Karnataka High Court
Shivaputrappa S/O Dharmrao Patil And ... vs Rajshekhar S/O Dharmrao Patil And Anr on 8 August, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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MFA No. 200730 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO.200730 OF 2016 (MV-D)
BETWEEN:
1. SHIVAPUTRAPPA
S/O DHARMRAO PATIL
AGE:59 YEARS,
2. BASAVARAJ
S/O SHIVAPUTRAPPA
AGE:32 YEARS
3. JAGDEVI
D/O SHIVAPUTRAPPA
AGE: 26 YEARS
4. DEVENDRA
Digitally signed S/O SHIVAPUTRAPPA
by SUMITRA
SHERIGAR AGE:25 YEARS
Location: HIGH
COURT OF ALL R/O. BIJAPUR ROAD,
KARNATAKA
NEAR NEW BRIDGE
BEHIND JYOTI STD JEWARGI,
DIST:KALABURAGI-585325.
...APPELLANTS
(BY SMT. AMBIKA S. PATIL, ADV. FOR
SRI SACHIN M. MAHAJAN, ADVOCATE)
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MFA No. 200730 of 2016
AND:
1. RAJSHEKHAR S/O DHARMRAO PATIL
AGE:55 YEARS,
OCC:OWNER OF TRACTOR TRAILER
BEARING NO.KA-32-5826-27
R/O. VILLAGE RASANGI,
TQ. JEWARGI, DIST:KALABURAGI-585325.
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD
BILGUNDI COMPLEX,
OPP:MINI VIDHAN SOUDHA
KALABURAGI-585102.
...RESPONDENTS
(BY SRI MANVENDRA REDDY, ADV. FOR R2;
APPEAL AGAINST R1 STANDS ABATED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO,
CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATEDS 30.01.2016 PASSED BY THE HON'BLE SENIOR
CIVIL JUDGE AND MACT AT JEWARGI IN MVC NO.825/2007
AND ALLOW THE SAID CLAIM PETITION BY AWARDING JUST
AND FAIR COMPENSATION BY ALLOWING THE APPEAL AND
ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
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MFA No. 200730 of 2016
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. The claimants are in appeal challenging the dismissal
of the claim petition.
2. Unfortunately, these proceedings have had a long
and checkered history. Initially, the claim petition filed by
the claimants was allowed on 03.01.2009 but the insurer
was absolved of all liability. This led to the claimants
preferring an appeal in MFA 30687/2009.
3. In this appeal, this Court took note of the contention
of the claimants that the accident had occurred at 07:30
p.m. on 01.06.2006. While it was the contention of the
insurer that the accident had occurred after 02.06.2006.
4. It may be pertinent to notice here that the date of
the accident becomes highly relevant since the insurance
for the offending vehicle expired in the intervening night of
01.06.2006 to 02.06.2006.
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5. This Court also took note of the fact that there was a
delay in lodging the FIR which was on 07.06.2006 and the
extract of the medico legal register which was produced
indicated that the deceased was admitted to the hospital
on 02.06.2006 at 2.10 a.m. This Court also took note of
the fact that the distance between Kalaburagi and Jewargi,
where the accident occurred was approximately 70 Kms
and sometime would have been consumed in transporting
the victim of the accident. This Court, therefore was of the
view that it was a fit case to permit the appellants to
produce additional documents and remitted the matter to
the Tribunal with a direction to afford an opportunity to
the parties to produce their evidence and then to dispose
of the case in accordance with law.
6. The Tribunal, however, on remand has gone on to
dismiss the claim petition itself. The Tribunal has observed
that immediately after the accident it was stated that the
victim was shifted to the Government Hospital and
thereafter she was shifted to the hospital at Kalaburagi,
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where she underwent treatment for 7 days before
succumbing to her injuries. The Tribunal has therefore
come to the conclusion that the occurrence of the accident
ought to have been informed by the Government Hospital
by treating as an MLC case. However, the police had not
been informed about the accident and therefore the
occurrence of the accident on 01.06.2006 could not be
believed.
7. The Tribunal has also taken note of the fact that
there was evidence to indicate that after the incident
victim was taken to a private hospital and since there was
no improvement, she was taken to the hospital at
Kalaburagi and these contradictions were sufficeint to
dismiss the claim petition.
8. In my view, this approach of the Tribunal is
improper. The fact that the victim suffered serious injuries
and succumbed to the same is not in dispute. In fact, the
finding of this Court in the earlier round of litigation was
that an accident did take place and the only requirement
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was to find out as to on what date the accident took place
in view of the crucial fact that the insurance policy was
expiring on the intervening night of the 1st and 2nd June
2006.
9. As noticed above, it is not in dispute that the victim
was admitted to the District Hospital Kalaburagi on
02.06.2006 at 02:15 a.m. and the admission register
produced indicates that the final diagnosis was head injury
and she was being referred to a Neurosurgeon. As noticed
above, the accident occurred at Jewargi and the distance
as recorded by this Court in the earlier proceedings was
that Jewargi was about 70 kms away from Kalaburagi.
From these facts by themselves, it is clear that in order to
transport a victim of an accident from a place about 70
kms away, certainly a large amount of time would have
been consumed. If regard is had to the fact that the
claimant was a rustic villager and the resources available
to transport her immediately would be minimal, it will
have to be assumed that in order to secure a vehicle,
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make arrangements to shift her, a rather large amount of
time would have been consumed. It can therefore be
safely concluded that if she was admitted at the
Government Hospital Kalaburagi at 02:15 a.m., the
accident would have occurred at least 3 to 4 hours prior to
the accident.
10. If it is to be borne in mind, that in our country, an
immediate reaction by the authorities on the occurrence of
an accident is not possible and the involvement of the
public in transporting the victims is also guarded having
regard to the consequences of persons who assist the road
accident victims would have to face considerable time
would be consumed in transporting the victim.
11. In that view of the matter, it would be safe to
assume that the accident did occur prior to the expiry of
insurance i.e., prior to the midnight of 01.06.2006 and
therefore the liability of the insurer would be attracted.
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12. This Court on the earlier occasion, had accepted the
fact that the claimant was entitled to the compensation
but was only concerned with the fastening of liability. In
fact, this Court while remanding the matter specifically
stated that the question of compensation to be granted
was also being kept open for consideration.
13. In that view of the matter, the entitlement of the
claimants for compensation for the death of Nagamma will
also have to be determined.
14. The evidence on record indicates that Nagamma was
aged about 50 years. As the accident is of the year 2006
and there is no actual evidence to indicate her actual
income, it will be safe to presume that her notional income
was Rs.3,750/- as assessed by the Karnataka State Legal
Services Authority. The post mortem report indicates that
the age of the deceased was 45 years, while the records of
the Government Hospital at Kalaburagi indicates it is 40
years and the records at the Basaveshwar Teaching and
General Hospital, indicates it is 52 years. In my view,
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therefore, it will be safe to assume the date i.e.,
mentioned in the post mortem report i.e., 45 years. As a
consequence the multiplier of 14 will have to be applied.
15. To the said notional income of Rs.3,750/-, 25% will
have to added towards future prospects which would result
in the monthly income of Rs.4,687/-.
16. Out of the said sum, 1/4th of the same (Rs.1,171/-)
would have to be deducted towards personal expenses of
the deceased, as he was survived by her husband, sons
and daughter. The net income will be Rs.3,516/-.
17. As the deceased was aged 45 years, a multiplier of
'14' would have to be applied. Consequently, the claimants
would be entitled to a sum of Rs.5,90,688/- (Rs.3,516/- x
12 x 14) towards "loss of dependency".
18. The claimants being the dependants , they would
each be entitled to a sum of Rs.44,000/- towards "loss of
consortium" i.e., in all Rs.1,76,000/- and they would also
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be entitled to a sum of Rs.33,000/- under the
"conventional heads".
19. Though there is no evidence of any medical
expenditure produced since the evidence on record clearly
indicates that she was hospitalized for 7 days, it would be
appropriate to award a sum of Rs.25,000/- towards
medical expenses.
20. In all, the claimants, in modification of the impugned
award, would be entitled to the following sums:
Sl. Amount
Particulars
No. (In Rs.)
1. Loss of Dependency 5,90,688/-
2. Loss of Consortium 1,76,000/-
3. Conventional Heads 33,000/-
4. Medical expenses 25,000/-
Total 8,24,688/-
21. Thus, the claimant would be entitled for
compensation of Rs.8,24,688/- as along with interest at
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the rate of 6% per annum from the date of petition till its
realization.
22. The Insurance Company is directed to deposit the
amount of compensation awarded within a period of two
months from the date of receipt of a certified copy of this
judgment.
23. The entire amount shall be released in favour of the
claimants on proper identification.
The appeal is accordingly allowed in part.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
MSR
