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2013 DIGILAW 799 (KAR)

Shaila Alias Shilavathi Patil v. K. H. Manjunath

2013-07-16

B.MANOHAR, N.K.PATIL

body2013
JUDGMENT N.K. PATIL. J. 1. This appeal by the claimant is directed against the impugned judgment and award dated 14th November 2007, passed in MVC No.4678/2006, by the VII Additional Judge, Member, Motor Accident Claims Tribunal-3, Court of Small Causes, Bangalore (SCCH-3), (for short, 'Tribunal') for awarding reasonable compensation, on the ground that, the Tribunal has erred in dismissing the claim petition. 2. On account of the death of the deceased in the road traffic accident, the appellants filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs.25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 14th November 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, dismissed the claim petition. Being aggrieved by the dismissal of claim petition by the Tribunal, the appellants are in appeal before this Court, seeking reasonable compensation for the death of the deceased Gururaj in the road traffic accident. 3. We have heard learned counsel for appellants and learned counsel for second respondent/Insurance Company for considerable length of time. 4. Smt. Mamatha G. Kulkarni, learned counsel appearing for claimants at the outset submitted that the Tribunal has erred in dismissing the claim petition, resulting in serious miscarriage of justice, on the sole ground that there is no nexus between the nature of injuries sustained and the cause of death of deceased. To substantiate her submission, she has taken through the evidence of PW2, wherein it is stated that even if the death is not caused due to the injuries sustained, viz. fracture of femur bone, the deceased on account of the said injuries has undergone treatment in two different Hospitals, viz. Chaya Nursing Home and M.S. Ramaiah Hospital for a period of 18 days. In all, the claimants have spent a sum of Rs.57,035/- towards medical expenses. Further, during the period of treatment and in-patient in two Hospitals, the claimants would have spent reasonable amount towards conveyance, nourishing food and attendant charges. This aspect has not been looked into nor considered nor appreciated by Tribunal. Therefore, she submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by allowing the claim petition. 5. This aspect has not been looked into nor considered nor appreciated by Tribunal. Therefore, she submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by allowing the claim petition. 5. As against this, learned counsel appearing for Insurer sought to justify the impugned judgment and award passed by Tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence and other material available on file and in spite of giving sufficient opportunity, the appellants have failed to make out a case, showing that there is nexus between the nature of injuries sustained in the accident and the cause of death. As per the evidence of Doctor, the deceased has died due to lungs infection and nowhere in the evidence of PW2, it is stated that lungs infection is due to fracture of femur bone. Further, as per the records, the deceased was suffering from Hodgkin's disease since 1994. Further, they have taken a specific stand that cause of the death of deceased was MRSA infliction Septicemia Shock and multi organ dysfunction, Basic Conrnical fracture neck of femur old Hodgkin lymphomia Type II diabetes Melitus" and was in the advanced stage of cancer. Therefore, the death of the deceased was not on account of the injuries sustained in the road traffic accident, but on account of the disease he was suffering from. 6. However, after going through the original records and on perusal of the medical bills, learned counsel appearing for Insurer fairly submitted that the appellants are entitled to a sum of Rs.57,035/-towards medical expenses in respect of the treatment undergone at Chaya Nursing Home as well as at M.S. Ramaiah Hospital, on account of the injuries sustained in the road traffic accident. The same may be considered in accordance with law. Further, he submitted that reasonable compensation may also be awarded towards conveyance, nourishing food and attendant charges as the deceased was in-patient in two different Hospitals on two occasions, for a period of 18 days. 7. The same may be considered in accordance with law. Further, he submitted that reasonable compensation may also be awarded towards conveyance, nourishing food and attendant charges as the deceased was in-patient in two different Hospitals on two occasions, for a period of 18 days. 7. After hearing learned counsel for the appellants, learned counsel appearing for Insurer and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it emerges that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has dismissed the claim petition filed by the claimants, holding that as per the evidence of Doctor, PW2, the death of the deceased Gururaj is due to lungs infection and the same is not due to fracture of femur bone or the injuries caused in the accident. The Tribunal further held that the fracture of the femur bone had already been treated and cured during admission of Gururaj in M.S. Ramaiah Hospital between 06-04-2006 and 24-04-2006 and disbelieved the contention taken by the claimants that the death is due to fracture of femur bone of Gururaj occurred in the road traffic accident. The said reasoning given by Tribunal, is after due appreciation of the oral and documentary evidence available on file. Hence, interference in the impugned judgment and award passed by Tribunal is uncalled for nor the appellants have made out a case for interference. 8. However, the Tribunal has grossly erred in not awarding any compensation towards medical expenses and conveyance, nourishing food and attendant charges incurred by the claimants during the treatment of the deceased for the injuries sustained in the road traffic accident. On account of the accident, admittedly, as per Ex.P8, Wound Certificate, the deceased has sustained tenderness, abnormal mibilit over upper 1/3rd of left femur, left lower limb was shortened and as per X-ray, there was fracture of neck of left femur. For the treatment of the said injuries, the deceased was in-patient for a total period of 18 days in two different Hospitals. Learned counsel appearing for both the parties, after microscopic evaluation of the original records available on file, particularly the medical bills, Ex.P4 series do not dispute that the appellants have spent a sum of Rs.57,035/- towards medical expenses. For the treatment of the said injuries, the deceased was in-patient for a total period of 18 days in two different Hospitals. Learned counsel appearing for both the parties, after microscopic evaluation of the original records available on file, particularly the medical bills, Ex.P4 series do not dispute that the appellants have spent a sum of Rs.57,035/- towards medical expenses. Further, it is seen that the deceased was admitted in Intensive Care Unit (ICU) for a period of eight days and also underwent an operation. During this period, the claimants would have spent reasonable amount towards conveyance, nourishing food and attendant charges apart from incidental expenses. Therefore, having regard to the age, avocation, year of accident, nature of injuries sustained, nature and duration of treatment in two different Hospitals on two occasions and also surgery, we award a sum of Rs.20,000/-towards conveyance, nourishing food and attendant charges. In all, the claimants are entitled to a sum of Rs.77,035/-towards medical expenses and conveyance, nourishing food and attendant charges. 9. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 14th November 2007, passed in MVC No.4678/2006, by the VII Additional Judge, Member, Motor Accident Claims Tribunal-3, Court of Small Causes, Bangalore (SCCH-3), is hereby modified, awarding a sum of Rs.77,035/-, with interest at 6% per annum, from the date of petition till the date of realization. The second respondent/Insurance Company is directed to deposit compensation of a sum of Rs.77,035/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. On such deposit by the Insurance Company, the entire sum shall be released in favour of appellant No.1, immediately. Office to draw award, accordingly.