Partly allowed

Baby v. Sri Nagendra Kumar

Karnataka HC13 Jun 2023MFA/7070/2014

Case brief

AI extract

What is this about?

High Court viewed an appeal against inadequate compensation for motor vehicle accident injuries caused to the mother, who later died. The Court modified the award, allowing compensation for loss of dependency, consortium, and attendant charges, totaling Rs. 6,27,188/-, partly allowing the appeal.

What did the court decide?

The appeal is partly allowed and the compensation awarded is increased to Rs. 6,27,188/- including loss of dependency, consortium, medical expenses, funeral, and attendant charges.

Baby Vs Sri Nagendra Kumar — Medical Negligence | Karnataka HC (2023)

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1 - NC: 2023:KHC:20313-DB MFA No.7070/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL No.7070/2014 (MV-I)

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BETWEEN:

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BABY D/O. LINGAMMA W/O ANANDHAM AGED ABOUT 40 YEARS R/AT KAPPE CHANNAPPA VATARA NEAR KEMMANNU NALA B M ROAD, MADDUR-571 428

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RATHNAMMA D/O LINGAMMA W/O SHIVANNA AGED ABOUT 38 YEARS

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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MANJULA D/O LINGAMMA AGED ABOUT 33 YEARS

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D ANANDA S/O LINGAMMA AGED ABOUT 29 YEARS

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LAKSHMI D/O LINGAMMA AGED ABOUT 23 YEARS

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A2 TO A5 ARE R/AT NO.93, 1^ST CROSS SWAMIVIVEKANANDA NAGAR MADDUR TOWN MADDUR TALUK-571 428

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...APPELLANTS

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(BY SMT.ARCHANA MURTHY, ADVOCATE)

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2 - NC: 2023:KHC:20313-DB MFA No.7070/2014

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AND:

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SRI NAGENDRA KUMAR S/O PITTATHAYAMMA OCC:BUSINESS R/AT 1853, 12^TH MAIN VIJAY NAGAR 2^ND STAGE MYSORE-570 017

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THE BRANCH MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. 3^RD FLOOR, SHIKA TOWERS RAMAVILAS ROAD NEAR JAGAN MOHAN PALACE MYSORE-570 001 …RESPONDENTS

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(BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/C/O DATED 09.12.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 24.04.2014 PASSED BY THE SENIOR CIVIL JUDGE & MACT, MADDUR IN MVC NO.86/2011.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the compensation awarded to the claimants under the impugned award is just?” is the question involved in this case.

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Appellant Nos.1 to 3 are the married daughters

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and appellant Nos.4 and 5 are major son and daughter of the deceased Lingamma. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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3 - NC: 2023:KHC:20313-DB MFA No.7070/2014

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On 18.09.2010 at 11.30 a.m. when Lingamma was crossing Bangalore Mysore road in front of Maddur Court, Maruthi car bearing No.KA-09-Z-2998 hit her and caused the accident. In the accident, she suffered grievous injuries. From 18.09.2010 till 04.10.2011 she was treated in various hospitals for the injuries suffered by her in the accident. Before her death, she filed M.V.C.No.86/2011 against the respondents claiming compensation of Rs.30,00,000/- for the injuries suffered by her. Pending the said petition, she died on 04.10.2011. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of the car bearing No.KA-09-Z-2998.

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Respondent Nos.1 and 2 contested the petition denying actionable negligence on the part of the driver of the car, injuries suffered by the claimant, her age, occupation, income and their liability to pay the compensation. They denied that the accidental injuries were the proximate cause of the death.

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On the death of the original claimant, the appellants came on record as legal representatives of deceased Lingamma and conducted the petition. On behalf of

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4 - NC: 2023:KHC:20313-DB MFA No.7070/2014

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the claimants, PWs.1 to 5 were examined and Exs.P1 to P25 were marked. The respondents did not adduce any evidence.

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The Tribunal on hearing the parties by the impugned award held that the accident occurred due to actionable negligence on the part of the driver of the car. The Tribunal further held that the death was due to the injuries suffered by the victim in the accident. The Tribunal relying on Ex.P8 salary certificate held that the deceased was earning Rs.11,858/- per month. The Tribunal held that claimant Nos.1(a) to 1(e) were major children, therefore they were not dependants. Tribunal considered her age as 56 years, her saving at Rs.3,000/- per month, applied 9 multiplier and awarded compensation on the head of loss of estate.

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The Tribunal in all awarded compensation of

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Rs.4,09,000/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of estate	3,24,000/-
2.	Transportation and funeral expenses	15,000/-
3.	Loss of love and affection	15,000/-
4.	Loss of estate	20,000/-
5.	Medical expenses, attendant charges, food, nourishment and other incidentalcharges	35,000/-
	Total	4,09,000/-

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5 - NC: 2023:KHC:20313-DB MFA No.7070/2014

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Challenging the award, the respondents have not preferred any appeal. The claimants have preferred the above appeal questioning the adequacy of compensation awarded.

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Smt.Archana Murthy, learned Counsel for the claimants submits that though the daughters were married, claimant Nos.1 and 5 had broken marriages and they were dependant on their mother, therefore, the Tribunal ought to have awarded compensation on the head of loss of dependency. She further submits that the Tribunal should have awarded more compensation on the head of transportation and attendant charges as the deceased was admitted in hospital multiple times in Bangalore and Maddur. She further submits that in view of the judgment of the Hon’ble Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram¹ , the Tribunal should have awarded compensation on the head of loss of consortium.

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Per contra, Sri Ravi S.Samprathi, learned Counsel for respondent No.2 submits that the compensation awarded on all heads is just one. He further submits that the claimants are not entitled to compensation on the head of loss of consortium as they were all major and married children. In

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1 2018 (18) SCC 130

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NC: 2023:KHC:20313-DB MFA No.7070/2014

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support of his submission, he relies on the judgment of this Court in A.Manavalagan vs A.Krishnamurthy and Others^.2

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Analysis

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The relationship of the claimants and the deceased is not in dispute. As already observed, the respondents have not questioned the findings of the Tribunal with regard to occurrence of the accident due to actionable negligence of respondent No.1 and death was due to accidental injuries.

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In postmortem report Ex.P17 the claimants’ own document, age of the deceased was shown as 56 years. As per the claimants themselves, the salary of the deceased was Rs.11,858/-. Considering her age and as per the judgment of the Hon’ble Supreme Court in National Insurance Company

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Limited vs. Pranay Sethi³ 10% has to be super added to the income of the deceased by way of future prospects. Therefore her monthly income comes to Rs.11,858/- + 1,185.8/- = Rs.13,044/-. As rightly observed by the Tribunal, claimant No.1(a) to 1(c) were all major and married daughters. Claimant No.1(d) and 1(e) were major son and daughter. PW.1/claimant No.5 in her cross-examination admitted that herself and siblings are married. Under the circumstances, the

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2 ILR 2004 KAR 3268

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3 AIR 2017 SC 5157

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Tribunal was justified in holding that they were not dependant on the income of the deceased.

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In similar circumstances, in A.Manavalagan’s case referred to supra it was held that the claimant will be entitled to compensation only on the head of loss of estate i.e. savings of the deceased. It was further held that if the claimant live along with the deceased, they will be entitled to 25% of the income of the deceased by way of loss of estate.

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In the case on hand, at the time of death of Lingamma, the fact of claimants living with her was not in dispute. Therefore the Tribunal is right in considering 25% of her income towards loss of estate. The applicable multiplier is 9. Therefore compensation payable on the head of loss of estate comes to Rs.3,52,188/- (Rs.3,261 x 9 x 12).

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The Tribunal awarded compensation of

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Rs.35,000/- towards medical expenses based on the evidence adduced by the claimants. Therefore that needs to be maintained. The evidence on record shows that the deceased was in and out of the hospital for more than one year. She was treated as inpatient twice in Victoria Hospital and Maddur Hospital. She was resident of Kappe Channappa vatara,

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Maddur. Therefore the Tribunal should have awarded compensation on the head of attendant charges and transportation during hospitalization period. Awarding Rs.25,000/- on that head meets the ends of justice.

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The compensation awarded on the head of funeral expenses does not warrant any interference. Having awarded compensation of Rs.3,24,000/- on the head of loss of estate, the Tribunal was not justified in awarding Rs.20,000/- on the head of loss of estate again. Having regard to the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra and Nanu Ram’s case referred to supra , the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium. Therefore the compensation payable under the head of consortium is Rs.2,00,000/-.

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17. Therefore just compensation payable is as under:

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Sl. No.	Particulars		Compensation awarded in Rs.
1.	Loss of dependency		3,52,188/-
2.	Consortium		2,00,000/-
3.	Medical expenses		35,000/-
4.	Funeral expenses		15,000/-
5.	Attendant charges transportation	and	25,000/-
	Total		6,27,188/-

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NC: 2023:KHC:20313-DB MFA No.7070/2014

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For the aforesaid reasons, the appeal deserves to be

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allowed in part. Hence the following:

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ORDER

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The appeal is partly allowed. The impugned award is modified as follows:

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(i) The claimants are entitled to compensation of Rs.6,27,188/- with interest thereon at 6% per annum from the date of the petition till its realization.

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(ii) Respondent No.2 shall deposit the said compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order.

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(iii) The claimants are entitled to 1/5^th share each in award amount. On deposit of the amount, the Tribunal shall release the same to the claimants according to their shares.

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(iv) Registry shall transmit the records to the Tribunal forthwith.

Sd/JUDGE

Sd/-

JUDGE

KSR

List No.: 1 Sl No.: 32