The National Insurance Company ... vs Ahmed Pasha S/O Syed Yakub Ali And ...
2022 Latest Caselaw 8342 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH
        DATED THIS THE 8TH DAY OF JUNE 2022

                      BEFORE

 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               MFA No.201456/2014 (MV)

BETWEEN:
THE NATIONAL INSURANCE
COMPANY LTD.,
BRANCH OFFICE, GIRI COMPLEX,
BASAVESHWAR CHOWK, BIDAR,
REPRESENTED BY ITS MANAGER.
                                          ... APPELLANT
(BY SRI. RAHUL. R. ASTURE, ADVOCATE)

AND:
1.     AHMED PASHA
       S/O SYED YAKUB ALI,
       AGE: MAJOR,
       OCC: BUSINESS & OWNER OF
       BAJAJ AUTO BEARING REG.NO.
       KA-38-3824, H.NO.234,
       MAQDUMPURA COLONY, MAILOOR,
       BIDAR-585401.

2.     MARUTHI S/O LATE MANIK HASGOND,
       AGE: 34 YEARS,
       OCC: AGRICULTURE LABOUR,

3.     JEETAPPA S/O LATE MANIK HASGOND,
       AGE: 32 YEARS,
       OCC: AGRICULTURE LABOUR,
                                 2



4.      RAJAPPA S/O LATE MANIK HASGOND,
        AGE: 20 YEARS,
        OCC: AGRICULTURE LABOUR,

        ALL R/O VILLAGE YERNALLI-D,
        TQ. AND DIST: BIDAR-585401.
                                             ... RESPONDENTS

(BY SRI.SANTOSH BIRADAR, ADVOCATE FOR R2 TO R4;
     V/O DTD. 04.12.2017 NOTICE TO R1 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS AND TO SET ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED
05.03.2014 PASSED BY THE II ADDL. MACT & ADDL. DIST.
& SESSIONS JUDGE, BIDAR, IN M.V.C. NO:315/2010, AND
ALSO MODIFY AND SET ASIDE THE LIABILITY ON THE
APPELLANT FOR THE AWARD OF COMPENSATION, BY
ALLOWING THIS APPEAL AND TO GRANT SUCH ANY
OTHER RELIEF AS THIS HON'BLE COURT DEEMS FIT IN
THE FACTS AND CIRCUMSTANCES OF THE CASE.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed under Section 173(1) of Motor

Vehicles Act, 1988 ('M.V. Act' for short) by the Insurance

Company challenging the judgment and award dated

05.03.2014 passed by II Additional MACT and Additional

District and Sessions Judge at Bidar in MVC No.315/2010,

challenging the liability and cause of accident.

2. For the sake of convenience, the parties

herein are referred as per the ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case is

that, on 14.12.2009 at about 3.20 p.m., the deceased

Sundaramma was proceeding on the road near the D.C.

Office at Bidar. At that time, the driver of an

Autorikshaw bearing Registration No.KA.38/3824 driven

the same in rash and negligent manner and knocked the

deceased Sundaramma, who sustained head injuries along

with injuries on other parts of the body. She was

immediately shifted to Government Hospital at Bidar,

wherein she availed first-aid treatment and later she was

shifted for further treatment to Osmania General Hospital

at Hyderabad, where she has taken long periodical

treatment for more than 2 to 3 months, but succumbed to

injuries 02.03.2010 without responding to the treatment.

The claimants claiming to be the sons of the deceased,

have filed claim petition in MVC No.315/2010 before the

Tribunal claiming compensation of Rs.20.00 Lakhs from

the respondents No.1 & 2.

4. The Respondent No.2-Insurer appeared before

the Tribunal and filed objections to the claim petition

denying the allegations and assertions made there under.

He has also taken various other grounds available to him

and disputed the age, avocation as well as income of the

deceased. He further contended that driver of the

offending vehicle was not possessing a valid and effective

driving licence and there is breach of policy conditions, and

sought for dismissal of the claim petition.

5. The facts that Respondent No.1 is the owner of

offending Autorikshaw, while Respondent No.2 is the

insurer of the said vehicle, are not under serious challenge.

6. After considering the oral as well as

documentary evidence, the Tribunal has awarded a total

compensation of Rs.2,45,243/- with interest at 6% pa.,

from the date of petition till the date of realisation, by

fastening the primary liability on Respondent No.2. Being

aggrieved by this judgment, the appellant-Insurance

Company has filed this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant and the respondent. Perused the

records.

8. Learned counsel for the appellant would

contend that the claimants are the major sons and as

such, they cannot be termed as dependents and hence

they cannot claim any compensation under the head of

Loss of Dependency. He would further contend that the

accident has occurred on 14.12.2009, while the death of

deceased has occurred on 02.03.2010 ie, after lapse of

more than three months and there is no nexus between

death and injuries alleged to have been sustained by the

deceased in the accident in question. Hence, he would

dispute the liability and sought for allowing the appeal.

9. Per contra, learned counsel for the respondents

would support the judgment and award passed by the

Tribunal and further contended that, even if the claimants

are not entitled for compensation under the head of Loss

of Dependency, they are entitled for compensation under

the head of Loss of Estate. He would further contended

that, income of the deceased was taken on lower side by

the Tribunal and further no compensation was awarded

under the head of Loss of Consortium. Hence, he would

contend that, considering all these aspects, the

compensation awarded by the Tribunal is reasonable and

hence, he seeks for dismissal of the appeal.

10. Having heard the arguments of the learned

counsels appearing on both sides and perusing the

records, it is evident from the records that the deceased

Sundaramma was knocked down by Autorikshaw belonging

to Respondent No.1 and she sustained head injury and she

was initially admitted to District Hospital at Bidar and

subsequently, she was shifted to Osmania Hospital at

Hyderabad. The records further clearly disclose that the

driver of the offending vehicle was prosecuted for the

offences punishable under Sections 279, 337 and 338 of

Indian Penal Code. Hence, prima facie it is evident that

the accident in question is because of actionable

negligence on the part of the driver of the offending

vehicle, which was insured with Respondent No.2-National

Insurance Co. Ltd. Apart from that, there is no serious

dispute regarding the vehicle being insured with

Respondent No.2. However, Respondent No.2 has raised

an issue that there is no nexus between cause of death

and injuries sustained by the deceased.

11. It is to be noted here that the accident has

occurred on 14.12.2009 and admittedly, the victim has

initially obtained treatment in District Hospital at Bidar and

subsequently at Osmania Hospital at Hyderabad. The

records further clearly disclose that, the deceased

Sundaramma has subsequently succumbed because of

sustaining head injuries in Osmania Hospiral at Hyderabad.

Ex.P52 is the certificate issued by the Doctor, who treated

the deceased at Osmania Hospital and he specifically

states that the death is because of head injury sustained

by the deceased in a road traffic accident. Hence, the

contention of the learned counsel for the appellant-

Insurance Company that there is no nexus between the

accident and death, cannot be accepted.

12. The other grounds urged by the appellant-

Insurance Company regarding the claimants being major

sons, they cannot be treated as dependents and

compensation cannot be awarded under the head of Loss

of Dependency. In this context, learned counsel for the

respondents has placed reliance on a decision of the

Hon'ble Apex Court reported in Civil Appeal Nos.242-

243 of 2020 (arising out of SLP (Civil) Nos. 976-977

of 2020) [National Insurance Company Limited

Vs.Birender and Others] and contended that the

claimants being the legal representatives of the deceased

are entitled to maintain the claim petition.

13. There is no dispute that the claim petition is

maintainable, as the claimants are the legal

representatives of the deceased. But, the issue raised by

the appellant-Insurance Company is regarding major sons

cannot be dependents of the deceased. In this context, it

is necessary to consider the decision of this Court reported

in 2005(1) ACC 304 (DB) [A. Manavalagan Vs. A.

Krishnamurthy and Ors.] In the said decision, the

Division Bench of this Court had an occasion to consider

the issue regarding dependency and further held that in

case of major, though dependency is not applicable, but

award of compensation under the head of Loss of Estate is

applicable and the same principles as regards calculation

of Loss of Dependency would be applicable in such matters

also. However, it is observed that, when the deceased and

the appellants both are earning, in such cases, the

savings can be taken only at 1/4th of the income. If this

formula is made applicable, then as the accident has

occurred in the year 2009, the notional income is to be

taken at Rs.5,000/- as regularly taken by this Court and

the 1/4th of which works-out to Rs.1,250/-. Since the

deceased is aged 60 years, the multiplier '9' is applicable

and Loss of Estate would be at Rs.1,35,000/-

(Rs.1,250x12x9). At the same time, it is important to note

here that, in view of the decision reported in Magma

General Insurance Company Limited Vs. Nanu Ram @

Chuhru Ram and Others [(2018) 18 SCC 130], the

claimants are entitled for compensation under the head of

Loss of Consortium also. In that event, the claimants are

entitled for Rs.1,20,000/- each. If this calculation is

taken note of, then the claimants would be entitled for

more compensation than the one awarded by the Tribunal.

However, the Tribunal has restricted the compensation to

Rs.2,45,243/- only. Under these circumstances, the

appellant-Insurance Company has not made-out any case

for interference in the judgment and award passed by the

Tribunal, though the Tribunal might have erred in awarding

compensation under the head of Loss of Dependency. But,

that would be compensated under the heads of Loss of

Estate and Loss of Consortium. Hence, no grounds are

forthcoming for interference with the judgment and award

passed by the Tribunal and as such, the appeal is devoid of

any merits and needs to be dismissed. Accordingly, I

proceed to pass the following:-

ORDER

The appeal stands dismissed. The judgment and award dated 05.03.2014 passed by II Additional MACT and Additional District and Sessions Judge at Bidar in MVC No.315/2010, is confirmed.

Sd/-

JUDGE

KGR*