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2013 DIGILAW 634 (KAR)

KAVITHA v. FAKKIRAPPA

2013-06-05

B.MANOHAR, N.K.PATIL

body2013
JUDGMENT N.K. PATIL, J-These two appeals respectively by the claimants and the insurer are directed against the same judgment and award dated 25.09.2011 passed in M.V.C. No. 414/2011 on the file of the Motor Accident Claims Tribunal-X, Bellary. The Tribunal by its impugned judgment and award awarded a sum of Rs. 8,11,000/-with interest at 6% p.a. from the date of petition till the date of realisation, on account of the death of Lokappa @ Lokesh in the road traffic accident. On the ground that the quantum of compensation awarded is inadequate and it requires enhancement, claimants have presented M.F.A. No. 21165/2012. Whereas the insurer filed M.F.A. No. 20320/2012 contending that the quantum of compensation awarded is a bit on the higher side and the directions issued by the Tribunal to indemnify the award cannot be sustainable on the ground that there is no nexus between the occurrence of accident and the death. 2. The brief facts of the case of the claimants are that, the claimant No. 1 is the wife and the claimant Nos. 2 and 3 are the minor children of deceased Lokappa @ Lokesh. They have filed a claim petition under Section 166 of M.V. Act claiming compensation of Rs. 47,00,000/- on account of the death of the deceased in the road traffic accident that occurred on 16.07.2010 when the deceased alongwith his family members Honnamma, Anjinamma and Ramappa was proceeding to Bellary to Duggathi village in a bus bearing reg. No. KA-44/1904 as passengers. At about 1.30 p.m. when the said bus reached near Addalumori, Kuditini, Bellary Taluk, a bus bearing reg. No. KA-35/3825 came from the opposite direction, driven by its driver in a rash and negligent manner and dashed the bus to its right side, as a result, Lokappa, who was sitting by the side of the window sustained grievous fracture injuries to his right hand, chest, abdomen and head. Immediately he was taken to VIMS Hospital, Bellary. On the advise of the Doctor, he was shifted to Mahaveer Jain Hospital, Bangalore, later he was shifted to Sanjay Gandhi Hospital, Bangalore and again he was shifted to Victoria Hospital, Bangalore. Inspite of all sincere efforts, the claimants could not save the deceased. The deceased succumbed due to the injuries on account of the injuries sustained in the road traffic accident. Inspite of all sincere efforts, the claimants could not save the deceased. The deceased succumbed due to the injuries on account of the injuries sustained in the road traffic accident. It is the case of the claimants that the deceased was aged 27 years and the children were aged about 10 years and 6 years respectively at the time of accident. They have lost the love, affection and guidance of the deceased throughout their career and it has affected their social and economic condition. Due to the untimely death of the deceased the claimants are made to suffer socially ad financially. Any compensation amount cannot compensate the loss caused due to the death of their family member. Therefore, the claimants have filed a claim petition claiming compensation. The matter had come up for consideration before the Tribunal. The Tribunal after critical evaluation of the entire oral and documentary evidence on record assessed the income of the deceased at Rs. 4,500/- per month, deducted 1/3rd towards personal expenses, applied the multiplier of 16 and awarded Rs. 5,76,000/- towards loss of dependency, Rs. 1,90,000/- towards medical expenses and Rs. 45,000/- towards conventional heads and allowed the claim petition in part. In all, it awarded a sum of Rs. 8,11,000/- with interest at 6% p.a. from the date of petition till realisation. Being dissatisfied with the quantum of compensation awarded, the claimants and the insurer felt necessitated to present these appeals redressing their grievance as referred above. 3. Submission of the learned counsel appearing for the claimants, Sri B.V. Pattar and A.S. Patil, at the outset, is that, the Tribunal has erred in taking the income of the deceased at only Rs. 4,500/- per month and it is on the lower side. The accident is of the year 2010. The Tribunal ought to have taken into consideration the age and avocation of the deceased who was doing plastic vending business and aged 35 years and spending all his income to the welfare of the family and due to the untimely death of the deceased, the claimants have lost their care taker, his love, affection and guidance throughout their life. He further submitted that, there is no substance in the submission of the learned counsel for the insurer that there is no nexus between the nature of injuries and the death. He relied on Ex.P3-Postmortem report. He further submitted that, there is no substance in the submission of the learned counsel for the insurer that there is no nexus between the nature of injuries and the death. He relied on Ex.P3-Postmortem report. In the content of the P.M. report, the Doctor has opined that the death is due to the injuries sustained in the road traffic accident. Therefore, learned counsel submitted, the impugned judgment and award is liable to be modified by enhancing reasonable compensation. 4. Per contra, learned counsel appearing for the insurer, Sri S.K. Kayakamath, at the outset vehemently submitted that Tribunal has erred in holding that the death was caused due to the injuries sustained in the road traffic accident. To substantiate his contention, he has taken us through the hospital summary at Ex.P.9 series where it is shown that the deceased was alcoholic by nature and was suffering from jaundice and also suffering from low blood count and there is no substance that the deceased has succumbed to the injuries sustained in the road traffic accident. He submitted that the finding recorded by the Tribunal that there is nexus between the nature of injuries sustained and the death, cannot be sustained and it is liable to be set aside. Hence, the direction issued by the Tribunal to the insurer to indemnify the award cannot be sustained. Further, he submitted that, substantial amount of compensation has been awarded by the Tribunal after due appreciation of the oral and documentary evidence on record and interference by this Court is not called for. 5. After careful consideration of the submissions of the learned counsel appearing for both the parties and perusal of the impugned judgment and award, and after evaluation of the records available on file, the only point that arises for our consideration is: Whether the quantum of compensation awarded by the Tribunal is reasonable? 6. The undisputed facts of the case are that, the occurrence of the accident and the resultant death due to the rash and negligent driving of the lorry. Further, it is not in dispute that the deceased was doing plastic vending business and was the only earning member in the family, and that the claimants are none other than the wife and two minor children of the deceased. Further, it is not in dispute that the deceased was doing plastic vending business and was the only earning member in the family, and that the claimants are none other than the wife and two minor children of the deceased. Further, after microscopic evaluation of the records available on the file, it emerges that the deceased died due to the accident and not due to the jaundice or low blood count. 7. As rightly contended by the learned counsel appearing for the claimants, the Doctor who has conducted autopsy has opined that the death is due to the injuries sustained in the road traffic accident. It is pertinent to note that the submission of the learned counsel appearing for the insurance company cannot be accepted for the reason that, after admitting the injured in four hospitals for taking treatment, the ailment he was suffering earlier, i.e., jaundice and low blood counting, is not relevant for consideration to decide whether the insurer is liable to indemnify the award or not. The point to be considered in the instant case is, whether the deceased has succumbed to the injuries in the road traffic accident. 8. After re-appreciation of the oral and documentary evidence available in the file, it emerges that he met with the accident and sustained injuries. The history sheet of the hospital proves beyond reasonable doubt that he has been admitted in the hospital on account of the injuries sustained in the road traffic accident and also he died because of the injuries sustained in the road traffic accident. As per Ex.P.3-P.M. Report, as opined by the Doctor, death was due to the injuries sustained in the accident and not on account of the low blood count and jaundice. Therefore, the Tribunal after critical evaluation of the oral and documentary evidence is justified in recording a finding of fact holding that death is due to the rash and negligent driving by the driver of the lorry and the policy was in force as on the date of the accident. Therefore, we are of the considered view that the reasoning of the trial Court holding that the death is due to the road traffic accident on account of the rash and negligent driving by the driver of the lorry is just and proper. Therefore, interference by this Court is not called for. 9. Therefore, we are of the considered view that the reasoning of the trial Court holding that the death is due to the road traffic accident on account of the rash and negligent driving by the driver of the lorry is just and proper. Therefore, interference by this Court is not called for. 9. The Tribunal is not justified in taking the income of the deceased at Rs. 4,500/- per month. The accident occurred on 16.07.2010. It is the case of the claimants that deceased was aged 35 years and doing plastic vending business. Even if he has not produced any document or licence for the avocation, it does not take away the legitimate entitlement of compensation to the claimants and the Tribunal ought to have assessed reasonable income of the deceased. Having regard to the age, avocation and dependents as he was looking after the welfare of the family and considering the fact that a labourer will get more than Rs. 4,500/- per month during 2010, we reassess the income of the deceased at Rs. 6,000/- per month to meet the ends of justice. Out of which, if 1/3rd is deducted towards his personal expenses, Rs. 4,000/- would be the monthly loss of dependency. The deceased was aged 35 years. The appropriate multiplier is 16. Accordingly, the total loss of dependency would be Rs. 7,68,000/- (Rs. 4,000/- × 12 × 16). 10. Having regard to the facts of the case, we deem it appropriate to award a sum of Rs. 45,000/- under conventional heads, i.e., loss of love and affection, loss of estate, loss of consortium, transportation and funeral expenses. Further, the Tribunal is justified in awarding a sum of Rs. 1,90,000/- towards medical expenses as per the medical bills. Interference by this Court, towards this head is not called for. Thus, the claimants in all are entitled to a sum of Rs. 10,03,000/-as against Rs. 8,11,000/- awarded by the Tribunal. The appellants are entitled for enhanced compensation of Rs. 1,92,000/- with interest at 8% p.a. from the date of petition till realisation. The appeal filed by the claimants in M.F.A. No. 21165/2012 is allowed in part. The impugned judgment and award passed by the Tribunal on 15.09.2011 in M.V.C. No. 414/2011 on the file of Motor Accident Claims Tribunal-X, Bellary, is hereby modified, awarding an additional compensation of Rs. 1,92,000/- with interest at 8% p.a. from the date of petition till realisation. The appeal filed by the claimants in M.F.A. No. 21165/2012 is allowed in part. The impugned judgment and award passed by the Tribunal on 15.09.2011 in M.V.C. No. 414/2011 on the file of Motor Accident Claims Tribunal-X, Bellary, is hereby modified, awarding an additional compensation of Rs. 1,92,000/-with interest at 8% p.a. from the date of petition till realisation. The appeal filed by the Insurance Company in M.F.A. No. 20320/2012 is dismissed as devoid of merit. The insurer is directed to deposit the enhanced compensation with interest within three weeks from the date of receipt of a copy of this judgment. The amount in deposit by the insurance company shall be transmitted to the jurisdictional Claims Tribunal. Out of the enhanced compensation, a sum of Rs. 50,000/- each with proportionate interest shall be invested in the name of the appellant Nos. 2 and 3 in any Nationalized Bank till they attain the age of 30 years. The appellant No. 1 is entitled to withdraw periodical interest for the welfare of the minors till they attain the age of 21 years and from the age of 22 to 30 the appellant Nos. 2 and 3 are entitled to withdraw periodical interest. Rs. 50,000/- with proportionate interest shall be invested in the name of the first appellant in any Nationalized Bank for a period of 10 years and renewable for another 10 years. She is entitled to withdraw the interest accrued on the deposit. The Remaining amount of Rs. 42,000/- with proportionate interest shall be released in favour of the appellant No. 1 immediately after deposit of the amount by the insurer. Draw award accordingly.