IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.23 OF 2016 (MV-D) C/W MFA NO.693 OF 2014 (MV-D) IN MFA NO.23/2016 BETWEEN:
1. TABASUM BANU W/O LATE MOHAMMED RAFIQ AGED ABOUT 28 YEARS 2. SHAKIB S/O LATE MOHAMMED RAFIQ AGED ABOUT 10 YEARS 3. JAFFER SADIQ S/O LATE MOHAMMED RAFIQ AGED ABOUT 8 YEARS 4. MOHAMADA BEE W/O WAZEER SAB AGED ABOUT 61 YEARS APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER FIRST APPELLANT.
ALL ARE RESIDING AT ADINAYAKANAHALLI VILLAGE NOW RESIDING AT MARALUR DINNE TUMKUR TOWN-572101.
(BY MS. TABASUM BANU - A1, PARTY SRI SHAKIB - A2, IN-PERSON SRI JAFFER SADIQ - A3 & MS. MOHAMADA BEE - A4 ...APPELLANTS A2 & A3 ARE MINORS REPRESENTED BY A1) AND:
1. CHANNABASAVAIAH S/O.SIDDAMALLAPPA AGED ABOUT 51 YEARS R/AT SHARATHAVALLI VILLAGE AT POST HONNAVALLI HOBLI TIPTUR TALUK-572201 CHIKMAGALUR DISTRICT-577228 2. THE ORIENTAL INSURANCE COMPANY LTD. REPRESENTED BY ITS MANAGER B.O.JAYADEVA HOSTEL BUILDING B.H.ROAD TIPTUR-572201 …RESPONDENTS (BY SRI M.V.MAHESHWARAPPA, ADVOCATE FOR R1;
SRI M.ARUN PONNAPPA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.07.2013 PASSED IN MVC NO.663/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND 14TH MACT, TIPTUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.693/2014 BETWEEN:
ORIENTAL INSURANCE CO. LTD.
B.O. JAYADEVA HOSTEL BUILDING B.H. ROAD, TIPTUR NOW BY REGIONAL OFFICE 2ND FLOOR, SUMANGALA COMPLEX LAMINGTON ROAD HUBLI-580020 (REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI BALAKRISHNA K. NAYAK) ...APPELLANT (BY SRI M ARUN PONNAPPA, ADVOCATE) AND:
1. TABASUM BANU AGED 26 YEARS W/O LATE MOHAMMED RAFIQ 2. SHAKIB AGED 7 YEARS S/O LATE MOHAMED RAFIQ 3. JAFFAR SADIQ AGED 6 YEARS S/O LATE MOHAMED RESPONDENT NOS.2 AND 3 BEING MINORS ARE REPRESENTED BY THEIR MOTHER / GUARDIAN TABASUM BANU, 1ST RESPONDENT 4. MOHAMADABEE AGED 59 YEARS W/O WAZEER SAB 5. WAZEER SAB AGED 64 YEARS ALL ARE R/O ADINAYAKANAHALLI VILLAGE NOW R/AT MARALUR DINNE TUMKUR TOWN-572101.
6. CHANNABASAVAIAH AGED 49 YEARS S/O SIDDAMALLAPPA SHARATHAVALLI VILLAGE AND POST HONNAVALLI HOBLI TIPTUR TALUK-572201.
…RESPONDENTS (BY SRI M.V.MAHESHWARAPPA, ADVOCATE FOR R6; R1 TO R4 ARE SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.07.2013 PASSED IN MVC NO.663/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, TUMKUR, AWARDING A COMPENSATION OF RS.6,98,104/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The Oriental Insurance Co.Ltd. and the claimants have preferred these appeals questioning the judgment and award dated 17.07.2013 passed in MVC No.663/2010 on the file of the Senior Civil Judge and XIV Motor Accidents Claims Tribunal, Tiptur. The Oriental Insurance Co.Ltd. has preferred the appeal in MFA No.693/2014 whereas the claimants have preferred the appeal in MFA No.23/2016 seeking enhancement of compensation.
2. Facts leading to the appeals are as under:
The claimants filed a claim petition contending that one Mohamed Rafiq and others, had engaged a Piaggio Ape truck for shifting tamarind fruit bags from Adinayakanahalli to Tumkur RMC yard. The claimants have averred that on 25.02.2010, the deceased Mohamed was proceeding in the offending truck bearing No.KA-44-2342 and at that juncture, the driver of the offending vehicle drove the vehicle in a rash and negligent manner in high speed without following traffic rules and on account of gross negligence, the vehicle capsized on the left side of NH-206 near Konanakaval forest curve. Since the said Mohamed had suffered grievous injuries and was critical, he was shifted to Nimhans Hospital, Bangalore. Thereafter, he was shifted to Manipal Hospital. The claimants further averred that he was shifted to Balaji Nursing Home at Tiptur for regular treatment and he died on 02.03.2010. The claimants averred in the claim petition that after post mortem, the claimants shifted the dead body to their native. The claimants specifically averred in the claim petition that the deceased was doing tamarind fruit business and was earning Rs.15,000/- per month. The claimants, who are none other than the wife, children and parents of the deceased, were totally depending on the income of Mohamed Rafiq. Hence, they filed a claim petition claiming compensation of Rs.7,00,000/-.
3. On receipt of the notice, respondent no.1 filed objections contending that he is the owner-cum-driver in respect of the vehicle involved in the accident and he possessed a valid driving licence. He further contented that the said vehicle is duly insured with respondent no.2-
Insurance Company and that the policy was valid as on the date of the accident.
4. Respondent no.2-Insurance Company filed objections and stoutly denied the entire averments made in the claim petition. It was specifically averred in the objections that the driver of the offending vehicle had no valid driving licence and as such the insurance company is not liable to pay any compensation. A specific contention was also taken that the vehicle was carrying more than ten passengers, and hence, there is breach of terms and conditions of the policy.
5. The Tribunal, on the basis of the rival contentions of the parties, formulated the following issues:
1. ¦AiÀiÁUÉÆà C¥É læPï £ÉÆÃAzÀt ¸ÀASÉå PÉJ 44.2342 gÀ ZÁ®PÀ£À Cw zÀÄqÀÄPÀÄ ªÀÄvÀÄÛ ¤®ðµÀå ZÁ®£É¬ÄAzÀ¯Éà ¥Àæ,ßvÀ C¥ÀWÁvÀ ¸ÀA¨sÀ«2vÀÄÛ JAzÀÄ CfðzÁgÀgÀÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄ?.
2. ¥ÀjºÁgÀ ºÀtªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä CfðzÁgÀjUÉ ºÀQÌzÉAiÉÄÃ?
ºÀQÌzÀÝ°è AiÀiÁªÀ ªÉÆvÀÛ ªÀÄvÀÄÛ AiÀiÁjAzÀ?.
3. K£ÀÄ DeÉÐ?.”
The claimants, in support of their contentions, got examined claimant no.1-Tabasum Banu, who is the wife of the deceased Mohamed Rafiq, as PW.1 and one independent witness as PW.2 and got marked the documents as Exs.P1 to P10. Respondent no.1-Driver got examined himself as RW.1 and one independent witness as RW.2 and got marked the documents as Exs.R1 to R3. The Tribunal, having examined the material on record, recorded a finding that the husband of claimant no.1 namely, Mohamed Rafiq died on account of road traffic accident and further proceeded to award a compensation of Rs.6,98,104/-. Further, the Tribunal proceeded to record a finding that the Insurance Company is liable to pay the compensation determined by the Tribunal.
6. Counsel for the appellant-Insurance Company vehemently contended that the post mortem report produced by the claimants as per Ex.P4 clearly indicates that the death is on account of Bronchitis and Broncho pneumonia.
7. It is the specific case of the claimants that Mohamed Rafiq died on account of a road traffic accident that occurred on 25.02.2010. In support of their contentions, the claimants have not produced medical evidence supported by depositions of Doctors, more particularly, when the post mortem report indicates contrary to what the claimants have stated in the claim petition. As per the post mortem report, the injured died on 02.03.2010. The claimants are required to prove the nexus between the injuries suffered in the road traffic accident and the consequent death. The claimants are also required to demonstrate thereby producing clinching medical evidence which establishes that the accidental injuries caused to the deceased were capable of causing death. However, the Tribunal has not formulated the relevant issue in the present case on hand. Moreover, the claimants have not taken steps to examine the Doctor to establish the nexus between the accidental injuries and the cause of the death. The post mortem report produced by the claimants in fact goes against the contention of the claimants. However, we are of the view that as the claimants have lost a bread earner of the family, to meet the ends of justice, it would be appropriate to remit the matter to the Tribunal with a direction to formulate an appropriate issue in regard to the injuries caused to the deceased in the road traffic accident and the consequent death. The claimants are at liberty to adduce medical evidence by examining the Doctor, who treated the deceased while he was taking treatment. The Tribunal, after recording further evidence in the matter by affording an opportunity to both the parties, shall proceed to pass appropriate orders in accordance with law.
8. For the reasons stated above, the appeal in MFA No.693/2014 filed by the Oriental Insurance Co.Ltd. is allowed. The impugned judgment and award dated 17.07.2013 passed in MVC No.663/2010 is set aside. The matter is remitted back to the Tribunal for fresh consideration.
9. In view of the findings recorded in MFA No.693/2014, the appeal filed by the claimants in MFA No.23/2016 seeking enhancement of compensation does not survive for consideration, and accordingly, the same stands disposed of.
Sd/- JUDGE Sd/- JUDGE hkh.