Loading judgment…
No AI summary yet for this case.
1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 17TH DAY OF NOVEMBER, 2022 BEFORE THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR MFA NO.31849 OF 2013 (MV)
C/W
MFA NO.30203 OF 2013 ( MV) IN MFA NO.31849 OF 2013 BETWEEN: Smt.Sangeeta W/o Kishore Singh Died by her LR's 1. Kishore Singh S/o Mukund Singh
Age ; 49 years, Occ; Coolie 2. Seema D/o Kishore Singh
Age ; 26 years, Occ; Household 3. Manoj Singh S/o Kishore Singh
Age ; 24 years, Occ; Student 4. Akshay Singh S/o Kishore Singh
Age 16 years, Occ; Student 5. Arti D/o Kishore Singh
Age; 20 years, Occ; Student
(Appellant No.4 is minor under the
Guardian of their father appellant No.1.)
All are R/o inside Bidar Fort Bidar – 585 401.
... Appellants (By Sri Khadme Umesh, Advocate)
2 AND: 1. Nasir Miyan S/o Sadaq Miyan
Age; major, Occ; Business 2. The Branch Manager
United India Insurance Company Limited
Branch office, Venkateshwar Lodge
Main Road, Near Ambedkar Circle
Bidar – 585 401 3. Dhanraj Patel S/o Rachappa Patel
Age; major, Occ; Business
R/o Navalspur, Tq – Bidar – 585 401 \ 4. The Branch Manager
National Insurance Company Limited
Branch office, Giri Complex
Basaveshwar Chowk, Gandhi Gunj Road
Bidar – 585 401
... Respondents (By Sri Manvendra Reddy, Advocate for R-2; Smt. Preeti Patil Melkundi, Advocate for R-4; Notice to R-1 & R-3 are dispensed with) This Miscellaneous First Appeal is filed under Section 173(1) of the MV Act, praying against the judgment and award dated 10.04.2012 passed in MVC No.30/2009 on the file of the presiding officer FTC-I And Addl.M.A.C.T at Bidar, partly allowing the claim petition and seeking enhancement of compensation and etc. IN MFA NO. 30203 OF 2013 BETWEEN: The Branch Manager National Insurance Company Limited Giri Complex, Basaveshwara Chowk Gandhi Gunj Road, Bidar. (Now Rep. through Divisional Manager National Insurance Co. Ltd., D.O.Gulbarga)
… Appellant (By Smt.Preeti Patil, Advocate)
3 AND: Smt.Sangeeta, w/o Kishore Singh Died by her LR's 1. Kishor Singh S/o Mukund Singh
Age ; 49 years, Occ; Coolie 2. Seema D/o Kishore Singh
Age ; 26 years, Occ; Household 3. Manoj Singh S/o Kishore Singh
Age ; 24 years, Occ; Student 4. Akshay Singh S/o Kishore Singh
Age 16 years, Occ; Student 5. Arti D/o Kishor Singh
Age ; 20 years, Occ; Student Now claimant No.4 and 5 are minor Under Guardianship of their father Claimant No.1. All are R/o inside Bidar Fort Bidar – 585 401 6. Nasir Miyan, s/o Sadaq Miyan
Aged : Major, Occ; Business
R/o; Labour colony, Bidar – 585 401
(owner of Auto No. KA-38/1060) 7. The Branch Manager
United India Insurance Company Limited
Branch office, Venkateshwar Main Road, Near Ambedkar Circle
Bidar – 585 401 8. Dhanraj Patel, s/o Rachappa Patel
Age; major, Occ; Business
R/o Navalspur, Tq – Bidar – 585 401 ... Respondents (Notice to R-1, R-2, R-3,R-5 & R-8 are served; R-4 is minor U/G of R-1; Notice to R-6 is Held Sufficient By Sri Sanjay M.Joshi, Advocate for R-7)
4 This Miscellaneous First Appeal is filed under Section 173(1) of the MV Act, praying against the judgment and award dated 10.04.2012 passed in MVC No.30/2009 on the file of the presiding officer FTC-I And Addl.M.A.C.T at Bidar, partly allowing the claim petition and seeking enhancement of compensation and etc. These Appeals are coming on for Hearing, this day, the court delivered the following: JUDGMENT These two appeals are preferred by the claimant and by one of the Insurance Company i.e., the National Insurance Company against the judgment and award dated 10.04.2012 passed in MVC No.30/2009 by the Court of the Presiding Officer, FTC-I and Addl.M.A.C.T at Bidar (for short ‘the Tribunal’). The appeal preferred by the claimant is for enhancement of compensation whereas the appeal preferred by the Insurance Company is to set-aside the impugned judgment and award as being erroneous, illegal and perverse. 2. Parties shall be referred to as per their status before the Tribunal. 3. The brief facts of the case are as under :- On 05.11.2008 the deceased namely Smt.Sangeeta and others were proceeding in an auto rickshaw bearing
5 Reg.No.KA-38/1060 from Devi Colony, Bidar towards their house situated inside the Fort, Thakur Galli, Bidar. During which time the driver of auto rickshaw drove the vehicle in a rash and negligent manner so as to endanger human life and safety met with an accident against the oncoming Tractor bearing Reg.No.AP-23/B-9877 which was driven in a rash and negligent manner endangering human life and safety and collided head on with the auto rickshaw in which the deceased was traveling. Due to the accident the deceased sustained grievous injuries to his spinal cord and became paraplegic and took treatment from various hospitals initially at Bidar and thereafter shifted to Hyderabad and eventually she died on 06.05.2010. It is contended that the accident had occurred due to rash and negligent driving by the driver of both vehicles namely auto rickshaw as well as tractor. Therefore, the claimants who are legal representatives and dependants of deceased Sangeeta continued to prosecute the claim petition pursuant to death of deceased Sangeeta. 4. On service of notice, respondent Nos.1 to 4- owners of two vehicles namely auto rickshaw and tractor
6 and their respective insurance companies appeared and filed their detailed statement of objections interalia denying the age, avocation, income, occurrence of accident, involvement of vehicle and there being no nexus between injuries in the accident and death. They also took-up a plea that accident took place due to negligent driving of other vehicle and blamed each other for payment of compensation. It is also pleaded that drivers of respective vehicles did not possess valid and effective driving license and sought for dismissal of claim petition. 5. On the basis of pleadings, the Tribunal framed relevant issues for consideration. 6. In order to substantiate the issues and to establish their case, claimants got examined as PWs.1 to 3 got marked documents as Exs.P1 to P15. On the other hand, respondents did not adduce any evidence neither oral nor documentary. 7. On the basis of material evidence both oral and documentary and on hearing the submissions of learned counsel for both the parties, Tribunal awarded
7 compensation of Rs.5,72,000/- with interest @ 6% p.a. to the claimants fastening the liability on respondent Nos.1 to 4 jointly and severally and the ratio was proportioned between respondent Nos.1 and 2 at 50% and respondent Nos.3 and 4 at 50%. Being aggrieved by the meager compensation awarded by the Tribunal, the claimants are before this Court seeking enhancement and Insurer of the tractor is before this Court seeking to set aside the judgment and award. 8. Sri.Manvendra Reddy, learned counsel appearing on behalf of insurer of auto rickshaw which was involved in the accident in which the deceased was traveling submits that he has complied with the judgment and award of the tribunal by making payment of 50% of his share. 9. Sri.Sanjay M.Joshi, learned counsel appearing on behalf of insurer-respondent No.7 in MFA No.30203/2013 submits that he has also complied with the judgment and award of the tribunal by making payment of 50% of his share. Both these counsel represent the very same Insurance Company.
8 10. It is the vehement contention of learned counsel for claimants that the accident occurred on 05.11.2008 and it is not in dispute that deceased was an inmate in the auto rickshaw which met with an accident with the tractor which was coming from opposite direction and both the drivers of tractor as well as auto rickshaw were negligent and responsible for the occurrence of accident. To substantiate this aspect, claimants have produced Exs.P1 to P4 being police records, FIR, complaint and wound certificate. The claimants have also produced medical bills from various hospitals and case sheets and death certificate to show that deceased succumbed to the injuries due to accident. 11. It is the contention of learned counsel for appellants-claimants that the tribunal has assessed lesser income and not awarded future prospects while awarding compensation. The tribunal has also committed an error in not awarding compensation under the head loss of consortium and other conventional heads. On these grounds he seeks for enhancement and consequently to allow the appeal.
9 12. Per contra, learned counsel appearing on behalf of insurer of tractor has filed appeal on the ground that claimants would not be entitled for compensation for the reason that claimants are legal representatives/ dependants of deceased Smt.Sangeeta, who died almost two years after the accident during the pendency of claim petition. It is also contended that claimants filed an application to come on record during the pendency of claim petition which would not be maintainable and the same deserves to be dismissed in view of the judgment of this Court in the case of Kanamma Vs. Deputy General Manager, reported in ILR 1990 KAR 4300. At the most the claimants would be entitled for medical expenses incurred by the claimants and not for other expenses including income, loss of future prospects and other expenses. On these grounds she seeks to allow the appeal and set aside the judgment and award of the tribunal. 13. It is not in dispute that the accident occurred on 05.11.2008 between the auto rickshaw and tractor. Due to the said accident, the deceased being suffered injuries and succumbed to the injuries on 06.05.2010.
10 Now coming to the aspect of maintainability of claim petition; it would not take much time to deal with the matter in view of the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Company Limited Vs. Kahlon Alias Jasmail Singh Kahlon (deceased) through his LR Narinder Kahlon Gosakan, reported in AIROnline 2021 SC 511, wherein similar issue came up before the Hon'ble Apex Court held at paragraph Nos.17, 18, 20 and 21 as under; "17. The injuries suffered by the deceased in the accident required prolonged hospitalization for six months. The extent of disability suffered was assessed on 16.06.2000 as 100%. The extent of disability, pursuant to physiotherapy was reassessed as 75% on 08.08.2002. In the interregnum, the injured resigned his job on 30.09.2001 at the age of 53 years as he found movement difficult and inconvenient without an attendant as distinct from complete immobility. The injured was possessing professional qualifications in labour laws and Industrial relations along with a Diploma in Personnel Management. He may have had to suffer some handicap in also practicing before the labour court, but cannot be held to have suffered 100% physical disability as his capacity for rendering advisory and other work coupled with movement on a wheel chair with the aid of an attendant could still facilitate a reduced earning capacity. It cannot be held that the injured was completely left with no source of livelihood except to deplete his estate. In
11 assessing, what has been described as a ‘Just Compensation’ under the Act, all factors including possibilities have to be kept in mind. 18. The Tribunal, on technicalities rejected his claim for salary, medical expenses and percentage of disability and granted a measly compensation of Rupees one lakh only by a cryptic order. We are, therefore, of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the legal representatives of the deceased in the appeal. 20. We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. 21. However, the compensation under the head pain and suffering being personal injuries is held to be unsustainable and is disallowed. The High Court has not awarded anything towards medical expenses despite hospitalisation for six months being an admitted fact. We therefore award a sum of Rs.1,00,000/ towards medical expenses. Hence, the reassessed total compensation would be Rs.28,42,175/, calculated hereunder: Sr.No. Heads Calculations 1.Annual Salary Rs. 25084*12= Rs. 3,01,008/ After deducting 25% 75% of the annual salary will be =Rs. 2,25,756/ 2. 15% Future Prospects 15% of 2,25,756= Rs.
12 33,863.4 Rs. 2,25,756+33,863= Rs. 2,59,619/ 3. Applying multiplier of 11 Rs. 2,59,619*11= Rs. 28,55,809/ 4. 10% of the income tax Rs. 2,25,7561,50,000= 75,756, deducted for 15 years 10% of 75,756= 7575.60 For 15 years = 7575.6*15= Rs. 1,13,634/ 5. Medical Expenses Rs. 1,00,000/ 6. Attendant Charges Rs. 1,00,000/ 7. Grand Total Rs. 29,42,175/ 8. Compensation already Rs.1,00,000/ awarded by the Tribunal and paid 9. Net Total (7)(8) Rs.28,42,175/ 14. It is also relevant to mention here that the judgment relied upon by the learned counsel for insurer of the tractor namely Kanamma's case stated supra which came to be over ruled at paragraph No.16 of the said judgment. The Hon'ble Apex Court has further held that claimants would be entitled to compensation under all other heads except under the head pain and suffering and personal injuries which cannot be allowed and same came to be disallowed in the said case stated supra. Therefore, the question of legal representatives/dependants of deceased preferring to file an application to come on record during the pendency of claim petition and to prosecute the claim and further at the appellate stage, is held to be maintainable and same could be treated in a similar manner of death case. Hence, the contention of
13 learned counsel for appellant-Insurer of the tractor is not sustainable and same is negatived. 15. Now coming to the aspect of quantum, the tribunal has assessed the income of deceased to be Rs.3,000/-. The accident having occurred in the year 2008, the notional income chart prescribes Rs.4,250/- to be taken as monthly income where no evidence is placed by the claimants, which requires to be adopted in the present case and so it is. The deceased was aged 35 years as on the date of occurrence of accident and appropriate multiplier would be 16 which is rightly adopted by the tribunal and same is retained. There being 5 dependants of deceased, 1/4th would be deducted towards personal and living expenses which has been rightly adopted by the tribunal. Hence, same does not call for interference and same is retained. Accordingly, income comes to Rs.4,250/-, 40% to be added towards future prospects it would comes to Rs.5,950/- and after deducting the same by 1/4th it would be Rs.4,463/- would be income to be taken for assessment of compensation. Therefore, the loss of dependency would be;
14 Rs.4,463 x 12 x 16 = Rs.8,56,896/- 16. The tribunal has not awarded any amount towards loss of consortium. There being 5 dependants each of the claimant would be entitled for Rs.40,000/- as per the judgment of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others, reported in (2018) 18 Supreme Court Cases 130 and in the case of United India Insurance Co. Ltd., v. Satinder Kaur alias Satwinder Kaur and others, AIR 2020 SC 3076. Hence, the claimants would be entitled for Rs.2,00,000/- (Rs.40,000 x 5) under this head. 17. In addition, the claimants are entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation of dead body. 18. As per the decision of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, 10% on the conventional head for each block period
15 requires to be awarded, which in the present case would be Rs.23,000/- for one block period. 19. Towards medical and attendant charges, the tribunal has awarded a sum of Rs.1,15,000/- which also does not call for interference 20. Therefore, In all the claimants are entitled for total compensation in a sum of Rs.12,24,896/- as against Rs.5,72,000/- awarded by the Tribunal, as detailed in the table below: Head Awarded by this Court (Rs.) Loss of dependency 8,56,896/- Loss of consortium 2,00,000/- Medical and attendant charges 1,15,000/- Loss of estate and funeral expenses and conventional heads 30,000/- 10% of Rs.2,30,000/- for one block period 23,000/- TOTAL 12,24,896/- 21. For the foregoing reasons, I pass the following: ORDER (1) Appeal in MFA No.31849/2013 preferred by the claimants is allowed in part;
16 (2) Appeal in MFA.No.30203/2013 filed by the Insurance Company is dismissed; (3) The judgment and award dated 10.04.2012 passed by the Presiding Officer, FTC-I and Addl. MACT at Bidar, in MVC No.30/2009, is modified; (4) The claimants are entitled to total compensation in a sum of Rs.12,24,896/- as against Rs.5,72,000/-; (5) The Insurance Companies namely respondent Nos.2 and 4 who are insurer of auto rickshaw and tractor respectively shall pay the entire compensation amount according to proportionate share made by the tribunal at 50% share each. (6) The enhanced compensation amount shall also be paid at 50% of their share i.e. both insurance companies, to claimants within a period of six weeks from the date of receipt of the copy of the order;
17 (7) All other terms and conditions stipulated by the Tribunal is retained; (8) The amount in deposit before this Court shall be transmitted to the jurisdictional tribunal forthwith Sd/- JUDGE sn/msr