Karnataka High Court
Hussain Peera @ Mulla Sab Gari vs M Venkateshulu S/O M Chinna Durgappa on 29 October, 2018
Bench: B.V. Nagarathna, Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
M.F.A.NO.20242 OF 2013 (MV)
C/W M.F.A.NO.20978 OF 2013 (MV)
IN MFA NO.20242/2013
BETWEEN
HUSSAIN PEERA @ MULLA SAB GARI
HUSSAIN PEERA SINCE DECEASED
BY HIS LEGAL REPRESENTATIVES i.e.
HIS WIFE SMT.RASOOL BEE,
W/O HUSSAIN PEERA @ MULLA SAB GARI
HUSSAIN PEERA, AGE: 41 YEARS,
OCC: HOUSEWIFE, R/O KALYANADURGA,
PRESENTLY RESIDING AT FIRST RAILWAY GATE,
BELLARY.
...APPELLANT
(BY SRI MANJUNATH G.PATIL, ADVOCATE)
AND:
1. M.VENKATESHULU,
S/O M.CHINNA DURGAPPA
OWNER OF THE AUTO BEARING
REGD.NO.AP-02/X-9146,
2
R/O DOOR NO.3-10, SUGEPALLI,
SANTHEKONDAPURAM - VILLAGE,
BRAHMASAMUDRAM MANDAL,
ANANTAPUR DISTRICT,
ANDRA PRADESH.
2. M/S BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED,
BY ITS MANAGER
SEETHARAM COMPLEX,
DOUBLE ROAD, BELLARY.
...RESPONDENTS
(BY SRI R.R.MANE, ADVOCATE FOR R2;
NOTICE TO RESPONDENT NO.1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 22.10.2012 PASSED IN MVC
NO.1344/2010 ON THE FILE OF MEMBER, MACT-XI,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.20978/2013
BETWEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
THROUGH ITS MANAGER,
SEETARAM COMPLEX, DOUBLE ROAD,
BELLARY,HEREIN REPRESENTED BY
BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.,
4TH FLOOR, V A KALBURGI MANSION,
OPPOSITE MUNICIPAL CORPORATION,
LAMINGTON ROAD, HUBLI. REP. BY
ITS AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI R.R.MANE, ADVOCATE)
3
AND
(HUSSAIN PEERA @ MULLA SAB GARI
HUSSAIN PEERA, SINCE DECEASED BY HIS L.R.)
1. SMT.RASOOL BEE W/O HUSSAIN PEERA
@ MULLA SAB GARI HUSSAIN PEEERA,
AGE: ABOUT 42 YEARS,
OCC: HOUSE WIFE,
R/O: KALYANADURGA, PRESENTLY
R/AT: FIRST RAILWAY GATE,
BELLARY.
2. K.DHANUNJAYA S/O MAREPPA @ MARENNA,
AGE: 29 YEARS, OCC: DRIVER OF AUTO
BEARING REGN. NO.AP-02/X-9146,
R/O: RANGACHEDU VILLAGE,
GUMMAGATTA MANDAL,
DIST: ANANTAPUR, ANDHRA PRADESH.
3. M.VENKATESHULU S/O M CHINNA DURGAPPA,
AGE: MAJOR, OCC: OWNER OF THE AUTO
BEARING REGN. NO.AP-02/X-9146,
R/O: DOOR NO. 310, SUGEPALLI,
SANTHEKONDAPURAM VILLAGE,
BRAHMASAMUDRAM MANDAL,
DIST: ANANTAPUR, ANDHRA PRADESH.
... RESPONDENTS
(BY SRI MANJUNATH G PATIL, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 ARE SERVED)
THIS MFA FILED U/SEC.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
22-10-2012 PASSED IN MVC NO.1344/2010 ON THE FILE
OF THE MEMBER, MACT-XI, BELLARY, AWARDING THE
COMPENSATION OF RS.3,80,500/- WITH INTEREST AT
THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL
REALISATION.
4
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, NAGARATHNA J., MADE THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission with the consent of learned counsel on both sides, they are heard finally.
2. MFA No.20242/2013 is filed by the injured claimant seeking enhancement of compensation, while MFA No.20978/2013 is filed by the Insurance Company, assailing judgment and award passed by the Motor Accident Claims Tribunal XI at Ballari (hereinafter referred to as the 'Tribunal' for the sake of brevity) in MVC No.1344/2010 dated 22.10.2012.
3. For the sake of convenience, the parties shall be referred to, in terms of their status before the Tribunal.
4. The claimant is the widow of Hussain Peera @ Mulla Sab Gari Hussain Peera. Initially 5 Hussain Peera had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act' for the sake of brevity) seeking compensation in respect of the injuries sustained by him in a road traffic accident that occurred on 10.09.2010. Hussain Peera filed the claim petition on 13.12.2010, but he died on 26.12.2010 even at the very initial stage of filing of the claim petition. His legal representative being his widow was brought on record and thereafter she continued to prosecute the claim petition. The Tribunal by its judgment and award dated 22.10.2012 has awarded compensation at Rs.3,80,500/- with costs and future interest at the rate of 6% per annum from the date of the petition till realization. As already noted above being aggrieved by the said judgment and award the claimant as well as insurer have preferred these appeals.
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5. It is the case of the claimant that on 10.09.2010 her husband-Hussain Peera was traveling in an auto-rickshaw bearing No.AP-02/ X-9146 as a paid passenger from Rayadurga towards Kalyanadurga. At about 2.30 p.m., on that day, the first respondent-driver drove the auto-rickshaw in a rash and negligent manner and lost control over the vehicle. As a result, said auto-rickshaw turned turtle and Hussain Peera sustained grievous injuries to his leg. He died on 26.12.2010. According to the claimant, prior to his death, Hussain Peera was hail and healthy, he was working as a coolie and earning Rs.4,400/- per month and he was contributing the same towards the maintenance of the family. That the claimant was wholly depending upon him.
6. Subsequent to the accident, the jurisdictional police registered a case in Crime No.58/2010 against respondent No.1 for offence 7 punishable under Section 338 of the Indian Penal Code. In the circumstances, as already noted the injured claimant filed the claim petition seeking compensation on various heads on account of the injuries sustained by him. After his death, his wife continued to prosecute the claim petition.
7. In response to service of notice by the Tribunal, respondent Nos.1 to 3 entered appearance, but respondent Nos.1 and 2 did not choose to file any statement of objections. The Insurance Company filed its objection statement. While admitting the policy covering the offending vehicle, the Insurance Company contended that the driver of the offending vehicle did not have a valid driving licence as on the date of the accident. Therefore, the Insurance Company sought for dismissal of the claim petition as against it.
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8. On the basis of the rival pleadings, the Tribunal framed the following recast issues:
1. Whether the legal representative of deceased petitioner proves that on 10.09.2010 deceased petitioner while traveling in a Auto bearing Regn.No.AP-02/X-9146 as a paid passenger from Rayadurga towards Kalyanadurga, at about 2.30 p.m., the first respondent being driver of said Auto, driven the same in a rash and negligent manner and as a result of which, he had lost control of the vehicle and hence said Auto turned turtle at Belodu Fields, Gummagatta Mandal and thereby caused injuries to the deceased petitioner?
2. Whether she further proves that her husband late Hussain Peera i.e., deceased petitioner died due to the impact of the injuries sustained in the said accident?
3. Whether the legal representative of the petitioner is entitled for the 9 compensation claimed? If so, for what quantum and from whom?
4. What Order or Award?
9. In support of her case, claimant examined herself as PW1; she produced seventeen documents, which were marked as Exs.P1 to P17. The insurer examined RW1 and produced five documents, which were marked as Exs.R1 to R5. On the basis of the said evidence, the Tribunal answered Issue Nos.1 and 2 in the affirmative and awarded compensation of Rs.3,80,500/- with costs and future interest at the rate of 6% per annum from the date of petition till realization. Being aggrieved by the same, both the Insurance Company as well as the claimant have preferred these appeals.
10. We have heard learned counsel for the appellant-claimant and learned counsel for the Insurance Company, who is the appellant in the 10 connected appeal and perused the material on record as well as the original record.
11. At the first instance, the contention raised on behalf of the Insurance Company could be noted. Learned counsel for the insurer has raised a two-fold contention. Firstly, that the injured claimant had filed a claim petition. During the pendency of the said petition, he died and therefore, his legal representative is not entitled to claim any compensation which is on the basis of Section 306 of the Indian Succession Act, 1925. In support of this contention, he placed reliance on two Full Court opinions of this Court in the case of Kannamma V/s Deputy General Manager, Karnataka State Road Transport Corporation reported in 1991 ACJ 707 (Kannamma) as well as Uttam Kumar V/s Madhav and another reported in ILR 2002 KAR 1864 (Uttam Kumar). He contended that the Tribunal could not 11 have awarded compensation on any head other than the head of loss of estate only, if this Court is to come to a conclusion that there was a nexus between the injuries sustained in the accident and death. He emphasized on the fact that the injured died on account of cellulitis, but there is no medical evidence to establish any nexus between the injuries sustained in the accident and the cause of death of the injured claimant. Therefore, the claim petition ought to have been dismissed in entirety by the Tribunal. In support of this contention, learned counsel for the Insurance Company submitted that Ex.P-8 has not been established in accordance with law, the author of the certificate namely, the concerned Doctor has not been examined in the matter. The said document was disputed while cross-examining PW1. Next, learned counsel submitted that if this Court is to come to a conclusion that there was indeed a nexus between the injuries sustained in 12 the accident and the cause of death, then the compensation only on the head of loss of estate could be awarded and not on any other head as has been done by the Tribunal.
12. Learned counsel for the Insurance Company further contended that the accident occurred on 10.09.2010 and the driving licence of the driver of the auto-rickshaw had expired on 06.08.2010. That there was no renewal of the driving licence as on the date of the accident. Therefore, the Insurance Company cannot be fastened with any liability in the instant case and if at all, the respondent driver would have to bear the liability. In support of his submission, learned counsel for the insurer placed reliance on Ex.R2, which is the extract of the driving licence to contend that the licence was valid from 07.08.2007 to 06.08.2010 only and therefore the 13 insurer cannot be burdened to satisfy the award in the instant case.
13. Per contra, learned counsel for the claimant, who has also filed an appeal contended that the claim petition in the instant case would have to be construed as one seeking claim on account of the death of the injured claimant due to the injuries sustained in the accident. That the left leg of the original claimant-Hussain Peera had to be amputated and after amputation, Hussain Peera suffered from cellulitis of the very same limb and on account of the cellulitis, he died. Therefore, there was a clear nexus between the injuries sustained in the accident and death and hence the claim petition may be considered to be one seeking compensation on account of the death of the injured claimant. He further submitted that although there was non-renewal of the driving licence as on the date of the accident. It may be 14 noted that the driving licence had expired a few days prior to the date of the accident i.e. on 06.08.2010, whereas the accident occurred on 10.09.2010. That it cannot be construed to be a case of lack of ability or skill to drive the vehicle. Therefore, the Insurance Company cannot avoid its liability to satisfy the award.
14. Claimant's counsel further contended that Hussain Peera was earning an income of Rs.4,000/- per month by working as a coolie, but the Tribunal has considered his monthly income to be Rs.3,000/- only which is meager. Therefore, he contended that his monthly income may be taken to be atleast Rs.4,000/-. Placing reliance on a recent decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited V/s. Pranay Sethi and others reported in AIR 2017 SC 5157, he contended that this Court may take note of future prospects and 15 enhance the compensation on the head of loss of dependency. He also contended that the award of compensation on conventional heads namely, loss of consortium, towards transportation and funeral expenses of deceased, towards loss of estate is on the meager side and therefore, same may be enhanced.
15. Per contra, learned counsel for the Insurance Company contended that without prejudice to its contentions on the liability aspect of the matter as far as the award of compensation is concerned, in the absence of there being any categorical evidence, the Tribunal was right in reckoning the notional monthly income at Rs.3,000/- and hence, the same may not be enhanced. He further contended that even according to the deceased claimant, the admitted income was Rs.4,000/- per month and not beyond that. Learned counsel however submitted that in 16 view of the latest dictum of the Hon'ble Supreme Court, the award of compensation on the conventional heads to be awarded in the instant case may be capped at Rs.70,000/- and that the appeal filed by the Insurance Company may be allowed and the appeal filed by the claimant may be dismissed.
16. Having heard learned counsel for the respective parties, the following points would arise for consideration:
1. Whether the claim petition filed by the injured claimant-Hussain Peera who died during the pendency of the claim petition ought to have been dismissed by the Tribunal?
2. Whether on account of the driver of the auto-rickshaw, the offending vehicle herein, not possessing a valid driving licence as on the date of the accident i.e. 10.09.2010, the Insurance Company could avoid its liability?17
3. Whether the claimant is entitled to additional compensation?
4. What order?
17. The aforesaid points shall be considered in seriatim.
Re. Point No.1:
18. No doubt in the two Full Bench opinions rendered by this Court in the case of Kannamma and in the case of Uttam Kumar, this Court has held that when a claim petition is presented under the provisions of the Motor Vehicles Act, by a person who sustained bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards other expenses, loss of income etc., cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained in the motor accident, permit the claim petition to be prosecuted by his or her legal representatives. But when a claim petition is presented by a person 18 who has sustained bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income etc., can, on such person's death occurring as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his or her legal representatives only insofar as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident. In Uttam Kumar's case, the Full Bench reiterated the opinion rendered by the earlier Full Bench of this Court in Kannamma's case.
19. The question therefore to be considered is as to whether the injured claimant in the instant case died as a result of the injuries sustained in the accident. It is an established fact that on account of the road traffic accident that occurred 19 on 10.09.2010, the injured claimant sustained grievous injuries to his left lower limb (foot portion) and on account of the serious injuries, the same had to be amputated. But the amputation did not cure the injuries sustained by the claimant. That very foot developed cellulitis and as per Ex.P8, the injured claimant died on account of cellulitis. Cellulitis is a common bacterial skin infection. Cellulitis may first appear as a red, swollen area that feels hot and tender to touch. The redness and swelling often spread rapidly. Cellulitis is usually painful. In most cases, the skin on lower legs is affected, although the infection can occur anywhere on the body or face. Cellulitis usually affects the surface of skin, but it may also affect the underlying tissues. Cellulitis can also spread to lymph nodes and bloodstream. If cellulitis is not treated, the infection might become life threatening. Therefore, a person who suffers from cellulitis can also die as a result of 20 the said symptoms or disease. Ex.P8 is a certificate which has been issued by the Doctor to certify that Hussain Peera died as a result of cellulitis. Hussain Peera did not die of cellulitis on any other part of his body or face. Cellulitis indeed developed in the left lower limb which was amputated on account of the serious injuries sustained by him in the accident. But for the grievous injury and the amputation possibly Hussain Peera would not have suffered from cellulitis which led to his death. Therefore, reliance would have to be placed on Ex.P8 to hold that the cause of death of Hussain Peera was on account of cellulitis which occurred to the left lower limb which had sustained grievous injuries in the accident that occurred on 06.08.2010. Of course, learned counsel appearing for the Insurance Company has contended that Ex.P8 is not proved in accordance with law in as much as the Doctor who has issued the said certificate has 21 not been examined in the matter. But the nature of cross-examination on the said document by learned counsel for the Insurance Company does not bring out any material against the claimant. Even though learned counsel for the appellant denied that claimant's husband died on account of cellulitis. Per se the same must be understood to imply that he died on account of the cellulitis which infested the left foot as a result of the injury sustained in the accident. Further, the nature of the suggestion made by the counsel for the insurer also in a way implies that the Insurance Company has admitted the fact that injured claimant had died on account of cellulitis which occurred to the left foot which sustained the accidental injury. In the circumstances, we hold that Hussain Peera died due to cellulitis which occurred in the left foot which was on account of the grievous injuries sustained in the accident. 22 Therefore, there is nexus between the cause of death and the injuries sustained in the accident.
20. Again, learned counsel for the appellant- insurer contends that if this Court were to hold as above, then compensation may be awarded only on the head of loss of estate and not on any other heads. We, however, find it difficult to accept the said contention for the reason that in the instant case, accident occurred on 10.09.2010 and Hussain Peera died on 26.12.2010 in about three months time. In the interregnum, the claim petition was filed on 13.12.2010 i.e., thirteen days prior to the death of Hussain Peera. If the claim petition had been filed after period of thirteen days, the claimant would have been awarded compensation on account of death caused in the accident. The nature of claim would be one on account of death caused in the accident and not for the injuries sustained in the accident. Now 23 that we have held that there is nexus between the death and the injuries sustained in the accident, we find that in the interest of justice, the claim petition though filed by the injured-claimant, who died within thirteen days after filing of the said claim petition and the same has been prosecuted by his widow must be construed as a claim petition, which is in the nature of seeking compensation on account of the death of Hussain Peera filed by his widow as his widow could have independently maintained a claim petition after the death of her husband in which case she would have to prove that death of her husband was as a result of the serious injuries sustained in the road traffic accident and that cellulitis of the left lower limb which was amputated on account of the serious injury caused in the accident was the proximate cause of the death. Accordingly, Point No.1 is answered against the Insurance Company and in favour of the appellant-claimant. 24
21. The next point is concerned, which deals with the liability of the insurer to satisfy the award passed by the Tribunal on account of the driver of the offending vehicle not possessing a valid driving licence as on the date of the accident. The said point should not take us long to answer in the negative and as against the Insurance Company for the reason that the driver did possess a valid driving licence till 06.08.2010. The said licence had expired on the said date and on the date of the accident which was a few days thereafter i.e. on 10.09.2010, the driver did not possess a renewed driving licence. This is not a case where the driver of the vehicle did not at all possess a licence to drive the vehicle. Merely because there was no renewal of the driving licence as on the date of the accident, it cannot be construed or held that the driver of the offending vehicle had lost his skill or did not have his qualification or expertise to drive the vehicle. In 25 the circumstances, the said point is answered against the Insurance Company as this is not a case where there is a fundamental breach of terms and conditions of the policy regarding possession of driving licence, it is merely a case of non- renewal of the driving licence. Hence, the Insurance Company cannot be exonerated on that score.
22. This takes us to the next point for consideration which is with regard to the claimant seeking enhancement of compensation. The arguments in that regard have been adverted to above. The compensation is sought to be enhanced on two main heads. One, being loss of dependency and the other on conventional heads. So far as conventional heads are concerned, the latest decision of the Hon'ble Supreme Court in the case of Pranay Sethi would indicate that the reasonable figures on conventional heads namely, loss of 26 estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively and that the said amount should be enhanced at the rate of 10% in every three years. Following the same, we award a sum of Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. In addition, a sum of Rs.86,500/- is awarded towards medical expenses expended towards treating the deceased Hussain Peera.
23. So far as loss of dependency is concerned, admittedly, the deceased was earning a sum of Rs.4,000/- per month as unskilled labour or coolie. In the case of Pranay Sethi, the Hon'ble Supreme Court has held that if the deceased was self-employed or on a fixed salary and if his age was between 50 to 60 years, 10% of the salary must be reckoned towards future prospects. 27 Following the said dictum, Rs.400/- per month is added towards future prospects and the monthly salary reckoned is Rs.4,400/-. 1/3 r d of the same is deducted towards personal expenses of the deceased. As the age of the deceased was 55 years, appropriate multiplier is '11' in terms of the dictum of the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (2009) ACJ 1298 (Sarla Verma). Therefore, the compensation on the head of loss of dependency would be Rs.3,87,199/-, which is rounded off to Rs.3,87,200/-. The total compensation would thus be Rs.5,43,700/- which is detailed as under:
1 Towards loss of Rs.3,87,200-00 dependency 2 Towards loss of estate Rs.15,000-00 3 Towards loss of consortium Rs.40,000-00 4 Towards funeral expenses Rs.15,000-00 5 Towards medical expenses Rs.86,500-00 Total Rs.5,43,700-00 28 The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
24. Consequently, MFA No.20978 of 2013 filed by the Insurance Company is dismissed.
25. The appeal filed by the claimant namely, MFA No.20242 of 2013 is allowed in part. The statutory amount and 50% of the amount deposited before this Court shall be transmitted to the Tribunal forthwith.
No Costs.
Sd/-
JUDGE Sd/-
JUDGE CLK