Partly allowed

The National Insurance Company Ltd. v. Smt Hemavathi Shetty

Karnataka HC25 Jan 2024MFA/739/2018

Case brief

AI extract

What is this about?

Cross appeals in a motor accident death case: insurer denied nexus between injuries and delayed death and sought remand; claimants sought enhancement. Court found paraplegia from spinal injury caused fatal septicemia, re-assessed compensation using correct parameters, dismissed insurer's appeal and partly allowed enhancement of Rs.3,47,279 with 6% interest.

What did the court decide?

Insurer's appeal dismissed; claimants' appeal allowed in part; award modified enhancing compensation by Rs.3,47,279 with 6% interest payable within four weeks.

The National Insurance Company Ltd. Vs Smt Hemavathi… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:3701 MFA No. 739 of 2018 C/W MFA No. 8111 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 739 OF 2018 C/W MISCELLANEOUS FIRST APPEAL NO. 8111 OF 2018(MV-D)

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IN MFA NO. 739/2018

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BETWEEN:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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THE NATIONAL INSURANCE COMPANY LTD, GANESH BLDG. 2^ND FLOOR, BANTWAL CROSS ROAD, BANTWAL BRANCH, BANTWAL D.K. DISTRICT – 574 211 REPRESENTED BY AUTHORIZED SIGNATORY AT REGIONAL OFFICE, #144, SHUBHARAM COMPLEX, M G ROAD, BANGALORE – 560 001. …APPELLANT

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(BY SRI. SRISHAILA S .,ADVOCATE)

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AND:

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SMT. HEMAVATHI SHETTY, AGED ABOUT 57 YEARS, W/O BABU @ NARAYANA SHETTY,

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BABU @ NARAYANA SHETTY AGED ABOUT 62 YEARS, S/O MANJAYYA SHETTY,

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NC: 2024:KHC:3701 MFA No. 739 of 2018 C/W MFA No. 8111 of 2018

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SATHYAVATHI

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AGED ABOUT 31 YEARS, D/O BABU @ NARAYANA SHETTY, R1 TO R3 ARE R/AT NO. ATADAJEDDUMANE NERALAKATTE, KARKUNGE VILLAGE AND POST, KUNDAPURA TALUK UDUPI DISTRICT – 576 201.

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DEEPAK R

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AGED ABOUT 34 YEARS, S/O G.RAMU, R/OF NO.H.NO.2- 382, RATHNAKAR PAL COMPOUND, BANTWAL MUDA VILLAGE, JODUMARGA POST, BANTWAL TALUK, D K DISTRICT – 574 211. …RESPONDENTS

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(R1 TO R4 NOTICE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01/09/2017, PASSED IN MVC NO.551/2013, ON THE FILE OF THE ADDL. DISTRICT JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, AWARDING COMPENSATION OF RS.18,29,700/- ALONG WITH INTEREST AT 6% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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IN MFA NO. 8111/2018

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BETWEEN:

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NAGENDRA PRASAD SHETTY S/O BABU @ NARAYANA SHETTY, (SINCE DECEASED BY HIS LRS)

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1(a) SMT HEMAVATHI SHETTY, W/O BABU @ NARAYANA SHETTY, AGED ABOUT 57 YEARS,

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1(b) SRI BABU @ NARAYANA SHETTY S/O MANJAYYA SHETTY, AGED ABOUT 62 YEARS,

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1 (c) SRI. SATHYAVATHI D/O BABU @ NARAYANA SHETTY, AGED ABOUT 31 YEARS,

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ALL ARE RESIDING AT ATADAJEDDUMANE NERALLCATTE, KARKUNJE VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT – 576 201.

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…APPELLANTS

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(BY SRI. NAGARAJA HEGDE, ADVOCATE)

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AND:

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SRI. DEEPAK. R S/O G. RAMU, AGED ABOUT 34 YEARS, R/O H.NO.2-382, RATHNAKAR PAI COMPOUND, BANTWAL MUDA VILLAGE, JODUMARGA POST, BANTWAL TALUK, D. K. DISTRICT – 574 211

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NATIONAL INSURANCE CO LTD., BRANCH OFFICE, GANESH BUILDING, 2^ND FLOOR, BANTWAL CROSS ROAD, BANTWAL BRANCH, BANTWAL, D.K.DISTRICT – 574 211. REP BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI. SRISHILA. S ADVOCATE FOR R2; R1- NOTICE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2017 PASSED IN MVC NO.551/2013 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, 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, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA.No.739/2018 is filed by Insurance Company challenging the judgment and award dated 01.09.2017 passed in MVC.No.551/2013 by Addl. District Judge and Addl. MACT, Udupi (sitting at Kundapura), Kundapura, for reducing the quantum of compensation and also upon the ground that the deceased not died due to the accidental injuries.

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MFA.No.8111/2018 is filed by the claimants challenging the aforesaid judgment and award for seeking of enhancement of compensation.

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The factum of accident, injuries sustained in the accident and coverage of insurance is not disputed.

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Heard the arguments from both sides and perused the records.

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Learned counsel for the Insurance Company submitted that there is no nexus between the injuries sustained and death occurred. Further submitted that after the date of accident, four years later, the deceased died and hence, there is no nexus between the injuries sustained and death occurred. Further submitted that during the pendency of the claim proceedings, the claimant died and his legal heirs by coming on record have filed an application for amendment and it was allowed. But for filing additional written statement, opportunity was not given. Therefore, prays for remand of the matter. If the Tribunal had given opportunity to file additional written statement, then the Insurance Company would have proved that there is no nexus between the death of the deceased and injuries sustained.

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Further submitted that the Tribunal has not

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adopted the correct parameters while determining the

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compensation resulting into award of higher amount of compensation. Therefore, on all these grounds prays to allow the appeal filed by the Insurance Company and remand the matter to the Tribunal.

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On the other hand, learned counsel for the claimants submitted that in the accident the

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claimant/deceased had sustained grievous injuries resulting into breaking of cervical bone and spinal cord and suffered paraplegia and confined to bed. Later during pendency of the claim petition, after four years, the injured claimant died. Therefore, with reference to the documentary evidence submitted that it is proved that there is nexus between the injuries sustained and death occurred. Further submitted that the Tribunal has not adopted the correct parameters while assessing the quantum of compensation. Therefore, prays for enhancement of compensation. Further submitted that the Tribunal has committed error in deducting 10% of salary towards Income Tax and that is not permissible. Hence, on all

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these grounds the claimants seeks for enhancement of compensation.

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The medical evidence on record particularly Ex.P.3-

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wound certificate, Ex.P.7-disability certificate and Ex.P.36postmortem report ought to have been considered. Whether there is nexus between the injuries sustained and death occurred. Ex.P.3-wound certificate reveals that the deceased has suffered the following injuries:

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“1. Contusion , 5cmx 5cm, over front aspect of upper mid &left side of the chest with underlying fracture of manubrium sternum and left sided 2nd rib (MRI of Cervical Spine)

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2. Fracture dislocation of 2^nd thoracic vertebra with cord rotation giving rise to loss of secondary and motor movements, i.e. paraplegia (MRI of Cervical Spine) .

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3. Abrasion 3cm x 3cm, over front aspect of right knee.

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4. Abrasion, 3cm x 2cm, over front aspect of left knee.”

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Ex.P.7 is the disability certificate issued by the

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Kasturba Hospital, Manipal, proving the following criteria:

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“This Patient Mr. Nagendra Shetty (Hosiptal No. 023489003) was admitted in Dept. Neurosurgery on 20.12.2012 with alleged h/o RTA on 18.12.2012. Patient was not able to move both the lower limbs after the incident.

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At the time of admission his GCS was 15/15. His upper limb had normal tone and power. Examination of the lower limb revealed grade 0/5 power and absent tone. There was no sensation below D4 level. Investigations revealed D3 compression fracture with s compression on the spinal cord at that level.

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He underwent D2 D4 transpedicular screw and rod stabilsiation on 22.2.2012. During his stay in the hospital he developed recurrent episodes of UTI which was treated with appropriate antibiotics.

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At the time of discharge he was conscious, alert with grade 0/5 in the lower limbs. After discharge, he is under regular follow up. He is found to have Gr.0/5 power with paraplegia. The percentage of disability is 100%.”

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Upon considering these two documentary evidence in support of the evidence of doctor who is examined as P.W.4 the claimant has suffered fracture of spinal cord as there was breaking of cervical bone and vertebra and the deceased had suffered paraplegia. The doctor has given evidence that the claimant/deceased had suffered 100% of functional disability. When this being the health condition of the deceased when he was alive, it is proved that the claimant has suffered grievous injuries and has suffered septicemia confining to bed. Ex.P.8 to Ex.P.12-discharge summary and other medical records prove that the deceased had suffered paraplegia when he was

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alive. Ex.P.36 is the postmortem report, which proves that the cause of death is due to SEPTIC as a result of septicemia due to multiple bed sores and injuries on sequel of traumatic paraplegia.

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Therefore, upon considering all these evidence on

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record, it is proved that there is direct nexus between the injuries sustained and death occurred. The grievance of the Insurance Company is that opportunity was not given for filing additional written statement and additional evidence and taking defence to prove that there is no nexus between the injuries suffered and death occurred, which is taken care of while appreciating the evidence on record as discussed above. From the medical evidence on record as discussed above, it is unequivocally proved that the claimant has suffered much when he was alive and suffered 100% of disability due to fracture of spinal cord and has become paraplegia. Therefore, it is proved that the claimant died due to the accidental injuries. Mere four years gap between the date of accident and date of death is not the criteria to hold that the occurrence of

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death is not having nexus with the injuries sustained. The period may be four years, but for all these four years what are the distresses suffered by the claimant/deceased is to be appreciated. When the deceased was suffering from paraplegia and confined to bed, certainly, septicemia developed and bedsore occurred and this is what is stated in the postmortem report. Hence, it is proved that the deceased died due to the accidental injuries.

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Reg: quantum of compensation:

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Insofor as quantum of compensation is concerned as submitted by the learned counsel appearing for both sides, the Tribunal has committed error in deducting 1/3^rd of income towards personal and living expenses. The Tribunal has also committed error in choosing the multiplier according to the age of the mother. Therefore, the quantum of compensation is hereby re-assessed by holding the correct parameters as per the judgments of the Hon’ble Supreme Court in the catena of decisions.

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It is stated that P.W.1 is the mother of the deceased and has given evidence that her son deceased was working as a sales executive and was receiving salary of Rs.11,159/- as per Ex.P.23-salary certificate. Ex.P.34 is the salary particulars issued by the HR of the Company who is examined as P.W.3. The Tribunal has taken gross salary and deducted 10% of income towards income tax. Hence, the Tribunal has committed error. In holding the income of the deceased Ex.P.23 is the salary certificate, which shows the gross salary of Rs.11,159/- and the only deductable amounts are income tax and professional tax. In the salary certificate, there is no deduction towards income tax, but professional tax of Rs.150/- is deducted. The net salary after deducting provident fund, profession tax, ESIC and labour welfare fund, comes to Rs.10,363/- by deducting Rs.796/-. The only amount can be deducted towards salary is professional tax as per Ex.P.23 for assessing the monthly salary of the deceased for quantification of compensation. Therefore, the amount of Rs.150/- of professional tax is deducted from gross salary of Rs.11,159/-, then the net salary would come to Rs.11,009/-

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rounded off to Rs.11,000/- per month. Therefore, the salary of the deceased is taken at Rs.11,000/- per month as per Ex.P.23 and Ex.P.34 issued by the HR of the Company. The Tribunal has committed error in deducting 10% of income towards income tax. When the Company has not deducted amount towards income tax, the Tribunal ought not to have deducted 10% of income towards income tax. Therefore, what the professional tax is deducted that is only deductable amount and hence, the income of the deceased is proved as Rs.11,000/- per month and it is accordingly taken as Rs.11,000/- per month. The deceased is a bachelor and the claimants are mother, father and sister of the deceased and sister is still unmarried. Since the deceased was aged 26 years and bachelor, 50% of income is to be deducted towards personal and living expenses and the appropriate multiplier applicable is 17. The deceased was a salaried person working as a sales executive in the company. Therefore, he was having fixed salary with promotional avenues. Therefore, 50% of income is to be added towards loss of future prospects in life. Therefore, compensation under the head loss of dependency

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including loss of future prospects in life is re-assessed and quantified as follows:

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Rs.11,000/- + 50% x 50% x 17 x 12 =Rs.16,83,000/-

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Accordingly, compensation of Rs.16,83,000/- is

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awarded under the head loss of dependency including loss of future prospects in life.

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The Tribunal has granted compensation of Rs.3,28,979/- towards medical expenses and hospitalization charges. The claimants have produced the medical bills worth Rs.4,30,277/- and R.W.1 who is the insurance claim officer of

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the hospital deposed that the amount of Rs.73,422/- was deducted. Further Rs.20,000/- amount was paid under Suraksha Yojana and also discount of Rs.3,976/- was deducted from the bill. Therefore, the Tribunal after deducting Rs.1,01,298/- has awarded compensation of Rs.3,28,979/towards medical expenses and hospitalization charges, which is found to be correct, and it needs no interference.

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The Tribunal has awarded compensation of Rs.1,00,000/- towards loss of love and affection, which is on the lesser side. There are totally three legal dependants of the deceased, hence, as per the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Limited Vs. Nanu Ram & Others¹ and National Insurance Co. Ltd. Vs. Pranay Sethi,² the claimants are entitled to Rs.40,000/each with 10% escalation under the head loss of consortium including loss of love and affection. Accordingly, Rs.1,32,000/- (Rs.40,000 x 3 + 10% escalation) is awarded under the head loss of consortium including loss of love and affection.

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Further compensation of Rs.16,500/-

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(Rs.15,000/+ 10% escalation) is awarded towards Transportation of dead body and funeral expenses as against Rs.10,000/- awarded by the Tribunal.

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1 2018 ACJ 2782

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2 (2017) 16 SCC 680

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The Tribunal has not awarded compensation under

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the head loss of estate. Hence, compensation of Rs.16,500/-

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(Rs.15,000/- + 10% escalation) is awarded towards loss of estate.

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Thus, in all the claimants are entitled to total

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compensation determined by this Court as follows:

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1	Loss of dependency	Rs.	16,83,000/-
2	Loss of consortium including loss of love and affection	Rs.	1,32,000/-
3	Medical expenses and hospitalization charges	Rs.	3,28,979/-	Kept in tact
3	Loss of estate	Rs.	16,500/-
4	Transportation of dead body and funeral expenses	Rs.	16,500/-
	Total	Rs.	21,76,979/-

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The Tribunal has awarded compensation of

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Rs.18,29,700/-, but the claimants are entitled to total compensation of Rs.21,76,979/- . Hence, the claimants are

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entitled to enhanced compensation of Rs.3,47,279/- (Rs.21,76,979/- - Rs.18,29,700/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. The Insurance Company shall pay compensation to the claimants within four weeks.

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Thus, considering the submission on the quantum of compensation is concerned, the compensation is re-determined. Hence, the appeal filed by the Insurance Company is liable to be dismissed and appeal filed by the claimants is liable to be allowed in part.

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Accordingly, I proceed to pass the following

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ORDER

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i. MFA.No.739/2018 filed by the Insurance Company is dismissed .

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ii. MFA.No.8111/2018 filed by the claimants is allowed in part .

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iii. The impugned judgment and award dated 01.09.2017 passed in MVC.No.551/2013 by Addl. District Judge and Addl. MACT, Udupi (sitting at Kundapura), Kundapura, is hereby modified.

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iv. The claimants are entitled to enhanced compensation of Rs.3,47,279/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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