IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.7796/2015 c/w M.F.A.No.6760/2015 [MV] M.F.A.No.7796/2015 BETWEEN 1. SMT. SAVITHRI W/O LATE RAMU @ RAMAPPA AGED ABOUT 33 YEARS 2. KUM. GANGAMMA D/O LATE RAMU @ RAMAPPA AGED ABOUT 17 YEARS 3. KUM. GANESH S/O LATE RAMU @ RAMAPPA AGED ABOUT 13 YEARS APPELLANTS NO.2 AND 3 ARE MINORS BY THEIR NEXT FRIEND NATURAL MOTHER SAVITHRI THE 1ST APPELLANT 4. SMT. AVAMMA W/O LAKKYAPPA @ LAKKANNA MOTHER OF LATE RAMU @ RAMAPPA AGED ABOUT 60 YEARS BOTH ARE RESIDING AT MARATI CAMP, CHORADI VILLAGE SHIVAMOGGA TALUK AND DISTRICT 577201.
(BY SRI. M V MAHESWARAPPA, ADV.) AND:
1. NAVEENA S/O JANARDHANACHAR AGED ABOUT 26 YEARS R/O YADEHALLI ANANDPURAM SAGAR TALUK SHIVAMOGGA DISTRICT- 577201.
2. PRAVEENA S/O JANARDHANACHAR MAJOR R/O YADEHALLI ANANDPURAM SAGAR TALUK SHIVAMOGGA DISTRICT- 577201.
3. THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., ASAF ALI ROAD, NEW DELHI REP. BY ITS BRANCH OFFICE VINAYAKA COMPLEX GARDEN AREA III CROSS, SHIVAMOGGA 577201.
...APPELLANTS (BY SRI.K SURESH, ADV. FOR R3 R1 & R2 – SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.05.2015 PASSED IN MVC NO.1114/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.6760/2015 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., ASAF ALI ROAD, NEW DELHI REP. BY ITS BRANCH OFFICE VINAYAKA COMPLEX GARDEN AREA III CROSS, SHIVAMOGGA-577401.
NOW REPRESENTED BY M/S. THE ORIENTAL INSURANCE CO.LTD, REGIONAL OFFICE 2ND FLOOR, SUMANGALA COMPLEX LAMINGTON ROAD HUBBALLI- 580020 REP. BY ITS REGIONAL MANAGER.
...APPELLANT (BY SRI.SURESH K, ADV.) AND:
1. SMT. SAVITHRI W/O LATE RAMU @ RAMAPPA AGED ABOUT 33 YEARS 2. KUM. GANGAMMA D/O LATE RAMU @ RAMAPPA AGED ABOUT 18 YEARS 3. KUM. GANESH S/O LATE RAMU @ RAMAPPA AGED ABOUT 13 YEARS RESPONDENTS NO.3 IS MINOR BY THEIR NEXT FRIEND NATURAL MOTHER SAVITHRI THE RESPONDENT NO.1.
4. SMT. AVAMMA W/O. LATE LAKKYAPPA @ LAKKANNA MOTHER OF LATE RAMU @ RAMAPPA MAJOR ALL ARE R/AT MARUTHI CAMP CHORADI VILLAGE SHIVAMOGGA TALUK AND DISTRICT- 577401.
5. SRI.NAVEENA S/O SRI.JANARDHANACHAR AGED ABOUT 26 YEARS R/O.YADEHALLI ANANDPURAM, SAGAR TALUK SHIVAMOGGA DISTRICT-577 401.
6. SRI. PRAVEENA S/O SRI.JANARDHANACHAR AGED ABOUT 26 YEARS R/O.YADEHALLI ANANDPURAM, SAGAR TALUK SHIVAMOGGA DISTRICT-577 401.
…RESPONDENTS (BY SRI. M V MAHESWARAPPA, ADV. FOR R1, R2, R4 & R5 R6 – SERVED & UNREPRESENTED R3 IS MINOR REP. BY R1) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.05.2015 PASSED IN MVC NO.1114/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT-8, SHIVAMOGGA, AWARDING A COMPENSATION OF RS.6,47,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both claimant and insurer are in appeals, aggrieved by the judgment and award dated 13.05.2015 passed in MVC No.1114/2012 on the file of the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VIII at Shivamogga (hereinafter referred to as 'the Tribunal' for short).
2. The claimant is in appeal in MFA No.7796/2015 praying for enhancement of compensation whereas the insurer is in appeal in MFA No.6760/2015 contending that the insurer is not liable to pay compensation, since the claimants have failed to prove the nexus between accidental injuries and cause of death.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Ramu @ Ramappa, alleged to have died in a road traffic accident. It is stated that on 15.12.2011, when the deceased along with first claimant was proceeding on NH-206 road, in front of Ranganath Medicals, Ananthpura, the first respondent being the rider of the motor cycle bearing registration No.KA- 15/Q-9494 came in a rash and negligent manner and dashed to the deceased. Due to the accident, the deceased sustained fracture of right tibia/fibula. Immediately, he was taken to Mc.Gann Hospital at Shivamogga, wherein he took treatment as inpatient. After discharge, he returned to his house and took treatment as out patient. On 16.03.2012, as the leg pain increased, the deceased insisted the claimants to take him to the hospital. While the deceased was on the way to hospital, he died and the doctors declared him dead. Post Mortem was conducted on the same day i.e., on 16.03.2012. The claimants filed claim petition contending that the deceased died due to accidental injuries and claimed compensation.
4. On issuance of notice, respondents appeared before the Tribunal. Respondents No.1 and 2 driver and owner of the offending motor cycle stated that the vehicle is covered by insurance policy with the 3rd respondent. It is also stated that the rider of the motorcycle had valid and effective driving license as on the date of accident. The 3rd respondent/insurer contended that the alleged accident was due to the negligence of the deceased himself. Further contended that there is no nexus between the accidental injuries and cause of death. Moreover, the insurer denied that the deceased Ramappa had suffered Micro and Macro Vascular Steatosis of the Liver and further denied that due to complications of the vascular injuries sustained in the accident, the deceased developed micro and macro vascular steatosis.
5. The first claimant wife of Ramu @ Ramappa examined herself as P.W.1 and also examined P.W.2- doctor apart from marking 23 documents as Ex.P1 to Ex.P23. On behalf of the respondents, two witnesses were examined as R.W.1 and R.W.2 and marked the documents as Ex.R1 to Ex.R2.
6. The Tribunal, based on the material on record, awarded total compensation of Rs.6,47,000/- with interest at the rate of 6% p.a., from the date of petition till the date of deposit, on the following heads:
1. Loss of dependency :: Rs.5,67,000/-
2. Loss of consortium :: Rs. 15,000/-
3. Loss of estate :: Rs. 10,000/-
4. Love and affection :: Rs. 30,000/-
5. Transportation of dead body and funeral expenses :: Rs. 10,000/-
6. Loss of filial love and affection :: Rs. 15,000/-
Total Rs.6,47,000/-
The claimant not being satisfied with the quantum of compensation are before this Court in MFA No.7796/2015 praying for enhancement of compensation, whereas the insurer is in appeal contending that the insurer is not liable to pay compensation since the accidental injuries has no nexus to the cause of death.
7. Heard the learned counsel for the appellants/claimants and learned counsel for the respondent/insurer. Perused the appeal papers including the lower court records.
8. The appeal filed by the insurer is taken up first for consideration. The insurer contends that the accident had taken place on 15.12.2011. Immediately, he was shifted to Mc.Gann hospital at Shivamogga, wherein he took treatment as inpatient till 17.01.2012. The deceased was discharged on 17.01.2012 as the bones had united. The deceased had sustained fracture of right tibia and fibula, for which, he took treatment at Mc.Gann hospital and after treatment, the deceased was discharged from the hospital on 17.01.2012. After discharge of the deceased on 17.01.2012, he was not treated as inpatient in any of the hospitals. Only on 16.03.2012, when the deceased complained about the pain in the leg, he was taken to hospital and on the way to hospital, he died. After that, the doctor in the hospital declared him dead and post mortem was conducted as per Ex.R7. Learned counsel submits that the post mortem report would not indicate the reason for the death of Ramappa. On receipt of the Histopathological examination report, the Doctor had opined that the death was due to Micro and Macro Vascular Steatosis of Liver and it could have been resulted from the complications of injuries sustained in the accident. But, the learned counsel submits that the Histopathological examination report is not placed on record and P.W.2-doctor is not certain that death of the deceased was due to the accidental injuries. He further invites the attention of this Court to the evidence of P.W.2 wherein P.W.2-doctor admits that in Post Mortem report, reason for death is not mentioned. Further, P.W.2 doctor in his evidence states that when a person suffers steatosis and when it is at final stage, liver gets enlarged and would turn to yellow colour. But, in the case of deceased Ramappa, it was not so and he states that the liver was in tact. Which indicates that the deceased was not suffering from steatosis as claimed. Thus, relying on the medical reports, learned counsel for the appellant/insurer submits that the finding of the Tribunal that death of Ramappa was due to accidental injuries is perverse and erroneous. Thus, prays for allowing the appeal filed by the insurer, as the claimants have failed to establish that the accidental injuries had nexus to the cause of death.
9. Per contra, learned counsel for the claimants would submit that the deceased suffered from micro and macro vascular steatosis due to accidental injuries and died on 16.03.2012. He submits that the injury to leg had aggravated subsequent to discharge from the hospital. Due to which, he suffered steatosis, which would normally be caused by more pressure on liver. He submits that P.W.2-doctor who had conducted post mortem has opined that the death could have been resulted from the complications of injuries sustained in the accident. Thus, he prays for dismissal of the appeal filed by the insurer.
10. On hearing the learned counsel for the parties and on perusal of the entire material on record including the lower court records, the only point that falls for consideration is as to whether the accidental injuries sustained by the deceased Ramappa has nexus to the cause of death and “whether the claimants prove the same?”
11. The accident occurred on 15.12.2011 involving motor cycle bearing registration No.KA-15/Q-9494 and the accidental injuries suffered by the deceased Ramu @ Ramappa are not in dispute in this appeal. The insurer in this appeal contends that the accidental injuries suffered by the deceased has no nexus to the cause of death of injured Ramu. The accident had taken place on 15.12.2011. Immediately, the deceased was shifted to Mc.Gann hospital, Shivamogga where he took treatment till 17.01.2012 as per the wound certificate and hospital records, the deceased had suffered comminuted fracture of lower 1/3rd of tibia and fibula, for which, he was treated as inpatient. Ex.P14 is the discharge summary of Government Mc.Gann hospital, Shivamogga which indicates the treatment given to the deceased and also clearly indicates the nailing and bone grafting done on 02.01.2012.
12. P.W.1, wife of the deceased Ramappa in her evidence has stated that the doctor had treated the deceased for fracture of right leg and the operation was conducted inserting a rod and subsequently, he was discharged on 17.01.2012. P.W.1 further states that, on 16.03.2012, as the pain of the deceased right leg increased and while being taken to Mc.Gann Hospital, he died on the way and subsequently, the doctor at Mc.Gann hospital declared him as dead and post mortem was conducted at Mc.Gann hospital. It is pertinent to note here itself that after discharge of the deceased on 17.01.2012 till 16.03.2012, there was no complaint of pain nor was he taken to any hospital for treatment. Only on 16.03.2012, when the deceased complained of pain in his right leg, he was taken to hospital and he died on the way to hospital.
13. At Mc.Gann hospital, Post Mortem was conducted by P.W.2-doctor. Ex.R7 is the post mortem report, which indicates the opinion as to the cause of death “opinion reserved pending for want of Histopathological examination report and case sheet extract from the hospitals treated.” Ex.R7-Post Mortem report would not give or indicate the reason or cause for death. It also would not indicate what is the reason for referring to Histopathological examination report. More importantly, Histopathological examination report is not placed on record. P.W.2-doctor in his final opinion, on receipt of Histopathological examination report states that the death was due to Micro and Macro Vascular Steatosis of Liver which could have been resulted from the complications of injuries sustained in the accident. In his cross-examination, P.W.2-doctor states that Micro and Macro Vascular Steatosis of the Liver could occur due to over-working of liver. He states that as the deceased had suffered leg injury, body needs nutrition and as such, liver took more pressure, due to which, the deceased suffered Micro and Macro Vascular Steatosis.
He further states that when a person suffers from Micro and Macro Vascular Steatosis and when it is at the final stage, liver would get enlarged and it would turn to yellow colour. In the instant case, he states that the deceased had not developed enlargement of liver nor had it turned yellow in colour and he states that it was in tact. If the P.W.2-doctor had not noticed symptoms of Micro and Macro Vascular Steatosis and if the liver was in tact, then the deceased would not have suffered Micro and Macro Vascular Steatosis and that could not have been the cause for death. The doctor has also further stated that fractured bones were aligned and the deceased had not taken treatment for any stomach disease. The same was deposed looking into Ex.P11 and other medical records. The relevant portion of doctor’s evidence reads as follows:
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14. From the perusal of medical records, evidence of P.W.1 as also evidence of P.W.2-doctor, it is clear that the claimants have failed to establish that the accidental injuries suffered by the deceased was the reason for the death of Ramappa on 16.03.2012. P.W.2-doctor has stated that the cause for death could be the complications developed from the injuries sustained in the accident. He has not categorically stated that the accidental injuries are the cause of development of Micro and Macro Vascular Steatosis of the Liver which was the reason for death of Ramappa. Further, the claimants have failed to examine the doctor who treated the deceased when he was inpatient from 15.12.2011 to 17.01.2012. P.W.2/doctor who conducted the post mortem in the hospital was not aware of the injuries suffered, treatment taken by the deceased initially from his evidence and Ex.P7 postmortem report, wherein he stated opinion was reserved for want of case sheet extract from the treated hospital. The finding of the Tribunal that the death of the deceased Ramappa was due to complications which had developed due to accidental injuries is erroneous and perverse. The finding of the Tribunal that Ramappa had sustained fracture and fracture was not at all united is also against the doctor’s evidence. P.W.2- doctor in his evidence has stated that the fractures had aligned properly.
15. For the reasons stated above, the appeal of the insurer is allowed. The judgment and award dated 13.05.2015 in MVC No.1114/2012 on the file of the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VIII at Shivamogga is set aside and the claim petition is dismissed.
16. In view of allowing of the insurer’s appeal, the appeal filed by the claimant in MFA No.*7796/2015 for enhancement of compensation would not survive for consideration. Accordingly, the same is dismissed.
SD/- JUDGE mpk/-*CT:bms * Corrected vide chamber dt.20.12.2019