Partly allowed

Sri Kubendra v. Sri Cheluvaraju

Karnataka HC4 Nov 2020MFA/4163/2016

Case brief

AI extract

What is this about?

The High Court held that legal representatives can claim compensation for loss of dependency when an injury claimant dies during the pendency of the petition. The court enhanced the award from Rs. 8,73,000 to Rs. 17,67,400 based on reassessed income and consortium entitlements, dismissing the insurer's appeal.

What did the court decide?

Appeal by insurer dismissed; appeal by claimants allowed in part; compensation enhanced to Rs. 17,67,400 with 6% interest.

Sri Kubendra Vs Sri Cheluvaraju — Maintenance and Alimony | 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.3220 OF 2016(MV-D) C/W MFA.NO.4163 OF 2016(MV-D)

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IN MFA.NO.3220 OF 2016

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BETWEEN:

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SHRIRAM GENERAL INSURANCE COMPANY LTD BRANCH OFFICE I RAMAVILASA ROAD MYSORE NOW REPRESENTED BY ITS LEGAL MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD S-5, MONARCH CHAMBERS 3^RD FLOOR, INFANTRY ROAD BANGALORE ....APPELLANT (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE)

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AND:

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1 . KUBENDRA S/O LATE PUTTASWAMY GOWDA AGED ABOUT 34 YEARS RESIDENT OF HEBBALA

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[KADAMANAHALLI] HANAGODU HOBLI HUNSUR TALUK SINCE DEAD REP BY LR'S

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A) MANJULA W/O LATE KUBENDRA NOW AGED ABOUT 36 YEARS

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B) NAVEENA S/O LATE KUBENDRA NOW AGED 21 YEARS

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C) DARSHAN S/O LATE KUBENDRA NOW AGED ABOUT 15 YEARS

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D) SANNAMMA W/O LATE PUTTASWAMY GOWDA NOW AGED ABOUT 52 YEARS

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RESPONDENT (C) ARE MINORS REPRESENTED BY THEIR NEXT FRIEND MOTHER MANJULA

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ALL ARE RESIDING AT HEBBALA [KADAMANAHALLI] HANAGODU HOBLI HUNSUR TALUK MYSORE DIST - 576 101

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2 . CHELUVARAJU S/O SRINIVASAGOWDA NOW AGED ABOUT 32 YEARS RESIDENT OF SHARAVANAHALLI VILLAGE HUNSUR TALUK MYSORE DISTRICT - 576 101

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3 . PARASURAM S/O SRINIVASAGOWDA NOW AGED ABOUT 37 YEARS

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RESIDENT OF SHARAVANAHALLI VILLAGE HUNSUR TALUK MYSORE DISTRICT - 576 101

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….RESPONDENTS

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(BY SRI. SRINIVASA .D.C, ADVOCATE FOR R1(A-D) SRI. B.S. NAGARAJ, ADVOCATE FOR R2 AND R3)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.11.2015 PASSED IN MVC NO.498/2012 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT JUDGE & MEMBER, MACT, MYSURU, AWARDING COMPENSATION OF RS.8,73,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA.NO.4163 OF 2016

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BETWEEN:

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SRI KUBENDRA S/O LATE PUTTASWAMYGOWDA AGED ABOUT 38 YEARS RESIDING AT HEBBALA (KADAMANAHALLI) HANAGODU HOBLI HUNSUR TALUK MYSORE DISTRICT-571 105

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SINCE DEAD BY HIS LRS.

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A) SMT. MANJULA W/O LATE KUBENDRA AGED ABOUT 37 YEARS

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B) SRI. NAVEENA S/O LATE KUBENDRA AGED ABOUT 21 YEARS

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C) MASTER DARSHAN S/O LATE KUBENDRA AGED ABOUT 15 YEARS

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D) SMT. SANNAMMA W/O LATE PUTTASWAMYGOWDA AGED ABOUT 52 YEARS

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THE APPELLANTS NO.3 IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN & MOTHER SMT. MANJULA (APPELLANT NO.1)

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ALL ARE RESIDING AT HEBBALA (KADAMANAHALLI) HANAGODU HOBLI HUNSUR TALUK MYSORE DISTRICT-571 105

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....APPELLANTS

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(BY SRI. SRINIVASA .D.C, ADVOCATE)

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AND:

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1 . SRI. CHELUVARAJU S/O SRINIVASAGOWDA AGED ABOUT 34 YEARS (DRIVER OF LORRY NO.KA-02-C-5088)

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2 . SRI. PARASURAM S/O SRINIVASAGOWDA AGED ABOUT 39 YEARS (OWNER OF LORRY NO.KA-02-C-5088)

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BOTH ARE RESIDING AT SHARAVANAHALLI VILLAGE HUNSUR TALUK MYSORE DISTRICT-571 105

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3 . SHRI RAM GENERAL INSRUANCE CO. LTD. BY ITS MANAGER BRANCH OFFICE I RAMAVILASA ROAD MYSORE-570 001 (INSURER OF LORRY NO.KA-02-C-5088)

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….RESPONDENTS

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(BY SRI. B.S. NAGARAJ, ADVOCATE FOR R1 AND R2 SRI H.N. KESHAVA PRASHANTH, ADVOCATE FOR R3)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.11.2015 PASSED IN MVC NO.498/2012 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT JUDGE & MEMBER, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS 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.498/2012. MFA.No.3220/2016 is filed by the Insurance Company mainly questioning the compensation awarded under the head of loss of dependency, whereas MFA.No.4163/2016 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 Kubendra S/o Late Puttaswamygowda filed claim petition for having sustained injuries in a road traffic accident dated 30.11.2011. The case of the original claimant was that on 30.11.2011 at about 10.30 p.m., he was walking by the side of the road to attend work at

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Sindenahalli and when he reached near Sindenahalli Road curve, the driver of the offending lorry wanted to enquire with the route and having enquired about the route, without affording an opportunity to Kubendra, who was at the right side of the front wheel of the lorry suddenly proceeded in a rash and negligent manner and on account of recklessness and negligence of the driver of the offending lorry, the front wheel of the lorry ran over the left leg of Kubendra causing severe injuries to his left leg, left hand and also to other parts of the body. Hence, he filed a claim petition by contending that he suffered head injury in the above said accident. The claimant specifically contended that he has taken treatment at K.R.Hospital, Mysuru. Later he was also admitted at J.S.S. Hospital and as per the advice of the Doctor at J.S.S. Hospital, he was shifted to Nimhans, Bengaluru. Thereafter, he was again shifted back to K.R.Hospital,

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Mysuru, where he was undergoing treatment as an inpatient from 08.04.2012 till 20.10.2012. Inspite of the treatment, the claimant succumbed to injuries on 20.10.2012 at about 10.30 a.m. After the death of the original claimant, the present claimants claiming to be the legal representatives of the deceased came on record and have prosecuted the claim petition seeking compensation as dependents of the deceased. It appears that on 07.04.2014, the Tribunal passed the judgment and award by awarding total compensation of Rs.8,73,000/-. The said judgment and award was questioned by the claimants as well as the Insurance Company. This Court by order dated 07.07.2015 has set aside the judgment and award passed by the Tribunal and the matter was remitted back for fresh consideration.

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After remand, the claimants have lead in further oral evidence and have examined PWs.5 and 6.

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Respondent No.3/Insurance Company who had examined RWs.1 and 2 on earlier occasion have not chosen to lead any further evidence.

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

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"1) Whether the petitioners prove that Kubendra died as a result of motor vehicle accident that occurred on 30.11.2011, at about 10.30 p.m., when he was going near Sindenahalli Road Curve, where the lorry bearing Regn.No.KA-02-C5088 was parked and that said accident occurred due to rash and negligent driving of the driver of said Lorry?

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2) Whether the petitioners are entitled for compensation? If so what amount and from whom?

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3) What order?"

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The Tribunal on appreciation of oral and documentary evidence has answered issue No.1 by

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recording a finding that Kubendra died on account of rash and negligent driving by the driver of the offending lorry. While assessing the compensation, the Tribunal has awarded Rs.5,76,000/- under the head loss of dependency. The Tribunal, in all, has awarded total compensation of Rs.8,73,000/- with interest at the rate of 6% 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 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

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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 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

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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 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

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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 @ Leelamma and Another vs. Chandra Mouli and Another reported in ILR 2007 Kar 2338, Hussain Peera @ Mulla Sab Gari vs. M. Venkateshulu rendered in MFA.No.20242/2013 and V.Anitha Gangadhara and Others vs. S.Srirama Reddy and Others rendered in MFA.No.10280/2013 . 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 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

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compensation under the head of loss of dependency. Relying on the judgments of the Co-ordinate 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 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

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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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The husband of claimant No.1(a) met with an accident on 30.11.2011. Hence, claimant No.1(a) who is the widow of Kubendra filed claim petition on behalf of her husband claiming compensation for bodily injuries sustained by her husband. During the pendency of the claim petition, the husband of claimant No.1(a) died on 20.10.2012. On perusal of medical evidence on record, it is forthcoming that the husband of claimant No.1(a) was immediately shifted to K.R.Hospital, Mysuru where first aid treatment was given. Thereafter, he was shifted to J.S.S. Hospital.

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It is also forthcoming that husband of claimant No.1 was put on ventilator and continued to be on ventilator support in SICU and he had to undergo tracheastomy on 29.12.2011 by ENT Surgeon. Inspite of treatment, his health condition deteriorated and this compelled the Doctors to refer him to Nimhans, Bengaluru.

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From the records, it is also borne out that the deceased after taking treatment at Nimhans, was later shifted to K.R.Hospital, Mysuru, where he was under treatment till his death on 21.10.2012. The clinching evidence on record coupled with ocular evidence of the Doctors who are examined as PWs.2 to 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 undergone five surgeries. If this clinching evidence is taken into consideration, we are of the

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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, the claim petition though filed by the injured/claimant must be construed as a claim petition in the nature of

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seeking compensation on account of death. The Division Bench of this Court in the said judgment also took note of the fact that widow could have even otherwise independently maintained a claim petition after the death of her husband and hence, 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. In that view of the matter, the

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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 claim petition was filed by the wife namely, Manjula on behalf of the injured. The claim petition for injuries was in fact prosecuted by the wife. Unfortunately, inspite of all possible best efforts made by the claimants, the husband of claimant No.1(a) could not survive and succumbed to injuries. Hence, in order to do substantial justice and by following the principles laid down by the Co-ordinate 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

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compensation under the head of loss of dependency has assessed the income of the deceased at Rs.4,000/- p.m. and has awarded Rs.5,76,000/- 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 34 years and was earning Rs.10,000/p.m. by working as a driver as well as a Tailor. 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 2011, we would

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notionally assess the income of the deceased at Rs.6,500/- and if 40% future prospects is added, the income of the deceased is notionally assessed at Rs.9,100/-. By deducting 1/4^th and applying the multiplier of 16, the compensation payable under the head of loss of dependency works out to Rs.13,10,400/(9,100x3/4x12x16). Under

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conventional heads, claimant No.1(a) being the wife of the deceased is entitled for a sum of Rs.40,000/towards spousal consortium, claimant Nos.1(b) and 1(c) being the sons of the deceased are entitled for a sum of Rs.40,000/- each towards parental consortium, claimant No.1(d) being the mother of the deceased is entitled for a sum of Rs.40,000/- towards filial consortium and Rs.30,000/- is awarded under the head loss of estate and funeral expenses. The compensation awarded under the head medical expenses remains undisturbed. Hence, the total

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compensation re-determined by this Court comes to Rs.17,67,400/- as against Rs.8,73,000/- 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.3220/2016 is dismissed and the appeal filed by the claimants in MFA.No.4163/2016 is allowed in part.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.17,67,400/- as against Rs.8,73,000/- 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. iv) The Insurance Company shall deposit the amount determined as aforesaid before the

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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. 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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Sd/JUDGE

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Sri Kubendra v. Sri Cheluvaraju

Case brief

What is this about?

What did the court decide?

Sri Kubendra v. Sri Cheluvaraju

Case brief

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