Partly allowed

Sri Shankar Naik v. Sri M Govindaraj

Karnataka HC6 Jun 2022MFA/6374/2013

Case brief

AI extract

What is this about?

This Court allowed the appellant's appeal partly against a Motor Vehicles Tribunal award. The Court quashed the Tribunal's finding that the death was due to neglect, accepted the nexus between accident injuries and death, and enhanced compensation to Rs. 2,99,980/- including loss of dependency, consortium, medical, and funeral expenses.

What did the court decide?

Enhanced compensation of Rs. 2,99,980/- awarded with interest @ 6% p.a. from the date of petition till realization.

Sri Shankar Naik Vs Sri M Govindaraj — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.6374/2013(MV-D)

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BETWEEN:

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SRI SHANKAR NAIK S/O LATE THAVRYA NAIK AGED ABOUT 51 YEARS R/O DEVPURA COLONY, HOSADURGA TALUK CHITRADURGA DISTRICT-577527.

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...APPELLANT

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(BY SRI RUDRAIAH M, ADVOCATE)

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AND:

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SRI M GOVINDARAJ S/O MALLAPPA AGED ABOUT 39 YEARS R/O MATTIGATTA VILLAGE, KADUR TALUK CHIKKMAGALUR DISTRICT-577548 (DRIVER OF TATA SUMO BEARING NO.KA 18/A -5963)

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SRI. RAMESH S/O MALLESHAPPA AGED ABOUT 37 YEARS R/O YAGATI VILLAGE, KADUR TALUK CHICKMAGALUR DISTRICT-577548 (OWNER OF THE TATA SUMO BEARING NO.KA 18/A -5963)

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THE DIVISIONAL MANAGER UNITED INDIA ASSURANCE CO. LTD. A.V.K. COLLEGE ROAD, DAVANAGERE-577001.

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…RESPONDENTS

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(BY SRI C.SHIVAKUMAR, ADVOCATE FOR R1 & R2; SRI RAVISH BENNI, ADVOCATE FOR R3)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.3.2013 PASSED IN MVC NO.345/2011 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE, ADDITIONAL MACT, HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The claimant is in appeal challenging the judgment and award dated 30.03.2013 passed by the Senior Civil Judge and Addl. MACT, Hosadurga, in MVC No.345/2011 wherein Tribunal has awarded a global compensation of Rs.25,000/- with interest @ 6% p.a.

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from the date of petition till realization.

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The alleged accident had occurred on 09.01.2011 and the deceased had sustained injuries of fracture of left neck of femur, fracture of hip and knee bone of left leg, fracture of right leg and foot metatarsal bone. The deceased was admitted to the hospitals at Hosadurga, Chitraduga and Davanagere. After getting discharged from the hospitals, when she was in bed rest in the house, she succumbed to the injuries on 08.03.2011. Therefore, within a period of 2 months from the date of accident the deceased died.

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Thereafter appellant has filed a claim petition under Section 166 of Motor Vehicles Act, 1988 before the Tribunal and Tribunal has held that the death of deceased has caused due to infection and assumed itself that family members of the deceased have not looked after the nourishment of deceased and as such the deceased has died. Hence, Tribunal has blamed the family members of the deceased and denied to give compensation on account of the death

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of deceased and has awarded only a global

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compensation of Rs.25,000/- with interest @ 6% p.a.

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Learned counsel for the appellant-claimant submitted that the Tribunal has not considered the facts and evidences that deceased had sustained grievous injuries and had got infection, due to which the deceased succumbed to the injuries. Therefore, he submitted that there is prolonged immobility from the date of accident till the death of deceased. In the circumstances, Tribunal has not considered or appreciated the material on record and as such, he prays for interference of this Court in the judgment and decree passed by the Tribunal.

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Further it is submitted that observation

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made by the Tribunal is only based on surmises and conjectures and Tribunal itself has assumed that family members have not looked after the deceased. For coming to this opinion, the Tribunal does not have any evidence and it is only an opinion of the Tribunal,

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which is not permissible when there are evidences namely, post mortem report disclosing that death of the deceased is due to immobility as a consequence of multiple fractures and therefore, it has nexus between the accident and the cause of death, which is properly not appreciated by the Tribunal. Therefore, he prays for allowing the appeal by setting aside the judgment and decree passed by the Tribunal.

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On the other hand, learned counsel for the respondent No.3-insurance company submitted that there is no evidence to prove that the deceased died due to the accidental injuries. He further submits that deceased died due to the infection and said infection occurred because of the fact that family members including the claimant have not looked after the deceased properly and as such, the deceased died due to the infection but not due to the accidental injuries and this observation made by the Tribunal is at para 16, 17 and 18 of the judgment. It is further submitted

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that the Tribunal has observed that it appears the entire family members of the deceased have not looked after the nourishment of the deceased and said observation made by the Tribunal is based on the facts and circumstances lead in the case. Therefore, Tribunal has rightly not awarded compensation on account of death of the deceased and as such the observations and findings given by the Tribunal and compensation awarded is justifiable, correct and proper. Hence, he prays for dismissal of the appeal.

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The Tribunal has awarded a global compensation of Rs.25,000/without awarding compensation under various heads.

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In the present case it is an undisputed fact

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that as per the medical records produced the deceased had sustained the following injuries:

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(1) fracture to the left neck of femur;

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(2) fracture to the left hip and knee bone;

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(3) fracture to the right leg knee and metatarsal bone of 2, 3 and 5

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9. It is not in dispute that the deceased had

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sustained grievous injuries and immediately after the accident the deceased was shifted to the Government hospital, Hosadurga and then to Government hospital of Chitradurga and thereafter, the deceased was admitted to CG Hospital, Davanagere. The deceased was treated as inpatient at Government Hospital, Hosadurga from 09.01.2011 to 19.01.2011 and thereafter in CG Hospital, Davanagere deceased took treatment from 19.01.2011 to 20.01.2011. Thereafter, deceased was discharged from the hospital and was under bed rest due to the injuries sustained. Thereafter, the deceased died on 08.03.2011 which proves that the deceased died within a period of 2 months from the date of accident. Now the question is, whether the death of deceased can occur due to accidental injuries? Ex.P-4 is the post mortem report which proves the fact that the cause of death is due to infection super imposed with malnourishment as a

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result of prolonged immobility as a consequence of multiple fracture. Ex.P-4 is proved by PW3 - Doctor who has conducted the post mortem examination on the deceased and has recorded that cause of death is due to infection super imposed with malnourishment as a result of prolong immobility and multiple fractures. Due to multiple fractures, the deceased suffered prolonged immobility and she was also aged about 70 years old as on the date of accident. Therefore, quite naturally the deceased got immobility due to multiple

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fractures and got infection with super imposed with malnourishment, which caused the death of deceased.

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The observation made by the Tribunal that

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it appears that entire family members of the deceased have not looked after the deceased nourishment, is merely on the surmises and conjectures and this observation of the Tribunal itself is not correct and does not have any basis on the evidence and as such said observation is only a guess work, but this fact is

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proved from the above said evidence that deceased got infection due to the accidental injuries, which caused the death of deceased. Therefore, there is proximity between the accident and the death of deceased, which evidences the fact that death of deceased is within a period of 2 months from the date of accident and said fact has not been appreciated by the Tribunal. Whether the family of the deceased have looked after the deceased properly or not, there is no evidence on record for the Tribunal to make observation in this

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regard. Whatever the observation is made by the Tribunal is merely a guess work and therefore, it has awarded a global compensation of Rs.25,000/- only. Tribunal had observed that if at all the deceased was dead due to the injuries sustained in the accident, certainly same would have been mentioned in the post mortem report. This observation is not correct for the reason that Ex.P-4 - post mortem report clearly reflects that deceased got infection due to prolonged immobility as a consequence of multiple fractures and

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the immobility of deceased might have caused malnourishment. Therefore, if the family members have not treated the deceased properly then there is malnourishment, but there is evidence to prove the fact that malnourishment is caused due to the prolonged immobility as a consequence of multiple fractures thereafter. Therefore, the observation of the Tribunal in this regard is not correct wherein Ex.P-4 post mortem report itself proved the fact that there is a direct nexus between the accidental injuries and the cause of death and as such appellant-claimant is entitled to compensation arising out of death of deceased, who is the mother of the appellant-claimant. In this regard, the judgment and award passed by the Tribunal is liable to be set aside.

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The deceased was aged about 70 years and just because the deceased was aged 70 years old and was a home maker, it cannot be said that she was not contributing to the family. Therefore, in the

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circumstances, considering the contribution of deceased to the family the notional income ought to be calculated. In a family every member will contribute something towards the family for maintenance and development of the family and as such, even if there is proof of income the notional income ought to be taken. Considering the year of the accident that occurred in the year 2011, the notional income is taken at Rs.6,500/- per month as per the chart prepared and recognized by the Karnataka State Legal Services Authority. The deceased was 70 years old and appropriate multiplier applicable would be ‘5’ as per the judgment of Hon’ble Apex Court in the case of SARLA VERMA AND OTHERS vs. DELHI TRANSPORTATION CORPORATION AND ANOTHER [ (2009) 6 SCC 121 ].

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At this juncture, learned counsel for the respondent No.3-insurance company submitted that appellant-claimant was not depending upon the income

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of deceased. Therefore, compensation can be calculated considering 1/3^rd of the notional income of the deceased. Above said submission made by the learned counsel cannot be accepted for the reason that ‘loss of dependency’ cannot be measured in monetary terms or the claimants depending on the income of the deceased. The paramount thing is, what is the contribution of deceased towards every member in the family, if they are living under one roof or making their own contribution towards the family for maintenance and development of the family. Therefore, under these circumstances, it cannot be said that appellantclaimant being aged 49 years was not dependent on the deceased, but here the contribution made by the deceased to the family is to be taken for consideration. Therefore, this Court is of the opinion that 1/3^rd of the amount has to be deducted from the amount of deceased towards personal expenses and remaining has to be taken as contribution made by the deceased to the family and on this basis the compensation has to

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be awarded. The loss of dependency is calculated as follows:

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Rs.6,500/- - 1/3^rd (Rs.2,167/-) = Rs.4,333/-

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Rs.4,333/- x 5 x 12 = Rs.2,59,980/-

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Further, a compensation of Rs.15,000/- is awarded under medical expenses, hospital charges, conveyance and attendant charges, etc. considering Exs.P-8 to P-25.

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Further, a compensation of Rs.40,000/- is awarded towards ‘loss of consortium’, since appellant had lost his mother as per the principles laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI & ORS. [ (2017) 16 SCC 680 ].

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Further, a sum of Rs.10,000/- is awarded under funeral expenses.

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Thus, claimant is entitled to following compensation:

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Sl. No.	Particulars	Amount (Rs.)
1	Loss of dependency	2,59,980-00
2	Medical, hospital and conveyance expenses	15,000-00
3	Loss of consortium	40,000-00
4	Funeral expenses	10,000-00
	Total	3,24,980-00

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Thus, claimant is entitled to total compensation of Rs.3,24,980/- and learned Tribunal has already awarded a sum of Rs.25,000/-. Hence, claimant is entitled to enhanced compensation of Rs.2,99,980/-. The enhanced compensation shall carry interest @ 6% p.a. from the date of petition till date of realization. Hence, the following:

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JUDGMENT

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(1) Appeal is allowed in part.

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(2) Judgment and award dated 30.03.2013 passed by the Senior Civil Judge and Addl. MACT, Hosadurga, in MVC No.345/2011, is modified by awarding an enhanced compensation of Rs.2,99,980/- with interest thereon @ 6% p.a. from the date of petition till date of realization.

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(3) Draw the decree accordingly.

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(4) No order as to costs.

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Sd/JUDGE

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Sri Shankar Naik v. Sri M Govindaraj

Case brief

What is this about?

What did the court decide?

Sri Shankar Naik v. Sri M Govindaraj

Case brief

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