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2020 DIGILAW 2189 (KAR)

Yashodhamma v. Ayyanagouda

2020-11-04

G.NARENDAR, M.I.ARUN

body2020
JUDGMENT G.Narendar, J. - Heard the learned counsel for the appellants and the learned counsel for the respondent No.3 Insurance Company. 2. The appeal is directed against the judgment and award of the M.A.C.T., Gangavathi rejecting the claim petition registered as M.V.C. No.152/2012 on the ground that the complaint is lodged after a lapse of 16 hours and that the distance between the spot of the incident, where it occurred and the Police Station which is merely 6 kms. and that the delay cast a cloud over the complaint. That the Tribunal despite looking into the statement of independent witness of one Smt.Yashodamma W/o. late Chandrashekar said to have been recorded by the PSI, has placed reliance on the ruling of this Court reported in ILR 2009 KAR 2921 and ILR 2010 KAR 1205 to hold that all is not well with the claim petition and has tended to believe the version that no accident had occurred but on the contrary, the deceased had jumped from that trailer and on account of his jumping, he suffered injuries and died and that the other version set up by P.Ws.1 and 2 are untenable. This conclusion is on the basis of the B report submitted by the Police in the Criminal Court absolving the driver of the tractor and hence proceeded to hold that the claimants suppressed the true facts and there being no rash and negligent act on the part of the 1st respondent, he proceeded to answer the issue in the negative and rejected the claim petition. 3. A copy of the postmortem report is placed before the Court. We have perused the same. The postmortem report records as under: "GOVERNMENT OF KARNATAKA HEALTH & FAMILY WELFARE DEPARTMENT POST MORTEM REPORT Station: Gangavathi Name Sex Age Caste Whence brought Village tannah Date and hour of Dispatch Receipt Examination Chandrashekar S/o.Ayyappa R/o.Killa area, Gangavathi M 40 years Nayak G.H. Gangavathi 12.30 pm 2.30 pm 1.00 pm To 2.00 pm 23/04/2009 Information furnished by Police 14-9-09 Sd/- Said to have died following RTA on 22/4/09 at 5-00 pm 9-1-13 Request for PME by SHO Gvt (R) Sect No.81/09 at 23/4/09 Ex.P7 Sd/- Sr. CJ Rd 5/5/09 Sd/- CPI Gvt (R) N.B: Observe the state of all the organs and when no disease or injury is found write "Healthy" 1.Exertanl Appearance Condition of Subject stout/emaciated/decomposed etc. CJ Rd 5/5/09 Sd/- CPI Gvt (R) N.B: Observe the state of all the organs and when no disease or injury is found write "Healthy" 1.Exertanl Appearance Condition of Subject stout/emaciated/decomposed etc. Wounds position, size Character Bruises Position, size, nature Ligature marks on neck/dislocation etc. 1 2 3 4 Body of male Height 5-6 Mod built and nourished Hair mixed Eyes closed Mouth closed Rigor mortis all over body present (1) Abrasion over the forehead 2 cm X 2 cm (2) Abrasion over the (R1) temporal region 3 cm X 2 cm (3) Abrasion over the neck (4) Swelling eyes the (R1) chest 6 cms X 4 cms All injuries (1) (2) (3) and (4) are ante mortem in nature The opinion regarding cause of death is recorded as under: due to haemorrhage shock as a result of injuries to vital organ (lung and liver) Duration of death 12-24 hrs. 4. From a reading of the above, it is apparent that the version of the claimants is probabilized. The body has been forwarded by the Police to the Government Hospital for conducting postmortem and 1.Exertanl Appearance while so forwarding the body, the Police have intimated the authorities that death occurred on account of an RTA (Road Traffic Accident) on 22.04.2009 at 05:00 p.m. The Tribunal has unfortunately failed to appreciate this vital document. 5. The injuries would show that the deceased has suffered injuries to one side of the head and torso. The conclusion with regard to cause of death is that the death has occurred on account of haemorrhage and shock as a result of injury to vital organs i.e., lung and liver. The conclusion that can be drawn, is that, the organs have been damaged on account of blunt force and such a blunt force cannot be generated by merely jumping from a trailer which would be about a maximum of 4 or 5 feet from the ground level. 6. In our opinion, the Tribunal has seriously erred in not appreciating Ex.P-7, the postmortem report in its proper perspective. The reliance on the B report to absolve the insurer and to hold the claimants guilty of suppression of true facts, in our considered opinion is wholly untenable and contrary to the evidence available on record and is perverse. The Tribunal has failed to apply its mind to the material on record. 7. The reliance on the B report to absolve the insurer and to hold the claimants guilty of suppression of true facts, in our considered opinion is wholly untenable and contrary to the evidence available on record and is perverse. The Tribunal has failed to apply its mind to the material on record. 7. It is common knowledge that a trailer is hardly about five feet from the ground. Even assuming that he had fallen, the moot question is whether such a fall would generate sufficient shock of such nature to damage the internal organs. The Tribunal in our opinion could have taken the assistance of a Doctor, more so when the postmortem report clearly records the cause of death as haemorrhage and shock as a result of injury to vital organs i.e., lung and liver. Further, it is settled law that the prosecution before the Criminal Court and the material produced therein are only of corroborative value and the nature, time and manner of accident are to be proved by the claimants. 8. In our opinion the impugned judgment has resulted in miscarriage of justice. Hence, we are of the considered opinion that the same requires to be set aside. Accordingly, the appeal is allowed. The judgment and award of the Tribunal is set aside. The matter is remitted back to the Tribunal for consideration and disposal of the claim petition in accordance with law. In view of the fact that the claim petition is of the year 2009, the parties shall appear before the Tribunal on 02.12.2020 and the Tribunal shall endeavour to dispose of the same within an outer limit of three months without granting any unnecessary adjournments. It is open to the parties to lead such further evidence if they so desire.