus to go to his native place and at that time, the driver of the Tempo bearing Reg.No.KA-06 A- 4886 came in a rash and negligent manner from bus stand side and dashed against him and due to the said accident, he sustained injuries. After the accident, he was shifted to General Hospital, Pavagada and from there, he was shifted to Government Hospital, Tumakuru and again he was shifted to Victoria Hospital, Bengaluru and admitted as an inpatient and took treatment for all most two months. During the said period of treatment, he underwent surgical operation to the fractures sustained to both bones of left leg, which ultimately resulted in amputation of left leg above knee.
3. Claim petition was filed seeking total compensation of Rs.15,00,000/-. Before the Tribunal, the claimant got himself examined as PW-1 and examined another witness as PW-2. Exs.P.1 to P.18 were marked.
4. The claim petition was opposed by the respondent No.2/insurance company. Ex.R.1-Insurance policy was marked on behalf of respondents. However, no witnesses were examined. The Tribunal, considering the evidence and material on record, awarded a total compensation of Rs.1,05,329/- under the following heads:
Injuries, Pain and Suffering Rs.17,000.00 Loss of amenities Rs.5,000.00 Medical Expenses Rs.25,929.00 Loss of earning during treatment Rs.400.00 Loss of future earning Rs.54,000.00 Conveyance, attendant and nourishment charges Rs.3,000.00 Total Rs.1,05,329.00 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent No.2/insurance company.
6. Learned Senior Counsel Sri S.P.Shankar, appearing for the appellants submitted that the injured / claimant was shifted to the hospital immediately after the accident and on 01.10.2007, a surgery was conducted and his left leg was amputated. He further submitted that, according to the Doctor/PW-2, the claimant suffered 95% disability to the limb and 48% to the whole body, however, the Tribunal has taken the disability to the whole body at 10% and the loss of future earning capacity was calculated taking the disability to the whole body at 10%, which is unsustainable. He would further contend that the total compensation awarded by the Tribunal is very meager and not commensurate with the injuries sustained by the claimant.
7. The learned Senior Counsel would bring to the notice of this Court that the appellant/claimant died on 23.08.2013 during the pendency of this appeal and his legal representatives are already brought on record. He would submit that the death was on account of the injuries sustained in the accident and there is nexus between the injuries and the death and therefore, this Court has to consider this case as a case of death and not as a case of injury.
8. The above submission is vehemently opposed by the learned counsel appearing for the respondent No.2/insurance company. She would vehemently contend that there is nothing to show that the death of the claimant is on account of the injuries sustained in the road traffic accident which occurred on 26.09.2007. She would contend that even the amputation of the left leg of the claimant is also due to gangrene and it is not an accidental injury. Hence, she submits that percentage of disability taken by the Tribunal is in accordance with law and the total compensation which is awarded is also just and proper, which does not call for any interference. However, she submits that if the Court is inclined to accept the submission of the learned counsel for the appellant, then sufficient opportunity has to be given to the insurance company to put forth its defense and to contest the matter. For that, the matter has to be remanded back to the Tribunal to proceed in accordance with law.
9. It is the submission of the learned Senior Counsel appearing for the appellants that the original appellant in the present appeal died on 23.08.2013 on account of the injuries, which he suffered in the accident since there is nexus between the injuries sustained by him and his death. The Tribunal has awarded compensation for the injuries sustained by the claimant. Hence, to consider this appeal as a case of death in the absence of any evidence establishing the same may not be proper. However, at the same time, the appellants now before this Court cannot be denied an opportunity to establish their case that the injured died on account of the accident in question. Even otherwise, the total compensation awarded by the Tribunal is not commensurate with the injuries sustained by the claimant before the Tribunal. Hence, In my view, it is just and proper to give an opportunity to both side to lead evidence so as to substantiate their contention for arriving at a just and reasonable compensation.
10. In that view of the matter, without going into the merits of the case, the matter is to be remanded back to the Tribunal for giving opportunity to both the sides, whereas the claimants who are now the legal representatives of the deceased shall have to lead evidence in support of their case and in that event, the Tribunal shall give sufficient opportunity to the respondent No.2/insurance company to contest. Hence, the following:
ORDER The appeal is allowed.
The judgment and award dated 13.10.2011 passed in MVC No.191/2008 on the file of the Principal Senior Civil Judge and CJM, Tumakuru is set aside.
The matter is remitted back to the Tribunal. The Tribunal shall give opportunity to both sides to lead additional evidence in addition to the evidence already on record and then conclude the trial and dispose of the case in accordance with law as expeditiously as possible.
The parties are directed to appear before the Tribunal on 23.02.2019.
Send back the LCR forthwith.
Kmv/-
Sd/- JUDGE