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2020 DIGILAW 1705 (KAR)

C. Anjaneya v. Mohan S Shetti

2020-09-04

ALOK ARADHE, H.T.NARENDRA PRASAD

body2020
JUDGMENT H.T. Narendra Prasad, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 11.1.2016 passed by the Motor Accident Claims Tribunal. 2. Facts giving rise to the filing of the appeal briefly stated are that on 29.05.2014 at about 12.45 p.m. deceased Chittakka along with two grand sons while crossing the road near Aanjinappa's land, a car bearing registration No.KA-24- M-4737 being driven in a rash and negligent manner by its driver, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries. Immediately, she was shifted to Government Hospital, Challakere where she took first aid treatment and thereafter was referred to District Hospital, Chitradurga and later to NIMHANS Hospital and again she was shifted to Health India Hospital, Bengaluru and was admitted as inpatient upto 27.9.2014. Thereafter, as per the advice of the doctor, she was shifted to Kasturba Hospital, Manipal and was admitted from 28.9.2014 to 17.10.2014. Further, she was admitted at L.S.Nursing Home Challakere from 18.10.2014 to 30.10.2014 for tube tests. Later, on 4.11.2014, she succumbed to injuries. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 60 years at the time of accident and was getting an annual income of Rs.4,00,000/- by doing agricultural work and the claimants were dependant on the income of the deceased. The claimants claimed compensation to the tune of Rs.20,00,000/- along with interest. On service of notice, the respondent No.2 filed written statement and has pleaded that the petition filed by the claimants is not maintainable in the eyes of law. The respondent No.2 has denied the averments made in the petition. It was further denied that the driver of the car was not having valid driving licence. It was further pleaded that the compensation claimed are excessive and exorbitant. The respondent No.1 appeared through his counsel but did not file objections.. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined all the claimants as PWs-1 to 7 and got exhibited documents namely Ex.P1 to Ex.P61. The respondent No.1 appeared through his counsel but did not file objections.. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined all the claimants as PWs-1 to 7 and got exhibited documents namely Ex.P1 to Ex.P61. On the other hand, respondent No.2 Insurance Company did not examine any witness but produced 3 documents marked as Exs.R-1 to 3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.4,18,000/- along with interest at the rate of 9% p.a. Being aggrieved, this appeal has been filed seeking enhancement of compensation. 5. Learned counsel for the appellants submitted that the Tribunal has failed to grant any compensation under the head loss of dependency. He has further contended that the claimants have produced RTC extracts at Ex.P-60 in respect of Sy.No.44/P-2 to show that their mother was doing agricultural work and earning annual income of Rs.4,00,000/- from the said property. The claimants are dependents on the income of the deceased and they being the children of the deceased have right to apply for compensation under the head of 'loss of dependency'. In support of his contention, he has relied upon the judgment of the Apex Court in the case of National Insurance Co. Ltd. v- Birender and others, (2020) ACJ 759 . Secondly, he has contended that the deceased met with an accident on 29.5.2014. Due to the accident, the deceased sustained grievous injuries particularly head injury and immediately she was shifted to hospital. She has taken treatment continuously in various hospitals and was inpatient from 25.9.2014 to 4.11.2014. The claimants have spent around Rs.5,00,000/- on the medical expenses. In support of their claim, they have produced medical bills, cash receipts, discharge summary etc. as Exs.P-11 to 59. But the Tribunal is not justified in granting only Rs.2,98,112/- under the head of 'medical expenses'. Thirdly, he has contended that the claimants are the children of the deceased. As per the law laid down in the case of ' MAGMA GENERAL INSURANCE CO. LTD. Vs. as Exs.P-11 to 59. But the Tribunal is not justified in granting only Rs.2,98,112/- under the head of 'medical expenses'. Thirdly, he has contended that the claimants are the children of the deceased. As per the law laid down in the case of ' MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM , (2018) ACJ 2782 and in the case of UNITED INDIA INSURANCE CO. LTD VS. SATINDER KAUR @ SATWINDER KAUR AND OTHERS IN CIVIL APPEAL NO.2705/2020 WITH CIVIL APPEAL NO.2706/2020 decided of on 30.6.2020, each of the claimants are entitled for compensation of Rs.40,000/- under the head of loss of consortium and loss of love and affection. Hence, he sought for allowing the appeal. 6. On the other hand, learned counsel for the Insurance Company submitted that the evidence of PW-1 is very clear that the claimants are not dependant on the income of the deceased. They have got their separate income to lead their respective life. Hence, the Tribunal has rightly held that the claimants are not entitled for compensation under the head of 'loss of dependency'. In support of his contention, he has relied upon the Division Bench decision of this Court in the case of A.Manavalagan v- A Krishnamurthy and others, (2004) ILR(KAR) 3268 . Secondly, he has contended that some of the medical bills produced by the claimants are created only for the purpose of getting compensation. On careful scrutiny of the same, the Tribunal has rightly awarded just and reasonable compensation under the head of 'medical expenses'. Hence, he contended that the judgment passed by the Claims Tribunal is just and proper and does not call for any interference. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. 8. It is not in dispute that deceased died on 4.11.2014 due to the road accident which occurred on 29.5.2014 caused by the rash and negligent driving of the offending car by its driver. Immediately after the accident, the deceased was shifted to Government Hospital, Challakere wherein she has taken first aid treatment and thereafter was referred to District Hospital, Chitradurga and later to NIMHANS Hospital and again she was shifted to Health India Hospital, Bengaluru and was admitted as inpatient upto 27.9.2014. Thereafter, as per the advice of the doctor, she was shifted to Kasturba Hospital, Manipal and was admitted from 28.9.2014 to 17.10.2014. Thereafter, as per the advice of the doctor, she was shifted to Kasturba Hospital, Manipal and was admitted from 28.9.2014 to 17.10.2014. Further, she was admitted at L.S.Nursing Home Challakere from 18.10.2014 to 30.10.2014 for tube tests. But later on 4.11.2014, she succumbed to injuries. The deceased had sustained head injury, fracture of L-3 to L-5 vertebra fracture of both side ribs. She has taken treatment continuously in various hospitals. She was treated as inpatient from 25.9.2014 to 4.11.2014. 9. On careful consideration of the oral and documentary evidence on record, particularly, the medical bills, transpiration expenses, laboratory charges, we are inclined to enhance the compensation awarded by the Tribunal towards 'medical expenses' from Rs.2,98,112/- to Rs.3,75,000/-. The deceased was treated as inpatient from 25.9.2014 to 4.11.2014 in various hospitals. Considering the same, compensation of Rs.5,000/- awarded by the Tribunal under the head of 'attendant and nourishment charges' is enhanced to Rs.25,000/-. In view of the law laid down by the Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. (supra) and in the case of SATINDER KAUR @ SATWINDER KAUR & ORS., the claimants are entitled to Rs.40,000/- each under the head 'loss of love and affection'. In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'. 10. In respect of granting compensation under the head of 'loss of dependency', even though the claimants claim that the deceased was earning Rs.4,00,000/- p.a. by doing agricultural work and that they were dependent on the said income of the deceased, but in the cross examination, PW-1 has admitted that they are all major children of the deceased and are doing their independent work and are getting separate income to lead their respective life. In the case of National Insurance Co. Ltd. v- Birender (supra) relied upon by the claimants, it is well settled law that legal representatives of deceased mother have right to apply for compensation. Even major married and earning sons being the legal representatives of the deceased mother, have right to apply for compensation and it is for the Tribunal to consider the claim irrespective of the fact they were fully dependent on the deceased or not. In the said case, the claimants were working as agricultural labors on contract basis. Hence, they were depending on the income of the deceased mother. In the said case, the claimants were working as agricultural labors on contract basis. Hence, they were depending on the income of the deceased mother. But in the case on hand, PW-1 in the cross examination has admitted that they are all major children of the deceased and are doing their independent work and are getting separate income to lead their respective life. Therefore, the Tribunal has rightly, held that the claimants, who are major children of the deceased are not dependents and hence they are not entitled for compensation under the head of 'loss of dependency'. 11. Thus, the claimants are entitled to the following compensation: Compensation under different Heads Amount in (Rs.) Funeral expenses 15,000 Loss of estate 15,000 Loss of love and affection (Rs.40,000x7) 280,000 Attendant and nourishment charges 25,000 Medical expenses 375,000 Total 710,000 12. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 9% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is allowed-in-part.