Sunday 29 January 2023

Whether Insurance Company Liable If Ambulance Meets An Accident And Patient Being Shifted For Better Treatment Succumbs To His Ailment?

  There is no dispute that the deceased was

suffering from jaundice and the cause of death as

mentioned in the FSL report was on account of

Jaundice. If the deceased was carried to provide him

with better treatment, if he had treated at Mangalore

his ailment could have been cured and walked out of

the hospital, jaundice is not a fatal ailment, better

treatment is available at higher medical centers like

Mangalore and for that reason, he was being carried

in an Ambulance. The driver though knew that he is

carrying a patient, did not take precaution while

driving, instead, he negligently caused the accident,

due to the impact, the ailment of the deceased was

aggravated and the patient died in the hospital.

Hence, there is nexus to accident and cause of death

of the deceased, but the percentage may vary and

therefore, there is no sound argument on behalf of

the insurance company. Hence, the ground urged for

dismissal of claim cannot be supported with. {Para 10}

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

MFA NO.4286 OF 2014 (MV)

NATIONAL INSURANCE COMPANY LTD. Vs MENPA MAISTRY S/O PAJIA MAISTRY

BEFORE

 MR. JUSTICE T.G.SHIVASHANKARE GOWDA

DATED: 10TH DAY OF JANUARY, 2023


In this appeal the appellant has challenged the

judgment dated 03.03.2014 passed in

M.V.C.No.1847/2010 by the Principal Senior Civil

Judge & Motor Accident Claims Tribunal, Mangalore

(Hereinafter referred to as ‘Tribunal' for short).

2. The appellant-insurance company was the

second respondent, respondent Nos.1 and 2 were

the petitioners, and respondent No.3 was respondent

No.1 before the Tribunal. The parties will be referred

with respect to their status before the Tribunal for

the sake of convenience.

3. Briefly stated, the facts are that, one Ravi,

the deceased, was the son of the first petitioner and

brother of second petitioner. They were the residents

of Mudigere Taluk. The deceased was suffering from

Jaundice. On 13.04.2010, for higher treatment, he

was carried in an Ambulance bearing No.KA-13/M-

0472 from Chikmagalur to Mangalore. At about 2.30

a.m., at Kodekkal Railway over bridge, Alape village

it was driven by its driver in a rash and negligent

manner and toppled, causing injures to the

deceased. He was succumbed to the injuries at

Mangalore Hospital.

4. The petitioners moved the Tribunal seeking

compensation that the deceased died on account of

the accident. The claim was opposed by the

respondents on the ground that there is no nexus

between the accident and death of the deceased.

The Tribunal considering the evidence awarded

compensation of Rs.5,50,000/- with interest @ 6%.

5. The Insurance Company is before this court

on the ground that there was no nexus between the

accident and death of the deceased. FSL report has

suggested that the death was due to lobor

Pneumonia and Tuberculosis with mild steatosis of

liver, and it was not on account of the accident. The

Tribunal ought to have rejected the claim and also

urged that the income taken and assessment of

dependency was on higher side.

6. Heard Smt.H.R.Renuka, learned counsel for

the insurer and Sri.P.Karunakar, learned counsel for

the petitioner No.2. Respondent/Petitioner No.1 died

during the pendency of this appeal.

7. It has been argued by learned counsel for

the insurer referring to FSL report that death of the

deceased was due to his ailment for which he was

being carried to Mangalore and the Tribunal has

committed an error in assessing the compensation

instead of dismissing the claim.

8. Per contra, learned counsel for the

petitioners submitted that the deceased though was

suffering from illness, he was being carried to

Mangalore, if he had been admitted to Mangalore

Hospital, he would have been survived with proper

treatment, but because of the accident, his ailment

was aggravated and for this reason, he died and FSL

report is nothing to do with it and the death was on

account of the accident and there is a nexus.

9. I have given my anxious consideration to the

arguments advanced on both sides and perused the

materials on record.

10. There is no dispute that the deceased was

suffering from jaundice and the cause of death as

mentioned in the FSL report was on account of

Jaundice. If the deceased was carried to provide him

with better treatment, if he had treated at Mangalore

his ailment could have been cured and walked out of

the hospital, jaundice is not a fatal ailment, better

treatment is available at higher medical centers like

Mangalore and for that reason, he was being carried

in an Ambulance. The driver though knew that he is

carrying a patient, did not take precaution while

driving, instead, he negligently caused the accident,

due to the impact, the ailment of the deceased was

aggravated and the patient died in the hospital.

Hence, there is nexus to accident and cause of death

of the deceased, but the percentage may vary and

therefore, there is no sound argument on behalf of

the insurance company. Hence, the ground urged for

dismissal of claim cannot be supported with.

11. Insofar as award of compensation is

concerned, the Tribunal has taken the income of the

deceased at Rs.5,000/- per month and deducted

50% towards personal expenses and applied the

multiplier of '17' for the age of the deceased at 26

years and assessed loss of dependency at

Rs.5,10,000/-. Under conventional heads, awarded

Rs.40,000/-, in all Rs.5,50,000/-.

12. At the time of accident, deceased was alive,

because of the accident he died. The reason for the

death has nexus to the accident though his serious

ailment aggravated death. Even assuming for the

sake of argument that the accident may have

impacted and aggravated the ailment, but it cannot

be more than 50%. The accident was of the year

2010, the deceased was a bachelor aged 26 years,

he was an earning member, without proof of income,

his income is taken at Rs.5,500/- and 40% of future

prospects Rs.2,200/- is added in view of National

Insurance Co.Ltd. -vs- Pranay Sethi and

Others1 case, then it comes to Rs.7,700/- if 50% of

the impact is taken out, then it will come to

Rs.3,850/-, since the deceased was a bachelor,

another 50% is taken out towards personal

expenses, it comes to Rs.1,925/- multiplied by '17',

the loss of dependency comes to Rs.3,92,700/-

(Rs.1,925/-x17x12).

13. Under the conventional heads, for love and

affection Rs.40,000/-, loss of estate and funeral

expenses Rs.15,000/- each if added, then

compensation will come to Rs.4,62,700/- as against

a sum of Rs.5,50,000/-. Hence, the second

petitioner being the unmarried sister since father

died during pendency of the appeal, is entitled to

Rs.4,62,700/- as against Rs.5,50,000/- awarded by

the Tribunal. Accordingly, the appeal needs to be

allowed and order of the Tribunal needs modification.

1 (2017) 16 SCC 680


14. In the result, I pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the

Tribunal stands modified.

The petitioner No.2 is entitled to compensation

of Rs.4,62,700/- with interest @ 6% per annum from

the date of petition till its realization.

The 2nd respondent is directed to satisfy the

award within 8 weeks from the date of receipt of

certified copy of this judgment.

The amount in deposit, if any, shall be

transmitted to the Tribunal for disbursal forthwith.

Sd/-

JUDGE


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