Partly allowed

The Branch Manager v. M Vasanthi

Karnataka HC4 Nov 2020MFA/1720/2015

Case brief

AI extract

What is this about?

This judgment addresses two cross appeals regarding motor accident compensation. It holds that legal representatives of a deceased claimant can claim compensation under the head of loss of dependency if a nexus exists between injuries and death. The Court modified the Tribunal's award, reducing total compensation to Rs.25.27 lakhs.

What did the court decide?

The insurance company's appeal allowed; claimants' appeal dismissed; compensation modified to Rs.25,27,427/-; interest reduced to 6% p.a.

The Branch Manager Vs M Vasanthi — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.634 OF 2016 (MV-D) C/W

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MFA.NO.1720 OF 2015 (MV-D)

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IN MFA.NO.634 OF 2016

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BETWEEN:

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1 . MR.SENDIL KUMAR.D S/O DHANASHEKAR .M SINCE DEAD BY HIS LRS.

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(I) SMT. M. VASANTHI W/O D. DHANASHEKAR AGED ABOUT 49 YEARS.

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(II) D. DHANASHEKAR S/O LATE ARMUGAM AGED ABOUT 60 YEARS

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(III)D. NAVEEN KUMAR S/O D. DHANASHEKAR AGED ABOUT 33 YEARS

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(IV) D. KIRAN KUMAR S/O D. DHANASHEKAR AGED ABOUT 24 YEARS

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(V) D. SHYAM KUMAR S/O D. DHANASHEKHAR AGED ABOUT 19 YEARS

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1.(VI) D. NIVEDITHA D/O D. DHANASHEKHAR AGED ABOUT 17 YEARS APPL. NO.1.(VI)MINOR REP. BY THEIR NATURAL GUARDIAN MOTHER ALL ARE RESIDING AT NO.K-15 33^RD MAIN ROAD, 2^ND BLOCK BTM LAYOUT, BANGALORE-76

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....APPELLANTS

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(BY SRI. P. MAHADEVA SWAMY, ADVOCATE)

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AND:

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SMT.VENKATALAKSHMI W/O NAGARAJU AGED: MAJOR NO.11, DODDABLE, KENGERI HOBLI BANGALORE SOUTH,BANGALORE-60

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THE MANAGER UNITED INDIA INSURANCE CO.LTD. NO.1872, 20^TH MAIN ROAD 20^TH CROSS, MARENAHALLI MAIN ROAD VIJAYANAGAR, BANGALORE-560 040.

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….RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R1 V/O DATED 01.07.2019 NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.10.2014 PASSED IN MVC NO.338/2013 ON THE FILE OF THE 13^TH ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE

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CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA.NO.1720 OF 2015

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BETWEEN:

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THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD, NO. 1872, 1^ST FLOOR 20^TH MAIN, 20^TH CROSS MARENAHALLI MAIN ROAD VIJAYANAGAR BENGALURU-560 040 BY REGIONAL MANAGER UNITED INDIA INSURANCE CO.LTD, 5^TH FLOOR, KRISHI BHAVAN NRUPATHUNGA ROAD, HUDSON CIRCLE BANGALORE-560 001 BY IT"S MANAGER (BY SRI. O. MAHESH, ADVOCATE)

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....APPELLANT

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AND:

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M VASANTHI AGE 48 YEARS W/O D. DHANASHEKHAR

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D. DHANASHEKHAR AGE 59 YEARS, S/O LATE ARMUGAM

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D. NAVEEN KUMAR AGE 32 YEARS, S/O D. DHANASHEKHAR

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D. KIRAN KUMAR AGE 23 YEARS,

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S/O D. DHANASHEKHAR

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D. SHYAM KUMAR AGE 18 YEARS, S/O D. DHANASHEKHAR

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D. NIVEDITHA AGE 16 YEARS, MINOR D/O D. DHANASHEKHAR

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RESPONDENT NO.6 IS MINOR BY M/G 1^ST RESPONDENT ALL ARE RESIDING AT NO.K-15 33^RD MAIN ROAD, 2^ND BLOCK BTM LAYOUT BANGALORE-560 076

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SMT. VENKATALAKSHMI MAJOR, W/O NAGARAJ, NO.11 DODDABELE VILLAGE, KENGERI HOBLI BENGALURU SOUTH BENGALURU TALUK- 560 060

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….RESPONDENTS

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(BY SRI. P. MAHADEVA SWAMY, ADVOCATE FOR R1 TO R6 V/O DATED 05.03.2015 NOTICE TO R7 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.10.2014 PASSED IN MVC NO.338/2013 ON THE FILE OF THE 13^TH ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.28,89,000/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL THE REALIZATION.

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THESE APPEALS COMING ON FOR HEARING HIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The Insurance Company as well as claimants have filed independent appeals challenging the judgment and award passed in MVC.No.338/2013. MFA.No.1720/2015 is filed by the Insurance Company mainly questioning the compensation awarded under the head of loss of dependency, whereas MFA.No.634/2016 is filed by the claimants seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

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The original claimant namely Sendil Kumar S/o Dhanashekar M., filed claim petition for having sustained injuries in a road traffic accident dated 27.10.2012. Since during the pendency of the claim

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petition, the injured claimant died, the present claimants claiming to be the legal representatives of the deceased Sendil Kumar came on record and have prosecuted the claim petition seeking compensation as dependents of the deceased.

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The case of the claimants is that on 27.10.2012 at about 3.00 p.m., when the deceased was proceeding towards Bangalore on Manchanabele Dam Road on his Honda Dio Scooter, at that juncture, the driver of the offending Maruthi Omni car bearing Reg.No.KA-03-M-6554 came from the opposite direction in a rash and negligent manner and dashed against the scooter on which the deceased was proceeding. Due to the impact, the deceased sustained grievous injuries and was immediately shifted to BGS Global Hospital, Kengeri and later was shifted to Bhagwan Mahaveer Jain Hospital, Bangalore for further treatment.

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The claimants further contended that the

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deceased was hardly aged 27 years and was working as a Sales Executive at Reliance H.R.Service Private Limited. Hence, filed claim petition claiming compensation of Rs.1,00,00,000/-.

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On receipt of notice, the respondent Nos.1 and 2 appeared and filed separate written statement denying the entire averments made in the claim petition. The respondent No.2/Insurance Company specifically contended that the policy was in force at the time of the accident but the liability, if any, is subject to the terms and conditions of the policy. Subsequent to impleadment of legal representatives of the deceased, respondent No.1 did not file any statement of objections but, respondent No.2/Insurance Company filed additional statement of objections specifically contending that the claimants

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except producing the ration card have not produced any other necessary records in support of their case.

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Based on the rival contentions, the Tribunal initially formulated the following issues:

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"1) Whether petitioner proves that he has sustained injury in RTA arising out of the accident alleged to have been taken place on 27.10.2012 at about 3 p.m. near Manchanabele, Manchanabele Dam Road, Kengeri Hobli, Bangalore due to the rash and negligent driving of the Maruthi Omni Car bearing registration No.KA-03-M-6554?

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2) Whether petitioner is entitled to the compensation? If so, what is the quantum and from whom?

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3) What order?"

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After impleadment of legal representatives, issue No.1 was deleted and additional issue is framed:

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"Whether petitioners prove that deceased Sendhil Kumar D., died to the

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injuries suffered in RTA alleged to have taken place on 27.10.2012 at about 3 p.m. due to the rash and negligent driving of the Maruthi Omni Car bearing registration No.KA-03-M-6554?"

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The claimants in support of their contention, examined claimant No.1 as PW.1 and got examined three independent witness as PWs.2 to 3 and the Doctors as PWs.4 and 5 and to corroborate ocular evidence produced documentary evidence vide Exs.P-1 to P-27. The respondent No.2/Insurance Company examined its Assistant TP Claim and its panel doctor as RWs.1 and 2 and got marked documents at Exs.R-1 to R-3(a).

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The Tribunal on appreciation of oral and documentary evidence has answered additional issue in the affirmative by holding that deceased had suffered severe fracture injuries to pelvic, bowl and

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bladder and was on continuous treatment both as an inpatient and outpatient and had undergone continuous surgeries and also was on support of dialysis and the same is supported by evidence of PW.6. The Tribunal was also of the view that there is

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no charge sheet and inquest mahazar and the claimants have lead in sufficient evidence to prove that the death of the deceased is on account of accidental injuries. While assessing the compensation, the Tribunal has awarded Rs.9,79,200/- under the head loss of dependency. The Tribunal, in all, has awarded total compensation of Rs.28,89,000/- with interest at the rate of 8% p.a.

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Learned counsel appearing for the

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Insurance Company would vehemently argue and contend before this Court that in view of law laid down by the Full Bench decisions of this Court in the case of Kannamma vs. Deputy General Manager reported

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in ILR 1990 Kar 4300 and Uttam Kumar (Deceased) vs. Madhav and Another reported in ILR 2002 Kar 1864 , he would submit that claimants cannot seek compensation under the head of loss of dependency and they are only entitled under the head of loss of estate and medical expenses, if any. He would further submit that the claimants have failed to establish the nexus between the injuries sustained in the accident and on this count, prays for dismissal of the claim petition. He would further submit that if this Court comes to conclusion that the death has occurred on account of injuries suffered in the accident, then he would submit that compensation cannot be paid under the head of loss of dependency as held by the Full Bench in the above said judgments.

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Learned counsel appearing for the

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Insurance Company by relying on the ratio laid down in Uttam Kumar’s case (supra) would submit to this

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Court that when claim petition is filed for having sustained bodily injuries in a motor accident and if death occurs pending claim petition, the legal representatives can only claim compensation under the head of loss of estate. On these set of grounds, learned counsel for the Insurance Company would submit to this Court that the compensation awarded under the head loss of dependency is contrary to proposition laid down in Kannamma’s case and Uttam Kumar’s case and hence, he would submit that the finding is erroneous and needs to be set aside by this Court.

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Per contra, learned counsel appearing for the claimants would vehemently argue and contend before this Court that the controversy in regard to maintainability of claim petition by the legal representatives which was originally filed by the injured claiming compensation for bodily injuries is no

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more res integra . He would submit to this Court that the Co-ordinate Division Bench of this Court have interpreted the proposition laid down in Kannamma’s case and has held that the legal representatives can prosecute the claim petition which was originally filed by the injured and claim compensation under the head of loss of dependency. In support of his contention, learned counsel has relied on the judgments of Division Bench of this Court rendered in Leelavathi @

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Leelamma and Another vs. Chandra Mouli and Another reported in ILR 2007 Kar 2338 and Hussain Peera @ Mulla Sab Gari vs. M. Venkateshulu rendered in MFA.No.20242/2013 . The Division Bench of this Court in Hussain Peera's case has referred to the Full Bench judgments rendered in Kannamma’s case and Uttam Kumar's case and has dealt with the controversy and has held that when a claim petition is filed by the injured

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claiming compensation towards expenses, loss of income, etc., and on such person's death, occurring as a result or consequence of bodily injuries and if the nexus is established, the claimants are entitled to claim compensation under the head of loss of dependency. Relying on the judgments of the Coordinate Bench, he would submit that the Division Bench was also of the view that the legal representatives even otherwise could have maintained a claim petition claiming compensation under the head loss of dependency. On these set of grounds, learned counsel appearing for the claimants would submit to this Court that the claimants are entitled to seek compensation under the head of loss of dependency.

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Heard learned counsel appearing for the Insurance Company and learned counsel appearing for the claimants. We have perused the pleadings, oral

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and documentary evidence. On perusal of the same, the following points would arise for our consideration:

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1) Whether the claimants are entitled to claim compensation under the head of loss of dependency in a claim petition which was originally filed by the injured claiming compensation under the head future loss of earnings, medical expenses, etc.,?

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2) Whether the quantum determined by the Tribunal needs interference by this Court?

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Re: Point No.1:

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Initially, the injured claimant i.e., Sendil Kumar filed claim petition claiming compensation for the bodily injuries sustained by him. During the pendency of the claim petition, the claimant died on 24.08.2013. On perusal of medical evidence on record, it is forthcoming that the son of claimant Nos.1 and 2 was immediately shifted to BGS Global

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Hospital, Kengeri and thereafter, he was shifted to Bhagwan Mahaveer Jain Hospital, Bangalore for further treatment. It is also forthcoming that after discharge from Bhagwan Mahaveer Jain Hospital, he continued further treatment as inpatient as well as outpatient at Christian Medical College at Vellur, Tamil Nadu from 10.02.2013 to 20.03.2013 and again at Fortis Hospital, Bangalore for further treatment. Inspite of treatment, his health condition deteriorated and he succumbed to injuries on 24.08.2013.

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From the records, it is also borne out that the deceased while taking treatment at Fortis Hospital, Bangalore, succumbed to the injuries. The clinching evidence on record coupled with ocular evidence of the Doctors who is examined as PW.6 would clearly prove that deceased, from the date of accident, was under continuous treatment and was hospitalized. The medical evidence also indicates that he has

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undergone surgeries. If this clinching evidence is taken into consideration, we are of the view that the death is on account of accidental injuries suffered by the original claimant.

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The Co-ordinate Division Bench of this

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Court in Leelavathi's case (supra) while dealing with similar question has dealt with the controversy that is involved in the present case on hand and at para 59 of the judgment has held that if death is on account of direct consequence of the injuries sustained in a road traffic accident and if nexus is established between the accident, injury and ultimate death, then claim petition by the dependant parents is maintainable. Similar view was also taken by the Co-ordinate Bench of this Court in Hussain Peera's case (supra). In the said case also, the Division Bench of this Court was of the view that if the nexus between the injuries caused and the death is established, in the interest of justice,

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the claim petition though filed by the injured/claimant must be construed as a claim petition in the nature of seeking compensation on account of death. The Division Bench of this Court took a view that the legal representatives can seek compensation under the head loss of dependency. The Division Bench of this Court in Anitha Gangadhara's case (supra) has held that where initially claim petition is filed under Section 166(1)(a) of Motor Vehicles Act, 1988 and if death occurs, the second claim petition by the legal representatives seeking compensation on account of death is very much maintainable. If the above said proposition are taken into consideration, we are of the view that the facts in the present case on hand are identical to the facts in Leelavathi's case as well as Hussain Peera's case. Since the mother of the deceased would be dependent on her son, the present case on hand has to be dealt with under the head of

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dependency. In that view of the matter, the ratio laid down by the Co-ordinate Bench of this Court in Hussain Peera and Leelavathi's case are squarely applicable to the present case on hand.

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It is borne out from the records that the

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claim petition was originally filed by the injured claimant seeking compensation for the accidental injuries. Unfortunately, during the pendency of the claim petition, the injured claimant succumbed to injuries. Hence, in order to do substantial justice and by following the principles laid down by the Coordinate Bench of this Court in Hussain Peera as well as Leelavathi's case, we would hold that the claim petition filed by the claimants seeking compensation under the head of loss of dependency is very much maintainable. Accordingly, for the reasons stated supra, point No.1 formulated above is answered in the affirmative.

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Re: Point No.2:

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The Tribunal while determining the compensation under the head of loss of dependency has assessed the income of the deceased at Rs.6,000/- p.m. and has awarded Rs.9,79,200/- under the head loss of dependency. Learned counsel appearing for the claimants would vehemently argue and contend before this Court that deceased was hardly aged 27 years and was earning Rs.15,000/p.m. by working as a Sales Executive. Though we would not find any fault in the Tribunal assessing the income of the deceased notionally, in absence of proof of income, however, we are of the view that the income notionally assessed by the Tribunal is very much on the lower side. In absence of income proof, we would rely on the chart issued by the Legal Services Authority and having regard to the fact that accident is of the year 2012, we would notionally

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assess the income of the deceased at Rs.7,000/- and if 40% future prospects is added, the income of the deceased is notionally assessed at Rs.9,800/-. The Tribunal by taking the number of dependents as 5, has deducted 1/5^th towards personal expenses of the deceased. Since deceased is a bachelor and claimant Nos.3 to 5 being brothers of the deceased and also in view of the fact that claimant No.3 being the elder brother is gainfully employed, they cannot be dependent on the deceased. Since deceased was a bachelor and his family comprised of parents and four siblings, in the peculiar circumstances of the case, though 50% needs to be deducted in case of death of a bachelor but, however, in the present case on hand, we are of the view that deceased could not have spent 50% towards personal expenses. In that view of the matter, we deem it appropriate to deduct 1/3^rd towards personal expenses. Hence, by deducting

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1/3^rd towards personal expenses and by applying the multiplier of 17, the compensation payable under the head of loss of dependency works out to Rs.13,32,800/(9,800x2/3x12x17). Under

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conventional heads, claimant Nos.1 and 2 being the parents of the deceased are entitled for a sum of Rs.40,000/each towards filial consortium and Rs.30,000/- is awarded under the head loss of estate and funeral expenses. The claimants have produced medical bills amounting to Rs.10,84,627/- as per Ex.P-8 series. Hence, considering the nature of injuries, the surgeries undergone and the period of treatment taken at various Hospitals, we deem it fit to award Rs.10,84,627/- towards medical expenses as per the medical bills produced by the claimants. Thus, the total compensation re-determined by this Court comes to Rs.25,27,427/- as against Rs.28,89,000/awarded by the Tribunal.

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11. Hence, the following:

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ORDER

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i) The appeal filed by the Insurance Company in MFA.No.1720/2015 is allowed and the appeal filed by the claimants in MFA.No.634/2016 is dismissed.

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ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.25,27,427/- as against Rs.28,89,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As., if any, shall stand disposed of accordingly.

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Sd/JUDGE

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