Partly allowed

Radha Chandrashekar Madiwal v. Manjunath Timmappa Gouda

Karnataka HC3 Aug 2023MFA/21804/2012

Case brief

AI extract

What is this about?

In two MCAs, the Karnataka High Court held death was linked to injuries within five days, rejected deduction of pension/gratuity citing Apex Court precedents, and enhanced compensation from Rs.32,000 to Rs.17,52,880 including loss of consortium.

What did the court decide?

Additional compensation of Rs.17,20,880 with 6% p.a. interest from filing date; debtor to deposit within eight weeks.

Radha Chandrashekar Madiwal Vs Manjunath Timmappa… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8249 MFA No. 21804 of 2012 C/W MFA No. 24979 of 2011

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 03^RD DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.21804/2012 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.24979/2011 (MV)

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IN MFA NO.21804/2012:

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BETWEEN:

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RADHA CHANDRASHEKAR MADIWAL, D/O.CHANDRASHEKAR MADIWAL, AGED ABOUT 40 YEARS, OCC: GOVERNMENT EMPLOYEE, RESIDENT OF HOSAKULI, TQ: HONAVAR,DIST: KARWAR.

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Digitally signed by BHARATHI H M

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KARTIK CHANDRASHEKAR MADIWAL, S/O.CHANDRASHEKAR MADIWAL, AGED ABOUT 10 YEARS, OCC: STUDENT, RESIDENT OF HOSAKULI, TQ: HONAVAR.

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…APPELLANTS

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(BY SRI KUSHAL S. KAMBLE, ADVOCATE FOR PRAVEEN P. TARIKAR, ADVOCATE)

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AND:

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MANJUNATH TIMMAPA GOUDA, S/O.TIMMAPA GOUDA, AGE: MAJOR, R/O. ATHIMANE, POST: MUGWA, TALUK:HONAVAR, DIST: KARWAR.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD.,

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NC: 2023:KHC-D:8249 MFA No. 21804 of 2012 C/W MFA No. 24979 of 2011

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DIVISIONAL OFFICE, SUJATA COMPLEX, P.B. ROAD, HUBBALLI, DHARWAD.

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…RESPONDENTS

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(BY SRI SURESH S. GUNDI, ADVOCATE FOR R2; R1 – NOTICE DISPENSED WITH.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 20.07.2011 PASSED BY THE ADDITIONAL M.A.C.T, HONAVAR, IN MVC NO.197/2010; GRANT COMPENSATION AS PRAYED FOR IN THE CLAIM PETITION; AND GRANT SUCH OTHER RELIEF/S AS THIS HON’BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF JUSTICE.

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IN MFA NO.24979/2011

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BETWEEN:

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, SUJATHA COMPLEX, P.B.ROAD, HUBBALLI, NOW REPRESENTED BY ITS ADMN OFFICER, REGIONAL OFFICE, SUJATHA COMPLEX, P.B.ROAD, HUBBALLI.

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…APPELLANT

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(BY SURESH S. GUNDI, ADVOCATE)

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AND:

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SMT. RADHA CHANDRASHEKAR MADIWAL, AGE: 39 YEARS, OCC: GOVT. EMPLOYEES, AT: HOSAKULI, TQ: HONAVAR.

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KARTIK CHANDRASHEKAR MADIWAL, AGE: 9 YEARS, OCC: STUDENT, AT: HOSAKULI, TQ: HONNAVAR, SINCE MINOR REPRESENTED BY GUARDIAN MOTHER SMT. RADHA CHANDRASHEKAR MADIWAL.

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NC: 2023:KHC-D:8249 MFA No. 21804 of 2012 C/W MFA No. 24979 of 2011

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MANJUNATH TIMMAPPA GOUDA, AT:ANTHIMANE, POST: MUGWA, TAL:HONAVAR.

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…RESPONDENTS

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(R1 – NOTICE SERVED; R2 – MINOR, REPRESENTED BY R1; R3 – SERVICE OF NOTICE HELD SUFFICIENT.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE/MODIFY THE JUDGMENT AND AWARD DATED 20.07.2011, PASSED IN MVC NO.197/2010, ON THE FILE OF THE HON’BLE ADDITIONAL M.A.C.T AT HONAVAR AND ETC.,.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.21804/2012 is filed by the claimants challenging the judgment and award passed by the tribunal in MVC No.197/2020, seeking to enhance the compensation, whereas MFA No.24979/2011 is filed by the insurance company seeking to reduce the compensation.

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The factum of accident, death of the deceased in the said accident and coverage of insurance are not in dispute.

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Heard the learned counsel for claimants and the

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learned counsel for insurance company.

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NC: 2023:KHC-D:8249 MFA No. 21804 of 2012 C/W MFA No. 24979 of 2011

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4. Learned counsel for claimant submitted that the

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deceased died within five days from the date of accident and therefore there is a nexus between the injuries sustained and the death and therefore compensation ought to have been awarded considering the case as a death case. But, without doing so, the tribunal has awarded a meager compensation. Therefore, he prays to allow the appeal and to enhance the compensation.

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On the other hand, learned counsel for insurance company submitted that the tribunal is correct that the deceased died not due to the injuries of accident but due to cardiac arrest. Considering the case as injury case awarded compensation, but not justifiable in awarding compensation under the head injuries, pain and suffering. Therefore, prays to set aside the compensation awarded under the head injuries, pain and suffering.

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The tribunal has awarded the compensation

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under various heads as follows:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards pain and suffering.	20,000
2.	Expenses towards medical treatment of the deceased prior to his death.	10,000
3.	Expenses towards conveyance, extra nourishment and attendant charges.	2,000
	Total:	32,000

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The deceased has sustained injuries in the road

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traffic accident on 30.01.2009 and had suffered fracture of tibia and fibula of right leg. Ex.P.4 is the wound certificate. It shows, both bones of right leg are fractured in the road traffic accident that occurred on 30.01.2009. The deceased died on 04.02.2009. The deceased died within a period of five days from the date of accident. All these chronological events and death occurred are not disputed. Then the question whether the deceased died in the normal course or the injuries accelerated the rate of death of deceased is to be considered.

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Ex.P.5 is the postmortem report, which shows

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the cause of death is due to cardiogenic shock due to acute due to myocardial infarction. PW.2 is the doctor who

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has conducted postmortem on the dead body of the deceased and who has given evidence that there are possibilities of occurring death due to the injuries occurred to the leg of the deceased. Even in the cross-examination regarding the circumstances of causing heart attack and in what circumstances the heart shrinks and expands, the doctor stated that the death of the deceased might have been for the reason that he sustained injuries to the left leg and due to stoppage of blood circulation from leg to heart. Therefore just because there is only injuries caused to the leg and heart attack is not due to the injury to the leg cannot be accepted. Causing of heart attack also may be one reason due to stoppage of blood circulation or stopping of functioning of heart. Blood circulation within the body is also an important factor for keeping human being alive. In the postmortem report the doctor while conducting postmortem of thorax observed that heart is in normal size and is filled with blood. If there was proper blood circulation, then heart may not get excess accumulation of blood in the heart, that is what observed

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by the doctor in the postmortem. It may cause cardiac arrest of the heart. Hence just because the claimant has suffered fracture of both bones of leg and cardiac arrest is not related to the injuries cannot be accepted. The tribunal has observed that the death of deceased is not proved due to accidental injuries is not correct. The tribunal has not approached to the correct decision. The death occurred within five days from the date of accident. Therefore, on all probabilities it is proved that due to variance in circulation of blood within the body, then it causes cardiac arrest and that is what observed in Ex.P.5 and deposed by the doctor PW.2. Therefore it can be held that the death of deceased is due to accidental injuries. Then the case can be considered as death of deceased is due to accidental injuries. Hence in this regard the finding given by the tribunal is set aside.

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The deceased was aged 38 years and was working as a Second Division Assistant in the Department of District Judiciary. Ex.P.17 is the copy of service register

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showing that the deceased was working as SDA in Judicial Department and Ex.P.18 is the salary certificate, which proves that the deceased was receiving salary of Rs.9,066/- per month after deduction of professional tax of Rs.100/-.

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The learned counsel for insurance company submitted that the wife of deceased was appointed on compassionate ground due to the death of deceased, therefore the claimants are not entitled for compensation under the head loss of dependency. Appointment of wife or children of the deceased, who died during service, on compassionate ground is not a reason to deny awarding of compensation under the head loss of dependency.

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In this regard, I place reliance on the judgment of Hon'ble Apex Court in the case of Sebastiani Lakra & Ors. Vs. National Insurance Company Ltd. & Anr. reported in AIR (2018) SC 5034 in Civil Appeal No(s)1058889/2018 (SLP C.Nos.1235912360 of 2018 dated 12.10.2018).

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The Hon'ble Apex Court in the above judgment

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was pleased to observe in Para 12 as follows:

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"12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependants as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.”

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Therefore, the pensionary benefits, provident

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fund and gratuity earned by the deceased on account of contractual relations entered into by him with the company during his life time. But the pensionary benefits

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NC: 2023:KHC-D:8249 MFA No. 21804 of 2012 C/W MFA No. 24979 of 2011

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and provident fund cannot be an outcome of the death of the deceased even though the said amount may go in the hands of the appellants/claimants. If the appellants/claimants have obtained pensionary benefits, provident fund and gratuity amount, that cannot be deducted out of the total compensation awarded by the Tribunal in the motor vehicle accident cases. Even it is a dictum of the Hon'ble Apex Court that a grant of employment to a kin of the deceased cannot be a ground for deduction out of total amount determined by the Tribunal in case of death of deceased in motor vehicle accident cases. Therefore, as per the dictum of the Hon'ble Apex Court stated supra, I do not find any merit in the grounds urged by the Insurance Company.

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Therefore, the claimants are entitled for

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compensation under the head loss of dependency.

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As discussed above, the salary of the deceased is Rs.9,066/- and 50% of the income is to be added towards loss of future prospects in life in view of the

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decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680 . The deceased was aged 38 years at the time accident. The appropriate applicable multiplier is 15. The claimants are wife and minor child. Therefore, 1/3^rd of the income is to be deducted towards personal and living expenses. Then the loss of dependency is assessed and quantified at Rs.16,31,880/- (Rs.9,066 + 50% minus 1/3^rd x 12 x 15).

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In view of the decision of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra , the claimants are entitled to Rs.40,000/- each under the head ‘loss of consortium’, along with 10% escalation. Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’.

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Further, a compensation of Rs.15,000/- each is

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awarded under the head ‘loss of estate’ and ‘funeral and transportation’ respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.

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Thus, the claimants would be entitled for

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compensation under various heads as under:

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Sl.No.	Heads.	Amount in (Rs.)
1.	Towards loss of dependency (9,066 + 50% minus 1/3^rdx 12 x 15)	16,31,880
2.	Towards loss of consortium (40,000 x 2+10%)	88,000
3.	Towards loss of estate and transportation of dead body & funeral expenses. (Rs.15,000 x 2 + 10%)	33,000
	Total:	17,52,880
	Less: Compensation awarded by tribunal:	32,000
	Enhanced compensation:	17,20,880

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Therefore, the claimants are entitled for

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compensation of Rs.17,52,880/- as against Rs.32,000/awarded by the tribunal. The claimants are entitled for an

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additional compensation of Rs.17,20,880/- (Rs.17,52,880 minus Rs.32,000), along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit the enhanced compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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