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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF JULY, 2016
BEFORE THE HON’BLE MRS JUSTICE S SUJATHA MISCELLANEOUS FIRST APPEAL No.117/2012 c/w MISCELLANEOUS FIRST APPEAL No.3922/2012(MV)
MFA No.117/2012
BETWEEN:
R.N.MANJULA W/O LATE R L NAGARAJ AGED ABOUT 52 YEARS HOUSE WIFE, R/O JCR EXTENSION 3RD CROSS CHITRADURGA.
.. APPELLANT
(BY SRI R SHASHIDHARA, ADV.)
AND:
NOORULLA S/O SANAULLA AGED ABOUT 25 YEARS TYRE PUNCHER WORK DRIVER OF MOTOR CYCLE BEARING NO.KA-16/Q-3030 R/O HIMMATH NAGAR CHITRADURGA.
A.MASOOD GAZI S/O AHMED BEIG AGED ABOUT 40 YEARS OWNER OF MOTOR CYCLE BEARING NO.KA-16/Q-3030 R/O GOWRAMMANAHALLY VILLAGE CHITRADURGA TALUK. R
THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., LAXMI BAZAR, CHITRADURGA.
... RESPONDENTS
(BY SMT H R RENUKA, ADV. FOR R.3, NOTICE TO R.1 & 2 D/W V.O.D.6.3.2012)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.10.2011 PASSED IN MVC NO.191/2010 ON THE FILE OF PRINCIPAL CIVIL JDUGE (SR.DN.) & CJM, ADDITONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITOIN FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA No.3922/2012
BETWEEN:
NATIONAL INSURANCE CO. LTD. LAXMI BAZAR,CHITRADURGA BY ITS BRANCH MANAGER REPRESENTED BY ITS BRANCH MANAGER.
.. APPELLANT
(BY SMT H R RENUKA, ADV.)
AND:
R.N.MANJULA W/O LATE R L NAGARAJ AGED ABOUT 54 YEAS R/O JCR EXTENSION 3RD CROSS, CHITRADURGA.
NORULLA S/O SANAULLA AGED ABOUT 27 YEARS R/O HIMMAT NAGAR,CHITRADURGA (DRIVER OF M/C NO.KA-16-Q-3030)
A MASOOD GAZI S/o AHMED BEIG
3 AGED ABOUT 42 YEARS r/o GOWARAMMANAHALLY VILLAGE CHITRADURGA TALUK.
.. Respondents
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.10.2011 PASSED IN MVC NO.191/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & CJM, ADDITIONAL MACT, CHITRADURGA AWARDING A COMPENSATION OF RS.8,50,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Insurer as well as the claimant are before this Court challenging the judgment and order passed by the Motor Accident Claims Tribunal, Chitradurga (the ‘Tribunal’ for short) in MVC No.191/2010.
Briefly stated the facts are:
- the deceased Nagaraj while proceeding on Motor Cycle bearing NO.KA-16-L-2625, on 05.05.2008 met with the road traffic accident owing to the rash and negligent driving of the rider of motor cycle bearing No.KA-16/Q- 3030 and sustained fatal injuries. The deceased was immediately shifted to Chitradurga Government Hospital and thereafter he took medical treatment in various hospitals, finally succumbed to the fatal injuries. Based
4 on these facts, the claimant – wife of the deceased Nagaraj filed a claim petition before the Tribunal seeking compensation. The insurer contested the matter. After evaluating the evidence placed on record, the Tribunal awarded compensation of Rs.8,50,600/- with interest @ 6% p.a. Being aggrieved, the insurer is before this Court challenging the impugned judgment and order being excessive whereas the claimant is also before this Court seeking for enhancement of compensation as the compensation awarded being inadequate.
Learned counsel, Smt.Renuka appearing for the insurer, is assailing the impugned order mainly on three grounds:
(1) there was no nexus between the accidental injuries sustained by the deceased and the cause of his death. (2)
the Tribunal awarding a compensation of Rs.2,56,600/- towards medical bills is erroneous and unjust inasmuch as awarding double compensation to the extent of Rs.1,20,000/- as the same has been
5 reimbursed to the claimants/injured (deceased) being the claim towards Mediclaim Insurance Policy. (3) It was contended that the claimant, dependent of the deceased is getting family pension, as such, she is not entitled to the compensation in addition to the family pension. The provisions of Motor Vehicles Act, 1988 (the ‘Act’ for short) cannot be construed as a bonanza or bounty to get the accidental claim much above the family pension.
Elaborating on these points, learned counsel would contend that the deceased was a known hypertensive and suffering from parkinson decease. The injuries suffered by the deceased in the accident was fracture of leg and the cause of death is cardio- respiratory failure due to acute renal failure (kidney), head injury and cardio-jenic short- all relatable to the preexisting decease and not the fracture. The learned counsel would place reliance on the Division Bench judgment of this Court in NEW INDIA ASSURANCE COMPANY LIMITED, BANGALORE vs MANISH GUPTA
6 AND ANOTHER (2013(1)KLJ 624) in support of her contention that the amount received by the claimant/deceased under the Mediclaim Policy is required to be deducted from the total compensation awardable to the claimants under the head medical expenses
Per contra, Sri.R.Shashidhara - appearing for the claimant would contend that the accidental injuries suffered by the deceased were fatal. The medical reports on record clearly indicates that the deceased Nagaraj, not only sustained fracture injury but also sustained head injury. It is not uncommon that a patient suffering from hypertension and related diseases would get the problem aggravated due to the impact of the accidental injuries on the biological system as a whole more particularly, in view of the head injuries sustained by the deceased. The learned counsel submits that there was absolute nexus between the accidental injuries and the cause of death. The deceased was under consistent medical treatment from the date of the accident till his
7 last breath. This would disclose that the root cause of death was the accidental injuries. In support of this contention, learned counsel would place reliance on the Division Bench judgment of this Court in the case of Suresh vs Hanumanthu in
MFA 11237/2012 (D.D.11.12.2014)
Secondly, learned counsel would contend that the amount received towards the Mediclaim Policy is for the premium paid by the deceased and in noway it is related to the claim of compensation under the Act. The amount received by the claimant/deceased under Mediclaim Policy would not fall within the realm of the Act to be termed as pecuniary advantage liable for deduction. The learned counsel placed reliance on the Judgment of this Court in SHAHEED AHMED VS SHANKARANARAYANA BHAT (ILR 2008 Kar.3277).
- Thirdly, learned counsel submits that the claimant is entitled to the family pension on account of the death of her husband Nagaraj. The compensation received for the accidental death of the deceased Nagaraj under the provisions of the Act cannot bewildered with
8 the family pension which otherwise, the claimant is legally entitled to. The learned counsel further submits that the deceased was working as a Development Officer with the Life Insurance Corporation of India and his annual income was Rs.6,91,058/- as reflected in the Income Tax Return at Ex.123. The Tribunal grossly erred in overlooking this document and determining the monthly income at Rs.10,000/- much meager compared to his actual income. It is further contended that the compensation awarded by the Tribunal under the different heads is on a lower side. Accordingly, he seeks for enhancement of the compensation awarded in conformity with the principles of law laid down by the Apex Court as well as by this Court.
Having heard the rival submissions of the parties and after perusing the material on record, it is evident from the records that the deceased Nagaraj met with a road traffic accident on 05.05.2008. Immediately after the accident, he was admitted to the Chitradurga Government hospital and thereafter, he was shifted to
9 Diwakar Orthopedic Hospital and Trauma Centre, Hubli. Further, he was shifted to Shivakrupa Hospital, Hubli and later shifted to KLEs ICU Hospital, Hubli. The deceased was under consistent medical treatment from 05.05.2008 to 27.06.2008 when he finally succumbed to the injuries. PM report at Ex.P.7 discloses that the cause of death is due to cardio-respiratory failure due to acute renal failure, head injury, fracture and neuro-jenic shock. RW2 is the doctor who conducted the post mortem, he had deposed that the deceased died due to the accidental injuries. The evidence of RW2 coupled with the post mortem report at Ex.P.7 indicates that the deceased died due to the accidental injuries sustained by him on 05.05.2008. The medical records discloses that the deceased was under consistent medical treatment ever since the date of accident till his last breath. The parts of human body are so intrinsically linked that the impact on one part of the body would affect the entire system. The injury caused to the head definitely would have an effect on the pre-existing disease which was dormant in nature. If so, it cannot be construed that the
10 disease Nagaraj died due to the hypertension and Parkinson disease which were pre-existing as contended by the learned counsel for the insurer. On the contrary, the evidence on record clearly reveals the cause of death as accidental injuries which is not discarded by the insurer by leading any cogent rebuttal evidence.
It is apt to refer to the Division Bench Judgment of this Court in Suresh’s case (supra) wherein this Court while considering the similar set of facts had categorically held that the consistent medical treatment taken by the deceased immediately after the accident would have a nexus with the death of the deceased. The arguments advanced otherwise came to be rejected. The finding of the Tribunal on this issue holding that there was no nexus with the accident and the cause of death was reversed. In view of the law enunciated by the Division Bench of this Court, it can be held that the insurer has miserably failed to establish that there was no nexus with the accidental injuries and the death of
11 the deceased. The said contention of the insurer is not sustainable.
As regards, deduction of Rs.1,20,000/- received by the claimant/deceased in pursuance to the Mediclaim benefit, it would be appropriate to refer to the Division Bench Judgment of this Court in the case of Manish Gupta (supra) wherein, the Division Bench has set-aside the order passed by the learned Single Judge in Shaheed Ahamed’s case (supra) referred to by the claimant to contend that the claim received under the Mediclaim Policy cannot be deducted from the amount awarded towards medical expenses under the Act. The Division Bench has considered the decision of the Apex Court in Helen C. Rebello’s vs Maharashtra State Road Transport Corporation’s case (1999 ACJ 10) and distinguished the said Judgment as the said case was in respect of the Life Insurance Policy and not in respect of Mediclaim Policy.
In view of the Division Bench Judgment of this Court in Manish Gupta’s case (supra), I am of the
12 considered opinion that the amount of Rs.1,20,000/- received by the claimant/deceased requires to be deducted from the compensation awarded by the Tribunal towards medical expenses.
It is trite that the family pension received by the claimant-wife as the dependent of the deceased is for the contribution in the service rendered by the deceased employee to which the claimant is legally entitled even otherwise of the accidental death of the deceased. The amount received towards family pension would not fall in the periphery of the Act to deny the compensation for the dependents while awarding compensation under the Act. There is no co-relationship between the two and family pension amount paid to the family cannot be deducted while computing compensation awarded to the claimant.
As regards quantum, it is evident from the records that the claimants have claimed compensation towards medical expenses at Rs.2,50,600/- which has been awarded negating the contention of the insurer that
13 Rs.1,20,000/- received from the New India Insurance Company towards medical claim has to be deducted. In view of the Division Bench Judgment of this Court in the case of Manish Gupta (supra), claim received towards medical insurance policy requires to be deducted from the actual amount, which is expended by the claimant or deceased for medical treatment of the deceased. As such, Rs.1,20,000/- received towards the claim made under the Mediclaim Policy requires to be deducted from the compensation awarded to the claimants under the head ‘medical expenses’. However, the compensation awrded under the different heads viz., funeral, transport and other expenses, loss of love and affection and loss of consortium deserves to be enhanced in the light of the Judgment of the Apex Court rendered in the case of RAJESH AND OTHERS Vs. RAJBIR SINGH AND OTHERS reported in 2013 ACJ 1403 . 12. Loss of income due to the death of the deceased computed at Rs.5,60,000/- is just and reasonable and does not call for any interference by this Court. Similarly, compensation awarded towards loss of estate is just and reasonable. Thus, the compensation awarded by the tribunal is modified as under:
14 (1) loss of income due to death of
Deceased
5,60,000/- (2) Medical expenses
1,30,600/- (3) Funeral, transport and other
Expenses
25,000/- (4) loss of love and affection 50,000/- (5) loss of estate
10,000/- (6) loss of consortium
50,000/-
_________________
TOTAL
8,25,600/-
The award passed by the Tribunal is modified and reduced by Rs.25.000/-. The appellant/claimant shall be entitled to total compensation of Rs.8,25,600/-. With interest @ 6% p.a. from the date of petition till the date of realization. Appeals are disposed of in terms of the above. Amount in deposit if any, shall be transmitted to the jurisdictional Tribunal for disbursement. Sd/- JUDGE
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