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2020 DIGILAW 1955 (KAR)

Sharada v. Shivanand M Gouda

2020-09-30

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

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JUDGMENT S. Vishwajith Shetty, J. - These two appeals arise out of the judgment and award dated 06.01.2014 made in M.V.C.No.30/2009 (old M.V.C.No.37/1998) by the Court of Addl. M.A.C.T., Yellapur, siting at Haliyal. 2. M.F.A.No.101538/2014 has been filed by the claimant seeking enhancement of compensation and M.F.A.No.100667/2014 has been filed by the insurer challenging the judgment and award on the ground that there is no nexus between the injury caused in the accident and the death. 3. We have heard learned counsel for the claimant and learned counsel for insurer. 4. The undisputed facts of the case are, on 16.05.1997, at about 12:30 p.m. Shri Subhas S/o. Shankar Naik was traveling in a jeep bearing registration No.KA-31/M-980 which belonged to the third respondent Dasayya. When the said jeep reached Bapeli cross, a 407 tempo bearing registration No.KA- 30/2639 driven in a rash and negligent manner came from the opposite side and dashed against the jeep in which Subhas Naik was traveling. As a result, Subhash suffered multiple grievous injuries all over his body. Immediately he was shifted to Government Hospital, Dandeli and on advice, he was thereafterwards shifted to Medical College Hospital, Panjim at Goa where Subhash was admitted as inpatient and treated for more than two months. Subhas Naik had filed claim petition under Section 166 of M.V. Act before the Tribunal claiming compensation in respect of injuries sustained by him in the road traffic accident. During the pendency of the claim petition, Subhas Naik died on 23.12.1998. Subsequently, his minor daughter Sharada, represented by her next guardian, came on record as the legal representative of deceased Subhash Naik and prosecuted the claim petition. The Tribunal vide its impugned judgment and award, partly allowed the claim petition and awarded compensation of Rs.4,19,000/- with interest at 5% p.a. from the date of petition till deposit. Being aggrieved by the same, these two appeals are filed. 5. Learned counsel for the claimant submitted that the deceased Subhash Naik had suffered serious injuries in the accident for which he was treated for considerable period of time by different doctors. He submitted that as a result of injuries, deceased had developed septicemia and because of his bad financial conditions he could not take proper treatment. The wife of the deceased had died during the pendency of the claim petition and thereafterwards his only minor daughter who was studying had to discontinue her studies. He submitted that as a result of injuries, deceased had developed septicemia and because of his bad financial conditions he could not take proper treatment. The wife of the deceased had died during the pendency of the claim petition and thereafterwards his only minor daughter who was studying had to discontinue her studies. He further submitted that the Tribunal has not considered the income and future prospects of the deceased appropriately and therefore, he prayed to enhance the compensation. 6. On the other hand, learned counsel for the insurer submitted that there is no nexus between the death and the injuries caused to the deceased in the accident. The doctors' evidence do not conclusively prove that the death was as a result of the injuries sustained by the deceased in the accident. PW-4 Dr. Mahabaleshwar Hegde who has last examined the deceased on 09.01.1998, had issued disability certificate but there are no records subsequent to 09.01.1998 till the death of the deceased i.e., 23.12.1998, to show that deceased was being treated in any hospital for the injuries he suffered. He relied upon the decisions in Kannamma Vs. Deputy Manager, KSRTC, (1990) ILR(KAR) 4300 (FB) and Uttamkumar Vs. Madhav and another, (2002) 3 KarLJ 337 in respect of his contention that if there is no nexus between death and the injuries caused in the accident, no compensation can be granted towards loss of dependency. He therefore prayed to allow his appeal. 7. We have carefully considered the rival contentions urged by both parties and also perused the material evidence available on record. 8. The points for consideration that arise in these appeals are as follows: 1) Whether the Tribunal was justified in holding that there was nexus between the death of Subhash Naik to the injuries sustained by him in the accident in question? 2) Whether the compensation awarded by the Tribunal is just and proper? 9. The deceased had suffered following injuries in the accident as could be seen from Ex.P-3 wound certificate: 1. Lacerated wound 8cm x 3cm x Bone deep which is fractured over the upper part of the medial aspect of right leg. Bone piece is projecting outside. Fresh bleeding present i.e., compound fracture of right leg bones. 2. Contusion 10cm x 10 cm over the middle of right thigh in the anterior aspect: i.e., # of Right femur in the middle. 3. Bone piece is projecting outside. Fresh bleeding present i.e., compound fracture of right leg bones. 2. Contusion 10cm x 10 cm over the middle of right thigh in the anterior aspect: i.e., # of Right femur in the middle. 3. Fracture of right forearm bones in the upper part. 4. Fracture of right Humerus in the middle. 10. Pw-2, PW-4 and PW-5 are the doctors who treated the injured claimant at various stages. 11. Pw-2 Dr. Chandrashekhar had examined the injured immediately after the accident and has issued the wound certificate. PW-2 had referred the injured to Medical College Hospital at Panjim in Goa for higher treatment. PW-2 has stated that there was possibility of death due to septicemia as a result of the injuries caused to the injured. 12. Pw-4 Dr. Mahabaleshwar Hegde had last examined the injured on 09.01.1998 and has issued disability certificate stating that the injured had suffered 90% disability to the whole body. During the course of his evidence, he has stated that on medical examination, he had found that the injured was completely bedridden, fractures were ununited and he had bedsores on his body. 13. Pw-5 Dr. U.G. Nachinolcar speaks about the admission of the injured and the treatment given to him in Medical College Hospital, Goa. He has also stated that the injuries caused may lead to death in due course of time if the patient develops septicemia, Pulmonary complications, multiple organ failure or other infections. 14. Pw-1 is the sister of deceased Subhash Naik who was appointed as the next friend/guardian to the minor daughter of the deceased Subhash Naik, subsequent to his death during the pendency of the claim petition. She has spoken about the financial difficulties faced by the deceased after the accident. She has also stated that the daughter had to discontinue her studies because of the bad financial conditions. Since there were no hospitals available in the nearby vicinity, Subhash could not take treatment as he was not in a position to meet the expenses of traveling and medication. 15. Pw-3 is a Gram Panchayat member of the locality where Subhash Naik resided. He has also deposed corroborating the evidence of PW-1. He has further stated that the condition of injured Subhash Naik was deteriorating day by day and he could not take proper treatment because of financial difficulties and non-availability of medical facility in the locality. 16. 15. Pw-3 is a Gram Panchayat member of the locality where Subhash Naik resided. He has also deposed corroborating the evidence of PW-1. He has further stated that the condition of injured Subhash Naik was deteriorating day by day and he could not take proper treatment because of financial difficulties and non-availability of medical facility in the locality. 16. Pw-1 and PW-3 have stated that injured Subhash Naik had developed bedsores and septicemia, as a result of the injuries sustained by him in the accident and subsequently he died on 23.12.1998. 17. From the over all appreciation of the evidence of PW-1 to PW-5 and the documentary evidence available on record, it is clear that the injured Subhas Naik had suffered multiple fractures all over his body and his permanent physical disability to whole body was assessed at 90%. It is also very clear that Subhash Naik had developed bedsores and he was completely bedridden. From the evidence of PW-1 and PW-3, it is clear that Subhas Naik's financial condition was very bad and he was not in a position to take proper treatment because of the same. His only minor daughter who was studying had to discontinue her studies. The evidence of PW-3 would go to show that the fractures of Subhas Naik were ununited and he was completely bedridden and had developed bedsores. 18. Pw-2 and PW-5 have stated that if the patient had developed septicemia and other infections, the injuries caused could lead to death in due course of time. In the case on hand, from an over all appreciation of the material evidence on record, it is very clear that the injured Subhas Naik had suffered multiple fractures which were ununited even after prolonged treatment. Further he was completely bedridden and had developed bedsores on his body when he was last examined by PW-4. PW-1 and PW-3 have also categorically stated that injured Subhash Naik could not take proper treatment as he was completely bedridden and his financial conditions did not permit him to take medical treatment. We are therefore of the view that after appreciation of material on record, the Tribunal was justified in coming to the conclusion that there was nexus between the death of deceased Subhas Naik and the injuries suffered by him in the accident. We therefore answer the point No.1 in the affirmative. We are therefore of the view that after appreciation of material on record, the Tribunal was justified in coming to the conclusion that there was nexus between the death of deceased Subhas Naik and the injuries suffered by him in the accident. We therefore answer the point No.1 in the affirmative. The decisions relied upon by learned counsel for insurer is therefore not applicable to this case. 19. The deceased Subhash Naik was aged about 38 years at the time of accident as could be found from Ex.P-24, voters ID card. The accident is of the year 1997. The Tribunal has considered the notional income of the deceased at Rs.3,000/- p.m. which is just and proper. Having regard to the age of the deceased, an additional sum equivalent to 40% of his income is required to be added towards future prospects. 1/3rd of his total income is required to be deducted towards his personal expenses. The proper multiplier applicable is 15. Therefore, the loss of dependency works out as follows: Rs.3,000 + 40% = 4,200/- Rs.4,200 - 1/3rd = 3,000/- Rs.3,000 x 12 x 15 = 5,40,000/- 20. The minor daughter is entitled for a sum of Rs.40,000/- towards loss of love and affection and Rs.30,000/- under conventional heads. 21. Medical bills produced totally amounts to Rs.35,000/- and the said amount is awarded towards medical expenses. 22. The tribunal has awarded interest on the compensation amount at 5% p.a., which according to us is on the lower side. This Court has been consistently awarding the interest at 6% p.a.. Therefore, even in this case, entire compensation shall carry interest at 6% p.a. from the date of petition till realization. 23. Therefore on reassessment, the claimantminor daughter of the deceased is entitled for compensation as follows: Sl. No. Heads Amount 1. Loss of dependency Rs.5,40,000/- 2. Loss of love and affection Rs.40,000/- 3. Conventional heads Rs.30,000/- 4. Medical expenses Rs.35,000/- Total Rs.6 ,45 ,000/- Less: compensation awarded by the Tribunal Rs.4,19,000/- Enhanced compensation Rs.2 ,26 ,000/- 24. Hence, the following: ORDER (i) Insurer's appeal in M.F.A. No.100667/2014 is dismissed; (ii) Claimant's appeal in M.F.A. No.101538/2014 is allowed in part holding that claimant is entitled for enhanced compensation of Rs.2,26,000/- with interest at 6% p.a. from the date of petition till realization. Hence, the following: ORDER (i) Insurer's appeal in M.F.A. No.100667/2014 is dismissed; (ii) Claimant's appeal in M.F.A. No.101538/2014 is allowed in part holding that claimant is entitled for enhanced compensation of Rs.2,26,000/- with interest at 6% p.a. from the date of petition till realization. (iii) The insurance company is directed to deposit the compensation amount with interest within a period of two months from the date of receipt of a copy of this order. (iv) The deposit and disbursement of compensation shall be in terms of the order of the Tribunal. The registry shall transmit the amount in deposit in M.F.A.No.100667/2014 to the Tribunal for disbursement in accordance with law. No costs.