new India Assurance Co. Ltd. , Bangalore Represented by its Divisional Manager, Bangalore v. Saraswathamma
2010-10-19
H.S.KEMPANNA, N.K.PATIL
body2010
DigiLaw.ai
Judgment :- N.K. Patil. J., This appeal by the Insurance Company is directed against the impugned and award dated 16th February 2005, passed in M.V.C.No. 1097/2004, by the Additional Judge, Member, Motor Accident Claims Tribunal-V, Court of Small Causes, Bangalore City, (SCCH-5), (for short, ‘Tribunal’) for reduction of compensation on the ground that, the compensation of Rs. 4,92,000/- awarded in favour of the claimants as against their claim for Rs. 06.00 Lakhs, is on the higher side and needs to be reduced. 2. The facts in brief are that the respondents No. 1 and 2 herein, being the wife and son of deceased R. Venkataramanappa, filed a claim petition under Section 166 of the Motor Vehicles Act, contending that at about 10:30 A.M., on 26-04-2003, when the deceased was going on his cycle on NH-7, in front of Taluk Office, Devanahalli Tow, at that time, the rider of Scooter No.KA-04/EB-6365 came at high speed, in a rash and negligent manner and dashed against the deceased. Due to the impact, he was thrown on the road and sustained severe injuries on his head and other parts of the body. Later, he took treatment in several hospitals and succumbed to the same at Devanahalli Government Hospital on 12-01-2004, after nearly nine months. 3. The claim petition filed by claimants – respondents 1 and 2 herein came up for consideration before the Tribunal on 16th February 2005. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 4,92,000/- under different heads, with interest at 6% per annum from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation awarded by Tribunal, the Insurance Company has presented this appeal, seeking reduction of compensation on the ground that there is no nexus between the injuries sustained and the death of the deceased and that the compensation awarded is also excessive, exorbitant and is on the higher side. 4. We have heard learned counsel for Insurance Company and learned counsel appearing for respondents 1 and 2, for considerable length of time. 5.
4. We have heard learned counsel for Insurance Company and learned counsel appearing for respondents 1 and 2, for considerable length of time. 5. The bone of contention of the learned counsel appearing for Insurer is that there is no nexus between the injuries sustained in the accident that occurred on 26-04-2003 and the death of the deceased, after nearly nine months, on 12-01-2004. Therefore, the compensation awarded by Tribunal is liable to be set aside by modifying the impugned judgment and award passed by Tribunal. 6. After critical evaluation of the original records available on the file, threadbare, and after perusal of the judgment and award passed by Tribunal, the points that arise for out consideration are: I) Whether there is nexus between the injuries sustained and the death of the deceased after nine months? II) Whether the compensation awarded by Tribunal is just and reasonable? Re-point (1): After careful evaluation of the original records placed before us, it emerges that the deceased was aged about 55 years and an agriculturist by profession. It is not in dispute that in view of the injuries sustained in the accident, the deceased was admitted to various Hospitals. Ultimately, the deceased succumbed at Devanahalli Government Hospital on 12-01-2004, after about nine months. It can be seen that during this interregnum period, he was under continuous medical treatment and follow-up treatment once in 15 days. This fact has been categorically stated in his evidence by PW1, who is none other than the son of the deceased. But, nothing worthwhile is elicited from the said witness in the cross examination by the insurer through its counsel. Further, it is also significant to note from the documentary evidence, particularly Exs.P3 to P8, which are respectively Mahazar, IMV Report, charge sheet, medical certificate, the Post Mortem report, and the two discharge summaries that, the Doctor who conducted post mortem, has specifically opined that, the death of the deceased is due to shock and haemorrhage as a result of old injuries to left temporal lobe of brain as a result of motor vehicle accident. Further, it is stated in the wound certificate that there is severe head injury with left temporary contusion with brain stem contusion with cerebellar contusion and the said injury is grievous in nature.
Further, it is stated in the wound certificate that there is severe head injury with left temporary contusion with brain stem contusion with cerebellar contusion and the said injury is grievous in nature. Further, after microscopic evaluation of Ex.P6 -Medical Certificate issued by the Department of Neurosurgery on 12-01-2004, it can be seen that the deceased was discharged on 27-06-2003 and the Doctor has opined that as on that date the deceased is wheel chair bound and unable to walk or stand without support and he is unable to speak. These clinching materials prove beyond all reasonable doubts that the deceased succumbed only on account of the injuries sustained in the accident that occurred on 26-04-2003. Therefore, after re-assessment of oral and documentary evidence, as above, we are of the considered opinion that there is nexus between the injuries sustained in the accident that occurred on 26-04-2003 and the death of the deceased on 12-01-2004. Accordingly, the specific ground taken by the learned counsel for Insurer is hereby rejected. Re-Point (II): After careful perusal of the compensation awarded by Tribunal under various heads, it is seen that the Tribunal, having regard to the age and avocation of the deceased and the date of accident, has assessed the income of the deceased at Rs. 3,000/- per month, for calculating the loss of dependency and the same is just and reasonable and does not call for interference. The Tribunal after assessing oral and documentary evidence available on file, has awarded just and reasonable compensation of Rs. 2,64,000/- towards loss of dependency, taking multiplier of ‘11’ and assessing the monthly income of Rs. 3,000/- and a sum of Rs. 1,53,000/- towards medical expenses and therefore, it does not call for interference. However, the Tribunal slipped into error in awarding a sum of Rs. 75,000/- under the conventional heads. The same is on the higher side and needs to be reduced. As per the decision of the Hon’ble Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 , we award a sum of Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 10,000/-towards loss of love and affection and a sum of Rs. 10,000/- towards transportation of dead body and funeral expenses. In all we award a sum of Rs. 40,000/- under the conventional heads as against Rs.
10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 10,000/-towards loss of love and affection and a sum of Rs. 10,000/- towards transportation of dead body and funeral expenses. In all we award a sum of Rs. 40,000/- under the conventional heads as against Rs. 75,000/- awarded by Tribunal. 7. In the light of the facts and circumstance of the case, as stated above, the appeal filed by the Insurance Company is allowed in part. The impugned judgment and award dated 16th February 2005, passed in M.V.C.No.1097/2004, by the Additional Judge, Member, Motor Accident Claims Tribunal-V, Court of Small Causes, Bangalore, (SCCH5), is hereby modified, reducing the total compensation from Rs. 4,92,000/- awarded by Tribunal, to Rs. 4,57,000/- (reduction being Rs. 35,000/-), with interest at 6% per annum, from the date of petition till the date of realization. The break-up is as follows: Towards Loss of Dependency Rs. 2,64,000/- Towards medical and other incidental expenses Rs. 1,53,000/-Towards Loss of love and affection Rs. 10,000/- Towards Loss of estate/loss of expectancy Rs. 10,000/- Towards loss of consortium Rs. 10,000/- Towards transportation of dead body and funeral expenses Rs. 10,000/- Total Rs. 4,57,000/- The Insurance Company is directed to deposit the remaining compensation, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. The apportionment and the manner of disbursement of compensation made by Tribunal get proportionately reduced to the extent of reduction of compensation made by this Court. The amount in deposit by the Insurance Company shall be transmitted to the jurisdictional Tribunal, forthwith. Office to draw award, accordingly.