® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM M.F.A.NO.3525/2013(MV-I) BETWEEN LAKSHMAMMA @ LAKKAMMA W/O JAVARAIAH DIED ON 17.02.2016 SINCE DEAD REPRESENTED BY LRs., 1(a) JAVARAIAH S/O KARIYAPPA AGED ABOUT 52 YEARS 1(b) RANGASWAMY S/O JAVARAIAH AGED ABOUT 35 YEARS BOTH ARE RESIDING AT GUDDENAHALLI VILLAGE KASABA HOBLI, HASSAN TALUK AND DISTRICT- 573 201. …APPELLANTS (BY SRI B.M.MOHAN KUMAR, ADVOCATE) AND :
1. B.E.NATESH KUMAR 1ST FLOOR, SHARADA COMPLEX SHANKAR MUTT ROAD HASSAN-573 201 (OWNER OF THE MARUTHI ALTO REGISTRATION NO.KA13-M-4996) 2. THE MANAGER THE *UNITED INDIA INSURANCE CO. LTD., P.BOX NO.108, VENKATESHWARA BUILDING B M ROAD, HASSAN 573 201 (INSURER OF THE MARUTHI ALTO REGISTRATION NO.KA13-M-4996) …RESPONDENTS (R1 – SERVED AND UNREPRESENTED SRI A.N.KRISHNASWAMY, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2012 PASSED IN MVC NO.1735/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the claimant in MVC.No.1735/2011 on the file of the Motor Accident Claims Tribunal, Hassan (for short ‘the Tribunal’).
2. Admittedly, the appellant, who was claimant before the Tribunal had come up in this * CORRECTED VIDE CHAMBER ORDER DT.27.1.2020 appeal seeking enhancement of compensation for the injuries suffered in the accident. Also contending that the Tribunal has not considered her prayer for awarding compensation under the head medical expenses. It is contended by her that though huge sum was spent for medical expenses the same is not considered. In the meanwhile, the appellant has died on 17.2.2016. Thereafter, the legal heirs of claimant/appellant have filed 4 applications in IA.1 to 4 of 2019. This appeal is taken up for consideration of the main appeal along with applications in IA.1 to 4 of 2019 in the presence of counsel for applicants and contesting respondents.
3. The claim petition in MVC No.1735/2011 was filed by the appellant herein seeking compensation for the injuries suffered in a road traffic accident dated 06.07.2011 involving TVS Motorcycle bearing Reg.No.KA-13-K-9222 and Maruthi Alto Car bearing Reg.No.KA-13-M-4996. The said claim petition was allowed awarding compensation in a sum of Rs.7,70,000/- payable with interest at 6% p.a. from the date of petition till the date of payment of entire amount. Thereafter, this appeal is filed seeking enhancement of compensation.
4. Admittedly, the appeal was filed by the claimant herself on 17.04.2013. Subsequently, it is stated that she has died on 17.02.2016. It is in this background, applications in I.A.Nos.1 to 4 of 2019 are filed belatedly i.e., after three years from the date of death of the appellant. The applications in I.A.Nos.1 to 3 of 2019 are filed by the legal representatives of the deceased appellant seeking permission to come on record; for condonation of delay in filing the LR application and also to set aside the abatement caused due to the death of the appellant. The application in I.A.No.4/2019 is filed for production of additional documents which are 16 in number. When the said applications are looked into, it is clearly seen that there is an attempt on the part of the legal representatives of deceased appellant to demonstrate that the present appeal which is filed by the claimant seeking enhancement of compensation would survive for consideration on the basis of the documents which are sought to be produced in this proceedings.
5. In the normal circumstance, whenever the claimant who files an appeal seeking enhancement of compensation awarded for the injuries suffered in the accident dies, the appeal would automatically get abated inasmuch as the legal representatives would not be entitled to pursue the same to secure enhancement to compensation awarded for the injuries suffered by the claimant. In the instant case, the ingenious method which is adopted by the legal representatives of the appellant is to demonstrate that the death of claimant on 17.02.2016 is due to the injuries which was caused to her in a road traffic accident dated 06.07.2011.
6. When the documents which are produced along with the application in I.A.No.4/2019 is looked into, it clearly discloses that the appellant who developed difficulty in breathing was admitted to the Hospital on 17.02.2016 and on the same day she died due to cardiac arrest as could be seen from the opinion of the Doctor who has conducted the postmortem. Though this is not the kind of death, where in normal circumstances, postmortem would be conducted, it is seen that the son of the appellant has lodged a complaint with the police immediately after the death of his mother which is in seeking postmortem to be conducted to the body of his deceased mother, wherein he would try to assert that the death of his mother is due to injuries suffered in a road traffic accident dated 06.07.2011. The said application is registered in UDR.No.7/2016 in Pension Mohalla Police Station, Hassan and thereafter, the postmortem is conducted.
7. The postmortem report which is at document No.5 would indicate that opinion to the cause of death is reserved pending Histopathology report. However, there is a final opinion which is given by the Doctor on 02.05.2016, which is an appendix to the very same document, wherein the reason for death is declared as Cardio Respiratory failure and Hepatic failure and head injury due to complication in the road traffic accident and multi organ failure.
8. When the medical record of claimant is looked into, it would clearly indicate that immediately after the accident, the hospitalization of appellant was only for a period of two months and after that she was not admitted to any Hospital at any time until 2015. The hospitalization of claimant in 2015 is for some for some other reason as could be seen in document No.R-15 which is the discharge summary issued by the Apollo BGS Hospital for the treatment provided to her between 26.08.2015 and 29.08.2015, wherein the history which is recorded does not indicate that her hospitalization is with reference to the injuries suffered in a road traffic accident which has taken place in the year 2011.
9. Similarly, history of present illness in the year 2015 is said to be for a period of one month prior to her hospitalization and does not connect with the injuries said to have suffered in a road traffic accident of the year 2011. It is also seen in the discharge summary that she was hospitalized for a period of three months for health issue relating to certain complications taken place one month prior to admission to hospital which does not relate to the injuries suffered in the accident. The course of treatment given, procedure which is conducted on the patient is nothing but placement of shunt for Hydrocephalus suffered by her during MRI brain scan.
10. The entire recording in the discharge summary does not even remotely indicate that the complication said to have undergone by the patient is connected to the injuries suffered in the road traffic accident dated 06.07.2011. Subsequent to August 2015, she has gone to hospital for the first time on 17.02.2016 on the complaint of difficulty in breathing for which she succumbed on the same day.
11. Thereafter, what followed is creation of series of documents which are produced, where the son of the claimant would himself go to the police and registers a complaint and thereafter, insist that postmortem of his mother’s body should be conducted. The reports which are produced do not indicate any connection with the injuries suffered in the accident to be the reason for her death. However, there is an attempt to demonstrate that death of the claimant before Tribunal is due to the injuries suffered in the accident. Hence, the application in I.A.No.4/19 seeking production of additional documents cannot be accepted. Accordingly, the said application is dismissed.
12. Now coming to applications filed in IA.1 to 3 of 2019, which are filed by the legal representatives of deceased claimant, the application in I.A.No.1/19 is filed seeking condonation of delay of 1228 days in filing the LR application, I.A.No.2/19 for setting aside the abatement and I.A.No.3/19 for bringing the LRs. of the deceased appellant on record seeking compensation for the death of the injured due to the injuries suffered by her in the accident.
13. In this appeal, the prayer of applicants in IA.1 to 3 of 2019 to permit them to pursue this appeal seeking compensation for the injured claimant on the ground that her death is due to injuries suffered in the accident cannot be accepted. However, in the fact situation, their prayer for reassessment of the compensation which is not considered by the Tribunal under the head ‘medical expenses’ could be considered in this proceedings since the same is paid by the family members for the treatment of the claimant-injured in the Court below. The said line of argument by the learned counsel for the applicants in I.A.Nos.1 to 3 is accepted. Accordingly, I.A.Nos.1 to 3 are allowed. Delay of 1228 days in filing the LR application is condoned, abatement is set aside and the legal representatives of deceased are permitted to come on record.
14. Thereafter, the compensation which is required to be considered under the head ‘medical expenses’ is taken up for consideration as under:-
On going through the LCR, it is clearly seen that the claimant during her lifetime has produced all the documents pertaining to the injuries suffered in the accident of 2011, which were available with her before the Tribunal to demonstrate that she has spent Rs.7,75,450/- towards medical expenses, which is found at page 46 of LCR. However, when the judgment impugned is looked into, there is absolutely no discussion by the Tribunal while restricting compensation payable under the said head to Rs.1,50,000/- thereby clearly indicating that a grave and serious error is committed by the Tribunal in considering the medical bills produced by the claimant before the Tribunal which was pursued by the claimants by filing this appeal.
15. In that view of the matter, this Court is of the considered opinion that the appeal filed by the claimant pursued by her legal representatives is required to be considered to an extent of their prayer that the entire medical expenses which was produced by them to seek reimbursement by way of compensation. Accordingly, the appeal filed by the injured which is pursued by her LRs. is allowed to an extent of reimbursement to avail medical expenses incurred by the family members for treatment of the original claimant before the Tribunal and the appellant before this Court would come to Rs.6,25,450/- (7,75,450 – 1,50,000), which they shall be entitled to receive with interest @ 9% p.a. from the date of petition till the date of deposit of the entire amount.
16. When it comes to considering interest @ 9% p.a., this Court would specifically accept the same for the reason that this compensation is nothing but reimbursement of the expenses which was incurred by them during the period 2011 while she was under treatment wherein, in the claim petition it is stated that the said amount is borrowed and spent.
Therefore, under such circumstance, the usual practice of awarding interest @ 6% p.a. cannot be considered as against medical expenses, which is incurred by the family members.
17. In that view of the matter, this Court would observe that the additional compensation awarded in this appeal is Rs.6,25,450/- shall be paid by the respondent-insurer with 9% p.a. from the date of petition till the date of realization.
18. Accordingly, this appeal filed by the original claimant pursued by the legal representatives is allowed in part.
Sd/- JUDGE CA/TL Sd/- JUDGE