Karnataka High Court

The Divisional Manager vs Yallamma W/O Mallappa Yangi on 4 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

        DATED THIS THE 4TH DAY OF JANUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                          AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 MFA No.100675/2018

                         C/W.

           MFA CROB. NO.100002/2020 (MV)

IN MFA NO.100675/2018

BETWEEN:

THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED
SUJATA COMPLEX, HUBLI
(POLICY NO.150100/31/1/6300003124
POLICY PERIOD 28.05.2011 TO 27.05.2012
(INSURER OF TRACTOR BEARING ITS
REG:NO.KA 26/TA-2553)
NOW BY AUTHORIZED SIGNATORY
ADMINISTRATIVE OFFICER
                                           ...APPELLANT
(BY SRI.GANGADHAR S HOSAKERI, ADVOCATE)

AND

1.    YALLAMMA W/O MALLAPPA YANGI
      AGE:46 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O KURTHAKOTI,
      TQ:GADAG-582103
                              2




2.   SHRIKANTH S/O MALLAPPA YANGI
     AGE:24 YEARS,
     OCC:STUDENT
     R/O:KURTHAKOTI,
     TQ:GADAG-582103

3.   DYAMANNA S/O MALLAPPA YANGI
     AGE:22 YEARS,
     OCC:STUDENT
     R/O:KURTHAKOTI,
     TQ:GADAG-582103

4.   RENUKA D/O MALLAPPA YANGI
     AGE:20 YEARS,
     OCC:STUDENT R/O:KURTHAKOTI,
     TQ:GADAG-582103

5.   SMT. DAVALBI W/O RAJESAB NADAF
     AGE:MAJOR,
     OCC:BUSINESS,
     R/O:KUTHAKOTI,
     TQ:GADAG-582103
     (OWNER OF TRACTOR BEARING
     ITS REG NO.KA 26/TA-2553)
                                         ...RESPONDENTS

(BY SRI.SIDDAPPA S SAJJAN, ADVOCATE FOR R1 TO R4, SRI.P.G.CHIKKANARAGUND, ADVOCATE FOR R5)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC NO.101/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG, AWARDING COMPENSATION OF RS.7,13,500/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

IN MFA CROB.NO.100002/2020

BETWEEN

1. YALLAMMA W/O MALLAPPA YANGI AGE:48 YEARS

OCC: HOUSEHOLD WORK,

2. SHRIKANTH S/O. MALLAPPA YANGI AGE:26 YEARS OCC: STUDENT,

3. DYAMANNA S/O. MALLAPA YANGI, AGE:24 YEARS OCC: STUDENT,

4. RENUKA D/O MALLAPA YANGI, AGE:22 YEARS OCC: STUDENT,

ALL LARE R/O KURTHAKOTI, TQ AND DIST: GADAG-582205 ...CROSS OBJECTORS (BY SRI.SIDDAPPA S SAJJAN, ADVOCATE)

AND

1. SMT.DAVALABI W/O. RAJESAB NADAF, AGE:MAJOR, OCC.BUSINESS, R/O KURTHAKOTI, TQ: AND DIST: GADAG.-582205

2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, SUJATA COMPLEX, HUBLI, DIST: DHARWAD-580029 ...RESPONDENTS (BY SRI.P.G.CHIKKANARAGUND, ADVOCATE FOR R1, SRI.GANGADHAR S HOSAKERI, ADVOCATE FOR R2)

THIS MFA.CROB IN MFA NO.100675/2018 IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC NO. 101/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEAL AND CROSS OBJECTION COMING ON FOR ADMISSION, THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Both MFA No.100675/2018 and MFA CROB.

No.100002/2020, though are listed for admission, with the

consent of the learned counsel for the parties, have been

taken up for final hearing.

2. The insurer-respondent No.2 before the claims

Tribunal in MVC No.101/2012 on the file of the Additional

District and Sessions Judge and MACT, Gadag (for short,

'Tribunal') has assailed the correctness of the judgment

and award dated 09.11.2017. The claimants before the

Tribunal have filed MFA Crob. No.100002/2020 challenging

the award to the extent of disallowed claim. The Tribunal

deciding the petition under Section 166 of the Motor

Vehicles Act, 1988, awarded a compensation of

Rs.7,13,500/- with cost and simple interest at the rate of

8% p.a. from the date of petition till the date of realization

as against claim of Rs.25,00,000/-.

3. The petition was filed by the dependants of

late Mallappa Yangi. Appellant No.1 is the wife of deceased

Mallappa Yangi and appellants No.2 to 4 are his children.

4. The appeal is filed by the insurer on the

premise that the death of Mallappa Yangi is not

attributable to the motor vehicle accident.

5. Heard the learned counsel for the contesting

parties.

6. From the records it is seen that the accident

took place on 04.01.2012. According to the

petitioners/appellants the accident took place as the

tractor bearing Reg.No.KA.26/TA-2553 dashed against

Mallappa Yangi from behind. According to the petitioners

Mallappa Yangi sustained grievous injuries and fracture

and died on the way to the hospital on the same day.

7. The insurer has taken a stand that Mallappa

Yangi did not die due to the motor vehicle accident.

According to insurer he died on account of acute

neurogenic cardiovascular failure. The question to be

decided in these appeals is whether the death of Mallappa

is due to the motor vehicle accident as contended by the

petitioners/appellants or is it due to acute neurogenic

cardiovascular failure as contended by the insurer.

8. Ex.P.7 is the certificate issued by the medical

officer of primary health centre, Kurtkoti. Relevant portion

of the said certificate reads as under:

ªÉÄÃ¯ÁÌtÂ¹zÀ «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¢ªÀAUÀvÀ ²æÃ ªÀÄ®è¥Àà vÀA¢ ºÀ£ÀªÀÄ¥Àà AiÀÄAV ¸Á: PÀÄvÀðPÉÆÃn EªÀgÀ ±ÀªÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß ¢£ÁAPÀ: 4-1-2012 gÀAzÀÄ ªÀiÁqÀ¯ÁV ¸ÀzÀjAiÀÄªÀgÀ ªÀÄgÀtªÀÅ 'cause of death probably due to Acute Neurogenic Cardiovascular failure' ¤AzÁV ¸ÁªÀ£ÀÄß C¦àzÀÄÝ F vÀgÀºÀzÀ ¸ÁªÀÅ C¥ÀWÁvÀzÀ°è CwÃ «gÀ¼ÀªÁV ¸ÀA¨sÀ«¸À§ºÀÄzÀÄ.

9. By placing reliance on the said certificate, the

insurer would contend that the death of Mallappa is not

attributable to the motor vehicle accident. The doctor who

conducted the postmortem is examined as PW.2. In his

examination in chief he says as under:

"According to him probably death may be (sic) caused due to the accidental injuries. If the tractor hit the backside of the person may be (sic) he died to neurogenic cardiovascular failure"

10. In his cross-examination, doctor has stated

that he did not find any external and internal injuries on

the dead body. He further states in the cross-examination

that Ex.P.7 certificate, is issued by him on the basis of the

postmortem report as well as FSL report. Further, a

specific suggestion was put to him by the insurer to the

effect that the death of Mallappa is not due to accident but

is due to acute neurogenic cardiovascular failure. To this

suggestion, PW.2 has stated that the death may happen

due to the accident.

11. From the oral and documentary evidence on

record, it is apparent that the accident has taken place on

04.01.2012 and Mallappa died on the same day. Though it

is forthcoming from the records that external and internal

injuries are not found, given the fact that Mallappa was

aged 50 on the date of the accident, on account of the fact

that tractor dashed him from behind, there is every

possibility of he suffering acute neurogenic cardiovascular

failure. This aspect of the matter can be safely inferred

from the evidence of the doctor. The Tribunal on

appreciation of the evidence, is of the view that the death

is on account of the above referred motor accident. We are

not inclined to take a different view.

12. The Tribunal has also taken note of the fact

that the tractor driver fled from the scene of accident. This

factor would also indicate that the tractor had dashed

against Mallappa. Under these circumstances, there is no

substance in the contention of the insurer that the death of

Mallappa is not attributable to the accident.

13. Since Mallappa died in a motor vehicle

accident, the next question to be decided is quantum of

compensation payable to the dependants of Mallappa. The

Tribunal has taken income of Mallappa at Rs.5,000/- p.m.

and has added 10% income towards future prospects

considering the fact that he was aged 50 at the time of the

accident and 13 multiplier is applied by the Tribunal and

1/4th of the income is deducted towards personal

expenditure of the deceased. And based on the above said

figures the Tribunal has awarded the compensation as

under:

Loss of dependency Rs.6,43,500.00 Loss of estate Rs.15,000.00 Loss of consortium Rs.40,000.00 Funeral expenses Rs.15,000.00 Total Rs.7,13,500.00

14. This Court and the Lok-Adalath while settling

the accidental claims of the year 2012 would normally

assess the income at Rs.6,500/- p.m. wherever there is no

proof for assessing the income. Given the fact that the

deceased was aged 50 years, applying the ratio laid down

in the case of the National Insurance Company Vs

Pranay Sethi (2017 ACJ 2011), we deem it appropriate

to add 25% towards future income to the income of

Rs.6,500/- and hence Rs.8,125/- p.m. is taken as the

income of the deceased to calculate the dependency.

15. It is also noticed from the judgment of the

Tribunal that the Tribunal has awarded consortium of

Rs.40,000/-. As the deceased is survived by wife and three

children, the award for consortium has to be enhanced.

Thus, Rs.40,000/- is awarded to each of the children and

wife. Thus, total consortium of Rs.1,60,000/- is awarded

as against award of Rs.40,000/- applying the ratio laid

down in the case of Magma General Insurance Co.Ltd

Vs Nanu Ram and Others (2018 ACJ 2782).


                                            Amount in
                                              (Rs.)
     Loss of dependency                     9,50,625.00
     Rs.6,500.00 (notional income) +

Rs.1,625.00 (25% addition towards future prospects) = Rs.8,125.00 x 12 = Rs.97,500.00 X 13 multiplier = Rs.12,67,500.00 - Rs.3,16,875.00 (deduction towards 1/4th expenses of the deceased) = Rs.9,50,625.00 Loss of consortium 1,60,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 Total 11,40,625.00 Less award passed by the Tribunal 7,13,500.00 Total enhancement 4,27,125.00

16. The Tribunal has awarded interest at the rate

of 8% p.a. on the compensation awarded. The interest

awarded by the Tribunal is on the higher side given the

present interest regime. Accordingly, the same is reduced

to 6% from the date of accident till the date of realization.

17. In view of the above, we pass the following:

ORDER

The appeal and cross-objection are

allowed in part. The judgment and award dated

09.11.2017 passed in MVC No.101/2012 on

the file of the Additional District and Sessions

Judge, Gadag is modified to the extent