Partly allowed

Sri Eshwarappa v. Apostolic Christian Assembly

Karnataka HC28 Jun 2023MFA/7211/2012

Case brief

AI extract

What is this about?

High Court allowed the motor accident appeal, setting aside the Tribunal's dismissal. It found a nexus between accident injuries and death due to septicemia and respiratory failure. Awarded Rs.9,21,250 compensation to legal heirs but denied interest for initial delays.

What did the court decide?

Compensation of Rs.9,21,250 (loss of dependency Rs.7,31,250, consortium Rs.1,60,000, etc.) to legal heirs with 6% interest from date of claim.

Sri Eshwarappa Vs Apostolic Christian Assembly — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC:22366 MFA No. 7211 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 7211 OF 2012 (MV)

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BETWEEN:

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SRI ESHWARAPPA, SINCE DEAD, REPRESENTED BY HIS LRS

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SMT. AMARAVATHI, W/O. LATE ESHWARAPPA, AGED ABOUT 48 YEARS, R/O. CHIKKANNA LAYOUT, HOSUR BANDE, BENGALURU - 43.

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SMT. SHOBHA, W/O. KRISHNA, AGED ABOUT 31 YEARS, R/O. KRISHNAGIRI, B.C. PUDOOR, TAMIL NADU - 635 001.

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SMT. GEETA, W/O. LATE CHANDRAN, AGED ABOUT 29 YEARS, R/O. CHIKKANNA LAYOUT, HOSUR BANDE, BENGALURU - 43.

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NC: 2023:KHC:22366 MFA No. 7211 of 2012

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SMT. SELVI, W/O. KUMAR, AGED ABOUT 27 YEARS, R/O NO.20, 3RD CROSS, PAPANNA GARDEN, HENNUR BANDE, BENGALURU - 43.

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…APPELLANTS

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(BY SRI. SURESH M. LATUR, ADVOCATE)

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AND:

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APOSTOLIC CHRISTIAN ASSEMBLY, NO.3, SWAMY MUDALIAR STREET, OFF: K.KAMARAJ ROAD, BENGALURU - 560 001.

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THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GROUND FLOOR, NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE & BENGALURU STOCK EXCHANGE, BENGALURU - 560 002.

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…RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH VIDE ORDER 17/10/17)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.7.2011 PASSED IN MVC NO.4956/2009 ON THE FILE OF II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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3 - NC: 2023:KHC:22366 MFA No. 7211 of 2012

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JUDGMENT

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The above appeal is filed by the appellants challenging the judgment and award dated 28.07.2011 passed in MVC No.4956/2009 on the file of the II Additional Judge, Court of Small Causes, Bengaluru, dismissing the claim petition.

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It is said that, on 22.03.2009 at about 1.05 pm, when deceased was crossing Hennur Main Road carefully, near KEB Junction, Bengaluru, at that time, rider of the motor cycle bearing No.KA-03 EM-8297 came from Pottery Road in high speed and in a rash and negligent manner, dashed against him due to which, he fell down and sustained grievous injuries. Immediately, he was shifted to Bowring Hospital, Bengaluru, wherein, he was treated as inpatient. The claimant filed the claim petition seeking compensation for the injuries sustained in the said road traffic accident. But, during pendency of the claim petition, deceased succumbed to the injuries on 15.08.2009. Therefore, legal heirs of the deceased were brought on record stating that death of the deceased was due to injuries sustained in the road traffic accident and there is nexus between the injuries sustained in the accident and the cause of death. But the Tribunal, dismissed the claim petition

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on the ground that there is no nexus between the injuries and cause of death.

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Learned counsel for the claimants submitted that in the accident, deceased had sustained multiple grievous injuries and was admitted to the hospital for four times as inpatient and ultimately, due to septicemia, as lungs were infected, during the course of treatment in the hospital, deceased succumbed to the injuries. The appellants/claimants relied upon the evidence of the doctor-P.W.2 and Ex.P.7-post mortem report and also Ex.R.5-opinion regarding death, as the original report of cause of death. He would submit that upon considering the chronological events in the accident and injuries sustained and the treatment taken, deceased died due to injuries and therefore, submitted to allow the Appeal by setting aside the judgment and award of the Tribunal.

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On the other hand, learned counsel for Insurance Company submitted that death is not due to the injuries sustained in the accident. The evidence of the doctor-P.W.2 is not believable and Tribunal has thoroughly discussed as to how the evidence of P.W.2 is not believable, relying on Ex.R.5-

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opinion as to cause of death is a natural death and hence, death of deceased is not due to the injuries sustained and therefore, submitted that Tribunal has correctly evaluated and appreciated the evidence and rightly dismissed the claim petition. Therefore, sought to dismiss the Appeal.

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In the present case, deceased was 50 year old and accident took place on 22.03.2009. First Information statement was lodged with the police and police filed the charge sheet that the deceased died due to the injuries sustained in the accident. From the medical evidence on record, it is proved that the deceased had sustained injuries of Type III B open fracture of both bones of right leg middle third and other grievous injuries. The said injuries are grievous in nature. The factum that deceased had sustained grievous injuries in the accident and admitted to hospital is not in dispute. Ex.P.8 contains three discharge summaries and Ex.P.11 contains four sets case sheets. These discharge summaries and case sheets have proved that the deceased has taken treatment in the hospital at various length of time. It is not in dispute that deceased was admitted to the hospital on 22.03.2009 on which date he met with the accident and

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sustained injuries. He was inpatient till 04.05.2009. For the second time he was admitted on 08.06.2009 and was discharged on 11.07.2009. The third admission as inpatient was on 16.07.2009 to 01.08.2009. The fourth admission as inpatient is from 08.08.2009 till 15.08.2009. On 15.08.2009, deceased died in the hospital. Then, the question is whether death is due to injuries sustained in the accident. The Tribunal has opined that the injuries have no nexus to the cause of death, disbelieving the evidence of P.W.2-doctor on the ground that P.W.2-doctor had not consulted Dr.S.Venkata Raghavan who had conducted post mortem. Also Tribunal assigned reason that cause of death is due to lungs infection and it is a natural death. On these reasons, Tribunal has dismissed the claim petition.

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As discussed above, the accident, injuries and nature of injuries sustained are not disputed and the fact that deceased was admitted in the hospital for four times as inpatient, as discussed is not disputed. In this regard, the evidence of doctor-P.W.2 is to be appreciated. Learned counsel for Insurance Company submitted that P.W.2- doctor is not believable since he is a stock witness and giving evidence in

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many cases cannot be accepted without any material. Quite naturally, doctor is required to depose in number of cases wherever summoned by the Court. Unless there is any malafide intention of manipulation led in evidence, doctor’s evidence cannot be rejected. P.W.2 is an orthopedic doctor in Bowring and Lady Curzon Hospital, Bengaluru. Doctor has deposed about four times admission as inpatient and till death on 15.08.2009. It is evidence of doctor-P.W.2 that the deceased had developed septicemia and acute respiratory distress syndrome pouring pus at the fracture site was noticed on 08.07.2009. It is the evidence of doctor-P.W.2 that septicemia was developed due to type III B comminuted fracture of both bones of right leg. He was treated for anti tubercular treatment induced hepatitis (liver damage, jaundice) leading to pellagroid dermatitis.

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On the date of death, deceased had developed gasping, pulse was not felt, blood pressure was not recordable. Hepatomegaly-liver was enlarged. Pupils were dilated. Bilateral crepitation was felt and was gasping for breath. Around 7.25 am, pupils were dilated and fixed, pulse and blood pressure was not recordable. Around 7.30 am, inspite of

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NC: 2023:KHC:22366 MFA No. 7211 of 2012

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resuscitation measures deceased breathed his last and was declared dead, on 15.08.2009.

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It is worthwhile to extract the opinion of the doctor-P.W.2 as follows:

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I have learnt that this patient late Eshwarappan who expired on 15.08.2009 at about 7.30 am has also undergone post mortem examination on 16.08.2009 between 11.30 am and 12.30 pm. I am of the opinion that the Type III ‘B’ compound comminuted fractures of both bones of right leg with skin loss exposing bones, which was operated and applied a external fixator and skin grafting developed chronic infection of the bone name chronic osteomyelitis of Tibia leading to Septicemia and non union of the fracture resulting in widespread infection giving rise to peritonitis and perforation of intestine due to ulcer in the duodenum (small intestine) and infected right leg for which underwent operation of emergency, exploratory laparotomy and closure of perforation which later culminated in septicemia and acute respiratory distress. Syndrome requiring a central venous catheter. Bone infection was due to Tubercular origin which led to right sided plenral effusion (lung) and periocardial effusion (heart) for which received Antituberculosis treatment which led to liver toxicity and damage, resulting in jaundice and liver failure, with weak lungs and heart

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and septicemia and infection non union of fractures, ending in heart and lung failure(cardio respiratory arrest) leading to death. All the above said sequence of events right from the day of accident till the death are due to sequelae of injuries caused due to road traffic accident.”

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Ex.P.7 and Ex.R.4 are the post mortem reports of the deceased and both are one and the same. Admittedly, P.W.2doctor has not conducted the postmortem on the dead body of the deceased. The doctor who has conducted post mortem i.e., Dr.S.Venkata Raghavan has kept the reason of death as “reserved pending for case sheet extract”. Thus, said Dr.S.Venkata Raghavan has given his opinion/report as per Ex.R.5 that the deceased had admitted in the hospital for various ailments as described above. What doctor-P.W.2 had observed, same has been observed by Dr.S.Venkata Raghavan. Thus, Dr.S.Venkata Raghavan need not be examined as his report is sufficient in order to find out the cause of death. Based on this, Ex.R.5 depicts that “death is due to respiratory failure as a result of chronic lung infection (natural death)”. Therefore, the Tribunal has just swayed away by the words used in Ex.R.5. But the Tribunal has not appreciated the

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evidence of P.W.2-doctor with reference to the observations of complex development in the body of the deceased as per report Ex.R.5. Accident is caused on 22.03.2009 and deceased died on 15.08.2009. Quite naturally, doctor might have stated that deceased was in hospital and therefore, he has mentioned death as (natural death) in his opinion. But the firm finding of the Dr.S.Venkata Raghavan who conducted the post mortem is that due to respiratory failure as a result of chronic lung infection.

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As discussed above, deceased had developed infection and septicemia on the right leg injuries and intestine leading to lungs. Therefore, these developments are not noticed by the Tribunal.

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Under what circumstances deceased died is to be considered. When the deceased died due to injuries sustained and the origin of cause of injuries i.e., accident is also to be considered. Therefore, considering chronological events of date of accident and injuries sustained till the date of death, deceased was under continuous treatment in the hospital and

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developed infection and septicemia and due to the same, deceased died.

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The infection and septicemia developed from leg to lungs is not noticed by the Tribunal, inspite of evidence on record as discussed above from doctor-P.W.2 and Ex.R.5-report. Therefore, the Tribunal has not correctly appreciated the medical evidence on record in order to find out the nexus between the injuries caused and the cause of death. Therefore, it is proved that death of deceased is due to accidental injuries and is having nexus between injuries caused and death occurred. Therefore, finding of the Tribunal is hereby setaside.

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The Tribunal had observed that the evidence of doctor is not believable, since P.W.2 has not consented/consulted Dr. S. Venkata Raghavan. This observation is not correct for the reason that doctor has given evidence on the medical records and Dr.S.Venkata Raghavan had given finding on the basis of case sheets and thus, whatever observations made by both P.W.2 and Dr.S.Venkata Raghavan are same in the report and evidence, respectively. But, as per Ex.R.5 report, Dr.S.

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Venkata Raghavan before coming to conclusion regarding cause of death, he has discussed whatever treatment taken by deceased were complexes arose on the health conditions of the deceased are dealt with exhaustively. Therefore, Tribunal has committed an error in not appreciating the medical evidence on record.

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The deceased was 50 years old. Date of death is 15.08.2009. Deceased is stated to be a vegetable vendor. There is no proof of income. Therefore, as per Karnataka State Legal Services Authority chart, Rs.5,000/- is taken as monthly income. Since deceased was 50 years old, 25% of his income is added towards loss of future prospects in view of the dictum of the Hon’ble Supreme Court in the case of National

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Insurance Company Limited vs. Pranay Sethi and

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others reported in (2017)16 SCC 680 . There are four legal representatives who are wife and children of the deceased. Therefore, 1/4^th has to be deducted towards personal and living expenses. The applicable multiplier is 13. Therefore, loss of dependency is hereby determined and quantified as Rs.5,000/+ Rs.1,250/-(25% of Rs.5,000/-) x ¾ x 13 x 12 = Rs.7,31,250/-. Each claimant is entitled to Rs.40,000/-

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towards consortium. Accordingly, claimants are entitled to Rs.1,60,000/- towards consortium. Further, the claimants are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/-

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towards funeral expenses and transportation of dead body.

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There is delay of 234 days in filing the appeal. So also,

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there is delay of 1,142 days in filing the application to recall the order of dismissal of the appeal. Thus, claimants are not entitled to interest on the compensation amount for the delay of 234 and 1,142 days.

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Thus, claimants are entitled to compensation, as under:

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Loss of dependency	Rs.7,31,250/-
Loss of consortium	Rs.1,60,000/-
Loss of estate	Rs.15,000/-
Towards transportation of dead body and funeral expenses.	Rs.15,000/-
Total	Rs.9,21,250/-

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In view of the above, I pass the following:

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ORDER

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(i) Appeal is allowed in part.

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NC: 2023:KHC:22366 MFA No. 7211 of 2012

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(ii) The impugned judgment and award dated 28.07.2011 passed in MVC No.4956/2009 on the file of the II Additional Judge, Court of Small Causes, Bengaluru, is hereby set-aside.

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(iii) Claimants are entitled to total compensation of Rs.9,21,250/- with interest at the rate of 6% per annum from the date of claim petition till realization.

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*iii (a) Respondent No.2- Insurance Company is directed to pay compensation to the claimants within the period of two months from today.

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(iv) No order as to costs.

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(v) However, it is made clear that the claimants are not entitled to interest for delay period of 234 days and 1142 days, i.e., 1376 days, as stated supra.

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(vi) Registry is directed to return the Trial Court Records, forthwith, along with copy of the order.

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(vi) Draw award accordingly.

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Sd/JUDGE

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kcm

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List No.: 1 Sl No.: 12

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*Retyped and Replaced vide court order dated 04.01.2024

Sri Eshwarappa v. Apostolic Christian Assembly

Case brief

What is this about?

What did the court decide?

Sri Eshwarappa v. Apostolic Christian Assembly

Case brief

What is this about?

What did the court decide?

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