Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 519 (KAR)

DAKSHAYANI v. KSRTC BY ITS DIVISIONAL MANAGER,

2013-04-16

N.ANANDA

body2013
JUDGMENT N. Ananda, J.-This is a claimants' appeal for enhancement of compensation. 2. I have heard learned counsel for parties. 3. The I-claimant is the wife of late Virupakshaiah and other claimants are the daughters and son of late Virupakshaiah, who met with a motor vehicle accident that took place on 14.09.2006. As a result of accident, deceased had suffered following injuries:- (I) Lacerated wound on medial part of right foot measuring 20 cms × 10 cms with acute bleeding. (II) Fracture of calcanium bone. Even after prolonged treatment, his condition did not improve. The right foot was completely swollen. The injury on right foot was infected. The deceased became disgusted due to deteriorated condition of his right foot. He committed suicide on 14.04.2007. The Tribunal has awarded global compensation of Rs. 35,000/-. 4. The learned counsel for claimants, has relied on judgment of Kerala High Court, reported in AIR 2009 Ker. 86 in the case of Venugopal Narayanan Nair and Others vs. T.L. Paulson and others wherein it is held "whether by 'accident'-motor accident victim committing suicide due to depression-Medical evidence indicating that depression arose consequent to head injuries sustained in accident-Thus death was caused due to accident-Legal representatives of deceased entitled to claim compensation." 5. The learned counsel for KSRTC has relied on a decision, reported in AIR 1998 SC 3191 , in the case of Mrs. Helen C. Rebello and others vs. Maharashtra State Road Transport Corpn. and another, wherein the Supreme Court has held:- "So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident., through train, air flight not involving motor vehicle. would not be covered under the Motor Vehicles Act. Thus. the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz, accidental. If the words "pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary of the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. Therefore the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The receipt of the provident fund is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz. accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any case, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount cannot come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter so between them and not to which, there is no semblance of any co-relation. Such an amount cannot come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter so between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against torfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of death without making any contribution towards it, how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. (Emphasis supplied) In the case on hand, deceased had suffered injuries to his right foot. The injuries on right foot did not heal and they were infected. He had been advised to undergo amputation of right foot. There is no medical evidence to hold that deceased had developed depression. 6. In the decision relied upon by learned counsel for claimants, deceased had suffered head injuries, consequent to which he developed depression and committed suicide. The High Court of Kerala has held that there was nexus between injuries suffered by deceased and death of deceased. In the case on hand, deceased had suffered injuries to his right foot. The claimants have not adduced evidence that deceased had developed depression consequent to injuries suffered in the accident. Therefore, it is not possible to hold that suicidal death of deceased had nexus with injuries suffered by him in the accident. In the circumstances, claimants are entitled to compensation under following heads:- I. Medical expenses II. Loss of earnings of deceased during laid up period III. Food & nourishment, Attendant & Conveyance charges The deceased was under treatment for a period of 7 months. He had intermittent admissions to hospital. The deceased was a driver of Heavy Passenger Vehicle. Considering the nature of injuries and duration of treatment, I award compensation of Rs. 25,000/- towards "medical expenses", compensation of Rs. 40,000/- towards "loss of earnings during laid up period" and compensation of Rs. 20,000/- towards "Food & Nourishment, Attendant & Conveyance Charges". Thus, claimants are entitled to total compensation of Rs. 85,000/-. 7. Considering the nature of injuries and duration of treatment, I award compensation of Rs. 25,000/- towards "medical expenses", compensation of Rs. 40,000/- towards "loss of earnings during laid up period" and compensation of Rs. 20,000/- towards "Food & Nourishment, Attendant & Conveyance Charges". Thus, claimants are entitled to total compensation of Rs. 85,000/-. 7. In the result, I pass the following: ORDER The appeal is accepted in part. The impugned award is modified, compensation of Rs. 35,000/- awarded by Tribunal is enhanced to Rs. 85,000/-. The rest of the impugned award as it relates to rate of interest, period of accrual of interest and ratio of payment is confirmed.