Allowed

Ratnaprabha Basappa Gajare v. Dhondiram Krishna Patil

Karnataka HC24 Aug 2023MFA/22460/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal, set aside the Tribunal's dismissal, and awarded compensation of Rs. 60,000 for injuries and expenses. The court ruled that despite the lack of a post-mortem report proving death was due to the accident, the case should be treated as an injury case, limiting heads of claim to injury and estate loss.

What did the court decide?

Compensation of Rs.60,000 along with interest at 6% p.a. awarded; impugned award set aside.

Ratnaprabha Basappa Gajare Vs Dhondiram Krishna Patil — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC-D:9495 MFA No. 22460 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.22460/2012(MV)

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BETWEEN:

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SMT. RATNAPRABHA BASAPPA GAJARE, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: AJARA, TQ: AJARA, DIST: KOLHAPUR.

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…APPELLANT

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(BY SRI SANTOSH B. RAWOOT, ADVOCATE)

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AND:

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SHRI DHONDIRAM KRISHNA PATIL, AGE: MAJOR, OCC: BUSINESS, R/O: MUDHOL, TQ: BHUDARGA, DIST: KOLHAPUR.

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Digitally signed by BHARATHI H M

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, AT: CLUB ROAD, BELGAUM.

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(BY SRI S.S.KOLIWAD, ADVOCATE FOR R2; R1 IS SERVED)

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…RESPONDENTS

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT BELGAUM IN MVC.NO.2820/2008 DATED 30.09.2011 AND AWARD THE COMPENSATION AS PRAYED FOR IN THE CLAIM PETITION, BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:9495 MFA No. 22460 of 2012

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JUDGMENT

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This appeal is filed by the claimant questioning dismissing the claim petition.

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Facts of the case are that the deceased while riding his motor cycle, met with an accident while he was proceeding near Haralage village as the driver of the Truck bearing No.HA-10/A-9621 came in a rash and negligent manner dashed his motor cycle and later, after more than one year from the date of accident, succumbed to the injuries. He sustained grievous injuries and took treatment as in-patient and spent huge amount towards medical expenses.

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Heard the learned counsel for the claimant as well as the Insurance Company.

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The Tribunal has dismissed the claim petition on the ground that there is no evidence to prove the nexus between accidental injuries and death. The claimant has not produced Post Mortem Report. There is no evidence to

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prove that death is due to accidental injuries. The accident is caused on 18.05.2007. The deceased died on 07.07.2008. Deceased was a bachelor, aged about 50 years. Therefore, when there is a delay of 01 year 02 months between the date of accident and death and in the

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absence of post mortem report or any other medical evidence, the death is due to injuries, it cannot be held that the death is due to accidental injuries. Therefore, the Tribunal is correct in giving a finding that there is no evidence proving nexus between injuries and death. But the Tribunal ought to have considered the case as if it is an injury case for awarding compensation. If the deceased had survived, then he would have been entitled for compensation for loss of estate. Therefore, dismissing the claim petition in toto is not correct.

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Therefore, the case is treated as an injury case for

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awarding compensation. Just because the deceased died, his rights cannot be extinguished. A person has rights even after his death. Had the deceased been alive, then

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the deceased at least would have been entitled for compensation for the injuries sustained. Therefore, the case is considered as if it is an injury case and it is necessary to award compensation.

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From the medical evidence on record, it is proved that deceased has sustained fracture of right leg, humerus and patella. The deceased was an Agriculturist aged 50 years. Therefore, compensation of Rs.30,000/- is awarded for injuries, pain and suffering.

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In the present case, the accident was caused on 18.05.2007 and the injured died on 07.07.2008. Except the oral evidence of the claimant as PW1, there was no other proof proving that there is a nexus between injuries and death. Postmortem report is not produced. Doctor is also not examined to prove whether there is nexus between the injuries sustained and the death occurred. Therefore, it is hard to hold that the deceased died due to accidental injuries. Therefore, in case of not proving the nexus between injury sustained and the death occurred,

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compensation could be awarded towards loss of estate. But, not on other heads as per full Bench decision of this Court in Kannamma Vs. Deputy General Manager, KSRTC¹ and in the case of Uttam Kumar Vs.Madhav and Another² also the Division Bench of this Court in the case of Prabhavati and other Vs. Sheikh Hussain and

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others passed in MFA No.147/2004. Therefore, as per principles of law laid down as stated above, when there is no proof that the death is out of injury sustained and then the deceased is entitled for compensation towards loss of estate that itself is the loss caused to the deceased but not otherwise. During the pendency of the claim petition, the claimant has spent considerable amount towards medical expenses and hospital charges as the deceased was admitted as inpatient for a period of 16 days. It is proved by the evidence on record that the claimants have incurred expenses of Rs.27,864/- towards medical expenses and hospitalization charges. Also the claimants must have

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1 1991-ACJ-0-707

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2 2002(3) Kar.L.J.337(FB)

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spent some considerable amount towards incidental expenses like food, nourishment, attendant charges, conveyance, travelling etc., for which receipts cannot be maintained. However, some amount has been spent towards incidental expenses. Thus, the claimant is entitled for compensation towards medical expenses and towards incidental expenses as it was incurred out of the estate of the deceased. Considering this, compensation of Rs.60,000/- is awarded to the claimant along with interest at the rate of 6% p.a., from the date of petition till realization.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The judgment and award passed by the Tribunal in MVC No.2820/2008 dated 30.09.2011 by the III Addl. Senior Civil Judge and Addl.MACT, Belgaum, is hereby set aside, holding the claimant is entitled for

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NC: 2023:KHC-D:9495 MFA No. 22460 of 2012

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compensation of Rs.60,000/- along with interest @

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6% p.a., from the date of petition till its realization,

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as against compensation awarded by the Tribunal.

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