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2022 DIGILAW 1277 (KAR)

United India Insurance Co. Ltd. v. Kashimsab

2022-09-26

H.P.SANDESH

body2022
JUDGMENT 1. Heard the learned counsel appearing for the appellant-Insurance Company. 2. The factual matrix of the claimants before the Tribunal is that the deceased was proceeding in the motorcycle and in the opposite direction, an auto rickshaw came and dashed against him. As a result, he had sustained grievous injury of fracture of femur and immediately, he was taken to Dr. Bijapur Hospital, Arvind Nagar, Hubli and then, he was shifted to K.L.E. Hospital and even at GSS Hi-Tech Hospital, Hubli and he had undergone operation and he was discharged. He was under continuous treatment from the date of the accident and therefore, was again admitted to the hospital on 21/12/2009 and was operated on 24/12/2010 and discharged on 30/12/2009. Even after surgery also, he has not recovered and ultimately, he died on 5/4/2010. Hence, the claimants have filed the claim petition before the Tribunal. 3. In pursuance of the claim petition, the respondent No.1 has appeared in person and respondent Nos.2 and 3 appeared through their counsel and respondent No.2 filed a written statement contending that FIR and charge-sheet discloses that the driver of the Tribunal was not possessing driving license to drive the auto rickshaw and respondent No.2, knowing fully well that the driver was not possessing valid and effective driving license, had authorized the respondent No.1 to drive the vehicle. 4. The claimants, in order to substantiate their claim, examined one of the claimant as P.W.1 and also examined the Doctors as P.Ws.2 and 3 with regard to the treatment provided to the deceased. On the other hand, the respondent-Insurance Company also examined two witnesses as R.Ws.1 and 2. The claimants got marked the documents as Exs.P1 to P53 and the respondent- Insurance Company got marked the documents as Exs.R1 to R3. 5. The Tribunal, after considering both oral and documentary evidence available on record, awarded compensation of Rs.3, 44, 280.00. Hence, the present appeal is filed before this Court by the Insurance Company contending that the deceased met with an accident on 3/7/2008 and thereafter, died on 5/4/2010 and there is no nexus between the accidental injury and the cause of death and no material is placed before the Court. Hence, the Tribunal committed an error in grating compensation. 6. Hence, the present appeal is filed before this Court by the Insurance Company contending that the deceased met with an accident on 3/7/2008 and thereafter, died on 5/4/2010 and there is no nexus between the accidental injury and the cause of death and no material is placed before the Court. Hence, the Tribunal committed an error in grating compensation. 6. The other contention of the appellant-Insurance Company is that the driver was not having driving license as on the date of the accident and the driving license had elapsed and the same was renewed subsequent o the accident. To that effect, the learned counsel appearing on behalf of the appellant-Insurance Company would vehemently contend that the documents i.e., endorsement issued by the A.R.T.O., Dharwad and driving license particulars of Mohammad Rafiq Gudansaheb Dalath respectively are marked as Exs.R2 and R3, which clearly establishes the fact that there was no driving license as on the date of the accident. The counsel also would submit that, in the FIR, the name of the driver of the auto rickshaw is different from the name appearing in the charge-sheet. Hence it is a clear case of implication of the driver and therefore, it requires interference. 7. The counsel also would submit that there was negligence on the part of the deceased and the same has also not been considered by the Tribunal. Inspite of service of notice on the claimants, they have neither appeared before the Court, nor engaged any counsel. 8. Having heard the learned counsel for the appellant-Insurance Company and also on perusal of the material available on record, it is not in dispute that the accident occurred on 3/7/2008 and immediately, the injured, who had sustained fracture of femur was taken to hospital and he was inpatient from 4/7/2008 to 17/7/2008 in terms of Ex.P19 and again, he was admitted to hospital from 18/7/2008 to 24/7/2008 and took continuous treatment in K.L.E Hospital and thereafter, he also took treatment at Vivekananda General Hospital from 21/12/2009 to 30/12/2009 as per Ex.P37 and discharge card also discloses that he was subjected to surgery in the month of December, 2009. 9. 9. When such documents are available before the Court that the deceased was inpatient continuously from 4/7/2008 to 30/12/2009 and he was subjected to surgery twice which has also been spoken to by the Doctor, who has been examined as P.W.2, no doubt, in the cross-examination of P.Ws.2 and 3, it has emerged that, he was also having other ailments that is diabetic and asthama, P.W.2 in the cross-examination deposes the same and the medical evidence also discloses that he was suffering from other ailments i.e., diabetic and asthama and due to the accidental injuries and non-curing of the injuries which he had sustained, admittedly, he died on 5/4/2010 and before death also, he was taken to the hospital and he was an inpatient. The post mortem report is also produced as Ex.P38, which discloses that death is on account of heart attack. 10. The fact that the deceased was in continuous treatment is not in dispute. Though the learned counsel appearing for the appellant-Insurance Company would contend that there is no nexus between the accidental injuries and the cause of death, the said contention cannot be accepted, since the had sustained fracture of femur and he was in continuous treatment as per Exs.P18, P19 and P37 and he was subjected to surgery also twice. When such being the case, when medical evidence is available before the Court with regard to the fact that he was suffering from other ailments i.e., asthama and diabetic which led to non-curing of accidental injuries, ultimately, the same led to heart attack. Hence, the Tribunal has taken note of the said fact into consideration and comes to the conclusion that there was a nexus between the accidental injury and the cause of death. 11. Having taken note of the material on record, i.e., the evidence of the Doctors, who have been examined as P.Ws.2 and 3 and the documentary evidence i.e., Exs.P18, P19, P32, P37 and P38, I do not find any error committed by the Tribunal in coming to the conclusion that there is a nexus between the accidental injury and the cause of death. 12. The other contention of the learned counsel for the appellant-Insurance Company is that there was a discrepancy in the name of the driver in the FIR and also the charge-sheet. 12. The other contention of the learned counsel for the appellant-Insurance Company is that there was a discrepancy in the name of the driver in the FIR and also the charge-sheet. In order to prove the discrepancy that the driver has been implicated, the Investigating Officer has not been examined by the Insurance Company, except summoning the R.T.O. No doubt, the R.T.O appeared before the Court and the document is marked as Ex.R2 with regard to the endorsement is concerned, Ex.R3- driving license is marked to establish the fact that as on the date of the accident, driver of the auto rickshaw was not having driving license. There is a force in the contention of the Insurance Company that the owner ought to have verified whether the deceased was having driving license to drive the vehicle, while handing over the vehicle and the same has not been done. However, the Apex Court in the judgment rendered in PAPPU VS. VINOD KUMAR LAMBA ( 2018 (3) SCC 208 ) has held that, in respect of third party claims, the Insurance Company has to pay and recover the compensation from the owner Hence, it is a case of pay and recovery. 13. The other contention of the Insurance Company is that the compensation awarded is also on the higher side. Having taken note of the quantum of compensation granted, the very contention of the Insurance Company cannot be accepted. The compensation awarded by the Tribunal is only Rs.3, 44, 280.00 i.e., towards loss of dependency Rs.2, 24, 280.00, medical expenses Rs.1, 00, 000.00, since he was under prolonged treatment, loss of consortium Rs.10, 000.00 and funeral expenses Rs.10, 000.00 and the claimants have also not filed any appeal before the Court. 14. The other contention of the learned counsel for the appellant-Insurance Company is that contributory negligence has not been taken into consideration by the Tribunal. However, the Insurance Company has not examined the driver of the auto rickshaw to prove the same since, he is the right person to speak. Admittedly, against the driver of the auto rickshaw, charge-sheet is also filed. In the absence of cogent evidence, the contention of the Insurance Company that no contributory negligence is taken, cannot be accepted. 15. However, the Insurance Company has not examined the driver of the auto rickshaw to prove the same since, he is the right person to speak. Admittedly, against the driver of the auto rickshaw, charge-sheet is also filed. In the absence of cogent evidence, the contention of the Insurance Company that no contributory negligence is taken, cannot be accepted. 15. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed in part directing the Insurance Company to pay and recover the compensation from the owner in the same proceedings. (ii) The amount in deposit is ordered to be transmitted to the Tribunal. (iii) The registry is directed to transmit the trial court records, forthwith.