IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.399 OF 2019 (MV-D) BETWEEN:
1. SRI VINCENT RAJ R.
S/O. LATE RAJAMANIKYAM, AGED ABOUT 43 YEARS.
2. MS. EMY VYDURYAA D/O. VINCENT RAJ, AGED ABOUT 15 YEARS, SINCE MINOR, REPRESENTED BY HER FATHER AND NATURAL GUARDIAN, VINCENT RAJ R.
BOTH THE APPELLANTS ARE RESIDING AT NO.70, 2ND CROSS, DR. T.C.M. ROYAN ROAD, SIDDARTHA NAGAR, BENGALURU - 560 053.
... APPELLANTS (BY SRI P.B. APPIAH, ADVOCATE) AND:
1. G. KRISHNA MURTHY S/O. G. GANGAIAH, MAJOR, RESIDING AT KADANUR VILLAGE, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT - 561 204.
2. THE BRANCH MANAGER NEW INDIA INSURANCE CO. LTD., YELAHANKA MICRO OFFICE (671604), NO.2052, MIG, KHB III PHASE, YELAHANKA NEW TOWN, BENGALURU - 560 064.
... RESPONDENTS (BY SRI T. SHESHAGIRI RAO, ADVOCATE, FOR R1;
SRI O. MAHESH, ADVOCATE, FOR R2) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 1/12/2018 PASSED IN M.V.C. NO.2993 OF 2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER OF M.A.C.T., BENGALURU (SCCH-15), DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The husband and minor daughter of Suganthi @ Suganthi Sushi Bai have preferred this appeal assailing the judgment and award dated 1/12/2018 passed by the Motor Accident Claims Tribunal (hereinafter referred to as ‘Tribunal’, for the sake of convenience) at Bengaluru, in M.V.C. No.2993 of 2017.
3. Briefly stated, the facts are that the appellants- claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of death of Suganthi @ Suganthi Sushi Bai in a road traffic accident that occurred on 10/3/2017. According to the claimants, on the said date, at about 10:45 a.m., Suganthi was proceeding as a pillion rider on motorcycle bearing Registration No.KA-01/EG-3635 along with her father near Royan Circle, Chamarajpet, Bengaluru, at that time, a bus bearing Registration No.TN-31/D-7575 was driven by its driver in a rash and negligent manner and dashed against the motorcycle. As a result, Suganthi sustained grievous injuries and she was shifted to Brindhavan Areion Hospital, Chamarajpet, Bengaluru, but she died on 14/3/2017 during the course of her treatment. Chamarajpet Traffic Police registered a case in Crime No.105 of 2017.
4. Claimants contended that Suganthi was aged about 35 years and was working as an Accountant and earning a salary of Rs.40,000/- per month. On her death, the family has lost an earning member. Hence, the legal representatives of Suganthi filed the claim petition seeking compensation.
5. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared and filed their separate statement of objections. Respondent No.1-owner of the vehicle contended that the vehicle was insured with respondent No.2-insurer and that the driver of the vehicle possessed a valid and effective Driving License. However, he prayed for dismissal of the claim petition. Respondent No.2-
insurer contended that liability, if any, is subject to the terms and conditions of the insurance policy. Insurer, however, denied the material averments in the claim petition and contended that that the accident had occurred due to the negligence of the rider of the motorcycle and sought for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioners prove that deceased Smt. Suganthi @ Sungathi Sushi Bai died in RTA arising out of accident alleged to have been taken place on 10.03.2017 at about 10.45 a.m. near Royan Circle, Chamarajpet, Bengaluru, due to the rash and negligence driving of driver of the bus bearing Reg. No.TN-31-D-7575?
ii. Whether the petitioners prove that they are the dependants of the deceased?
iii. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
iv. What order or award?
7. In support of their case, claimant No.1 examined himself as P.W.1 and examined two other witnesses on behalf of the claimants as P.W.2 and P.W.3 and produced twenty-nine documents, which are marked as Exs.P.1 to P.29. Respondents examined four witnesses including Dr. Suresh V. as R.W.3 and produced eleven documents, which are marked as Exs.R.1 to R.11.
8. On considering the evidence on record, the Tribunal answered issue Nos.1 to 3 in the negative and dismissed the claim petition. Being aggrieved by the dismissal of the claim petition, the claimants have preferred this appeal.
9. We have heard learned counsel for the appellants as well as learned counsel for respondent No.2-insurer and perused the material on record.
10. Appellants’ counsel contended that the Tribunal was not right in dismissing the claim petition by holding that there was no nexus between the death of Suganthi and the accidental injuries. He contended that Suganthi died due to septicemia. That she was hale and healthy and she was not suffering from any disease or medical condition so as to succumb to the same due to septicemia. Her death was solely on account of the injuries sustained by her in the accident resulting in septicemia, which is expressed in Ex.P.6-Post Mortem report. He contended that the finding given by the Tribunal may be reversed and the matter may be remanded for a fresh consideration on the quantum of compensation payable to the claimants.
11. Per contra, learned counsel for respondent No.2- insurer supported the judgment and award of the Tribunal and contended that the Hospital, where Suganthi was admitted had not issued any Wound Certificate and Discharge Summary to show the type of injuries sustained by Suganthi. There is no material to link the cause of death of Suganthi, i.e. due to septicemia with the injuries sustained by her in the accident. Therefore, the Tribunal was justified in dismissing the claim petition as there was no nexus between the death of Suganthi and alleged injuries that she may be sustained in the accident. He submitted that there is no merit in the appeal. Hence, the same may be dismissed.
12. Having heard learned counsel for the respective parties, the following point arises for our consideration:
i. Whether the Tribunal was justified in dismissing the claim petition by answering issue Nos.1 to 3 in the negative?
13. Issue No.1 was as to whether Suganthi died on account of the injuries sustained by her in a road traffic accident that occurred on 10/3/2017 at about 10:45 a.m. near Royan Circle, Chamarajpet, Bengaluru, on account of rash and negligent driving on the part of the driver of the bus bearing Registration No.TN-31/D-7575. In order to prove the said issue, claimant No.1 examined himself as P.W.1, examined Basavaraj Talavar, an eyewitness to the accident, as P.W.2 and examined Ashwath Narayan K., an employer of the deceased, as P.W.3. In support of their oral evidence, Ex.P.1-copy of F.I.R., Ex.P.1(a)-copy of complaint, Ex.P.2- copy of mahazar, Ex.P.3-copy of sketch, Ex.P.4-copy of I.M.V. report, Ex.P.5-inquest mahazar, Ex.P.6-Post Mortem report and Ex.P.7-charge sheet were produced to prove the fact that there was an occurrence of the accident and that rashness and negligence on the part of the driver of the bus bearing Registration No.TN-31/D-7575 which collided with motorcycle on which Suganthi was proceeding as a pillion rider. Despite the voluminous evidence produced by the claimants in the form of oral and documentary evidence, the Tribunal has answered issue No.1 in the negative. In this regard, it is necessary to clarify that the occurrence of the accident involving the offending vehicle colliding with the motorcycle, on which Suganthi was proceeding is not a subject matter of controversy.
14. However, the controversy is as to whether Suganthi died due to the injuries sustained by her in the said accident. The accident occurred near Royan Circle, Chamarajpet, and she was admitted to Brindhavan Aerion Hospital, which is also in the vicinity. Ex.P.6 is the Post- Mortem report, wherein the cause of death of Suganthi is mentioned as “death is due to septicemia as a result of injuries sustained”. Ex.P.19 is the Death Summary. The Tribunal has reasoned that the deceased did not suffer any fracture injuries or severe injuries leading to her death. Therefore, ExP.6 is suspicious and it cannot be considered to prove the nexus between the death of Suganthi and alleged injuries sustained by her in the accident. Therefore, the Tribunal has held that the claimants failed to establish that Suganthi died to the accidental injuries. Respondents have not been able to establish that Suganthi had sustained injuries prior to the accident or was suffering from any disease which resulted in septicemia, while she was proceeding on the motorcycle on the date of the accident or that the death may have occurred due to any reason other than any injuries sustained by her in the accident. The Tribunal has, however, opined that due to absence of fracture injuries or severe injuries, the death did not occur due to the accident.
15. We do not think that the approach of the Tribunal is right for the reason that the death of Suganthi occurred four days after the accident and on account of septicemia. There may not be gruesome injuries at the time of the accident, but on perusal of Ex.P.6-Post Mortem report, it clearly indicates that apart from multiple abrasions, first to seventh ribs were fractured on the left side near vertebral attachments. She was admitted in the intensive care unit and thereafter, four days after the accident, she died. On perusal of Ex.P.6, it is noted that “death is due to septicemia as a result of injuries sustained”. But the Tribunal only noted the expression “death is due to septicemia” and has ignored “as a result of injuries sustained”. Further, Ex.P.6 also states that abrasions are covered with brown coloured scale, fractured bone ends show blood extravasation and injuries are ante mortem in nature. Hence, we find that the Tribunal has misread Ex.P.6 and has not considered the same in a holistic manner and has come to the conclusion that the death due to septicemia could not be linked to the injuries sustained by Suganthi in the road traffic accident. Therefore, we find that the approach of the Tribunal, in this context, is not correct and hence, we do not accept the finding on issue No.1. On that ground, the matter requires to be remanded to the Tribunal for a fresh consideration.
16. That apart, it is not known as to on what basis, the Tribunal has come to the conclusion that the claimants are not the legal representatives or dependants of Suganthi, the deceased and has answered issue No.2 also in the negative. On that issue also, the matter requires to be remanded. Further, we note that on account of issue Nos.1 and 2 being answered in the negative, there is no quantification of the compensation that ought to have been considered to be paid to the claimants, if they were so entitled. Therefore, the matter would call for remand on that score also.
17. In the circumstance, the judgment and award of the Tribunal is set aside. The matter is remanded to the Tribunal for a fresh consideration. Liberty is reserved to the parties to let-in additional evidence, if they so desire.
18. Since the parties are represented by their respective counsel, they are directed to appear before the concerned Tribunal on 3/9/2019, without expecting any separate notices from the Tribunal. The Tribunal is directed to decide the claim petition in accordance with law.
Parties to bear their respective costs.
SD/- JUDGE SD/- JUDGE kvk