Partly allowed

Smt Muniyamma v. M/S. Bharathi Axa General Insurance Co. Ltd.

Karnataka HC17 Oct 2022MFA/3439/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the dismissal of a motor accident compensation claim. Despite the absence of a post-mortem report, the court held that the nature of grievous injuries (amputation) and prolonged hospitalization required reversing the Tribunal's finding of no nexus. The court awarded total compensation of Rs. 6,13,192/-.

What did the court decide?

Compensation of Rs. 6,13,192/ - with interest at 6% per annum granted.

Smt Muniyamma Vs M/S. Bharathi Axa… — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.3439/2013 (MV)

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BETWEEN:

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1 . SMT. MUNIYAMMA W/O LATE ANNAYAPPA AGED ABOUT 55 YEARS

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2 . MR. MAHANDRA S/O LATE ANNAYAPPA AGED ABOUT 41 YEARS

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3 . SMT. SELVI D/O LATE ANNAYAPPA AGED ABOUT 39 YEARS

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4 . MR. RAMESH S/O LATE ANNAYAPPA AGED ABOUT 36 YEARS

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5 . MR. PACHIYAPPAN S/O LATE ANNAYAPPA AGED ABOUT 32 YEARS

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ALL ARE RESIDING AT C/O NAGARAJU NO.179, 9^TH CROSS BAKSHI GARDEN, COTTONPET BENGALURU-560 033. … APPELLANTS

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(BY SREE VIDYA, ADVOCATE FOR SRI T.N.VISWANATH, ADVOCATE)

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AND:

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1 . M/S. BHARATHI AXA GENERAL INSURANCE CO. LTD., 1^ST FLOOR, THE FERONS ICON SURVEY NO.28, NEXT TO AKMA BALLOT DODDANEKURELI OPP. OUTER RING ROAD BENGALURU-560 037

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2 . MR. MANJUNATH K.C., S/O K.M. CHANDRAPPA MAJOR, R/AT NO.8/A, S.S.LAYOUT, 9^TH MAIN, BASAVESHWARANAGAR BENGALURU-560 079. ... RESPONDENTS

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(BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R1 [THROUGH VC]; VIDE COURT ORDER DATED 26.03.2018, NOTICE TO R2 IS HELD SUFFICIENT)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.11.2012 PASSED IN MVC NO.9009/2009 ON THE FILE OF THE CHIEF JUDGE, PRINCIPAL MACT, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel appearing for the appellants and

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the learned counsel appearing for respondent No.1.

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This appeal is filed challenging the judgment and

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award of dismissal of the claim petition in M.V.C.No.9009/2009 dated 24.11.2012 passed by the Principal MACT., & Chief Judge,

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Court of Small Causes, Bengaluru (SCCH-1) (‘the Tribunal’ for short).

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimants before the Tribunal is that the deceased met with an accident on 28.11.2009 at about 1:15 p.m, as a result, he had sustained degloving injury which has resulted in amputation. At the first instance, the petition was filed by the injured himself and later on he succumbed to the injuries on 23.07.2010. Hence, the claimants, who are the wife and children, came on record as legal representatives of the deceased.

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The claimants in order to substantiate their claim examined the daughter, who is the third petitioner as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents Exs.P1 to P11. On the other hand, the respondents have examined one witness as RW.1 and not led any evidence.

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The Tribunal after considering both oral and

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documentary evidence dismissed the claim petition and came to the conclusion that there is no nexus between the injuries and cause of death. Hence, the present appeal is filed by the appellants.

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The main contention of the learned counsel

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appearing for the appellants is that the Tribunal has not considered the matter in a proper prospective. The fact is that he was met with an accident on 28.11.2009, is not in dispute and also he was an inpatient for a period of 8 days at the first instance. Again he was admitted to the hospital on 10.12.2009 and discharged on 21.12.2009. By that time his leg was amputated. After the amputation, he was bedridden and ultimately he succumbed to the injuries on 23.07.2010.

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Further, the learned counsel for the appellants would submit that in order to substantiate their claim, they have examined one witness as P.W.2. P.W.2 deposes before the Court that he had sustained degloving injury of the left ankle and foot reason till base 6 toes exposing underneath muscles

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and tendons, Trimalleolar fracture of the left ankle and fracture of 4^th metatarsal left foot and the nature of injuries are grievous in nature and amputation was done on 16.12.2009. He was on regular treatment and discharged on 21.12.2009. The document – Ex.P11, inpatient record is also marked. He was subjected to cross-examination. In the cross-examination, he withstood the cross-examination of Insurance Company and the Tribunal not considered the same in a proper perspective. He categorically deposes that the possibility of gangrene at later stage cannot be ruled out. In spite of the Doctor has been examined, the Tribunal has not considered the matter in a proper perspective.

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The learned counsel appearing for the appellants in support of their claim relied upon the judgment of this Court passed in MFA No.1494/2017 (Mr. N. Murali and another v. The Managing Director, KSRTC.,) dated 29.06.2022 , wherein, this Court held that when he took treatment for a longer period even not subjecting for post-mortem, the Court can consider the material on record.

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The learned counsel also relied upon the judgment of this Court passed in MFA No.10130/2011 (Sri M.

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Basavarajappa and others v. Sri Krishnamurthy and

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others) dated 25.07.2022, wherein, with regard to the claim petition by succession.

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The learned counsel also relied upon the judgment of the High Court of Madras reported in LAWS (MAD)-2009-7-8 , in the case of Abdul Rahim v. Sundaresan, wherein the Madras High Court discussed in paragraph No.2 that in a case of injured examined earlier and subsequently died, considering the medical records for having taken treatment, entertained the claim petition.

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The learned counsel also relied upon the judgment of the High Court of Punjab and Haryana reported in 2017 ACJ 198 , in the case of National Insurance Co. Ltd., v. Kailash Mehra and others, and brought to the notice of this Court paragraph No.4, wherein, it is held that, “Every person who is seriously ill still believes that he will come through.” The Court has to take note of the nature of injuries and the report of the Doctor regarding cause of death.

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The learned counsel also relied upon the judgment of this Court reported in 2017 ACJ 663 in the case of Chinnappa and Others vs. ICICI Lombard General Insurance Co. Ltd.

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and another , wherein this Court has observed that the Doctor, who treated the deceased deposed that cause of death was due to stress injuries sustained in the accident and the Court has to take note of the nexus between the injuries and the cause of death.

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The learned counsel also relied upon the judgment of this Court reported in 2018 ACJ 497 in the case of R.N. Manjula vs. Noorulla and Others with regard to the maintainability of the petition and it is also observed that when there was nexus between the injuries and also cause of death, as per the medical reports, the deceased was under continuous treatment ever since the date of accident till his death.

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Per contra, learned counsel for the respondent No.1Insurance Company vehemently contend that, though his leg was amputated in the month of December, he died in the month of July and in between the said period, no records are placed before the Tribunal that to show that he was under follow-up

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treatment and the same is also taken note by the Tribunal. The counsel also would submit that the deceased was aged about 65 years as on the date of the alleged accident and in the absence of nexus between the nature of injuries and the cause of death and no PM report, the question of considering the same does not arise.

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Having heard the respective counsel and also on

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perusal of the material available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in dismissing the claim petition in coming to the conclusion that there was no nexus between the injuries and cause of death?

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(ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?

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(iii) What order?

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Point No.(i)

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Having heard the respective counsel, there is no

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dispute with regard to the accident and the injuries sustained by the deceased in the accident. The medical records also disclose

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that the deceased had sustained degloving injury and he was inpatient at the first instance for a period of 8 days and thereafter, again admitted to hospital on 10.12.2009 and was subjected to surgery for amputation of his left leg and was discharged on 21.12.2009 and he was inpatient for a period of 11 days. The discharge card also discloses that amputation was done below the knee and prior to admission to Sham Singh Nursing Home as per Ex.P6, he had been to Victoria Hospital i.e., on 09.12.2009 and the same is marked as Ex.P7.

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Having taken note of the nature of injuries, the Court

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has to take note of the material on record and the records clearly disclose that he had suffered degloving injury over the left ankle region till base 6 toes, exposing underneath muscles and tendons. The X-ray also shows trimalleolar fracture of left ankle which has resulted in amputation below the knee on 16.12.2009 and he was discharged on 21.12.2009. Hence, there is a force in the contention of the learned counsel appearing for the respondent No.1-Insurance Company that no documents before the Court in between the discharge and his death. However, the Court has to take note of the nature of injuries

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sustained by him and he had suffered degloving injury over left ankle region and also suffered trimalleolar fracture of left ankle and was subjected to treatment for debridement of later malleolar at St. Jhon’s Hospital. The records also disclose that he was readmitted to Sham Singh Nursing Home, wherein he took treatment as inpatient and the Court has to take note of the nature of injuries and the injuries sustained by the deceased are not simple in nature and he was aged about 65 years was inpatient twice in the month of November as well as December and amputation was also done below the knee. Hence, merely because, the deceased was not subjected to PM examination, the same cannot be a ground to dismiss the claim petition.

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No doubt, the Tribunal also considered the material on record and found that the deceased was not under continuous treatment for a period of 7 months, when he was admitted to hospital twice and was subjected to amputation, the Court has to take note of the evidence of the Doctor, who is an Expert. The Doctor, who has been examined as P.W.2 also states with regard to the nature of injuries sustained by him and he claims that there are documents in the Hospital to show that he had come

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for follow-up treatment after discharge and he also states that they will not maintain the outpatient record. P.W.2 also categorically admits that the deceased was visiting the hospital as outpatient and also in the re-examination, he states that the deceased was not suffering from disorders like acidity, hypertension and the possibility of gangrene at later stage cannot be ruled out and there are chances of bed sour which may cause Septicemia, if he takes treatment for a prolonged period. But, in the further examination, he admits that as along as he was in the hospital, he did not develop Septicemia and Gangren and though answer is elicited from the mouth of P.W.2 with regard to the nature of injuries, the Court has to take note of the nature of injuries and the same is not taken note by the Tribunal and the Tribunal has lost sight of degloving injury as well as the amputation done and the fact that he was inpatient for almost 20 days. When such being the case, even in the absence of PM report, the Tribunal ought to have taken note of the nature of injury and the finding of the Tribunal that there was no nexus between the cause of death and the accident cannot be accepted. The medical records disclose accidental injuries which has resulted in amputation. When such being the

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case, it is a fit case to reverse the findings of the Tribunal in dismissing the claim petition in coming to the conclusion that there was no nexus between the accidental injuries and cause of death. Accordingly, I answer point No.(i) as ‘affirmative’.

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Point No.(ii)

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With regard to the quantum of compensation is concerned, the deceased was aged about 65 years and the claimants are the wife, daughter and sons. In the absence of documentary evidence, the Tribunal ought to have taken the notional income at Rs.5,000/- per month. Out of the income of Rs.5,000/-, 1/4^th is to be deducted towards personal expenses. After the deducting the same, the notional income would be Rs.3,750/- per month and taking the income at Rs.3,750/- per month, applying the relevant multiplier ‘7’, the loss of dependency works out to Rs.3,15,000/-.

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Apart from that, the claimants are also entitled for an amount of Rs.40,000/- each towards love and affection which comes to Rs.2,00,000/- (40,000 x 5). The claimants are also entitled for an amount of Rs.33,000/- towards loss of estate and funeral expenses.

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The deceased was admitted to the hospital twice i.e.,

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St. Jhon’s Hospital as well as Sham Singh Hospital. The medical bills are produced to the tune of Rs.65,192/-. On perusal of these medical bills, the main bills are inpatient bill for Rs.39,523/- of Sham Singh Nursing Home, wherein his leg was amputated. The other bill is of St. Jhon’s Hospital for an amount of Rs.12,661/-. Hence, the amount of Rs.65,192/- awarded by the Tribunal is just and reasonable and it does not require any interference. Hence, in all, the claimants are entitled for an amount of Rs.6,13,192/- with interest at 6% per annum.

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Point No.(iii)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 24.11.2012 passed in M.V.C.No.9009/2019 is set aside granting compensation of Rs.6,13,192/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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cp*/ST

Smt Muniyamma v. M/S. Bharathi Axa General Insurance Co. Ltd.

Case brief

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Smt Muniyamma v. M/S. Bharathi Axa General Insurance Co. Ltd.

Case brief

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