Karnataka High Court
Sarswati W/O Suresh Salunke vs Irappa S/O Yallappa Hansanur on 10 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.24808/2010 (MV)
C/W.
M.F.A.NO.20448/2011 (MV)
IN MFA NO.24808/2010
BETWEEN:
1. SARSWATI W/O SURESH SALUNKE
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O: NO.2, SECTOR NO. 14, PLOT NO. 14,
NAVANAGAR, BAGALKOTE.
2. RAHIBAI W/O SHANKAR SALUNKE
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O: NO.2, SECTOR NO.14, PLOT NO.14,
NAVANAGAR, BAGALKOTE.
...APPELLANTS.
(BY SHRI S.S.SAJJAN, ADVOCATE, FOR SHRI N SHANKAR RANGAREJI
AND SHARAD MAGADUM, ADVOCATES.)
AND:
1 . IRAPPA S/O YALLAPPA HANSANUR
AGE: MAJOR, OCC: BUSINESS,
R/O: MUCHKHANDI,
TQ AND DIST: BAGALKOTE.
2
2 . THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
BELAGAVI.
...RESPONDENTS.
(BY SHRI G.S.HOSAKERI, ADVOCATE, FOR .R2;
R.1 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 25.08.2010, PASSED IN
MVC NO.158/2008, ON THE FILE OF THE MEMBER, MACT.NO.II,
BAGALKOTE, BY ENHANCING COMPENSATION, ETC.,.
IN MFA NO.20448/2011
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, BELAGAVI
NOW REP. BY V.C.SINGANNAVAR,
ASST.MANAGER
NATIONAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, RAMADEV GALLI,
BELAGAVI.
...APPELLANT.
(BY SHRI G S HOSAKERI, ADVOCATE.)
AND:
1. SMT.SARASWATI W/O SURESH SALUNKE,
AGE: 33 YEARS, OCC: HOUSE HOLD WORK,
3
R/O SECTOR NO.2, PLOT NO.14,
NAVANAGAR, BAGALKOTE.
2. SMT.RAHIBHAI W/O SHANKAR SALUNKE,
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
R/O SECTOR NO.2, PLOT NO.14,
NAVANAGAR, BAGALKOTE.
3. IRAPPA S/O YALLAPPA HANSANNAVAR,
AGE: MAJOR, OCC: OWNER OF VEHICLE,
R/O MUCHKHANDI, TQ AND DIST: BAGALKOTE.
...RESPONDENTS.
(BY SHRI S.S.SAJJAN, ADVOCATE, FOR SHRI N SHANKAR RANGAREJI
AND SHARAD MAGADUM, ADVOCATES.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 25.08.2010 PASSED IN
MVC NO.158/2008, ON THE FILE OF THE MEMBER, MACT.NO.II,
BAGALKOTE, ETC.,.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 25.8.2010, passed
by Member, MACT-II, Bagalkote, in MVC No.158/2008, these
appeals are filed.
2. MFA No.20448/2011 is filed by insurer challenging
award on liability on the ground that death was not on account
of injuries sustained in accident while MFA No.24808/2010 is
filed by claimants seeking for enhancement of compensation.
3. Shri Gangadhar S. Hoskeri, learned counsel for
insurer submitted that in an accident that occurred on
13.10.2006, due to auto rickshaw bearing registration no.KA-
29/7622 meeting with accident due to rash and negligent
driving by its driver, Suresh, the passenger in auto rickshaw
sustained grievous injuries and was admitted to hospital. But
Suresh died on 21.8.2007, due to vascilitis which was not
relatable to injuries sustained in accident. Therefore, insurer
was not liable to pay compensation for death of Suresh.
4. On the other hand, Shri Siddappa Sajjan, advocate
appearing for Shri Shankar Rangareji, learned counsel for
claimants, opposed insurer's appeal and submitted that issue
regarding death being not on account of injuries sustained in
accident was not urged before tribunal by insurer, no issue was
framed on the same and no evidence was led and therefore said
issue cannot be raised for the first time before this Court in
appeal. Insofar as quantum of compensation, it was submitted
that claimants namely wife and mother of deceased Suresh are
seeking enhancement of compensation on the ground that
Suresh was aged 32 years old, a welder by profession having
trade licence and was earning Rs.40,000/- per month. But
tribunal has taken his monthly income notionally at a meager
sum of Rs.3,000/-. It was further submitted that tribunal did not
add future prospects and even award towards conventional
heads was inadequate.
5. From above submission, occurrence of accident on
13.10.2006 due to rash and negligent driving of auto rickshaw
by its driver leading to grievous injuries sustained by Suresh is
not in dispute. Issuance of insurance policy and its validity as on
date of accident is also not in dispute. Tribunal assessed
compensation and held insurer liable to pay the same. Though
insurer is in appeal, challenge is not on quantum of
compensation. The appeal is only on liability, while claimant is
seeking for enhancement of compensation. Therefore, points
that arise for consideration in these appeals are:
i) Whether tribunal was justified in holding
insurer liable to pay compensation?
ii) Whether claimants are entitled for
enhancement of compensation as sought for?
Point No.1:
6. In order to establish that death of Suresh on
21.8.2007 was on account of injuries sustained in accident,
claimants produced wound certificate, death certificate, hospital
bills, case sheet, x-ray films and case sheet as Ex.P.6, 9, 16, 23
to 25 respectively. From Ex.P.6 wound certificate, it is seen that
Suresh sustained comminuted fracture of shaft of right femur in
an accident that occurred on 13.10.2006. Ex.P.16 medical bills,
prescriptions, etc., indicate that claimant was under treatment
during October and November 2006. It is also seen that Suresh
was admitted to hospital once again during March 2007 i.e.,
from 20.3.2007 to 24.3.2007 and again on 20.5.2007. Ex.P.25
is the OPD chit issued by District Hospital, Bagalkote, along with
inpatient case sheet. The same indicates that Suresh was
admitted on 19.8.2007 at 6.40 p.m. and expired on 21.8.2007
at 2.30 p.m. in the hospital while under diagnosis for vasculitis.
Though "liver cirhosis" was suspected, there is no evidence to
establish that it was cause of death.
7. Claimants have also examined Dr.Venkatesh and
Dr.Umakant as PW.2 and PW.3 respectively. PW.2 has stated
about treatment administered to Suresh during October and
November 2006 in his hospital. PW.3 has stated that cause of
death of Suresh during treatment was vasculitis. There is
evidence to show that Suresh was under treatment
intermittently upto date of death and in fact he died in hospital.
In the absence of specific contention and framing of specific
issue regarding cause of death, claimant cannot be faulted with
not leading evidence to establish reason for death as due to
injuries sustained in the accident, the evidence available on
record probabalizes claimants' case. Therefore finding of tribunal
on liability requires to be confirmed. Point no.1 is answered
against insurer and in favour of claimant.
Point no.2:
8. On quantum, in order to establish age, occupation
and income, claimants have produced trade licence issued by
City Municipal Council, Bagalkote, as Ex.P.22. Claimant has also
produced a letter issued by Executive Engineer, KEB. He has
also produced permission letter and letter issued for obtaining
electricity connection for welding machine. Claimants have also
produced rent agreement and rent receipt as Exs.P.20 and P.21
respectively. From Exs.P.18 to P.22, occupation of deceased as
a welder is established. As no specific documents were produced
to establish age, by considering age mentioned in the medical
records, tribunal determined his age as 32 years. Though
claimants have stated that his monthly income was Rs.40,000/-,
there is no specific evidence led to establish the same. In the
absence of specific evidence, tribunal would be justified in
taking it on notional basis. Notional income for an ordinary
coolie for the year 2006 as per norms adopted by Karnataka
State Legal Services Authority for settlement of cases before
Lok Adalath is Rs.3,750/-. As deceased was a welder, it would
be appropriate to consider his monthly income as Rs.6,000/-.
9. Claimants are wife and mother. Deceased was self
employed. Therefore, as per decision of Hon'ble Supreme Court
in National Insurance Company Limited vs. Pranay Sethi
and others, reported in (2017) 16 Supreme Court Cases
680, addition of future prospects has to be at '40%'. Deduction
towards personal expenses has to be '1/3rd' and multiplier
applicable would be '16'. Thus, compensation towards loss of
dependency would be:
Rs.6,000 + 40% minus 1/3rd x 12 x 16 = Rs.10,75,200/-.
10. In addition, claimant no.1 would be entitled for a
sum of Rs.40,000/- towards loss of spousal consortium,
claimant no.2 would be entitled for a sum of Rs.40,000/-
towards loss of filial consortium. Rs.15,000/- towards funeral
expenses and Rs.15,000/- towards loss of estate. Since more
than three years have lapsed after rendering decision in Pranay
Sethi case (supra), 10% has to be added towards award
under conventional heads i.e., a sum of Rs.11,000/-. Thus
claimants would be entitled for compensation under
conventional heads at Rs.1,21,000/- (40,000 x 2 + 15,000 +
15,000 + 11,000). Thus, total compensation would be
Rs.11,96,200/- as against Rs.4,67,300/- awarded by tribunal.
Point No.2 for consideration is answered partly in the affirmative
as above.
11. In the result, I pass the following:
ORDER
i) Appeal filed by insurer in MFA
No.20448/2011 is dismissed.
ii) Appeal filed by claimants in MFA
No.24808/2010 is allowed in part with cost.
iii) Judgment and award dated 25.8.2010,
passed by Member, MACT-II, Bagalkote, in
MVC No.158/2008, is modified.
iv) Claimants are held entitled for compensation
of Rs.11,96,200/- as against Rs.4,67,300/-
awarded by tribunal. Claimants would be
entitled for interest at the rate of 6% p.a. on
enhanced compensation from the date of
petition till its deposit.
v) Insurer is held liable to pay compensation. It
is directed to deposit enhanced compensation
within a period of six weeks from the date of
receipt of a certified copy of this judgment.
vi) Directions issued by tribunal regarding
apportionment and proportion of deposit and
release would apply to the enhanced
compensation also.
Sd/-
JUDGE
Mrk/-
