Karnataka High Court
New India Assurance Co., Ltd vs Anusaya W/O Shekar Kushnagol on 5 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 101195 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISC. FIRST APPEAL NO.101195 OF 2014 (MV-D)
BETWEEN:
1. NEW INDIA ASSURANCE CO., LTD.,
BY ITS DIVISIONAL MANAGER,
MUDALAGI BUILDING,
CLUB RAOD, BELGAUM.
HEREIN REP. BY
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI - 580 029.
REPRESENTED BY ITS REGIONAL,
MANAGER.
...PETITIONER
(BY SRI. R. R. MANE, ADVOCATE)
AND:
1. ANUSAYA,
W/O SHEKAR KUSHNAGOL,
ANNAPURNA
CHINNAPPA AGE: ABOUT 43 YEARS,
DANDAGAL OCC: HOUSEWIFE,
Digitally signed by
ANNAPURNA CHINNAPPA
R/O: BHARAT GALLI, MUCHANDI,
DANDAGAL
Location: High court of
Karnataka, Dharwad Bench,
Dharwad
TQ: DIST: BELGAUM.
Date: 2023.01.17 10:54:55 -0800
2. NAGARAJ,
S/O SHEKAR KUSHNAGOL,
AGE: ABOUT 24 YEARS,
OCC: CENTERING,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
3. KUMARI. SUNITA,
D/O SHEKAR KUSHNAGOL,
-2-
MFA No. 101195 of 2014
AGE: ABOUT 22 YEARS,
OCC: STUDENT,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
4. KUMARI. SUJATA,
D/O SHEKAR KUSHNAGOL,
AGE: ABOUT 20 YEARS,
OCC: STUDENT,
R/O: BHARAT GALLI, MUCHANDI,
TQ: DIST: BELGAUM.
5. RAMESH,
S/O POPATLAL JUNNARKAR,
AGE: ABOUT 49 YEARS,
OCC: BUSINESS,
R/O: 417/E, WARD SHAHUPURI,
KOLHAPUR, MAHARASHTRA-416 001.
(OWNER OF TRUCK NO.MH-09/BC-7086)
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE FOR R1 TO R4;
R5 - SERVED)
THIS MFA FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DATED 07.02.2014, PASSED
IN MVC.NO.1187/2010 ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE AND ADDL. MACT BELGAUM, AWARDING THE
COMPENSATION OF RS.8,53,000/- WITH THE INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE / DELIVERED THE FOLLOWING:
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MFA No. 101195 of 2014
JUDGMENT
Challenging judgment and award dated
07.12.2014 passed by I Additional Senior Civil
Judge and Additional MACT, Belgaum (for short,
'tribunal') in MVC.no.1187/2010, this appeal is
filed by Insurer - New India Assurance Company
Ltd.
2. Brief facts as stated are that in an
accident that occurred on 26.07.2009 between
motorcycle bearing registration no.KA-22/4949, on
which deceased Shekhar Fakirappa Kushnagol was
riding and Truck bearing registration no.MH-09/BC-
7086, Shekhar Fakirappa Kushnagol sustained
grievous injuries. He was diagnosed with L1
paraplegia with paralytic ileus. He took treatment
at several hospitals and died during treatment on
04.11.2009.
3. Alleging that death was on account of
injuries sustained in accident which occurred due
MFA No. 101195 of 2014
to rash and negligent driving of Truck by its driver,
legal representatives of deceased Shekhar
Fakirappa Kushnagol filed claim petition under
Section 166 of M.V Act, against owner and insurer
of Truck.
4. Upon service of notice, only insurer
contested claim petition while owner was placed
ex-parte. In its objection, insurer contended that
accident was not due to rash and negligent driving
of driver of Truck, and it was solely due to rash
and negligent riding of rider of motorcycle by
deceased. It was also contended that there was no
nexus between accidental injuries and death of
Shekhar Fakirappa Kushnagol and therefore claim
petition as filed was not tenable. Violation of policy
condition by insurer was also alleged.
5. Based of pleadings, tribunal framed
following issues:
MFA No. 101195 of 2014
1. Whether petitioners prove that on
26.07.2009 at 20-45 hours
Shekhar S/o Fakirappa Kushnagol
died in the accident due to rash
and negligent driving of the driver
of Truck bearing No.MH-09/BC-
7086?
2. Whether petitioner is entitled for
compensation? If so, what amount
and from whom?
3. What order or award?
6. Thereafter, it recorded evidence of
claimant no.1 as PW-1 and three doctors as PWs.2
to 4 and got marked Exs.P1 to P18. On behalf of
respondent - insurer no oral evidence was led, but
copy of charge-sheet and insurance policy were
marked as Exs.R1 and R2.
7. On consideration, tribunal answered
issues no.1 and 2 in affirmative and issue no.3 by
allowing claim petition in part awarding total
compensation of Rs.8,53,000/- with interest @ 6%
MFA No. 101195 of 2014
per annum and holding respondents no.1 and 2 -
owner and insurer are jointly and severally liable
to pay compensation.
8. Assailing said award, insurer is in appeal.
9. Sri. R.R. Mane, learned counsel for
appellant - insurer submitted that accident
occurred on 26.07.2009, but injured Shekhar
Fakirappa Kushnagol died on 04.11.2009.
Therefore, there was no nexus between accidental
injuries and death and therefore, insurer was not
liable to answer death claim. Besides driver of
Truck was charge-sheeted only under Sections 279
and 337 of IPC. It was further contended that no
postmortem was conducted and therefore,
claimants failed to establish nexus between death
and accidental injuries.
10. Apart from above, it was submitted that
even insofar as contributory negligence, tribunal
MFA No. 101195 of 2014
committed error. It was submitted that accident
occurred when Truck was moving ahead on
Belgaum Sankeshwar road and deceased was riding
motorcycle behind Truck. As per complaint - Ex.P2,
complainant was an eyewitness, who stated that
deceased was riding motorcycle in rash and
negligent manner and when Truck stopped to take
turn, deceased was unable to stop as he was not
maintaining safe distance therefore, apportionment
of contributory negligence against deceased was
also required.
11. To substantiate said contention, attention
was drawn to Ex.R1 and Ex.P6, wherein abated
charge-sheet was filed against deceased under
Sections 3 and 181 of M.V Act, which would
indicate that deceased was riding motorcycle
without license and being unaware of traffic rules.
12. Insofar as quantum of compensation, it
was submitted that deceased was stated to be
MFA No. 101195 of 2014
working as Security Guard and earning Rs.6000/-
per month. Even though claimants failed to
produce any proof of avocation and income,
tribunal considered his monthly income at
Rs.6000/- which was excessive.
13. It was submitted that even addition of
future prospects at 15% was not justified as age of
deceased as per Ex.P10 - Hospital records was 53
years. Since he was in self employment, addition
of future prospects could only be at 10%. It was
also contended that claimant no.2 was aged 20
years and shown to be working and therefore, he
would not be dependent. Consequently, deduction
of 1/4 t h towards personal expenses considering
claimant no.2 also as dependent would be
unjustified and seeks interference.
14. On other hand, Sri. Vishwanath
Allannavar, advocate appearing for Sri. Vitthal S
Teli, learned counsel for claimants - respondents
MFA No. 101195 of 2014
no.1 to 4 submitted that treatment records of
hospital - Exs.P7 to P17 would indicate that
deceased - Shekhar Fakirappa Kushnagol was
under treatment for L1 paraplegia with paralytic
ileus as he had sustained spinal injury. It was
further submitted that deceased had taken
treatment at three hospitals and even death
occurred while he was in treatment at BIMS
hospital as indicated in Ex.P18 - death certificate.
Therefore, there was no merit in challenging
appeal on ground of nexus between accidental
injuries and death.
15. Insofar as contributory negligence, it was
submitted that accident occurred on Highway,
when driver of Truck stopped it suddenly without
signal leaving no response time to deceased -
Shekhar Fakirappa Kushnagol, who was following it
on his motorcycle. Therefore, assigning entire
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MFA No. 101195 of 2014
negligence upon Truck driver by tribunal was
justified.
16. Insofar as monthly income, it was
submitted fact that Shekhar Fakirappa Kushnagol
was working as a Security Guard was taken into
account while considering his monthly income at
Rs.6000/- and for addition of 15% towards future
prospects.
17. Insofar as claimant no.2, though his age
was stated to be 20 years and working, he was
depending upon income of deceased and there was
no evidence to establish otherwise. Under
circumstances, deduction towards dependency was
justified.
18. Apart from above, it was submitted that
tribunal has awarded compensation of Rs.50,000/-
to claimant no.1 towards consortium and
Rs.10,000/- each to claimants no.2 to 4 towards
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MFA No. 101195 of 2014
loss of care and guidance, which was less than
compensation required to be awarded as per
decision of Hon'ble Supreme Court in case of
Pranay Sethi's case. Therefore, scope for
enhancement would easily offset any reduction
under other heads and sought for dismissal of
appeal.
19. Heard learned counsel, perused impugned
award and records.
20. From above submission, points that arise
for consideration is:
1. "Whether finding of Tribunal
regarding contributory negligence
requires interference?
2. Whether assessment of
compensation by Tribunal requires
modification as sought for?"
21. Point no.1: Insofar as contributory
negligence, on perusal of Ex.P2 - Complaint, it is
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MFA No. 101195 of 2014
seen that complainant is an eyewitness, who
stated that both driver of Truck as well as rider of
motorcycle deceased - Shekhar Fakirappa
Kushnagol were in rash and negligent manner
while driving their respective vehicles at time of
accident. But, he also specifically stated that
driver of Truck stopped his vehicle suddenly to
take turn. Though, vehicle following it is required
to maintain safe distance, admittedly, accident
occurred on Belgaum Sankeshwar Road, which is a
National Highway. Therefore, stopping of vehicle
suddenly without signal would invite greater
negligence on part of driver of Truck than that of
vehicle following it.
22. On perusal of spot panchanama, it is seen
that no brake marks were noted of motorcycle. In
view of Rule 23 of Rules of Road Regulations Act,
1989, failure of maintaining sufficient distance
would entail some extent of contributory
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MFA No. 101195 of 2014
negligence. Under above mentioned facts and
circumstances, it would be appropriate to
apportion it at 10% against deceased - Shekhar
Fakirappa Kushnagol. Therefore, point no.1 is
answered in partly affirmative. Liability of insurer
is held at 90% and claimants would be denied
compensation at 10%.
23. Point no.2: Insofar as quantum of
compensation, at outset on perusal of Exs.P5 and
P7 to P17 - medical records of deceased, it is seen
that he sustained grievous injuries to his spinal
chord. He was diagnosed for L1 paraplegia with
paralytic ileus. Ex.P18 - death certificate would
indicate that injured died during treatment.
Further, doctor examined have opined that there
was possibility of death due to severity of injuries.
Under circumstances, in absence of specific
evidence that death was not due to accidental
injuries and finding of tribunal regarding nexus
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MFA No. 101195 of 2014
between death and accidental injures cannot be
interfered with.
24. As stated above, accident occurred on
26.07.2009, though deceased was stated to be
working as Security Guard and earning Rs.6000/-
per month, there was no specific evidence led to
establish either avocation or income. In absence,
tribunal was required to assess notional income.
Notional income for year 2009 as per norms
adopted for settlement of cases before Lok Adalath
is Rs.5000/-. Considering income of Rs.6,000/- by
tribunal would not justified. It has to be
considered as Rs.5,000/-.
25. Since deceased was 53 years of age as
determined by tribunal, addition of future
prospects at 15% would be contrary to decision of
Hon'ble Supreme Court in case of Pranay Sethi's
case. Therefore, it has to be modified to 10%.
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MFA No. 101195 of 2014
26. Indeed, in cause title of claim petition
age of claimant no.2 was shown as 20 years and
his occupation was centering. However, on perusal
of cross-examination of PW-1, it is seen that there
is no suggestion for claimant no.2 was not
depending upon income of deceased. Under
circumstance, considering him as dependent,
tribunal has rightly deducted 1/4 t h towards
personal expenses. Thus, loss of dependency would
be:
Rs.5000 X 1.1 X 0.75 X 12 X 11 = Rs.5,44,500/-.
27. Towards medical and incidental expenses
Rs.60,000/- has awarded by tribunal against
medical bills and other conventional heads as
Rs.40,000/- to claimant no.1 towards spousal
consortium and Rs.40,000/- each to claimants no.2
to 4 towards parental consortium. Rs.15,000/-
towards funeral expenses and Rs.15,000/- towards
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MFA No. 101195 of 2014
loss of estate. Thus, total compensation under
conventional heads is Rs.1,90,000/-.
28. As per Pranay Sethi's case there has to
be an addition of 10% to award under conventional
heads as more than 3 years have lapsed after
rendering decision in Pranay Sethi's case. Thus,
Rs.1,90,000/- X 10% = Rs.19,000/- has to be
added. Thus, total compensation would be:
Rs.5,44,500/- + Rs.60,000/- + Rs.2,09,000/- =
Rs.8,13,500/-.
[
Therefore, there would be reduction of
compensation of Rs.39,500/-. Thus, point no.2 is
answered partly in affirmative.
29. In view of above finding, I pass
following:
ORDER
i. Appeal of insurer is allowed in part
as above.
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MFA No. 101195 of 2014
ii. Compensation determined by tribunal
is reduced from Rs.8,53,000/- to
Rs.8,13,500/-.
iii. Liability of appellant - insurer is held
at 90% of same only.
iv. Needless to state that claimants
would be entitled to interest at 6%
from date of claim petition till
deposit.
v. Direction issued by tribunal
regarding apportionment, deposit etc
are not disturbed and would apply to
re-assessed compensation proportionately.
vi. Balance compensation to be
deposited by insurer, if not
deposited. If already deposited
insurer - appellant would be entitled
for refund of excess amount.
Sd/-
JUDGE
GRD
