Karnataka High Court
M/S. Icici Lombard General Insurance vs Thippeswamy on 25 April, 2019
Equivalent citations: AIRONLINE 2019 KAR 469
Bench: B.V.Nagarathna, H.T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF APRIL 2019
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.4515 OF 2015 (MV)
C/W
M.F.A. No.5247 OF 2015 (MV)
IN MFA 4515/2015:
BETWEEN:
M/s ICICI Lombard General Insurance
Company Limited, Branch Office
Opposite High School Field
P.B.Road, Davanagere
Now Rep. by No.89, 2nd Floor
S.V.R.Complex, Hosur Main Road
Madiwala, Bengaluru-560068
Rep. By its Manager-Legal. .... Appellant
(By Sri.B.C.Shivanne Gowda, Advocate for
Sri.A.M.Venkatesh, Advocate)
AND
1. Thippeswamy
S/o Shivamurthappa
Dead by LRs
2
1(a) Smt. J.K.Savithramma
W/o Late. Thippeswamy
Aged about 31 years
Occ: House wife
1(b) Kumari B.T.Tejesiwni
D/o Late. Thippeswamy
Aged about 07 years
1(c) Kumar B.T.Mohan
S/o Late Thippeswamy
Aged about 05 years
Respondents No 1(b) & 1(c) are minors
Represented by their mother as a
Guardian/respondent No.1(a)
1(d) Sri.B.Shivamurtheppa
S/o Revanasiddappa
Aged about 73 years
1(e) Smt. Kusuma
W/o Shivamurthappa
Aged about 63 years
Occ:House Wife
All are R/o Hemmanabethuru Village
Davanagere Taluk and District
2. A.B.Mallesh
S/o A.B.Pampanna
Driver and Owner of Tractor Trailer
Bearing No.KA-17/T-19 & KA-17/TA-6495
R/o D.No.133
Hemmana Bethuru Village
Davanagere Taluk & District. ... Respondents
[By Sri.R.Shashidhara, Advocate for
Sri.H.Aravind, Advocate for C/R1(a) to R1(e)
Sri. M.Prakash, Advocate for R2]
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This MFA is filed under Section 173(1) of MV Act against
the Judgment and award dated: 30.03.2015 passed in MVC
No.170/2013 on the file of the III Additional Senior Civil Judge,
VII Additional MACT, Davanagere, awarding compensation of
Rs.17,36,400/- with interest @ 6% Per Annum from the date of
petition till realization.
IN MFA 5247/2015:
BETWEEN:
1. Thippeswamy
S/o Shivamurthappa
Dead by LRs
1(a) Smt. J.K.Savithramma
W/o Late. Thippeswamy
Aged about 31 years
Occ: House wife
1(b) Kumari B.Tejesiwni
D/o Late. Thippeswamy
Aged 06 years
1(c) Kumar B.T.Mohan
S/o Late Thippeswamy
Aged 04 years
Appellants No 1(b) & 1(c) are minors
Represented by their mother as a
Guardian/Appellant No.1(a)
1(d) Sri.B.Shivamurtheppa
S/o Revanasiddappa
Aged about 72 years
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1(e) Smt. Kusuma
W/o Shivamurthappa
Aged about 62 years
Occ:House Wife
Appellant Nos.1(a) to 1(e) are
R/o Hemmanabethuru Village
Davanagere Taluk
and District-577002 .... Appellants
(By Sri.R.Shashidhara, Advocate for
Sri.H.Aravind, Advocate)
AND
1. A.B.Mallesh
S/o Pampanna
Driver and Owner of Tractor and Trailer
Bearing No.KA-17/T-19 and KA-17/TA-6495
R/o D.No.133
Hemmana Bethuru Village
Davanagere Taluk & District
Pin code-577002.
2. The Divisional Manager
ICICI Lumbard General Insurance
Co. Ltd., Branch Office
Opposite High School Field
P.B.Road, Davanagere
Pin code-577001 ... Respondents
(By Sri. M.Prakash, Advocate for R1,
Sri.B.C.Shivanne Gowda, Advocate for
Sri.A.M.Venkatesh, Advocate for R2)
This MFA is filed under Section 173(1) of MV Act against
the Judgment and award dated: 30.03.2015 passed in MVC
No.170/2013 on the file of the III Additional Senior Civil Judge,
VII Additional MACT, Davanagere, partly allowing the claim
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petition for compensation and seeking enhancement of
compensation.
These MFAs, having been heard and reserved for orders
on 02.04.2019, coming on for pronouncement this day,
NARENDRA PRASAD J., delivered the following:
JUDGMENT
M.F.A.No.4515/2015 is filed by the Insurance Company challenging the judgment and award passed by the III Addl. Senior Civil Judge & VII Addl. MACT at Davanagere (hereinafter referred to as the 'Tribunal' for the sake of brevity), dated 30.03.2015 in MVC No.170/2013. Claimants have also preferred M.F.A.No. 5247/2015 against the same judgment and award seeking enhancement of compensation. Since the challenge is to the same judgment, both the appeals are clubbed, heard together and are being disposed of by this common judgment.
2. For the sake of convenience, parties herein shall be referred in terms of their status before the Tribunal.
3. Claimants filed the claim petition seeking compensation on account of death of Thippeswamy - husband, father and son of claimants. According to them, on 29.11.2012 deceased and 6 his brother Prakash were engaged as coolie by respondent No.1, driver and owner of tractor-trailer bearing No.KA-17/TA-6495 for bringing paddy fodder from Wadnahalli village to Hemmanabethuru Village. At about 6.00 p.m., suddenly, tractor and trailer caught fire near Iguru Village. In order to avoid further and severe consequences, respondent No.1 asked deceased and his brother to separate the trailer from the engine. When the deceased was separating the trailer from the tractor, at that time driver of tractor suddenly moved the tractor negligently, the hook of the trailer fell on the legs of Thippeswamy, thereby he sustained injuries to his right leg, left foot and both hands and other parts of the body. Immediately after the accident Thippeswamy was shifted to SSIMS Hospital, Davanagere and for further treatment he was shifted to Kasturba Hospital, Manipal, wherein he took treatment as an inpatient and an operation was conducted and his right foot was amputated. Due to the impact of accidental injuries, Thippeswamy was disabled. During treatment, he died on 03.08.2013. Contending that they had lost the sole bread earner of the family, claimants 7 being wife, children and parents of the deceased have filed the claim petition seeking compensation.
4. The claimants contended that deceased was aged about 41 years and he was doing agriculture work and milk vending business, earning Rs.20,000/- per month and that he was utilizing the entire amount for maintenance of his family. Therefore, they sought for compensation on various heads.
5. In response to the notice issued, respondent No. 1 - driver and owner of the tractor and trailer and respondent No.2 - Insurance Company have appeared through advocates and filed objections. In the objections respondent No.1 contended that he had valid and effective driving licence to drive the offending vehicle as on the date of accident and that accident was caused due to negligence of the deceased himself. Respondent No.2 Insurance Company contended that Insurance company is not liable to pay compensation as deceased was an unauthorized passenger in the tractor and trailer and policy of insurance issued does not cover risk of such persons. It was further contended that there is no nexus between injuries caused in the 8 accident occurred on 29.11.2012 and death of Thippeswamy on 03.08.2013. Therefore, Insurance Company is not liable to pay compensation and sought for dismissal of the same.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
"1. Whether petitioner No.1(a) to 1(e) prove that on 29.11.2012 at about 6.00 p.m. near Iguru Village, Davanagere Taluk, the deceased Thippeswamy S/o.Shivamurthyappa sustained injuries in motor vehicle accident due to rash and negligent act of the driver of the Tractor & Trailer bearing Reg.No.KA- 17/T-19 & KA-17/TA-6495 by the respondent No.1 as pleaded in the petition?
2. Whether the respondent No.1 prove that he is not liable to pay the compensation for the reasons mentioned in the objection statement?
3. Whether the petitioners are entitled for compensation? If so, at what rate and from whom?
4. What order or award?
ADDL. ISSUE
1. Whether respondent No.2 proves that the Company is not liable to pay any compensation to 9 the petitioners as contended in its objection statement?
7. In support of their case, claimants examined wife of deceased as PW1 and they produced seventeen documents as Exs.P-1 to P-17. They have also examined two other witnesses as PWs. 2 and 3, while respondent-insurer examined one witness as RW1 and produced three documents as Exs. R1 to R3.
8. On the basis of the said evidence, Tribunal by judgment and award dated 30.03.2015 awarded compensation of Rs.17,36,400/- with interest at the rate of 6% p.a. Being aggrieved by the same, Insurance Company preferred MFA No.4515/2015 and claimants being not satisfied with the quantum of compensation awarded, have preferred MFA No.5247/2015.
9. We have heard learned counsel for the Insurance Company and learned counsel for the claimants and perused the materials on record.
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10. Sri B.C.Shivanne Gowda, learned counsel appearing for the Insurance Company submitted that there is no nexus between injuries sustained by Thippeswamy in the accident and his death. Accident occurred on 29.11.2012 and he died on 03.08.2013, i.e., more than eight months after the accident and there is no evidence to prove that death was due to the injuries sustained in the accident. Secondly, he contended that claimants have not produced any medical evidence to show that said Thippeswamy suffered death on account of injuries sustained in the accident that occurred on 29.11.2012. Thirdly, he contended that deceased Thippeswamy and his brother were sitting on the mudguard by the side of the driver in the tractor. Therefore, he is an unauthorized passenger; that tractor and trailer are not covered with Miscellaneous Vehicle Policy and there is no provision to carry any person except the driver. Hence, deceased Thippeswamy is an unauthorized passenger and claimants are not entitled for any compensation. Fourthly, he contended that PW2 Ashok was an eyewitness to the accident. He specifically stated that deceased Thippeswamy was sitting on the mudguard by the side of the driver in the tractor. 11 The Tribunal has not considered this aspect of the matter and wrongly granted compensation. Fifthly, he contended that even though claimants have claimed that deceased was earning Rs.20,000/- per month by doing agriculture work and milk vending business, they have not produced any document to establish the same. Therefore, compensation granted by the Tribunal is on the higher side. Hence, he sought for allowing the appeal in MFA No.4515/2015.
11. Per contra, Sri R.Shashidhara, learned counsel appearing for the claimants submitted that tractor bearing No.KA-17/TA-6495 while carrying paddy fodder, unfortunately caught fire at about 6.00 p.m. In order to avoid further consequences, deceased was asked by the driver and owner of the tractor and trailer to separate the trailer from the tractor. At that time, the driver of the tractor suddenly moved the tractor and due to his negligence, the hook and trailer fell on the legs of Thippeswamy, thereby he sustained serious injuries to his legs. At the time of the accident deceased was separating the trailer from the tractor. Therefore, he was not an unauthorized 12 passenger, he was a third party. Secondly, he contended that due to the accident deceased sustained more than 35% of burn injuries and also other grievous injuries, medical records reveal that injuries are grievous in nature. As per postmortem report, the cause of death was due to septicemia and multiorgan failure. These conditions occurred due to the injuries sustained in the accident that occurred on 29.11.2012. Therefore, there is a nexus to the injuries and death of Thippeswamy. Thirdly, he contended that Ashok - PW2 never stated in his evidence or in the course of cross examination that deceased Thippeswamy was sitting on the mudguard of the tractor. Fourthly, he contended that at the time of the accident deceased was earning Rs.20,000/- per month by doing agriculture work and milk vending business. The Tribunal is not justified in taking only Rs.6,000/- per month as his income. Fifthly, he contended that in view of the law laid down by the Hon'ble Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 (Pranay Sethi), claimants are entitled for additional compensation towards future prospects. He further submits that in the very same judgment 13 the Hon'ble Supreme Court has held that claimants are entitled for Rs. Rs.40,000/- in the category of 'loss of consortium' and they have sought for enhancement of compensation.
12. We have thus heard learned counsel for the parties and perused the original records.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
(i) Whether the Insurance Company has proved that there was no nexus between the injuries sustained by Thippeswamy in the accident that occurred on 29.11.2012 and his death?
(ii) Whether Insurance Company has proved on the basis of the documentary evidence that deceased Thippeswamy was an unauthorized passenger and claimants are not entitled for any compensation?
(iii) Whether claimants have made out a case for enhancement of compensation?
(iv) What order?14
Re: Point No.1
14. On 29.11.2012 tractor and trailer bearing No.KA- 17/TA-6495 was carrying paddy fodder from Wadnahalli Village to Hemmanabethuru Village. Unfortunately, at about 6.00 p.m. tractor and trailer caught fire and in order to avoid further severe consequence, driver of the tractor has requested the deceased to separate the trailer from the tractor. When deceased was separating the trailer from the tractor, driver of the tractor suddenly moved the tractor negligently, the hook of the trailer fell on the legs of Thippeswamy, thereby he sustained injuries to his legs. At the time of the accident, deceased Thippeswamy was on the ground/road removing the trailer from the engine. Therefore, he has to be considered as a third party as far as the tractor which is the offending vehicle in question.
15. Due to the negligence of the driver of the tractor, deceased Thippeswamy sustained grievous injuries and he also sustained burn injuries above 35%. As per postmortem report at Ex.P9, it is very clear that the cause of death is septicemia and multiorgan failure. Septicemia is a toxicity of the body due 15 to invasion of virulent bacteria into blood stream. It is also known as blood poisoning or sepsis. Sepsis is due to bacterial infection in a majority of cases. The major diagnostic criteria for sepsis are altered mental status, increased respiratory rate, and low blood pressure.
16. As per Butterworths Medical Dictionary, Second Edition, "Septicaemia", is the severe type of infection in which the blood stream is invaded by large numbers of the casual bacteria which multiply in it and spread. It should be distinguished from bacteraemia in which organisms appear in the blood without the severe rapid generalization of infection characteristic of septicaemia.
17. Therefore, it is clear that deceased Thippeswamy died due to the injuries sustained by him in the accident that occurred on 29.11.2012 due to the rash and negligent driving of the driver of tractor and trailer bearing No.KA-17/TA-6495. Accordingly, point No.1 is answered against the insurer. 16 Re-Point No.2
18. A bare perusal of the documents at Ex.P1 - FIR, Ex.P2
- complaint, Ex.P3 - spot mahazar, Ex.P5 - charge- sheet, Ex.P7
- IMV report, Ex.P8 - wound certificate and Ex.P9 - postmortem report, clearly indicates that Thippeswamy died due to the accident that occurred on 29.11.2012. Even in the evidence of PW2, he has not specifically stated that Thippeswamy was sitting on the mudguard of the tractor. On the other hand, evidence of PWs. 1, 2 and 3 are very clear that accident occurred due to rash and negligent driving of driver of the tractor bearing No.KA- 17/TA-6495. At the time of the accident deceased was removing trailer from the tractor. Moreover, during the course of cross- examination, Insurance Company has not at all elicited any incriminating aspects from PW2. Therefore, Tribunal has rightly held that deceased Thippeswamy died due to rash and negligent driving of the driver of the tractor bearing No.KA-17/TA-6495. Accordingly, point No.2 are answered against the insurer. Re-Point No.3
19. At the time of the accident, deceased was aged about 41 years. Even though claimants have claimed that deceased 17 was earning Rs.20,000/- per month by doing agriculture work and milk ending business, they have not produced any document to establish their case in that regard. Therefore, Tribunal was left with no other option but to assess the notional income of the deceased. Accordingly, Tribunal has taken the notional income at Rs.6,000/- per month, which is on the lower side.
20. Taking into consideration all the material on record produced by the claimants and considering the age of the deceased and that he died in the year 2013, notional income of the deceased has to be assessed at Rs.8,000/- per month. In view of the law laid down by the Hon'ble Supreme Court in SARLA VERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC 121, since there are five dependents, one-fourth of the monthly income has to be deducted towards personal expenses of the deceased. In view of the law laid down by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), since deceased was aged about 41 years at the time of his death, 25% of the 18 income has to be added towards future prospects. Accordingly, loss of dependency is recalculated as below:
Monthly income - 8,000/-
Add: 25% towards future prospects - 2,000/-
Total - 10,000/-
Less: 1/4 towards personal expenses - 2,500/-
Actual income - 7,500/-
Multiplier - 14
Loss of dependency
7,500 x 12 x 14 12,60,000/-
-
21. Since claimants are claiming compensation for the death of Thippeswamy, they are not entitled for compensation in the category of 'pain and suffering'. However, they have spent towards his treatment. Hence, towards medical expenses, Rs.7,50,000/- awarded by the Tribunal is retained. Further, a sum of Rs.30,000/- towards incidental expenses is awarded.
22. Having regard to the latest judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE 19 COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, a sum of Rs.40,000/- each would have to be awarded under the head of 'loss of parental consortium/loss of spousal consortium' to the spouse and children (two) and Rs.30,000/- each towards 'loss of love and affection' to the parents of the deceased. Accordingly, a sum of Rs.1,80,000/- is awarded.
23. In respect of other conventional heads, as per the judgment of the Hon'ble Supreme Court in the case of PRANAY SETHI (supra) claimants are entitled for a compensation of Rs.15,000/- under the head 'loss of estate' and Rs.15,000/- under the head 'funeral expenses'. But the Tribunal has awarded a sum of Rs.50,000/- under the head 'loss of estate' and Rs.30,000/- under the head 'funeral expenses', which is excessive. Therefore, they are reduced to Rs.15,000/- each. The Tribunal has awarded a sum of Rs.25,000/- under the head 'loss of spousal consortium'. The same is enhanced to Rs.40,000/- as above.
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24. For the reasons stated above, the award, dated 30.03.2015, stands modified as under:
As awarded As awarded
Compensation under by the by this Court
different Heads Tribunal (Rs.)
(Rs.)
Loss of dependency 8,06,400/- 12,60,000/-
Loss of medical expenses 7,50,000/- 7,80,000/-
incidental charges 30,000/-
Pain and suffering 25,000/- -
Loss of consortium 25,000/- 1,20,000/-
towards spouse and
children
Loss of love and affection 50,000/- 60,000/-
towards parents
Loss of estate 50,000/- 15,000/-
Funeral expenses 30,000/- 15,000/-
Total 17,36,400/- 22,50,000/-
The compensation awarded by the Tribunal is enhanced from Rs.17,36,400/- to Rs.22,50,000/-. The same shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of realization. Point No.3 is accordingly answered.
The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition, till the date of realization, 21 within a period of six weeks from the date of receipt of a certified copy of this judgment. The amount so deposited by the Insurance Company shall be apportioned as per the order of the Tribunal in the ratio of 20% to the first claimant, i.e., wife of the deceased, 30% to each to second and third claimants, i.e, children of the deceased and 10% each to fourth and fifth claimants, i.e., parents of the deceased.
Accordingly, appeal filed by the Insurance Company in MFA No.4515/2015 is dismissed. Appeal filed by the claimants in MFA No.5247/2015 is allowed in part.
The amount in deposit to be transmitted to the Tribunal. Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Cm/-