Karnataka High Court
National Insurance Company Ltd vs Menpa Maistry on 10 January, 2023
Bench: T G Gowda
MFA.4286/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.4286 OF 2014 (MV)
BETWEEN:
NATIONAL INSURANCE COMPANY LTD.
BRANCH OFFICE, II FLOOR
YASHARONU CHEMBUR
RATHNAGIRI ROAD
CHIKMAGALUR-577101
BY ITS BRANCH MANAGER. ... APPELLANT
(BY SMT. H.R. RENUKA, ADV.)
AND:
1 . MENPA MAISTRY
S/O PAJIA MAISTRY
AGED ABOUT 53 YEARS
R1 DECEASED
R2 IS THE LR
REPRESENTED BY RESPONDENT NO.2
PREMA
D/O MENPA MAISTRY
2 . PREMA
D/O MENPA MAISTRY
AGED ABOUT 23 YEARS
BOTH R/O KRISHNA NIVAS ESTATE
KABBINAHALLI POST AND VILLAGE
MUDUGERE TALUK
CHIKMAGALUR DISTRICT-577101.
3 . ANIL BAPTIST
S/O AGTHONE BAPTIST
MFA.4286/2014
2
AGED ABOUT 42 YEARS
R/O ADISHAKTHI
RAMAPURA POST
CHIKMAGALUR DISTRICT. ... RESPONDENTS
(BY SRI P. KARUNAKAR, ADVOCATE FOR R2;
VIDE ORDER DATED 07.06.2019 R2 IS TREATED AS
LR OF DECEASED R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.03.2014
PASSED IN MVC NO.1847/2010 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & MEMBER, MACT,
MANGALORE, AWARDING A COMPENSATION OF RS.5,50,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL ITS REALISATION OR DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.12.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal the appellant has challenged the
judgment dated 03.03.2014 passed in
M.V.C.No.1847/2010 by the Principal Senior Civil
Judge & Motor Accident Claims Tribunal, Mangalore
(Hereinafter referred to as 'Tribunal' for short).
2. The appellant-insurance company was the
second respondent, respondent Nos.1 and 2 were
the petitioners, and respondent No.3 was respondent
MFA.4286/2014
No.1 before the Tribunal. The parties will be referred
with respect to their status before the Tribunal for
the sake of convenience.
3. Briefly stated, the facts are that, one Ravi,
the deceased, was the son of the first petitioner and
brother of second petitioner. They were the residents
of Mudigere Taluk. The deceased was suffering from
Jaundice. On 13.04.2010, for higher treatment, he
was carried in an Ambulance bearing No.KA-13/M-
0472 from Chikmagalur to Mangalore. At about 2.30
a.m., at Kodekkal Railway over bridge, Alape village
it was driven by its driver in a rash and negligent
manner and toppled, causing injures to the
deceased. He was succumbed to the injuries at
Mangalore Hospital.
4. The petitioners moved the Tribunal seeking
compensation that the deceased died on account of
the accident. The claim was opposed by the
respondents on the ground that there is no nexus
MFA.4286/2014
between the accident and death of the deceased.
The Tribunal considering the evidence awarded
compensation of Rs.5,50,000/- with interest @ 6%.
5. The Insurance Company is before this court
on the ground that there was no nexus between the
accident and death of the deceased. FSL report has
suggested that the death was due to lobor
Pneumonia and Tuberculosis with mild steatosis of
liver, and it was not on account of the accident. The
Tribunal ought to have rejected the claim and also
urged that the income taken and assessment of
dependency was on higher side.
6. Heard Smt.H.R.Renuka, learned counsel for
the insurer and Sri.P.Karunakar, learned counsel for
the petitioner No.2. Respondent/Petitioner No.1 died
during the pendency of this appeal.
7. It has been argued by learned counsel for
the insurer referring to FSL report that death of the
MFA.4286/2014
deceased was due to his ailment for which he was
being carried to Mangalore and the Tribunal has
committed an error in assessing the compensation
instead of dismissing the claim.
8. Per contra, learned counsel for the
petitioners submitted that the deceased though was
suffering from illness, he was being carried to
Mangalore, if he had been admitted to Mangalore
Hospital, he would have been survived with proper
treatment, but because of the accident, his ailment
was aggravated and for this reason, he died and FSL
report is nothing to do with it and the death was on
account of the accident and there is a nexus.
9. I have given my anxious consideration to the
arguments advanced on both sides and perused the
materials on record.
10. There is no dispute that the deceased was
suffering from jaundice and the cause of death as
MFA.4286/2014
mentioned in the FSL report was on account of
Jaundice. If the deceased was carried to provide him
with better treatment, if he had treated at Mangalore
his ailment could have been cured and walked out of
the hospital, jaundice is not a fatal ailment, better
treatment is available at higher medical centers like
Mangalore and for that reason, he was being carried
in an Ambulance. The driver though knew that he is
carrying a patient, did not take precaution while
driving, instead, he negligently caused the accident,
due to the impact, the ailment of the deceased was
aggravated and the patient died in the hospital.
Hence, there is nexus to accident and cause of death
of the deceased, but the percentage may vary and
therefore, there is no sound argument on behalf of
the insurance company. Hence, the ground urged for
dismissal of claim cannot be supported with.
11. Insofar as award of compensation is
concerned, the Tribunal has taken the income of the
MFA.4286/2014
deceased at Rs.5,000/- per month and deducted
50% towards personal expenses and applied the
multiplier of '17' for the age of the deceased at 26
years and assessed loss of dependency at
Rs.5,10,000/-. Under conventional heads, awarded
Rs.40,000/-, in all Rs.5,50,000/-.
12. At the time of accident, deceased was alive,
because of the accident he died. The reason for the
death has nexus to the accident though his serious
ailment aggravated death. Even assuming for the
sake of argument that the accident may have
impacted and aggravated the ailment, but it cannot
be more than 50%. The accident was of the year
2010, the deceased was a bachelor aged 26 years,
he was an earning member, without proof of income,
his income is taken at Rs.5,500/- and 40% of future
prospects Rs.2,200/- is added in view of National
Insurance Co.Ltd. -vs- Pranay Sethi and
MFA.4286/2014
Others1 case, then it comes to Rs.7,700/- if 50% of
the impact is taken out, then it will come to
Rs.3,850/-, since the deceased was a bachelor,
another 50% is taken out towards personal
expenses, it comes to Rs.1,925/- multiplied by '17',
the loss of dependency comes to Rs.3,92,700/-
(Rs.1,925/-x17x12).
13. Under the conventional heads, for love and
affection Rs.40,000/-, loss of estate and funeral
expenses Rs.15,000/- each if added, then
compensation will come to Rs.4,62,700/- as against
a sum of Rs.5,50,000/-. Hence, the second
petitioner being the unmarried sister since father
died during pendency of the appeal, is entitled to
Rs.4,62,700/- as against Rs.5,50,000/- awarded by
the Tribunal. Accordingly, the appeal needs to be
allowed and order of the Tribunal needs modification.
(2017) 16 SCC 680
MFA.4286/2014
14. In the result, I pass the following:
ORDER
The appeal is allowed in part.
The judgment and award passed by the
Tribunal stands modified.
The petitioner No.2 is entitled to compensation
of Rs.4,62,700/- with interest @ 6% per annum from
the date of petition till its realization.
The 2nd respondent is directed to satisfy the
award within 8 weeks from the date of receipt of
certified copy of this judgment.
The amount in deposit, if any, shall be
transmitted to the Tribunal for disbursal forthwith.
Sd/-
JUDGE
KNM/-
