N. Kumar vs N.K. Kalegowda
2021 Latest Caselaw 7036 Kant

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF DECEMBER, 2021

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.F.A NO.7241 OF 2014 (MV-D)
                          C/W
            M.F.A CROB NO. 37 OF 2016 (MV-D)

IN MFA NO.7241/2014
BETWEEN:

THE BRANCH MANAGER
NATIONAL INSURANCE COMPANY LIMITED
VV ROAD, MANDYA-571 401
BY NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, NO.144
SUBHARAM COMPLEX, M G ROAD
BANGALORE-560 001
BY ITS MANAGER

                                               ...APPELLANT

(BY SRI O.MAHESH, ADVOCATE)

AND:

1. B. CHANDRAPRABHA
W/O LATE N KUMAR
AGED ABOUT 54 YEARS

2. K DEEPTHI
D/O LATE N KUMAR
AGED ABOUT 29 YEARS

3. K PUNEETH
S/O LATE N KUMAR
                              2


AGED ABOUT 27 YEARS

ALL ARE R/O 3RD CROSS
GANDHI NAGAR, MANDYA CITY-571401

4. N K KALEGOWDA
MAJOR
D.NO.2276, 4TH MAIN ROAD
KONENA AGRAHARA LAYOUT
HAL 3RD STAGE, BDA LAYOUT
BANGALORE-560 094

                                         ...RESPONDENTS

(BY SRI L.RAJA, ADVOCATE FOR R1-R3;
R4 IS H/S)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 11.07.2014 PASSED IN MVC
NO.811/2005 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE & CJM, MACT, MANDYA, AWARDING COMPENSATION OF
RS.5,48,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.

IN MFA CROB NO.37/2016
BETWEEN:

N. KUMAR
S/O LATE NARAYANAPPA
DEAD BY LRS

1. B. CHANDRAPRABHA
W/O LATE N KUMAR
AGED ABOUT 55 YEARS

2. K DEEPTHI
D/O LATE N KUMAR
AGED ABOUT 30 YEARS
                             3


3. K PUNEETH
S/O LATE N KUMAR
AGED ABOUT 28 YEARS

ALL R/O 3RD CROSS
GANDHI NAGAR, MANDYA CITY
MANDYA-571401

                                      ...CROSS OBJECTORS

(BY SRI.RAJA L, ADVOCATE)

AND:

1. N.K. KALEGOWDA
S/O NOT KNOWN
NO.2276, 4TH MAIN ROAD
KONENA AGRAHARA LAYOUT
HAL 3RD STAGE, BDA LAYOUT
BANGALORE-560094

2. THE BRANCH MANAGER
NATIONAL INSURANCE COMPANY LIMITED
VV ROAD, MANDYA-571401
                                          ...RESPONDENTS
(BY SRI.O MAHESH, ADVOCATE FOR R2;
R1 SERVED)

     THIS MFA.CROB IN MFA.NO.7241/2014 FILED U/O 41 RULE
22 OF CPC, R/W SEC.173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED: 11.07.2014 PASSED IN MVC NO.811/2005 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, & CJM,
MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND      SEEKING    ENHANCEMENT     OF
COMPENSATION.

     THESE MFA AND MFA CROB HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                                    4


                              JUDGMENT

The Insurance Company has filed appeal in

MFA.No.7241/2014 questioning the judgment and award

passed in MVC.No.811/2005, wherein the Insurance Company

has disputed the nexus between the injuries sustained by the

claimant and death on account of injuries sustained in a road

traffic accident dated 06.03.2005. The claimants have also

filed cross appeal in MFA Crob.No.37/2016 seeking

enhancement of compensation.

2. For the sake of convenience, the parties are

referred to as per their rank before the Tribunal.

3. One N.Kumar sustained grievous injuries in a road

traffic accident dated 06.03.2005. He filed a claim petition by

specifically contending that in the said accident, he has

suffered fracture of condyle of left tibia compound in nature

and fracture of right patella. The claimant specifically claimed

that on account of injuries to both the legs, he has partial

permanent disability to an extent of 55%. During the

pendency of the claim petition, the original claimant N.Kumar

was again hospitalized to JSS Hospital on 10.05.2007 and he

died on 02.06.2007. The present claimants who are the legal

heirs of deceased N.Kumar came on record and prosecuted the

claim petition. The claimants relied on Exs.P-11 and P-12 to

prove that in the said accident, the deceased N.Kumar was

operated and was treated with plates and screws. The

claimants also contended that deceased on account of

infection to his leg succumbed to injuries in JSS Hospital due

to pneumonia and sepsis. On these set of pleadings, the

claimants contended that the injured succumbed to injuries

and hence, claimed compensation by asserting that they are

the dependants. In this context, the claim petition was also

amended and compensation was claimed by the legal heirs of

deceased N.Kumar.

4. The respondent No.2/Insurance Company, on

receipt of notice, filed written statement and stoutly denied

the entire averments made in the claim petition. The

respondent No.2 prayed for dismissal of the claim petition on

the ground that the driver of the Maruti Car had no valid

driving licence as on the date of accident.

5. The claimants to substantiate their claim examined

the widow of the deceased as PW.1 and one independent

witness as PW.2 and adduced documentary evidence vide

Exs.P-1 to P-29. The respondent No.2/Insurance Company

has not lead in any ocular evidence nor has produced any

documentary evidence.

6. The Tribunal having assessed the oral and

documentary evidence while answering additional issue No.1

was of the view that N.Kumar who had sustained injuries to

his leg later developed infection and therefore, while he was

undergoing treatment in JSS Hospital succumbed on account

of injuries sustained in a road traffic accident. While

determining compensation, the Tribunal notionally assessed

the income of the deceased at Rs.4,000/- and after deducting

1/3rd towards personal expenses and by applying multiplier of

14, awarded a sum of Rs.4,48,000/- under the head of loss of

dependency. The Tribunal, in all, awarded total compensation

of Rs.5,48,000/-.

7. Learned counsel appearing for the Insurance

Company would vehemently argue and contend before this

Court that the Tribunal grossly erred in holding that death of

injured on 02.06.2007 was due to injuries sustained by him in

a road traffic accident. Learned counsel would further submit

to this Court that in absence of expert medical evidence, the

Tribunal erred in assuming the role of an expert and therefore,

the finding recorded on additional issue No.1 is palpably

erroneous and the same warrants interference by this Court.

He would submit to this Court that the alleged accident is also

stoutly denied by the insurer and therefore, the finding on

issue No.1 that deceased N.Kumar sustained grievous injuries

in a road traffic accident on account of rash and negligent

driving by the driver of the offending Maruti car is in absence

of clinching evidence and hence, the said finding needs to be

set aside by this Court. He would further submit that the eye

witnessess to the alleged accident are not examined by the

claimants and the crime was registered on the basis of

hearsay complaint by one Suprith who happens to be the

relative of the claimants. On these set of grounds, he would

urge this Court to dismiss the claim petition.

8. Per contra, learned counsel appearing for the

claimants would take this Court to the evidence on record. By

placing reliance on the evidence, he would submit to this Court

that though the injured had undergone treatment and was

operated, however, on account of infection, he was suffering

from cellulitis and therefore, he was again admitted to JSS

Hospital on 10.05.2007 and he died while undergoing

treatment at JSS Hospital. Therefore, the claimants have

placed on record clinching evidence indicating that injured was

under continuous treatment and unfortunately he succumbed

to injuries on account of infection to his leg. Therefore, he

would submit to this Court that the finding recorded by the

Tribunal on additional issue No.1 is based on clinching

evidence and this evidence is not at all rebutted by the

Insurance Company.

9. In regard to quantum, learned counsel appearing

for the claimants would submit to this Court that deceased

was working as an LIC agent as well as commission agent and

was earning a sum of Rs.8,000/- per month. However, he

would submit that Tribunal erred in notionally assessing the

income of the deceased at Rs.4,000/-. Therefore, he submits

that there is scope for enhancement.

10. Heard the learned counsel appearing for the

Insurance Company and learned counsel appearing for the

claimants. Perused the trial Court records .

Regarding nexus between injuries and death:

11. The deceased N.Kumar sustained injuries in a road

traffic accident dated 06.03.2005. In the said accident, the

said N.Kumar suffered grievous injuries to his left knee joint

as well as left ankle joint. He had undergone surgery and

plates and screws were fitted and drafting to upper end of left

tibia was done. He had to also undergo partial patellectomy

and reconstruction of extensor mechanism of right knee on

12.03.2005. The claimants have produced disability certificate

at Ex.P-11 which is dated 08.05.2006. In the said disability

certificate, the Doctor who is an Orthopedic Surgeon has

examined the injured and he has opined that there is infection

and therefore, the fractures treated with plates and screws

had to be removed. This document clearly indicates that

injured had developed infection to his left leg and the plates

screws had to be removed. On perusal of Ex.P-12, it is

forthcoming that injured was admitted on 10.05.2007 and till

02.06.2007, he was undergoing treatment at JSS Hospital and

he was being diagnosed for Epilepsy cellulitis, pneumonia,

sepsis and dysfunction syndrome. Ex.P-12 clearly shows that

injured had developed infection which later culminated into

sepsis and the claimants have also produced the photographs

at Ex.P-8. On perusal of the same, it is evident that the

original claimant left leg is totally infected and the entire leg

has turned black on account of infection. Therefore, the

photographs coupled with the disability certificate and medical

certificate at Exs.P-11 and P-12 clearly establishes that injured

died on account of injuries sustained in a road traffic accident.

12. If the photographs produced at Ex.P-8 coupled with

disability certificate which is also produced at Ex.P-11 and also

the medical certificate issued by JSS Hospital which is marked

at Ex.P-12 are examined together, it is clearly evident that on

account of injuries sustained by N.Kumar, he developed

cellulitis. Celluitis is nothing but infection which later led to

sepsis. Ex.P-12 also indicates that on account of infection, the

original claimant was suffering from pneumonia. This

clinching evidence would clearly prove that the deceased was

suffering from sepsis with altered consciousness causing

pneumonia which has lead to ARDS and consequently, the

injured suffered multi organ dysfunction which has resulted in

death. Therefore, the evidence on record would clearly

indicate that claimants have proved that on account of

injuries, N.Kumar developed infection which ultimately lead to

multi organ dysfunction and that has caused death.

13. Though Insurance Company is seriously disputing

the cause of death, however, from the records, it is

forthcoming that Insurance Company has not filed any written

statement to the amended portion of the claim petition where

the legal representatives after death of the original claimant

have come on record and have amended the claim petition by

incorporating additional paragraph by specifically pleading the

cause of death. This amended portion in the claim petition in

regard to cause of death on account of injuries sustained in a

road traffic accident has gone unchallenged. The Insurance

Company has also not lead any rebuttal evidence to rebut the

averments and evidence lead in by the claimants. Therefore,

the finding recorded by the Tribunal on additional issue No.1

does not warrant any interference at the hands of this Court.

In regard to quantum:

14. The Tribunal has assessed the income of the

deceased notionally at Rs.4,000/-. The accident is of the year

2005. Therefore, I do not find any error in assessing the

income of the deceased notionally at Rs.4,000/-. However, it

has come in evidence that deceased was aged around 45

years. Therefore, 25% has to be added towards future

prospects. Therefore, the income has to be assessed at

Rs.5,000/- and if 1/3rd is deducted, the income of the

deceased is assessed at Rs.3,333.33/- and by applying the

multiplier of 14, the compensation payable under the head

'loss of dependency' works out to Rs.5,60,000/-

(3,333.33x14x12). There are three claimants, therefore, by

applying the principles laid down by the Hon'ble Apex Court in

the case of Magma General Insurance Co. Ltd., vs. Nanu

Ram alias Chuhru Ram & Ors.1, Rs.1,50,000/- is awarded

under the conventional heads. The compensation of

Rs.75,000/- awarded by the Tribunal towards medical

2018 (9) SC 51

expenses remains undisturbed. Hence, the total compensation

re-determined by this Court works out to Rs.7,85,000/- as

against Rs.5,48,000/- awarded by the Tribunal.

15. Accordingly, the appeal filed by the Insurance

Company in MFA.No.7241/2014 is dismissed and the cross

appeal filed by the claimants in MFA Crob.No.37/2016 is

allowed in part. The judgment and award of the Tribunal is

modified. The claimants are held entitled to enhanced

compensation of Rs.2,37,000/- which shall carry interest at

the rate of 6% per annum from the date of petition till its

realization.

The amount in deposit, if any, shall be transmitted to the

Tribunal.

Sd/-

JUDGE

CA