Karnataka High Court
Smt Gourawwa W/O Balappa Bajantri vs General Manager on 7 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 7 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.21232/2010 (MV-D)
BETWEEN:
1. Smt. Go urawwa
W/o Balappa Baj antri
Aged abo ut 53 years
Occ: Ho useho ld work
2. Smt. Mallappa Balappa Bajantri
Aged abo ut: 35 ye ars
Occ: Central Excise Service
3. Uday Balappa Bajantri
Aged abo ut: 28 ye ars
Occ: S tude nt
4. Shri Ganapati Balappa Bajantri
Aged abo ut: 31 ye ars
Occ: Rikshaw D river
5. Sanjay Balappa Bajantri
Aged abo ut 29 years
Occ: Maso n
All are R/o 214, Korvi Galli
June-Be lgaum, D ist: Be lgaum.
... APPELLANTS
(BY SRI. SANJAY K ATAGERI, ADVOCA TE)
2
AND
1. Ge neral Manage r
North West Karnataka Road T ransport
Corpo ration, through D ivisio nal Contro lle r
Be lgaum
2. I nte rnal I nsurance Fund
North West Karnataka Road T ransport
Corpo ration, through D ivisio nal Contro lle r
Be lgaum
... RES PONDENTS
(BY SRI VEENA HEDGE, ADVOCATE)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 25.11.2009 PASS ED IN
MVC.NO.948/2003 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN.) AND MEMBER, MACT, BELFGA UM,PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COM PENASTION.
THIS APPEA L COMING ON FOR HEARING THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:
JUDGMENT
Challenging judgment and award dated
25.11.2009 passed by I Addl. Civil Judge (Sr.Dn.) &
Motor Accident Claims Tribunal, Belgaum (for short,
'tribunal') in MVC No.948/2003, this appeal is filed by
claimants seeking for enhancement of compensation.
2. Shri Sanjay Katageri, learned counsel for
claimants/appellants submitted that on 21-03-2003,
Balappa, was traveling from Belagavi to Sulebhavi in
NWKRTC bus bearing No.KA-22/F-1046. Due to rash
and negligent driving by its driver, bus fell into a ditch
causing severe injuries to Balappa. He was shifted to
KLE hospital, Belgaum for treatment. He was under
treatment till 26.03.2003 and died on 23.04.2003 while
taking followup treatment. Claiming compensation on
account of his untimely death, his wife and four major
children filed claim petition under Section 166 of the
Motor Vehicles Act, (hereinafter referred to as 'Act')
against NWKRTC.
3. On appearance, NWKRTC opposed claim
petition denying rash and negligent driving by its
driver and contended that death of Balappa was not on
account of injuries sustained in accident, but of natural
causes.
4. Based on pleadings, tribunal framed following
issues:
i) Whether petitioners prove that deceased
Balappa Mallappa Bajantri died in a
motor accident that occurred on
21.03.2003 at 113 hours on Sulebhavi
Marihal road due to rash and negligent
driving of KSRTC bus bearing
RegistrationNo.KA-22/F 1046 by its
driver, in which he (deceased)was
travelling as passenger?
ii) Whether respondents prove that there is
no nexus to the alleged accidental
injuries sustained by deceased Balappa
Mallappa Bajantri and his consequent
death on 24.-42003 and that the death
was natural due to old age as contended
in paragraph 3 of their objection
statement?
iii) Whether petitioners are entitled to
compensation? If so, how much and from
whom?
iv) What decree or award?
5. In order to establish his case, claimant no.3
was examined as PW1 and claimant no.2 was examined
as PW2. Dr.Suresh M Dugani, was examined as PW3.
Exhibits P1 to P.35 were marked. Respondents did not
lead any evidence. On consideration, tribunal answered
issue nos. 1 and 2 in affirmative, issue no.3 partly in
affirmative and issue no.4 by awarding compensation
of Rs.20,000/- with interest at 9% per annum and held
respondent no.2 - NWKRTC liable to pay same.
6. Not satisfied with quantum of compensation,
claimants are in appeal. It was submitted that accident
occurred on 21.03.2003 due to bus falling into ditch.
Several other passengers sustained grievous injuries.
Balappa sustained injuries to his cervical cord. He was
diagnosed with quadriplegia at KLE hospital Belgaum.
It was submitted that though, he was discharged from
KLE hospital on 26.03.2003, on the advice of doctor, it
was actually due to inability to bear medical expenses
towards treatment. But he was under follow up
treatment. Medical evidence on record would clearly
establish about serious condition of Balappa. It was
submitted that Balappa was under follow-up treatment
till his death on 24.04.2003 within about one month
after accident. It was further submitted that as
duration between discharge and death was not much, it
cannot be presumed that death was on account of any
other cause other than injuries sustained in accident.
Tribunal having disbelieved claimants' case, merely
awarded Rs.20,000/- towards medical expenses and
not sustainable. Hence, prayed for allowing appeal and
to pass an appropriate award.
7. On the other hand, Smt. Veena Hegde, learned
counsel for respondent - NWKRTC supported the award
and opposed enhancement. It was submitted that as
per Ex.P.6 issued by District hospital Belgaum,
Ballappa was admitted on date of accident i.e., on
21.03.2003 and was discharged on same day against
medical advice. Even Ex.P.8 Summary sheet relating to
treatment given at KLE hospital, Belgaum shows reason
for discharge was stated to be against medical advice.
It was submitted that no evidence was led to establish
that deceased was under follow up treatment till his
death. If medical condition of Balappa was serious as
contended by claimants, they would not have got him
discharged against medical advice and would in any
case have given details of reasons for discharge and
follow up treatment taken. Tribunal rightly held that
cause of death was not on account of injuries sustained
in the accident.
8. Learned counsel Sri Sanjay Katageri in reply
submitted that treatment records indicate that Balappa
was suffering from paraplegia. Claimants had deposed
about doctor's opinion about surgery required and
survival of Balappa after surgery for not more than
three months and cost of operation beyond their
financial capacity. Therefore, date of death was not too
distant from date of discharge. In the absence of
specific evidence to establish that death of Balappa
was on account of other reasons, tribunal ought not
have denied compensation to claimants.
9. Heard learned counsel on both side and
perused records.
10. From above submission, occurrence of
accident due to rash and negligent driving by bus
driver causing grievous injuries to Balappa is not in
dispute. Tribunal passed award against NWKRTC
granting compensation towards medical expenses only.
NWKRTC not challenged same. Claimant is in appeal
seeking enhancement. Therefore, only point that arises
for consideration is:
"Whether claimants are entitled for
enhancement of compensation as sought
for?"
11. In order to establish injuries sustained by
Balappa, treatment taken and reasons for his death,
claimants produced injury certificate, treatment
summary sheet, MRI report, case sheet with x-ray and
opinion of doctor as per Ex.P.6, P8, P9, P34 and P.35
respectively. Claimants have also produced death
certificate as per Ex.P.10. Claimants also produced bill
and cash memo as per Ex.P.11 to P.30. Contents of
Ex.P.6 indicate that claimant was admitted to district
hospital Belgaum immediately after accident, on being
referred by Medical Officer-PHC, Sulebhavi, he was
however discharged on the same day i.e., 21.03.2003
against medical advice. Ex.P.8 - summary sheet of
treatment issued by KLE hospital Belgaum indicates
that he was admitted on 21.03.2003. History of
injuries stated as road traffic accident on 21.03.2003
and loss of power in limbs etc., After MRI scan, Balappa
was diagnosied with cervical spondylitis with cord
contusion and ant-longitudinal ligament injury. Ex.P.9 -
MRI scanning report corroborates Ex.P.8 that Balappa
suffering from quadriplegia. Ex.P.10 - death certificate
indicates that Balappa died at Korvigalli, Belgaum on
23.04.2003. Sons of deceased Balappa examined as
PWs 1 and 2 deposed that deceased was a clarinet
player and a part of musical band. PW2 specifically
stated that while Balappa was under treatment of Dr.
Mahant Shetty of KLE hospital, advised for surgery, and
projected cost of which was Rs.1,50,000/- and
additional amount Rs.50,000/- towards other expenses.
He also stated that even after surgery, Balappa may
not regain movement of limbs and may not have
survive beyond three months.
12. PW2 further deposed that Dr. Vinayak Raje,
also a consultant, was of same opinion. As the cost of
treatment was beyond their financial capacity, they got
Balappa discharged from hospital, and to give
treatment at their residence. Indeed, they have not
produced any records to establish that Balappa was
under treatment at their residence. Though, it is
suggested by learned counsel for NWKRTC that there
was no such opinion given by Dr. Mahant Shetty. Same
is denied by PW2. Claimants have also examined P.W.3
- Dr. Suresh M Dugani, who issued certificate at
Ex.P.35 opines that injury sustained by Balappa was
grievous in nature and could be fatal. In his evidence
he reiterates the same. Except making suggestions to
PW3 about reason for death not being injury sustained
in the accident, there is no material elicitation.
13. From the above evidence on record, merely
on the ground that claimants did not produce post
mortem report to establish cause of death cannot lead
to conclusion that death was on account of injuries
caused in accident. Considering gravity of injuries,
there is nothing to disbelieve claimants' case that death
was on account of injuries caused in accident. At the
same time as claimants got Balappa discharged from
hospital against medical advice and claims to have avail
treatment at his residence, aggravation of medical
conditions of Balappa leading to his death cannot be
ruled out. Though claimants would be entitled to
compensation on account of death of Balappa due to
injuries sustained in the accident, some portion has to
be apportioned for aggravating on accelerating cause of
death, it would be appropriate to deny 25% of the
compensation towards same.
14. Insofar as quantum of compensation is
concerned, accident occurred on 21.03.2003. Balappa
was 55 years of age working as clarinet player in a
musical band and was allegedly earning Rs.4,000/- per
month. Though claimants have produced photographs of
deceased with clarinet participating in a musical band
procession, same would not be helpful in assessing
income. The notional income for 2003 in respect of a
ordinary coolie is Rs.3,250/-. Considering avocation of
deceased, it would be appropriate to determine monthly
income of deceased at Rs.4,000/- per month.
Claimants are wife and four major children of deceased.
As per Pranay Sethi, addition of future prospects
will have to be at 10%. As all sons have attained age of
majority, only wife would be dependant, therefore,
deducting towards personal expenses will be at '½'
and multiplier applicable would be '11'. Hence 'loss of
dependency' would be Rs.4,000 + 10% - 1/2 X 12 X 11
= Rs.2,90,400/-.
As only wife is dependant, she is awarded
Rs.40,000/- towards loss of 'spousal consortium'.
Claimants No.2 to 5 are not dependant on deceased,
they are awarded a sum of Rs.30,000/- each towards
'loss of parental consortium'. In addition, claimants
would be entitled to Rs.15,000/- towards 'funeral
expenses' and Rs.15,000/- towards 'loss of estate'.
Since more than 3 years have lapsed after rendering
the decision in Pranay Sethi's case, claimants are
entitled to addition of 10% to award under conventional
heads i.e., Rs.40000/- + 1,20,000/- + 30,000 + 10% =
Rs.2,09,000/-.
Tribunal awarded a sum of Rs.20,000/- towards
medical expenses. Therefore, total compensation would
be Rs.4,99,400/-. As it is held that claimants would be
entitled to 75% of same, award would be Rs.3,74,550/-
Point for consideration is answered partly in affirmative
as above.
In the result I pass following:
ORDER
Appeal is allowed in part.
Total compensation is assessed at Rs.4,99,400/-
as against Rs.20,000/- awarded by tribunal. Claimants
are held entitled for 75% of same i.e., Rs.3,74,550/-
with interest at 6% per annum..
Respondent NWKRTC is directed to deposit
reassessed compensation with interest at 6% per
annum within six weeks from date of receipt of a copy
of this order.
On deposit claimants No.2 to 4 i.e, sons are held
entitled for only Rs.30,000/- each, which is to be
released in their favour.
Entire remaining compensation with interest is to
be paid in favour of claimant no.1-wife. Out of
compensation apportioned in favour of claimant no.1,
40% is ordered to be released in her favour and 60% is
ordered to be kept in fixed deposit in any nationalised
bank or Post Office for a period of four years with
liberty to withdraw periodical interest.
Sd/-
JUDGE
Ps g *
