Karnataka High Court
New India Assurance Co., Ltd vs Anusaya W/O Shekar Kushnagol on 5 January, 2023
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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MFA No. 101195 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISC. FIRST APPEAL NO.101195 OF 2014 (MV-D)
BETWEEN:
1. NEW INDIA ASSURANCE CO., LTD.,
BY ITS DIVISIONAL MANAGER,
MUDALAGI BUILDING,
CLUB RAOD, BELGAUM.
HEREIN REP. BY
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI - 580 029.
REPRESENTED BY ITS REGIONAL,
MANAGER.
...PETITIONER
(BY SRI. R. R. MANE, ADVOCATE)
AND:
1. ANUSAYA,
W/O SHEKAR KUSHNAGOL,
ANNAPURNA
CHINNAPPA AGE: ABOUT 43 YEARS,
DANDAGAL OCC: HOUSEWIFE,
Digitally signed by
ANNAPURNA CHINNAPPA
R/O: BHARAT GALLI, MUCHANDI,
DANDAGAL
Location: High court of
Karnataka, Dharwad Bench,
Dharwad
TQ: DIST: BELGAUM.
Date: 2023.01.17 10:54:55 -0800
2. NAGARAJ,
S/O SHEKAR KUSHNAGOL,
AGE: ABOUT 24 YEARS,
OCC: CENTERING,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
3. KUMARI. SUNITA,
D/O SHEKAR KUSHNAGOL,
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MFA No. 101195 of 2014
AGE: ABOUT 22 YEARS,
OCC: STUDENT,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
4. KUMARI. SUJATA,
D/O SHEKAR KUSHNAGOL,
AGE: ABOUT 20 YEARS,
OCC: STUDENT,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
5. RAMESH,
S/O POPATLAL JUNNARKAR,
AGE: ABOUT 49 YEARS,
OCC: BUSINESS,
R/O: 417/E, WARD SHAHUPURI,
KOLHAPUR, MAHARASHTRA-416 001.
(OWNER OF TRUCK NO.MH-09/BC-7086)
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE FOR R1 TO R4;
R5 - SERVED)
THIS MFA FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DATED 07.02.2014, PASSED
IN MVC.NO.1187/2010 ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE AND ADDL. MACT BELGAUM, AWARDING THE
COMPENSATION OF RS.8,53,000/- WITH THE INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE / DELIVERED THE FOLLOWING:
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MFA No. 101195 of 2014
JUDGMENT
Challenging judgment and award dated 07.12.2014 passed by I Additional Senior Civil Judge and Additional MACT, Belgaum (for short, 'tribunal') in MVC.no.1187/2010, this appeal is filed by Insurer - New India Assurance Company Ltd.
2. Brief facts as stated are that in an accident that occurred on 26.07.2009 between motorcycle bearing registration no.KA-22/4949, on which deceased Shekhar Fakirappa Kushnagol was riding and Truck bearing registration no.MH-09/BC- 7086, Shekhar Fakirappa Kushnagol sustained grievous injuries. He was diagnosed with L1 paraplegia with paralytic ileus. He took treatment at several hospitals and died during treatment on 04.11.2009.
3. Alleging that death was on account of injuries sustained in accident which occurred due -4- MFA No. 101195 of 2014 to rash and negligent driving of Truck by its driver, legal representatives of deceased Shekhar Fakirappa Kushnagol filed claim petition under Section 166 of M.V Act, against owner and insurer of Truck.
4. Upon service of notice, only insurer contested claim petition while owner was placed ex-parte. In its objection, insurer contended that accident was not due to rash and negligent driving of driver of Truck, and it was solely due to rash and negligent riding of rider of motorcycle by deceased. It was also contended that there was no nexus between accidental injuries and death of Shekhar Fakirappa Kushnagol and therefore claim petition as filed was not tenable. Violation of policy condition by insurer was also alleged.
5. Based of pleadings, tribunal framed following issues:
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1. Whether petitioners prove that on 26.07.2009 at 20-45 hours Shekhar S/o Fakirappa Kushnagol died in the accident due to rash and negligent driving of the driver of Truck bearing No.MH-09/BC-
7086?
2. Whether petitioner is entitled for compensation? If so, what amount and from whom?
3. What order or award?
6. Thereafter, it recorded evidence of claimant no.1 as PW-1 and three doctors as PWs.2 to 4 and got marked Exs.P1 to P18. On behalf of respondent - insurer no oral evidence was led, but copy of charge-sheet and insurance policy were marked as Exs.R1 and R2.
7. On consideration, tribunal answered issues no.1 and 2 in affirmative and issue no.3 by allowing claim petition in part awarding total compensation of Rs.8,53,000/- with interest @ 6% -6- MFA No. 101195 of 2014 per annum and holding respondents no.1 and 2 - owner and insurer are jointly and severally liable to pay compensation.
8. Assailing said award, insurer is in appeal.
9. Sri. R.R. Mane, learned counsel for appellant - insurer submitted that accident occurred on 26.07.2009, but injured Shekhar Fakirappa Kushnagol died on 04.11.2009. Therefore, there was no nexus between accidental injuries and death and therefore, insurer was not liable to answer death claim. Besides driver of Truck was charge-sheeted only under Sections 279 and 337 of IPC. It was further contended that no postmortem was conducted and therefore, claimants failed to establish nexus between death and accidental injuries.
10. Apart from above, it was submitted that even insofar as contributory negligence, tribunal -7- MFA No. 101195 of 2014 committed error. It was submitted that accident occurred when Truck was moving ahead on Belgaum Sankeshwar road and deceased was riding motorcycle behind Truck. As per complaint - Ex.P2, complainant was an eyewitness, who stated that deceased was riding motorcycle in rash and negligent manner and when Truck stopped to take turn, deceased was unable to stop as he was not maintaining safe distance therefore, apportionment of contributory negligence against deceased was also required.
11. To substantiate said contention, attention was drawn to Ex.R1 and Ex.P6, wherein abated charge-sheet was filed against deceased under Sections 3 and 181 of M.V Act, which would indicate that deceased was riding motorcycle without license and being unaware of traffic rules.
12. Insofar as quantum of compensation, it was submitted that deceased was stated to be -8- MFA No. 101195 of 2014 working as Security Guard and earning Rs.6000/- per month. Even though claimants failed to produce any proof of avocation and income, tribunal considered his monthly income at Rs.6000/- which was excessive.
13. It was submitted that even addition of future prospects at 15% was not justified as age of deceased as per Ex.P10 - Hospital records was 53 years. Since he was in self employment, addition of future prospects could only be at 10%. It was also contended that claimant no.2 was aged 20 years and shown to be working and therefore, he would not be dependent. Consequently, deduction of 1/4 t h towards personal expenses considering claimant no.2 also as dependent would be unjustified and seeks interference.
14. On other hand, Sri. Vishwanath Allannavar, advocate appearing for Sri. Vitthal S Teli, learned counsel for claimants - respondents -9- MFA No. 101195 of 2014 no.1 to 4 submitted that treatment records of hospital - Exs.P7 to P17 would indicate that deceased - Shekhar Fakirappa Kushnagol was under treatment for L1 paraplegia with paralytic ileus as he had sustained spinal injury. It was further submitted that deceased had taken treatment at three hospitals and even death occurred while he was in treatment at BIMS hospital as indicated in Ex.P18 - death certificate. Therefore, there was no merit in challenging appeal on ground of nexus between accidental injuries and death.
15. Insofar as contributory negligence, it was submitted that accident occurred on Highway, when driver of Truck stopped it suddenly without signal leaving no response time to deceased - Shekhar Fakirappa Kushnagol, who was following it on his motorcycle. Therefore, assigning entire
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MFA No. 101195 of 2014 negligence upon Truck driver by tribunal was justified.
16. Insofar as monthly income, it was submitted fact that Shekhar Fakirappa Kushnagol was working as a Security Guard was taken into account while considering his monthly income at Rs.6000/- and for addition of 15% towards future prospects.
17. Insofar as claimant no.2, though his age was stated to be 20 years and working, he was depending upon income of deceased and there was no evidence to establish otherwise. Under circumstances, deduction towards dependency was justified.
18. Apart from above, it was submitted that tribunal has awarded compensation of Rs.50,000/- to claimant no.1 towards consortium and Rs.10,000/- each to claimants no.2 to 4 towards
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MFA No. 101195 of 2014 loss of care and guidance, which was less than compensation required to be awarded as per decision of Hon'ble Supreme Court in case of Pranay Sethi's case. Therefore, scope for enhancement would easily offset any reduction under other heads and sought for dismissal of appeal.
19. Heard learned counsel, perused impugned award and records.
20. From above submission, points that arise for consideration is:
1. "Whether finding of Tribunal regarding contributory negligence requires interference?
2. Whether assessment of compensation by Tribunal requires modification as sought for?"
21. Point no.1: Insofar as contributory negligence, on perusal of Ex.P2 - Complaint, it is
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MFA No. 101195 of 2014 seen that complainant is an eyewitness, who stated that both driver of Truck as well as rider of motorcycle deceased - Shekhar Fakirappa Kushnagol were in rash and negligent manner while driving their respective vehicles at time of accident. But, he also specifically stated that driver of Truck stopped his vehicle suddenly to take turn. Though, vehicle following it is required to maintain safe distance, admittedly, accident occurred on Belgaum Sankeshwar Road, which is a National Highway. Therefore, stopping of vehicle suddenly without signal would invite greater negligence on part of driver of Truck than that of vehicle following it.
22. On perusal of spot panchanama, it is seen that no brake marks were noted of motorcycle. In view of Rule 23 of Rules of Road Regulations Act, 1989, failure of maintaining sufficient distance would entail some extent of contributory
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MFA No. 101195 of 2014 negligence. Under above mentioned facts and circumstances, it would be appropriate to apportion it at 10% against deceased - Shekhar Fakirappa Kushnagol. Therefore, point no.1 is answered in partly affirmative. Liability of insurer is held at 90% and claimants would be denied compensation at 10%.
23. Point no.2: Insofar as quantum of compensation, at outset on perusal of Exs.P5 and P7 to P17 - medical records of deceased, it is seen that he sustained grievous injuries to his spinal chord. He was diagnosed for L1 paraplegia with paralytic ileus. Ex.P18 - death certificate would indicate that injured died during treatment. Further, doctor examined have opined that there was possibility of death due to severity of injuries. Under circumstances, in absence of specific evidence that death was not due to accidental injuries and finding of tribunal regarding nexus
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MFA No. 101195 of 2014 between death and accidental injures cannot be interfered with.
24. As stated above, accident occurred on 26.07.2009, though deceased was stated to be working as Security Guard and earning Rs.6000/- per month, there was no specific evidence led to establish either avocation or income. In absence, tribunal was required to assess notional income. Notional income for year 2009 as per norms adopted for settlement of cases before Lok Adalath is Rs.5000/-. Considering income of Rs.6,000/- by tribunal would not justified. It has to be considered as Rs.5,000/-.
25. Since deceased was 53 years of age as determined by tribunal, addition of future prospects at 15% would be contrary to decision of Hon'ble Supreme Court in case of Pranay Sethi's case. Therefore, it has to be modified to 10%.
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MFA No. 101195 of 2014
26. Indeed, in cause title of claim petition age of claimant no.2 was shown as 20 years and his occupation was centering. However, on perusal of cross-examination of PW-1, it is seen that there is no suggestion for claimant no.2 was not depending upon income of deceased. Under circumstance, considering him as dependent, tribunal has rightly deducted 1/4 t h towards personal expenses. Thus, loss of dependency would be:
Rs.5000 X 1.1 X 0.75 X 12 X 11 = Rs.5,44,500/-.
27. Towards medical and incidental expenses Rs.60,000/- has awarded by tribunal against medical bills and other conventional heads as Rs.40,000/- to claimant no.1 towards spousal consortium and Rs.40,000/- each to claimants no.2 to 4 towards parental consortium. Rs.15,000/- towards funeral expenses and Rs.15,000/- towards
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MFA No. 101195 of 2014 loss of estate. Thus, total compensation under conventional heads is Rs.1,90,000/-.
28. As per Pranay Sethi's case there has to be an addition of 10% to award under conventional heads as more than 3 years have lapsed after rendering decision in Pranay Sethi's case. Thus, Rs.1,90,000/- X 10% = Rs.19,000/- has to be added. Thus, total compensation would be:
Rs.5,44,500/- + Rs.60,000/- + Rs.2,09,000/- = Rs.8,13,500/-.
[ Therefore, there would be reduction of compensation of Rs.39,500/-. Thus, point no.2 is answered partly in affirmative.
29. In view of above finding, I pass following:
ORDER i. Appeal of insurer is allowed in part as above.
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ii. Compensation determined by tribunal is reduced from Rs.8,53,000/- to Rs.8,13,500/-.
iii. Liability of appellant - insurer is held at 90% of same only.
iv. Needless to state that claimants would be entitled to interest at 6% from date of claim petition till deposit.
v. Direction issued by tribunal regarding apportionment, deposit etc are not disturbed and would apply to re-assessed compensation proportionately.
vi. Balance compensation to be
deposited by insurer, if not
deposited. If already deposited
insurer - appellant would be entitled for refund of excess amount.
Sd/-
JUDGE GRD