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2024 Supreme(Online)(Kar) 45541
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 739 OF 2018 C/W MISCELLANEOUS FIRST APPEAL NO. 8111 OF 2018(MV-D)
IN MFA NO. 739/2018 BETWEEN:
THE NATIONAL INSURANCE COMPANY LTD, GANESH BLDG. 2ND FLOOR, BANTWAL CROSS ROAD, BANTWAL BRANCH, BANTWAL D.K. DISTRICT – 574 211 REPRESENTED BY AUTHORIZED SIGNATORY AT REGIONAL OFFICE, #144, SHUBHARAM COMPLEX, M G ROAD, BANGALORE – 560 001.
…APPELLANT Digitally signed by RAMYA D Location: HIGH (BY SRI. SRISHAILA S .,ADVOCATE)
COURT OF KARNATAKA AND:
1. SMT. HEMAVATHI SHETTY, AGED ABOUT 57 YEARS, W/O BABU @ NARAYANA SHETTY, 2. BABU @ NARAYANA SHETTY AGED ABOUT 62 YEARS, S/O MANJAYYA SHETTY, 3. SATHYAVATHI AGED ABOUT 31 YEARS, D/O BABU @ NARAYANA SHETTY, R1 TO R3 ARE R/AT NO. ATADAJEDDUMANE NERALAKATTE, KARKUNGE VILLAGE AND POST, KUNDAPURA TALUK UDUPI DISTRICT – 576 201.
4. DEEPAK R AGED ABOUT 34 YEARS, S/O G.RAMU, R/OF NO.H.NO.2- 382, RATHNAKAR PAL COMPOUND, BANTWAL MUDA VILLAGE, JODUMARGA POST, BANTWAL TALUK, D K DISTRICT – 574 211.
…RESPONDENTS (R1 TO R4 NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01/09/2017, PASSED IN MVC NO.551/2013, ON THE FILE OF THE ADDL. DISTRICT JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, AWARDING COMPENSATION OF RS.18,29,700/- ALONG WITH INTEREST AT 6% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN MFA NO. 8111/2018 BETWEEN:
1. NAGENDRA PRASAD SHETTY S/O BABU @ NARAYANA SHETTY, (SINCE DECEASED BY HIS LRS)
1(a) SMT HEMAVATHI SHETTY, W/O BABU @ NARAYANA SHETTY, AGED ABOUT 57 YEARS, 1(b) SRI BABU @ NARAYANA SHETTY S/O MANJAYYA SHETTY, AGED ABOUT 62 YEARS, 1 (c) SRI. SATHYAVATHI D/O BABU @ NARAYANA SHETTY, AGED ABOUT 31 YEARS, ALL ARE RESIDING AT ATADAJEDDUMANE NERALLCATTE, KARKUNJE VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT – 576 201.
…APPELLANTS (BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI. DEEPAK. R S/O G. RAMU, AGED ABOUT 34 YEARS, R/O H.NO.2-382, RATHNAKAR PAI COMPOUND, BANTWAL MUDA VILLAGE, JODUMARGA POST, BANTWAL TALUK, D. K. DISTRICT – 574 211
2. NATIONAL INSURANCE CO LTD., BRANCH OFFICE, GANESH BUILDING, 2ND FLOOR, BANTWAL CROSS ROAD, BANTWAL BRANCH, BANTWAL, D.K.DISTRICT – 574 211.
REP BY ITS BRANCH MANAGER.
…RESPONDENTS (BY SRI. SRISHILA. S ADVOCATE FOR R2;
R1- NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2017 PASSED IN MVC NO.551/2013 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.739/2018 is filed by Insurance Company challenging the judgment and award dated 01.09.2017 passed in MVC.No.551/2013 by Addl. District Judge and Addl. MACT, Udupi (sitting at Kundapura), Kundapura, for reducing the quantum of compensation and also upon the ground that the deceased not died due to the accidental injuries.
MFA.No.8111/2018 is filed by the claimants challenging the aforesaid judgment and award for seeking of enhancement of compensation.
2. The factum of accident, injuries sustained in the accident and coverage of insurance is not disputed.
3. Heard the arguments from both sides and perused the records.
4. Learned counsel for the Insurance Company submitted that there is no nexus between the injuries sustained and death occurred. Further submitted that after the date of accident, four years later, the deceased died and hence, there is no nexus between the injuries sustained and death occurred. Further submitted that during the pendency of the claim proceedings, the claimant died and his legal heirs by coming on record have filed an application for amendment and it was allowed. But for filing additional written statement, opportunity was not given. Therefore, prays for remand of the matter. If the Tribunal had given opportunity to file additional written statement, then the Insurance Company would have proved that there is no nexus between the death of the deceased and injuries sustained.
5. Further submitted that the Tribunal has not adopted the correct parameters while determining the compensation resulting into award of higher amount of compensation. Therefore, on all these grounds prays to allow the appeal filed by the Insurance Company and remand the matter to the Tribunal.
6. On the other hand, learned counsel for the claimants submitted that in the accident the claimant/deceased had sustained grievous injuries resulting into breaking of cervical bone and spinal cord and suffered paraplegia and confined to bed. Later during pendency of the claim petition, after four years, the injured claimant died. Therefore, with reference to the documentary evidence submitted that it is proved that there is nexus between the injuries sustained and death occurred. Further submitted that the Tribunal has not adopted the correct parameters while assessing the quantum of compensation. Therefore, prays for enhancement of compensation. Further submitted that the Tribunal has committed error in deducting 10% of salary towards Income Tax and that is not permissible. Hence, on all these grounds the claimants seeks for enhancement of compensation.
7. The medical evidence on record particularly Ex.P.3-
wound certificate, Ex.P.7-disability certificate and Ex.P.36- postmortem report ought to have been considered. Whether there is nexus between the injuries sustained and death occurred. Ex.P.3-wound certificate reveals that the deceased has suffered the following injuries:
“1. Contusion , 5cmx 5cm, over front aspect of upper mid &left side of the chest with underlying fracture of manubrium sternum and left sided 2nd rib (MRI of Cervical Spine)
2. Fracture dislocation of 2nd thoracic vertebra with cord rotation giving rise to loss of secondary and motor movements, i.e. paraplegia (MRI of Cervical Spine) .
3. Abrasion 3cm x 3cm, over front aspect of right knee. 4. Abrasion, 3cm x 2cm, over front aspect of left knee.”
8. Ex.P.7 is the disability certificate issued by the Kasturba Hospital, Manipal, proving the following criteria:
“This Patient Mr. Nagendra Shetty (Hosiptal No. 023489003) was admitted in Dept. Neurosurgery on 20.12.2012 with alleged h/o RTA on 18.12.2012. Patient was not able to move both the lower limbs after the incident.
At the time of admission his GCS was 15/15. His upper limb had normal tone and power. Examination of the lower limb revealed grade 0/5 power and absent tone. There was no sensation below D4 level. Investigations revealed D3 compression fracture with s compression on the spinal cord at that level.
He un
