Partly allowed

The New India Assurance Co. Ltd., v. Sri. Babasab S/O Miyasab Bastwad

Karnataka HC10 Feb 2017MFA/21476/2011

Case brief

AI extract

What is this about?

Two appeals were filed against a Motor Vehicles Claims Tribunal award granting Rs.2,80,000 compensation to legal representatives of a deceased driver. The High Court held that since the death (~18 months after discharge) was not conclusively proven to be due to the accident injuries (Actio personalis moritur cum persona), the claim survived only for limited medical expenses, reducing the award to

What did the court decide?

Compensation reduced to Rs.25,000; interest at 6% p.a.; statutory deposit released; other deposits refunded.

The New India Assurance Co. Ltd., Vs Sri. Babasab… — Motor Accident Claims | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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M.F.A.NO.21342/2011 (MVC) C/W. 21476/2011

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IN M.F.A.NO.21342/2011

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BETWEEN

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SRI. BABASAB S/O MIYASAB BASTWAD AGE:40 YEARS, OCC:DRIVER, R/O GOUNTHANA M.K.HUBLI, TQ:BAILHONGAL. DIST:BELGAUM. SINCE DECEASED BY HIS LRS., SMT. MAMATAZ W/O BABASA BASTWAD, AGE:60 YEARS, OCC:DRIVER, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM. ... APPELLANT

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(BY SRI.: HANAMANT R.LATUR, ADV.)

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AND

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SRI. SURAJ S/O BABASAB BASTWAD, AGE:40 YEARS, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. SALIM S/O BABASAB BASTWAD AGE:38 YEARS, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. BABU S/O BABASAB BASTWAD AGE:38 YEARS, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SMT. HINAKAUSAR W/O ISHAQ MOKASHI, AGE:33 YEARS, OCC:HOUSEHOLD, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. SHIVANAND S/O MADIVALAPPA BALEKUNDARGI TEACHE AGE:40 YEARS, OCC:OWNER OF TATA TEMPO, R/O NEGINAHAL, TQ:BAILHONGAL, DIST:BELGAUM.

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., OFFICE AT MUDALAGI BUILDING, CLUB ROAD, BELGAUM.

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... RESPONDENTS

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(BY SRI.: RAVINDRA R.MANE, ADV. FOR R6, R1TO R5 NOTICE DISPENSED WITH)

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MFA FILED U/SEC.173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED:15.11.2010, PASSED IN M.V.C. NO.875/2005 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AT BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.21476/2011

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BETWEEN

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THE NEW INDIA ASSURANCE CO. LTD., BY ITS BRANCH MANAGER, MUDALGI BUILIDING CLUB ROAD, BELGAUM, HEREIN REPTD. BY NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2^ND FLOOR,

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NEW COTTON MARKET, HUBLI-580029. REP. BY ITS ASST. MANAGER.

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...APPELLANT

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(BY SRI.RAVINDRA R MANE, ADV.)

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AND

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SRI. BABASAB S/O MIYASAB BASTWAD SINCE DECEASED BY HIS LRS.

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SMT. MUMTAZ W/O BABASAB BASTWAD AGE:ABOUT 59 YEARS, OCC:HOUSEHOLD, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. SURAJ S/O BABASAB BASTWAD AGE:ABOUT 41 YEARS, OCC:COOLIE, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. SALIM S/O BABASB BASTWAD AGE:ABOUT 39 YEARS, OCC:COOLIE, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SRI. BABU S/O BABASAB BASTWAD AGE:ABOUT 38 YEARS, OCC:COOLIE, R/O M.K.HUBLI, TQ:BAILHONGAL, DIST:BELGAUM.

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SMT. HINAKAUSAR W/O ISAQ MOKASHI AGE:ABOUT 34 YEARS, OCC:HOUSEHOLD, R/O BAILHONGAL, DIST:BELGAUM.

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... RESPONDENTS

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(BY SRI. HANAMANTH R LATUR, ADV. FOR R1)

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MFA FILED U/SEC.173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD

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DATED:15.11.2010, PASSED IN M.V.C. NO.875/2005, ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AT BAILHONGAL, AWARDING THE COMPENSATION OF RS.2,80,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.11.2016, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING : -

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JUDGMENT

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These two appeals stand disposed of by this common judgement, as they arise out of the judgement and award

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dated 15/11/2010 in MVC No.875/2005 on the file of Fast Track Court and Additional MACT, Bailhongal.

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In MFA No.21342/2011, the appellant-Smt Mamtaz is the wife, and respondents 1 to 4 are the other legal representatives of one Bababsab.

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MFA No.21476/2011 is filed by the Insurance Company.

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Parties are referred to with respect to rank of each of them before the tribunal for narration of facts precisely.

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On 16/4/2004, Babasab was travelling in a vehicle, i.e. tempo bearing No.KA-22-8668 to go to his

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house at M.K.Hubli. At about 6.45p.m., as the said vehicle he came near Itagi cross, and as it was being driven by its driver rashly and negligently, the driver lost control over the tempo as a result of which, the tempo fell into to a road side ditch. The deceased who was sitting on the backside got injured to his head, neck, shoulder and the back as a result of this accident. He was hospitalised up to 22/4/2004. On 11/4/2005, he made a claim petition seeking compensation of Rs.2,98,000/- for the injuries suffered by him. During the pendency of the petition i.e. on 29/7/2005 he died. Therefore, the legal representatives of the said Babasab got impleaded in the claim petition and consequently, the claim petition was amended, claiming compensation of Rs.5,00,000/- for the death of Babasab. According to the legal representatives, the death was due to injuries suffered by the Babasab in the accident.

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The respondent No.1, in the tribunal, i.e. Shivanand, the owner of the passenger Tempo did not contest the claim petition. The respondent No.2-the Insurance Company filed written statement denying the entire case of the claimants, and stated further that the

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deceased was quiet hale and healthy after his discharge from the hospital. It denied that Babasab died during the treatment period and further contended that its liability, if any, was subject to terms and condition of the Insurance Policy.

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At the time of enquiry, the wife of the deceased adduced evidence as PW-1 and a Doctor by name S.S.Karalatti adduced evidence as PW-2. Totally 13 documents as per Exs.P1 to P12 were marked on the claimants’ side. From the respondent’s side, no oral evidence was adduced, but, insurance policy as per Ex.R1 came to be marked.

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Analyzing the evidence, the tribunal came to the conclusion that the death of Babasab was due to the injuries sustained by him in the accident. Taking the income of the deceased as Rs.36,000/- per year, deducting 1/3 towards his personal expenses and applying the multiplier ‘10’, the tribunal determined the loss of dependency as Rs.2,40,000/-. To this amount, another Rs.10,000/- each was added towards conventional heads, namely, loss of love and affection, loss of consortium, loss

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of estate and funeral expenses. Thus, the tribunal granted a total compensation of Rs.2,80,000/- with interest at the rate of 6% p.a. till date of realisaiton.

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Not being satisfied with this award, one of the legal representatives i.e., the wife of the deceased has come in appeal, and the Insurance company has also filed connected appeal assailing the findings of the tribunal that the death of Babasab was due to injuries he sustained in the accident.

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The counsel for the claimant-wife argues that the accident took place on 16/4/2004 and Babasab died on 29/9/2050. The claim petition was initially filed by Babasab claiming compensation for the injuries sustained by him. But, after his death on 27/9/2005, his LRs came on record, amended the claim petition and sought compensation for the death of Babasab. The tribunal has rightly held that the death of Babasab was due to the accidental injuries. But, he argued that Rs.2,40,000/awarded by the tribunal towards loss of dependency is on lower side. The tribunal has awarded inadequate compensation towards loss of estate, love and affection and

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consortium. The interest is also on the lower side. Therefore, it is his argument that the compensation has to be enhanced to Rs.5,00,000/- as claimed in the amended claim petition. The learned counsel has placed reliance on the judgement of this Court in the case of Kallappa since deceased by LRS Vs. Shivaleela and others (MFA 22801/2005) .

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On the other hand, the learned counsel for the respondent No.2-Insurance Company has argued that the tribunal has committed an error in awarding compensation

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of Rs.2,40,000/towards loss of dependency and Rs.10,000/- each on the other heads. His argument is that after the death of Babasab, the tribunal should not have permitted the legal representatives to come on record. The undisputed facts are that the accident occurred on 16/4/2004 and Babasab died on 27/9/2005. Therefore, there is a gap of nearly one year three months from the date of accident to the date of death. The wound certificate shows very clearly, that Babasab sustained simple injuries and that he was discharged from the hospital on 22/4/2004. There is no evidence to the effect that

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Babasab was taking treatment for the injuries even after his discharge from the Hospital and therefore his death was due to the accidental injuries. The finding given by the tribunal is contrary to the evidence. So, the claim petition which was filed earlier seeking compensation for injuries will not survive for being prosecuted further by the LRs. He says his argument is that applying the maxim, “ Actio personalis moritor cum persona ”, the tribunal should have dismissed the claim petition. In support of his argument, he placed reliance on the judgement of full bench of this Court in the case of Kannamma Vs. Deputy General Manager, KSRTC, (1991 ACJ 707). It is further argued, without prejudice to the aforementioned point, that if at all for any the tribunal is right in awarding compensation for the death of Babasab, he points out that the tribunal has wrongly taken the multiplier ‘10’ instead of ‘7’. The age of the deceased at the time of his death was 65 years. Therefore, the multiplier applicable is ‘7’. Then he raises a point that because there is one dependent, i.e. the wife, 50%, deduction should have been made instead of 1/3 towards personal expenses of the deceased. The other

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legal representatives were not dependent on the deceased. In this regard, he has placed reliance on two judgements of this Court in the cases of Shankrawwa Vs.Channappa and another in MFA No.22823/2011 and in the case of

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T.S.Rukmani and another Vs.M.B.Aiyappa and others reported in 2004 ACJ 909 .

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In the light of the argument of the learned

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counsel for the parties, the principal point that arises for discussion is;

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“Whether the cause of action would survive in favour of the legal representatives of the deceased to claim compensation for the death of Babasab?”

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Undisputed facts are that the accident took

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place on 16/4/2004. Babasab was discharged from the Hospital on 22/4/2004. He died on 27/9/2005. Initially, he made a petition claiming compensation for the injuries sustained by him in the accident. His wife and children came on record after his death.

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The established principle is that the compensation payable for the injuries sustained by the

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person is personal. If death takes place after the institution of the claim petition, unless it is shown that the death was due to accidental injuries, the legal representatives of the injured do not get any right to prosecute the petition further and claim compensation for the death. This principle is succinctly stated in the legal maxim, “ Actio personalis moritor cum persona ”. Section 306 of Indian Succession Act with its illustration (1) can also be referred to here. It reads as under:

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306. Demands and rights of action of or against deceased survive to and against executor or administrator . — All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

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Illustration

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(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.

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15. Full Bench of this Court in the case of

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Kannamma (supra), had an occasion to examine a similar question that had arisen in these two appeals. After referring to number of decisions on this point, the law has been summarized by the Full Bench. It is held as below:-

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What emerges from the above consideration of the question relating to a claim by a person for compensation for personal (bodily) injuries sustained in a motor accident on such person's death not caused due to such injuries, surviving to such person's legal representatives, may now be summarised:

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(1) The Common Law Rule 'actio personalis moritur cum persona' as embodied in Section 306 of the Succession Act since applies to India, a claim by a person for compensation for personal injuries caused in a

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motor accident does not, on that person's death not being the consequence of such injuries, survive to his/her legal representatives;

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(2) Cause of action for personal injuries being founded on tort (motor accident caused by the tortfeasor), injured person's claims for damages under heads recognised by Common Law and not by statute, based on such tort and not independently of it, cannot, on such person's death, survive for prosecution by his/her executors or administrators (or legal representatives) since Section 306 of the Succession Act, in express terms, declares that the cause of action in favour of a person for personal injuries (tort) does not survive on such person's death to his/her executors or legal representatives;

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(3) A claim by a person for compensation for personal injuries, be it pending before the Claims Tribunal, be it pending in the first Appellate Court or be it pending in the second Appellate Court, does not survive on such person's death not caused as a consequence of personal injuries, to his legal representatives;

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(4) A claim of a person for compensation for personal injuries if has resulted in award of the Claims Tribunal or decree of the Appellate Court, survives to his legal representatives on his death, even if such death is not the consequence of personal injuries sustained by him and hence, if such award or decree is disputed in the first Appellate Court or the second Appellate Court, the same could be resisted by the legal representatives of the claimant;

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(5) The Division Bench decision of this Court in Muniyappa's case (supra) related to an appeal by the claimant where enhanced compensation was sought only for personal injuries suffered in the motor accident by the claimant and where no compensation or enhanced compensation was sought by the claimant for properties damaged or lost as a result of the motor accident;

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(6) Legal position enunciated in the Division Bench decision of this Court in Muniyappa's case (supra) as regards survival of cause of action in personal injury claims arising out of motor accidents being well in accordance with the law laid down on the matter in the

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Supreme Court decisions in Melepurath's case (supra) and M. Veerappa's case (supra) has to be upheld; and

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(7) Legal position stated in Kongara Narayanamma's case, 1975 ACJ 448 (AP), Thailammai's case, 1981 ACJ 185 (Madras), Joti Ram's case, 1984 ACJ 645 (P%H) and Samptilal's case, 1985 ACJ 539 (Rajasthan), as regards survival of cause of action in personal injury claims arising out of motor accidents by concerned learned Judges, not being in accordance with the law laid down in the matter by the Supreme Court decisions in Melepurath's case, 1986 ACJ 440 (SC) and M. Veerappa's case, AIR 1988 SC 506, has to be dissented.”

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In this case, the tribunal has held that death of Babasab was due to the accidental injuries; the argument of the learned counsel for the Insurance company is that this finding is contrary to the evidence available on record. Therefore the evidence needs to be examined now. PW-1 is the wife the deceased Babasab. Of course, her evidence is that her husband died on 27/9/2005, because of injuries

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sustained by him in the accident and she has to say so. But, the answers given by her in the cross examination assume importance. She says that she has not produced any documents. Even after discharge from the hospital, her husband was going to hospital for taking treatment. Though she has denied the other suggestions, she has not produced documents in proof of treatment taken by her husband after discharge, but, she has unequivocally stated that her husband himself was going to hospital for treatment and therefore, she does not know where he has kept those documents relating to further treatment. She admits that PM report has not been produced.

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PW-2 is the Doctor; it is also his evidence in examination in chief that Babasab was inpatient in hospital from 16/4/2004 to 22/4/2004. He says that Babasab had sustained grievous injuries namely, deep cut wound measuring 15X5 cms, with bleeding on the scalp and injuries to back pelvis, spinal chord, both the hips, lumbar and other multiple injuries all over the body. He has stated that he treated the patient in the District hospital. And that after discharge from the hospital, he

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treated the deceased in the out patient department right from 26/4/2004 to 25/2/2005. He says that the death of Babasab was due to accidental injuries. He issued medical certificate as per Ex.13. But, in the cross examination, he clearly admits that Babasab was discharged from hospital after his complete recovery from the injuries. He also admits that when Babasab died on 27/9/2005, PM examination should have been conducted to ascertain that the death was actually due to injuries. He also says that he has not issued the medical certificate as per Ex.P13 to confirm that the death was due to accidental injuries.

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So anylyzing the evidence of PWs-1 and 2, the inferences that can be drawn are that there is a long gap between the date of accident and the date of death; that on 22/4/2004 when Babasab was discharged from the hospital, he had recovered from the injuries, that he might have taken treatment further for the injuries and that the last date of visit to the hospital for treatment was 25/2/2005 as can be noticed from the affidavit of PW –2. Even from the date of last treatment till the date of death, there is a gap of 5 months. If really the death was due to

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the accidental injuries, the dead body should have been subjected to PM examination. The evidence of PW-2 is contrary to what is mentioned in the wound certificate marked as EX-P6. PW-2 says that the injures are grievous in nature. But in Ex.P6, it is clearly written that the injuries are simple in nature. So for this reason, the evidence of PW-2 becomes untrustworthy. Cause of death is not a matter of presumption. Therefore, it is clear that the death of Babasab could not be due to the injuries sustained by him in the accident dated 16/4/2004.

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Therefore, the claim petition initially made by Babasab for compensation towards the injuries sustained by him due to accident does not survive in favour of the legal representatives. In fact, the tribunal should not have permitted the legal representatives to come on record. Section 306 of the Indian Succession Act is very much applicable to the facts of this case, and so also, the ratio laid down by the Full Bench in the case of Kannamma. In these circumstances, the tribunal should not have granted compensation to the legal representatives on the several heads as mentioned above. At best, the claimants i.e the

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legal representatives of Babasab are entitled to claim medial expenses for the period from 16/4/2004 to 22/4/2004 and some amount spent towards further treatment after discharge of Babasb from the Hospital and nourishment. This amount can be quantified at Rs.25,000/- to meet the ends of justice.

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Therefore, from the above discussion, I now come to the conclusion that the appeal filed by the wife of the deceased i.e. MFA No. 21342/2011 deserves to be dismissed and the appeal filed by Insurance Company i.e. MFA No.21476/2011 deserves to be allowed. Hence the following order:-

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MFA No.21342/2011 is dismissed.

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MFA No.21476/2011 is allowed.

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The judgement and award dated 15/11/2010 in MVC No.875/2005 on the file of the Fast Track Court, Addl. MACT, Bailhongal, is modified. The compensation is reduced to Rs.25,000/- from Rs.2,80,000/-. This amount of Rs.25,000/- carries interest at the rate of 6% per annum from the date of award till the date of realisation.

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Statutory deposit if any, made by the Insurance

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Company to the extent of Rs.25,000/- be released in favour of the claimants.

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The other deposits, if any, made by the Insurance

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Company, be refunded to it.

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Sd/JUDGE