The National Insurance Company Ltd., Vs Sudha a

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.02.2024 PASSED IN MVC NO. 417/2020 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), AWARDING COMPENSATION OF RS. 75,58,024/- WITH INTEREST AT THE RATE OF 6 PERCENT P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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An Insurer has filed this appeal calling in question the Judgment and Award dated 06.02.2024 in M.V.C. No.417/2020 on the file of the III Additional Judge and Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru [for short, 'the Tribunal' ].

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HC-KAR

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The Tribunal has allowed the claim petition filed by the deceased's wife and two minor children [ the children were aged 2 years and 9 months respectively as of the date of the accident ]. The Tribunal has awarded a total sum of Rs.75,58,024/- along with interest at 6% per annum from the date of petition to the date of deposit stipulating that the respondents will be entitled to receive 85% of such amount as compensation.

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The Tribunal has determined the aforesaid

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sum of Rs.75,58,024/- under the following heads:

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*Compensation Heads*	*Compensation* *Amount*
Towards loss of dependency	Rs.74,23,024/-
Towards loss of consortium	Rs.44,000/-
Towards loss of estate	_Rs.16,500/- _
Towards funeral and obsequies ceremony expenses	Rs.16,500/-
Towards transportation of dead body	Rs.10,000/-
Medical expenses	_Rs.48,000/- _
*Total*	_Rs.75,58,024/- _

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HC-KAR

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This Court, on a request by the first to third respondents [ the wife and the minor children of the deceased ] has permitted to delete the parents of the deceased.

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The respondents - claimants' case is that the deceased, Sri Rakesh T @ Rakesh, was driving his car from Devanahalli towards Bangalore in the early hours of the morning on 25.09.2019 and that he met with an accident because the driver of the lorry bearing No. RJ-02-GB-1661 [ Insured with the Insurer ] was driving rash and negligently. The respondents - claimants contend that the deceased was shifted to a hospital where he was admitted for two days, and that despite the treatment, the deceased breathed his last because of the injuries suffered in the accident. On the loss of dependency, the respondents - claimants have asserted that the deceased was aged 33 years and earning Rs.7,50,000/- per annum as a

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HC-KAR

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Class-II Civil Contractor and that he was the only breadwinner.

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The respondents - claimants have also

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referred to the commencement of an investigation by the jurisdictional Police with both the deceased and the driver of the lorry being charged for certain offences. The Tribunal has observed in the impugned order that the Insurer has not seriously contested the accident but has denied that the driver of the lorry was rash and negligent and he was responsible for the accident. The Tribunal has also observed that the Insurer has not disputed that the lorry was covered under a valid policy.

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Mr. K. Sridhara, the learned counsel for the appellant, submits that this Court must intervene with the Tribunal's judgment because of the respondents - claimants' failure to establish a nexus between the accident and the demise of the deceased, and alternatively, this Court must interfere with the

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HC-KAR

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Tribunal’s apportionment of negligence between the deceased and the driver of the lorry and it cannot be 15:85 as divided by the Tribunal. On the first ground, Mr. K. Sridhara canvasses that the accident is on 25.09.2019, that he was discharged on 27.09.2019 and that he has breathed his last only on 04.10.2019. The medical records produced as exhibits, more specifically Discharge Summary [Exb.P8], show that the deceased had hypertension and Coronary Artery Disease [CAD] and the Doctor's evidence probabilizes that the death was because of the cardiac arrest and not because of the injuries suffered in the accident.

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On the alternative submission on

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apportionment of liability, Mr. K. Sridhara submits that the police investigation indicates that the lorry was parked on the left hand side of the road and that the deceased was rash and negligent, and the Tribunal’s conclusion must be examined in the light

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HC-KAR

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of the fact that the accident has admittedly occurred

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in the early hours of the day [1:15 a.m.]. Mr. M. T. Nagaraj, the learned counsel for the respondents - claimants, is heard in the light of these two rival submissions, and on perusal of the records that are made over for this Court's examination.

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This Court must observe that the respondents - claimants’ assertions [a] that the deceased met with an accident on 25.09.2019; [b] that the deceased was hospitalized only for two days and he was discharged on certain advice; [c] that he has died on 04.10.2019 are not contested. Further, it is established from the Doctor's evidence [PW.3] and the Discharge Summary [Ex. P8] that the deceased was admitted with Life Care Hospital, Bengaluru with a history of road accident on 25.09.2019 and that he had suffered multiple injuries, including displaced fracture of left acetabulum, anterior rim, roof and posterior rim and

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HC-KAR

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column and lacerated wound on submandibular region.

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In fact, the Discharge Summary records

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that there was some displacement in the left hip joint

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with left joint effusion and the deceased was discharged with the advice that he should stop cardiac medicines. The Doctor [PW3] has specifically stated in his evidence that the death could be related to the complications of the previous injuries suffered in the road accident because of myocardial infarction, pulmonary embolism and deep vein thrombosis. This Court, in the light of this opinion is not persuaded to conclude that the Tribunal has erred in opining that there is a nexus between the death of the deceased and the injury suffered by him in the road accident on 25.09.2019, and this Court has also considered that the Insurer has not taken up any defense in the pleadings and one of the suggestions to the Doctor in the cross examination is that the deceased has died

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HC-KAR

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committing suicide. The Insurer’s defense, could at

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the most be a tentative or roving defense.

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On the alternative contention, the

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apportionment of negligence between the deceased and the driver, this Court must observe that the Tribunal, on an appreciation of the material on record [ including the police records ] has opined that if the driver of the lorry was careful in parking his vehicle, the accident could have been avoided and this gains significance given the time of the accident [1:15 a.m.]. If the Tribunal’s finding on the apportionment of liability between the driver of the lorry and the owner is to be interfered with. The Insurer/owner of the Lorry should have brought on record the material to show that the driver of the lorry had ensured that all safety measures were taken to indicate to the drivers of the other vehicles that there was a breakdown. In the absence of these

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