Allowed

Smt T Chandramma v. the District Health Officer

Karnataka HC19 Jul 2023MFA/4193/2017

Case brief

AI extract

What is this about?

Two Motor Accident cases appealed to enhance/reject compensation. The High Court enhanced the compensation award by approving dependents, adjusting income evidence, applying Prasaa Sethi multiplier, and directing deposit by insurer with adjusted interest.

What did the court decide?

Enhanced compensation of Rs.2,22,742/- with interest at 6% p.a. granted to legal heirs. Impugned award modified. Deposit directed within six weeks.

Smt T Chandramma Vs the District Health Officer — Company and Corporate | Karnataka HC (2023)

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 4193 OF 2017 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 4567 OF 2017 (MV-D)

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IN M.F.A. NO. 4193/2017 BETWEEN:

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SMT. T CHANDRAMMA, W/O. LATE PARTHASARATHI, AGED ABOUT 73 YEARS, R/O. MILLAGATTA, IST CROSS,

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SHIVAMOGGA-577 201.

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SINCE DECEASED HER LR'S

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1(A) SRI G.P RAMACHANDRA,

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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S/O. LATE G.H PARTHASARATHI,

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AGED ABOUT 59 YEARS.

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1(B) MR. GOPALA,

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GRAND SON OF LATE G.H PARTHASARATHI, AGED ABOUT 28 YEARS.

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1(C) SMT. TEJASWI, W/O. RAJU, GRAND DAUGHTER OF LATE G.H PARTHASARATHI, AGED ABOUT 33 YEARS.

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1(D) SOUMYA, D/O RAMACHANDRA,

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AGED ABOUT 28 YEARS.

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1(E) MISS KOKILA, D/O RAMACHANDRA, AGED ABOUT 24 YEARS.

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1(F) SRI SRIDHAR, S/O G.P RAMACHANDRA, AGED ABOUT 20 YEARS.

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ALL ARE R/O: NO.29, 'B' BLOCK, 3RD CROSS, SWAMY VIVEKANANDA BADAVANE, GOPALA, SHIVAMOGGA - 577 201.

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…APPELLANTS

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(BY SRI S B PAVIN, ADVOCATE)

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AND:

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THE DISTRICT HEALTH OFFICER, MECGON HOSPITAL, SAGARA ROAD, SHIVAMOGGA-577 201.

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D.H.W.O, C/O GVK, EMERGENCEY MANAGEMENT AND RESEARCH INSTITUTE S.T.D.C HOUSING BOARD COLONY, OPP: GOVERNMENT UNANI MEDICAL COLLEGE, G.M.S. COMPOUND, MAGADI ROAD, BANGALORE-560 079.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, P.B.NO.114, CRESCENT COURT, K.M ROAD, CHIKKAMAGALURU-577 101.

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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(POLICY NO. 241400/31/11/01/00014203 VALID FROM 16.11.2012 TO 15.11.2013)

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THE DISTRICT HEALTH & FAMILY WELFARE OFFICER, DEPARTMENT OF HEALTH AND FAMILY WELFARE, B.H.ROAD, SHIVAMOGGA-577 201.

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…RESPONDENTS

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(BY SRI B.C SHIVANNEGOWDA, ADVOCATE FOR SRI A.M VENKATESH, ADVOCATE FOR R3; SRI V SHIVAREDDY, HCGP FOR R1, R2 AND R4)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC NO.1158/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. 4567 OF 2017

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BETWEEN

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M/S. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, P.B. NO.114, CRESCENT COURT, K.M. ROAD, CHIKMAGALUR-577 101.

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NOW REP BY ITS DIVISIONAL OFFICE, P.B. NO.68, A.A. CIRCLE, B.H. ROAD, SHIVAMOGGA-577 201, REP BY ITS DIVISIONAL MANAGER.

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...APPELLANT

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(BY SRI B.C SHIVANNEGOWDA, ADVOCATE FOR SRI A.M VENKATESH, ADVOCATE)

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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AND:

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1 . SMT. T.CHANDRAMMA, W/O. LATE PARTHASARATHI, AGED ABOUT 74 YEARS.

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SINCE DIED ON 20.01.2021 LR'S ARE RESPONDENT NO.2 AS PER ORDER DATED 19.07.2023.

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2 . G.P RAMACHANDRA, S/O. PARTHASARATHI, AGED ABOUT 55 YEARS, BOTH ARE R/AT: MILLAGATTA 1ST CROSS, SHIVAMOGGA-577 201.

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3 . THE DISTRICT HEALTH OFFICER, MC. GANN HOSPITAL, SAGARA ROAD, SHIVAMOGGA-577 201.

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4 . D.H.W.O., C/O G.V.K. EMERGENCY MANAGEMENT AND RESEARCH INSTITUTE, S.T.D.C. HOUSING BOARD COLONY, OPP. GOVERNMENT UNANI MEDICAL COLLEGE, G.M.S. COMPOUND, MAGADI ROAD, BENGALURU-560 079. 5 . THE DISTRICT HEALTH AND FAMILY WELFARE OFFICER, B.H. ROAD, SHIVAMOGGA-577 201. …RESPONDENTS (BY SRI S.B PAVIN, ADVOCATE FOR R1; R2 SERVED; SRI V SHIVAREDDY, HCGP FOR R3 & R4; SRI ABHINAY Y.T, ADVOCATE FOR R5)

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC NO.1158/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND ADDL. MOTOR ACCIDENT CLAIM TRIBUNAL-8 AT SHIVAMOGGA, AWARDING COMPENSATION OF RS.11,50,300/ALONG WITH INTEREST AT 9% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.4193/2017 preferred by the petitioners and MFA No.4567/2017 preferred by the insurance company are arising out of the judgment and award in MVC No.1158/2013 passed by the learned II Additional Senior

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Civil Judge and Additional MACT-VIII, Shivamogga on 1.12.2016, whereby, the Tribunal has awarded a sum of Rs.11,50,284/- to the petitioners on account of the death of one Nagarathnamma in the road traffic accident that occurred on 10-10-2013.

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The parties would be referred to as per their rankings before the Tribunal for the sake of convenience.

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Petitioner No.1-Chandramma and petitioner No.2

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G.P.Ramachandra are the mother and brother of the

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deceased Nagarathnamma. During the pendency of these appeals, petitioner No.1-Chandramma died on 31-10-2021 and in MFA No.4193/2017, the petitioner No.2 and his children are also brought on record as the legal heirs of deceased Chandramma. Whereas, in MFA No.4567/2017, the insurance Company has restricted the legal heirs to the son of Chandramma i.e. petitioner No.2G.P.Ramachandra. There cannot be any doubt that only son of Chandramma is the legal heir to succeed to her estate. The provision of Section 8 of the Hindu Succession

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Act come into play and therefore, at any stretch of imagination the grand children of deceased Chandramma cannot be the legal heirs and they cannot come on record as the legal heirs of deceased Chandramma. With this note, these appeals are to be considered.

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Deceased Nagarathnamma was the physically handicapped person and was aged about 54 years and working as attender in Central Excise Customs and Services Tax Department, Shivamogga and was getting the monthly salary of Rs.16,000/- and she was the sole

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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bread earner of the family. It is contended by the petitioners that on 10-10-2013 while she was going by walk on the left side of the road to reach her house near LBS Nagar, Chowdeshwari Temple, Shivamogga-Savalanga road, at about 6.40 p.m, the driver of 108 Ambulance bearing No.KA.06.G.580 drove the same in rash and negligent manner from Shivamogga side and dashed against her causing severe injuries. She was immediately shifted to M.G. Hospital Shivamogga, where she succumbed to the injuries. The petitioners contending that they were dependents of the deceased Nagarathnamma filed a claim petition before the Tribunal alleging that the owner and insurer of the 108 Ambulance are liable to pay the compensation.

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On issuance of notice, respondent No.1 remained absent and he was placed exparte. Though respondent Nos. 2 and 4 have appeared through their counsel, have not filed any objections to the petition.

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Respondent No.3-Insurance Company appeared through its counsel and filed its objection statements

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contending that the petitioners are not the legal heirs and the dependents of deceased. However, it has admitted that the vehicle was duly insured by the respondent No.3 and the policy was in force at the time of the accident. It was contended that the terms and conditions of the policy was not complied by the owner and driver of the vehicle and therefore, it is not liable to pay any compensation. It was also contended that the negligence on the part of the deceased who was walking on the road without adhering to the rules and therefore, there is also contributory negligence.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and the petitioner No.1 examined herself as PW1 and Exs.P1 to P16 were marked One eye witnesses of the accident was examined as PW2. The respondents have not led any evidence, but Exs. R1 and 2 were marked on their behalf.

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After hearing both the sides, the Tribunal awarded a compensation of Rs.11,15,300/- under the following heads:

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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Towards loss of dependency	Rs.11,20,284/-
Towardsloss ofestate	Rs.10,000/-
Towardslove and affection	Rs.10,000/-
Towards transportation of dead body and funeral expenses	Rs.10,000/-
Total	Rs.11,50,284/-

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Being aggrieved by the quantum of the compensation awarded by the Tribunal the petitioners as well as the insurance company have preferred these appeals.

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On issuance of notice, rival parties have appeared before this Court through their counsel and on admitting the appeal the Tribunal records have been secured.

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The arguments by the learned counsel for the petitioners as well as the insurance company are heard.

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Learned counsel appearing for the petitioners contended that the Tribunal has awarded a meager compensation and the income of the deceased was not property assessed by it. It is contended that the Tribunal ought to have taken higher multiplier and the

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compensation awarded under the head of loss of estate, loss of dependency and towards the expenses incurred for the funeral etc. are on the lower side. It is contended that the approach of the Tribunal in awarding the compensation of Rs.11,15,284/- was not proper and correct and therefore, there is need for enhancement of compensation.

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Per contra, learned counsel appearing for respondent No.3-Insurance company has contended that the petitioner No.2 who is the brother of the deceased cannot be considered to be a dependent and therefore, the Tribunal has rightly disallowed the claim of the petitioner No.2 regarding the compensation. He submits that the Tribunal has erred in holding that deceased was drawing a sum of Rs.16,974/- per month as the salary since the petitioners had not proved the salary certificate and the relevant documents. It is submitted that the author of the document i.e. salary slip, salary certificate etc., should have been examined by the petitioners and in the absence of such cogent evidence, the Tribunal could not have relied

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upon the income to the extent of Rs.16,974/-. It is submitted that only the mother of the deceased could have claimed to be a dependent, but the Tribunal has considered the personal expenses of the deceased, who was a spinster at 50%. He submits that the mother could have claimed the compensation only in respect of loss of estate and not as a dependent. He also submits that the petitioner No.2 is the son of the petitioner No.1 and therefore, the petitioner No.2 could not have claimed to be the dependent.

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The first aspect to be considered by this Court is in respect of the income of the deceased. The fact that there was an accident involving the ambulance owned by respondent Nos. 1, 2 and 4 is not in dispute. So also the fact that the vehicle was covered by the insurance policy was not in dispute. The fact that the deceased was aged about 54 years at the time of the accident is also not in dispute. Hence, the question is, whether the deceased was earning Rs.16,974/- per month by working as a sweeper

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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at the department of Central Excise, Customs and Services

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Tax, Shivamogga, has to be ascertained by this Court.

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The perusal of Ex.P12 discloses that it is the salary certificate for the month of November 2009 and she was earning Rs.9,881/-. It is pertinent to note that her basic pay was Rs.6,380/- and the total emoluments came to Rs.10,262/-.The fact that the deceased

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Nagarathnamma was also a physically handicapped is also not in dispute. Obviously, she was working the Central Excise Department i.e. in the office of the Assistant Commissioner, Central Excise, Malenadu Division, Hassan and later, it appears that she was transferred to Shivamogga. The other documents attached to Ex.P12 also show that the deceased was working in the department though the emoluments were considered on a daily wage basis. The Ex.P15, is the copy of the pass book of the deceased and it shows that she was earning a salary of Rs.10,923/- for the month of June 2012 and Rs.13,711/for the month of February 2012. Even the subsequent

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13 - NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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transaction also show that she was earning the salary in and around Rs.12 to 13 thousand per month and such salary is after deduction as may be found from Ex.P12.

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The records also reveal that a certificate is also produced which is attached to Ex.P16. This document appears to be in pursuance to a request made by the counsel who was appearing for the petitioners before the Tribunal. This document is not separately marked. However, it shows that for the month of July 2013, deceased was earning total gross salary of Rs.17,174/and after deduction, it was Rs.16,374/-.

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The Tribunal has assessed the income of the

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deceased at Rs.16,974/- per month after deducting the professional tax. She being a lady and handicapped person

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was not assessable for the income tax. Under these circumstances, the contentions of the learned counsel for the Insurance Company that the income of the deceased

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has not been proved by the petitioners cannot be accepted. Even though, the author of the document has

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not been examined, the pass book which has been produced by the petitioner belonging to the deceased clearly depict that she used to receive the salary. Thus, the totality of the evidence available before the Tribunal invariably establish that she was earning salary of Rs.16,974/- as determined by the Tribunal. No fault can be found with the approach of the Tribunal in holding that her income was Rs.16,974/- per month.

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The second contention raised in these appeals is in respect of the claim of the petitioners that petitioner No.1 could have claimed the compensation only under the head of loss of estate. The argument of the learned counsel for the insurance company that the mother of the petitioner was not a dependent cannot be accepted. Even though the petitioner No.1 had other sons, it was her choice either to live with the deceased or with her other sons. Obviously, the deceased was a physically handicapped person and as such, the petitioner No.1 was staying with the deceased and assisting her in her work

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cannot be objected by the insurance company saying that she was not a dependent. Therefore, when the evidence unequivocally says that the petitioner No.1 was staying with the deceased Nagarathnamma, the same has to be accepted and rightly, the Tribunal has done the same.

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With the above conclusions, the contentions of the learned counsel appearing for the petitioner No.1 now represented by her legal heir, petitioner No.2 are to be considered. The Tribunal has not considered the future prospects that should have been included while assessing the loss of dependency. The Tribunal came to the conclusion that the deceased was earning Rs.16,974/- per month and she was aged 54 years. Therefore, in the light of the decision in the case of National Insurance Company Limited Vs. Pranay Sethi and others¹ , there shall be an increase of 15%. It is relevant to note that Ex.P16, the certificate issued by the Superintendent of

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1 AIR 2017 SC 5157

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Central Excise shows that the deceased Nagarathnamma was working as sweeper since 1992 and she was a permanent employee. There is no reason to discard the Ex.P16. Hence, the effective multiplicand is Rs.19,520/(Rs.16,974/- + 2,546/-(15%)). Hence, the loss of dependency is calculated as: 19,520/- x 12 x 11 x 50%=12,88,326/- by taking the multiplier of 11 for the age of 54 years and deducting 50% towards the personal expenses.

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In addition to the above compensation, the

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petitioners are also entitled for the compensation under the conventional heads i.e. loss of filial love and affection,

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loss of estate and funeral expenses. As directed in the case of Pranay Sethi (Supra), there shall also be 10% escalation for every three yeas. Hence, a sum of Rs.48,400/-, Rs.18,150/- and Rs.18,150/- respectively is awarded under the said heads. Hence, the compensation s assessed under the different heads as below:

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Towards loss of dependency Rs.12,88,326/-

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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Towards loss of estate	Rs.48,400/-
Towards love and affection	Rs.18,150/-
Towards transportation of dead body and funeral expenses	Rs.18,150/-
Total	Rs.13,73,026/-
Less: Awarded by the Tribunal	Rs.11,50,284/-
Enhancement	Rs.2,22,742/-

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Learned counsel for the insurance company contended that the rate of interest awarded by the Tribunal at 9% p.a. is exorbitant and without any reasoning. The question of interest on the award amount

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is a matter of the discretion. The Tribunal has exercised its discretion by awarding interest at 9% p.a. However, presently, the interest that is awarded on the Fixed Deposits by the Nationalized Bank is in the range of 6 to 8

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percent. Hence, for the enhanced amount, there shall be an interest at the rate of 6% p.a.

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Thus, the petitioners are entitled for a sum of Rs.2,22,742/- together with interest in addition to what has been awarded by the Tribunal.

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In view of the above conclusions, the appeal filed by the petitioners deserves to be allowed in part and the

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NC: 2023:KHC:25402 MFA No. 4193 of 2017 C/W MFA No. 4567 of 2017

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appeal filed by the insurance company deserves to be dismissed. Hence, the following:

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ORDER

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(i) The appeal filed by the petitioners in MFA No.4193/2017 is allowed in part.

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(ii) The appeal filed by the Insurance Company in MFA No.4567/2017 is dismissed.

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(iii) The impugned judgment and award passed by the Tribunal is modified. The petitioner No.1, now represented by her legal representative i.e. petitioner No.2 is entitled for a sum of Rs.2,22,742/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of the petition till its realization.

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(iv) Insurance Company is directed to deposit the compensation amount together with interest within six weeks from the date of receipt of the copy of this order.

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(v) The petitioner No.2 who is the legal heir of the petitioner No.1 is entitled to receive the

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compensation amount.

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(vi) The conditions in respect of the fixed deposit, etc. remained unaltered.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 82

Smt T Chandramma v. the District Health Officer

Case brief

What is this about?

What did the court decide?

Smt T Chandramma v. the District Health Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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