Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1419 (KAR)

Arun Vamanrao Deshpande R/o Ghataprabha v. Sanjay

2020-07-15

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - Mfa No.102786/2014 is filed by the claimants and MFA No.101590/2014 is filed by the insurance company against the judgment and award dated 24.03.2014, passed in MVC No.2990/2012 on the file of II Additional Sessions Judge, Belgaum. 2. The brief facts which are necessary for the disposal of these appeals are as under : The parents and brother of one Mandar Deshpande lodged a claim petition under Section 166 of the Motor Vehicles Act, contending that on 28.03.2012 at about 10.30 a.m. one Mandar and his brother came from Ghataprabha to Belgaum for purchasing of computer peripherals at Shahapur and after purchasing of the materials they were proceeding towards Tilakawadi to meet their relatives by walk. When they reached near Nath Pai circle, one motorcycle bearing reg.No.KA-22/EH-4290 came from behind in rash and negligent manner and suddenly dashed to said Mandar. Due to the said impact, said Mandar fell down and sustained severe injuries and fracture dislocation T-4, S cut cord injury and cut paraplegia O/5 and other injuries on the vital parts of the body. He was shifted to the hospital. It is contended that he was treated at Shivakripa Hospital, Hubli, Shree J.G. Hospital, Ghataprabha, Wanless Hospital, Miraj, Karnataka Health Institute, Ghataprabha and ultimately succumbed to the injuries during the treatment. 3. It is further contended that the claimants have spent more than Rs.6.00 lakhs towards his treatment. It is also contended that Mandar was hale and healthy and was aged 23 years as on the date of accident and was earning Rs.15,000/- per month from computer business, and he was also earning Rs.1.00 lakh per annum from agricultural work by growing sugar cane crop and maintaining his family, and have sought for suitable compensation. 4. After service of notice, the first respondent did not appear before the tribunal, he has been placed exparte. The second respondent-Insurance company appeared and filed its written statement denying the claim petition averments in toto. Respondent No.2 specifically contended that the death of Mandar is not due to accidental injuries but, due to preexisting brain injury and possible medical negligence at the treated hospitals and the prolonged treatment is definitely due to pre existing medical problems that the deceased had prior to the alleged accident and sought for the dismissal of the petition. 5. Respondent No.2 specifically contended that the death of Mandar is not due to accidental injuries but, due to preexisting brain injury and possible medical negligence at the treated hospitals and the prolonged treatment is definitely due to pre existing medical problems that the deceased had prior to the alleged accident and sought for the dismissal of the petition. 5. Based on the rival contentions urged by the parties, the tribunal raised the following issues: 1. Whether the petitioners prove that on 28.3.2012 at 10.30 hours, near Nath Pai Circle, on Khadebazar Road, Belgaum while the deceased coming near the Nath Pai Circle on Motor Cycle No.KA-22/EH-4290 came from behind in a rash and negligent manner and caused the alleged accident as a result of which the deceased sustained grievous injuries and died during his treatment as alleged? 2. Whether the respondent no.2 proves that the rider of motor cycle bearing no.KA-22/EH- 4290 was not having effective and valid D.L. to drive the same on the date of accident and hence the owner has violated the terms and conditions of the policy? 3. Whether the petitioners are entitled for compensation as claimed ? If so, from whom and for how much compensation they are entitled to? 4. What order or award? 6. In order to prove the case of the claimants, the first claimant got examined himself as PW1, one doctor by name Prakash Terani got examined as PW2 and as many as 41 documents were produced and marked as Ex.P1 to P41. 7. On behalf of respondents, there was no oral evidence adduced, the insurance policy was marked as Ex.R1. 8. Based on the oral and documentary evidence on record, and after hearing the parties, the tribunal allowed the claim petition by granting the compensation as under : 1 Mental agony 15,000/- 2 Towards loss of love and affection to the petitioners no.1 to 3 15,000/- 3 Towards loss of dependency 8,64,000/- 4 Towards medical expenses (As per bills furnished by the petitioners) 3,54,201/- 5 Towards funeral expenses 10,000/- 6 Towards conveyance charges 05,000/- TOTAL 12,63,201/- 9. It is that judgment which is under challenge in these appeals. 10. The learned counsel for the appellantsclaimants Sri. Sanjay S. Katageri, vehemently contended that the tribunal grossly erred in assessing the monthly income of the deceased. It is that judgment which is under challenge in these appeals. 10. The learned counsel for the appellantsclaimants Sri. Sanjay S. Katageri, vehemently contended that the tribunal grossly erred in assessing the monthly income of the deceased. He also argued that the tribunal grossly erred in awarding the compensation on the conventional heads and sought for enhancement of the compensation. 11. Per contra, Sri. N.R. Kuppelur, learned counsel for the respondent-Insurance company submits that the tribunal has not properly raised issue with regard nexus between the death and injuries said to have been sustained by Mandar Deshpande. 12. He further contended that there was no continuous treatment taken by the deceased and from the date of the accident there was huge gap of so many 8 months and as such, he also contended that the accident has occurred on 28.03.2012 and the date of filing the complaint is 05.04.2012, and the deceased died after 9 months of alleged accident, the claim petition itself was not maintainable and sought for dismissal of the appeal. PW2 doctor examined on behalf of the claimant is not a treated or competent doctor and claimants have failed to establish the nexus between accidental injury and the death. Moreover, no post mortem report is placed on record. 13. In reply, the learned counsel for the appellant Sri. S.S. Katageri filed an application seeking production of additional evidence by way of Affidavit of the appellant No.1, vide I.A. No.1/2020. In support of I.A., an affidavit is filed, wherein it is contended that during the pendency of the appeal, the appellants have realized that there is no proper evidence to prove the nexus between the cause of death and accidental injuries and therefore, an opportunity be provided for leading additional evidence. It is also contended in the affidavit that if the additional evidence is not taken on record, serious prejudice will be caused to the claimants and sought for allowing the I.A. and permit the claimants to lead further evidence. Thus, prays for allowing the appeal. 14. In view of the rival contentions urged by the parties, the following points would arise for consideration are: 1. Whether the appellants-claimants have made out a case for placing additional evidence on record? 2. If so, whether the matter requires reconsideration by the tribunal? 15. Answer to the above points are in the affirmative for the following REASONS 16. 14. In view of the rival contentions urged by the parties, the following points would arise for consideration are: 1. Whether the appellants-claimants have made out a case for placing additional evidence on record? 2. If so, whether the matter requires reconsideration by the tribunal? 15. Answer to the above points are in the affirmative for the following REASONS 16. In the present case, the accident that has occurred on 28.03.2012 at about 10.30 a.m. near Nath Pai circle involving motorcycle bearing No.KA-22/EH- 4290 whereby Mandar Deshpande sustained grievous injuries is not in dispute. On 01.04.2012 itself the FIR came to be lodged. It is also not in dispute that on 30.11.2012 said Mandar Deshpande died. 17. The medical record clearly shows that Mandar Deshpande has taken treatment from 15.04.2012 to 26.06.2012, 16.09.2012 to 05.11.2012 and from 21.11.2012 to 28.11.2012. However, there is no record to show that Mandar Deshpande has taken treatment between 15.04.2012 to 26.06.2012, 16.09.2012 to 05.11.2012 and from 21.11.2012 to 28.11.2012. 18. Over and above, postmortem was also not conducted. Even though, postmortem examination was not conducted to establish that there is nexus between the death and accidental injuries, in the present case, the evidence available on record is hardly sufficient to establish the fact that there was nexus between the death of Mandar Deshpande and the accidental injuries sustained by him on 28.03.2012. 19. No doubt the evidence of PW2 is available on record who is a doctor. It is pertinent to note that he is neither treated doctor nor the doctor who is authorized to speak about the nature of injuries since he is Homeopathy doctor. 20. During the hearing, when these aspects of the matter was being highlighted by the learned counsel for the Insurance company, the appellants have come up with an application seeking for permission to place additional evidence to lead the evidence of the Doctor, who treated the deceased Mandar in the hospital where he last took treatment. 21. Usually this court being the Appellate Court would not allow additional evidence to be placed on record and would decide the matter with the available material on record. 22. But in the present case, the evidence of expert form a basis for the very maintainability of claim petition itself. 21. Usually this court being the Appellate Court would not allow additional evidence to be placed on record and would decide the matter with the available material on record. 22. But in the present case, the evidence of expert form a basis for the very maintainability of claim petition itself. Motor Vehicles Act being the beneficial piece of legislation, we are of the opinion that a chance to be provided to the claimants to place additional evidence on record, which can throw light on the available materials to establish the fact that there was nexus between the death of Mandar Deshpande and the accidental injuries. 23. May be, this was not noticed by the Advocate for the claimants before the tribunal. The tribunal also missed out that PW2 was not competent enough to speak about the documents and treatment that has been given to the deceased before his death, as admittedly he is a Homeopathy doctor. 24. Under the circumstances, we are of the considered opinion that allowing the claimants to place additional evidence to lead the evidence of doctor, who treated Mandar Deshapande lastly in the hospital so as to establish the nexus between the death and the accidental injuries would definitely meet the ends of justice. 25. In view of foregoing discussions, I.A.No.1/2020 needs to be allowed and a chance be provided for the claimants to place on additional evidence on record. 26. It is needless to emphasize an opportunity should be provided for the contesting respondent to contest additional evidence on record in accordance with law. 27. Having said so, we are of the opinion that the matter requires to be remanded to the tribunal for fresh disposal of the matter in accordance with law by permitting the appellants-claimants to lead additional evidence and also contesting respondent to have their say in the matter. The tribunal to dispose of the matter in accordance with law. Accordingly, the points are answered in the affirmative. Accordingly, I.A.No.1/2020 is allowed. Consequently, we set aside the judgment and award passed by the tribunal and remitting back the matter to the tribunal for fresh disposal in accordance with law. The amount in deposit may be returned to the Insurer with a direction to the parties to appear before the tribunal on 24.08.2020 without further notice.