Karnataka High Court
Sri.Gopal.N Hegde vs The Oriental Insurance Company Ltd on 5 June, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:7476-DB
MFA No. 101228 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101228 OF 2019 (MV-I)
BETWEEN:
1. SRI GOPAL N.HEGDE S/O. LATE NARASIMHA HEDGE,
SINCE DECEASED, REPRESENTED BY HIS LR'S
1(A). SMT. RADHA GOPAL HEDGE,
W/O. LATE GOPAL N.HEGDE,
AGED ABOUT 50 YEARS, OCC. HOMEMAKER,
RESIDING AT JADDITOTA, KOTEPAL,
KATTINAHAKKALU GRAMA, SUNKASAL,
ANKOLA, UTTARA KANNADA-581314.
1(B). SRI NARASIMHA GOPAL HEDGE,
S/O. LATE GOPAL N.HEGDE,
AGED ABOUT 29 YEARS, OCC. AGRICULTURE,
RESIDING AT JADDITOTA, KOTEPAL,
KATTINAHAKKALU GRAMA, SUNKASAL,
ANKOLA, UTTAR KANNADA-581314.
Digitally signed by
SAROJA
HANGARAKI 1(C). SMT. NAGARATNA D/O. GOPAL HEDGE,
Location: HIGH W/O. GANESH M.HEGDE,
COURT OF AGED ABOUT 27 YEARS, OCC. HOMEMAKER,
KARNATAKA
RESIDING AT BANASAGARA, ANGADIBAIL,
ACHAVE POST, ANKOLA,
UTTAR KANNADA DISTRICT-581344.
...APPELLANTS
(BY SRI MANJUNATH HEGDE, ADVOCATE)
-2-
NC: 2024:KHC-D:7476-DB
MFA No. 101228 of 2019
AND:
1. THE ORIENTAL INSURANCE COMPANY LTD.,
OFF. AT, KVA COMPLEX, 90-A, THURAYUR ROAD,
NAMAKKAL, TAMIL NADU-637001,
REPRESENTED BY ITS BRANCH MANAGER,
INSURER OF LPG TANKER LORRY
BEARING NO.TN-28 AA 4180.
2. SRI P. VEERAPPAN S/O. PALANIYANDI GOUNDER,
AGE. MAJOR,
RESIDING AT 4/636, KONDICHETTYPATTY
MOHANUR ROAD, NAMAKKAL, TAMIL NADU-637001
(OWNER OF THE LORRY).
3. SRI S. DINESH KUMAR S/O. SIVRAJ,
AGED ABOUT: 38 YEARS,
RESIDING AT NO.5/57B, VARAGURU, NAMAKAL TALUK,
NAMAKKAL DISTRICT, TAMIL NADU-637001
(DRIVER OF THE LORRY).
4. SRI N.R. KARTHIK S/O. SRI S.D. RAMASWAMY,
AGE. MAJOR,
RESIDING AT NO.22, KUPPANNAN STREET,
R.P. PUDUR, NAMAKKAL, TAMIL NADU-637001.
...RESPONDENTS
(BY SRI RAJSHEKHAR S.ARAVI, ADVOCATE FOR R1;
NOTICE TO R2 SERVED;
NOTICE TO R3 AND R4 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 24.12.2018 PASSED IN MVC NO.166/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, ANKOLA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE
FOLLOWING:
-3-
NC: 2024:KHC-D:7476-DB
MFA No. 101228 of 2019
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal with the consent of learned counsel for both
the parties.
2. The claimants-legal representatives of one Gopal
N.Hegde are in appeal not being satisfied with the quantum of
compensation awarded under judgment and award dated
24.12.2018 passed in MVC.No.166/2017 on the file of the
learned Senior Civil Judge and Additional M.A.C.T., Ankola (for
short, 'the Tribunal') and are praying for enhancement of
compensation awarded by the Tribunal.
3. Brief facts leading to filing up of the present appeal
are that, initially the injured-Gopal N.Hegde filed claim petition
under Section 166 of the Motor Vehicles Act, 1988 claiming
compensation for the accidental injuries sustained by him in a
road traffic accident on 29.09.2016 involving motorbike bearing
registration No.KA-47/K-2265 and tanker bearing registration
No.TN-28/AA-4180. It is stated that the injured-claimant was
aged 48 years as on the date of the accident and was an
NC: 2024:KHC-D:7476-DB
agriculturist and a businessman earning a sum of Rs.50,000/-
per month.
4. On issuance of notice, respondent No.1-Insurance
Company appeared before the Tribunal and filed its objection
statement denying the claim petition averments and contended
that the accident occurred due to the negligent act on the part
of the rider of motorcycle (i.e.claimant-injured) and sought for
dismissal of the claim petition.
5. Before the Tribunal, the claimant examined himself
as PW1 and examined Doctor who treated him as PW4 apart
from examining PW2 and PW3 to prove his income. The
claimant also marked 21 documents as Exs.P1 to P21. No
witness was examined on behalf of the respondents, but
marked one document as Ex.R1 with consent.
6. The Tribunal on scrutiny of material on record,
awarded total compensation of Rs.20,74,000/- on the following
heads:
NC: 2024:KHC-D:7476-DB
1. Pain, Shock and sufferings Rs.75,000/-
2. Food and nourishment Rs.20,000/-
3. Attendant Charges Rs.5,000/-
4. Travelling Expenses Rs.10,000/-
5. Medical expenses Rs.10,00,000/-
6. Loss of income during laid up period Rs.20,000/-
7. Loss of dependency Rs.8,32,000/-
8. Future medical expenses Rs.1,00,000/-
9. Future attendant charges Rs.12,000/-
Total Rs.20,74,000/-
7. While awarding the compensation, the Tribunal
taking note of the injuries sustained by the claimant-injured,
assessed the disability at 100% and taking note of the medical
evidence, treated the case of the claimant as death case and
awarded the above compensation. The Tribunal assessed the
income of the claimant at Rs.8,000/- per month, adopted
multiplier of 13 and granted medical expenses of
Rs.10,00,000/-. The injured-claimant not being satisfied with
the quantum of compensation, preferred this appeal praying for
enhancement of compensation. Unfortunately, during the
pendency of this appeal, the claimant-injured died on
17.09.2019 and by order dated 06.07.2022 the legal
representatives of the claimant-injured-deceased came on
record.
NC: 2024:KHC-D:7476-DB
8. Heard Sri.Manjunath Hegde, learned counsel for the
appellants, Sri.Rajashekhar S.Arani, learned counsel for
respondent No.1-Insurance Company and perused the appeal
papers as well as original records.
9. Sri.Manjunath Hegde, learned counsel for the
appellants-legal representatives of the original
claimant-deceased would submit that the appellant-original
claimant died during the pendency of the appeal on 17.09.2019
and the Post Mortem Report which is enclosed to the
application for bring the legal representatives on record would
clearly indicates the reasons for death as due to
cardiorespiratory failure due to septicemnia as a result of
prolonged illness. Learned counsel would submit that the
injured-deceased never recovered from the accidental injuries
and he was under coma. The Tribunal taking note of the
medical evidence treated the case of the injured-deceased as a
case of death and awarded compensation on the head of loss of
dependency. Learned counsel would submit that while awarding
the compensation under the head of loss of dependency, the
Tribunal has committed a grave error in assessing the income
of the injured at Rs.8,000/- per month. Learned counsel would
NC: 2024:KHC-D:7476-DB
submit that the deceased had income of more than 50,000/-
per month from agricultural activities as well as from his
arecanut business. Learned counsel would submit that the
deceased was doing arecanut business and to substantiate the
same, PW3 was examined. He submitted that the Tribunal
without appreciating the evidence of PW3 assessed the income
of the deceased at Rs.8,000/- per month which needs to be
revised on the higher side.
10. Further, learned counsel would submit that the
Tribunal has also committed grave error in not granting future
prospects which the claimants are entitled to at 25% of the
assessed income since the deceased was aged 45 years in
terms of decision of the Hon'ble Apex Court in the case of
National Insurance Company Limited Vs. Pranay Sethi &
Others1.
11. Learned counsel would submit that the appellants
have filed I.A.No.2/2019 seeking leave to produce additional
documents under Order 41 Rule 27 of CPC. That the claimants
have incurred medical expenses to the tune of Rs.1,45,000/-
2017 (16) SCC 680
NC: 2024:KHC-D:7476-DB
subsequent to disposal of the claim petition in
MVC.No.166/2017. Learned counsel would submit that the
Tribunal had granted compensation of Rs.1,00,000/- towards
future medical expenses out of the claim of Rs.1,45,000/- after
adjusting Rs.1,00,000/- compensation towards future medical
expenses, prays for considering the grant of compensation
under the head of medical expenses to the tune of Rs.45,000/-.
Thus, he prays for allowing the appeal.
12. Per contra, Sri.Rajashekhar S.Arani, learned
counsel for respondent No.1/Insurance Company though would
not dispute granting compensation for treating the injured as a
case of death, but he submits that the compensation granted
by the Tribunal is just compensation which requires no
interference. Learned counsel would submit that no proper
documents are produced to establish the income of the
claimant-injured, therefore, the Tribunal is justified in assessing
the income of the claimant-injured at Rs.8,000/- per month. It
is also submitted that the Tribunal has granted Rs.1,00,000/-
towards future medical expenses, therefore, he submits that
the claimants would not be entitled for any further
NC: 2024:KHC-D:7476-DB
compensation towards medical expenses. Thus, he prays for
dismissal of the appeal.
13. Having heard the learned counsel for the parties
and on perusal of the appeal papers including trial Court
records, the following points would arise for our consideration:
(i) Whether the Tribunal is justified in assessing the
income of the claimant-injured-deceased at
Rs.8,000/- per month?
(ii) Whether the claimant would be entitled for adding
25% of the assessed income towards future
prospects?
(iii) Whether the claimants would be entitled for
medical expenses as claimed by producing
documents under I.A.No.2/2019 filed under Order
41 Rule 27 of CPC?
14. Our answer to point No.(a) is in the negative and
'affirmative' for points No.(b) and (c), for the following reasons:
15. The accident that occurred on 29.09.2016 involving
motorbike bearing registration No.KA-47/K-2265 and tanker
bearing registration No.TN-28/AA-4180 resultant grievous
injuries sustained by the claimant-injured is not in dispute in
- 10 -
NC: 2024:KHC-D:7476-DB
this appeal. Initially, the claimant-injured was in appeal praying
for enhancement of compensation. As the injured-claimant died
during the pendency of the above appeal on 17.09.2019, the
legal representatives of the claimant-injured are brought on
record. On his death, on the complaint made by the legal
representatives of the original claimant-deceased, postmortem
was conducted on 10.10.2019 and the PM Report would state
that the death is due to cardiorespiratory failure due to
septicemnia as a result of prolonged illness.
16. The documents produced along with I.A.No.2/2019
under order 41 Rule 27 of CPC are all documents subsequent to
passing of award i.e.medical bills dated subsequent to disposal
of the claim petition. It is the case of the appellants that
subsequent to the evidence in MVC.No.166/2017, the legal
representatives of original claimant-deceased had to spend
towards the treatment of the injured-deceased and for pharma
expenses. It is stated that the legal representatives have spent
nearly Rs.1,45,000/- towards treatment of the injured-
deceased and the appellants have produced bills amounting to
Rs.1,45,000/-. We have perused the application and the bills
produced along with the application. The bills produced along
- 11 -
NC: 2024:KHC-D:7476-DB
with the application are original bills i.e.bills are dated
subsequent to disposal of the claim petition. The Tribunal had
granted Rs.1,00,000/- towards future medical expenses taking
note of the injures sustained by the original claimant-deceased
and taking note of the medical evidence. The medical evidence
would indicate that the original claimant-deceased needed
future medical treatment. In that view of the matter, the
application filed under Order 41 Rule 27 of CPC is allowed and
the documents produced are taken on record.
17. Insofar as entitlement of the appellants-claimants
towards the medical bills, we are of the opinion that since the
claimants are already granted Rs.1,00,000/- towards future
medical expenses by the Tribunal, deducting the same, the
claimants would be entitled for the balance amount
i.e.Rs.45,000/- towards claim on medical expenses.
18. The original claimant-deceased had stated that he
had income of Rs.50,000/- per month from agricultural
activities and also from his arecanut business. In support of his
case, the original claimant had examined PW3 and produced
the licence at Ex.P16-Sannad Certificate issued by the APMC,
- 12 -
NC: 2024:KHC-D:7476-DB
but, to establish the income of the original claimant-deceased,
no documentary evidence is placed on record. In the absence of
any document to establish the income of a person, it is for the
Courts and Tribunals to assess the income of a person
notionally. The notional income in terms of the chart prepared
by the Karnataka State Legal Services Authority for the year
2016 is Rs.8,750/- per month, but the Tribunal has assessed
the income of the original claimant-deceased at Rs.8,000/- per
month, which is on the lower side. Therefore, it would be
proper to assess the notional income of the original clamant-
deceased at Rs.8,750/- per month.
19. Admittedly, the original claimant-deceased was
aged 48 years. In terms of judgment of the Hon'ble Apex Court
in the case of Pranay Sethi referred to supra the claimants
would be entitled for adding 25% of the assessed income
towards future prospects. The Tribunal taking note of the injury
sustained and medical evidence, treated the case of the original
claimant as death case and granted compensation on the head
of 'loss of dependency'. Even otherwise when the disability is
assessed at 100% one would be entitled for compensation on
the head of 'future prospects'. The deduction at 1/3rd and
- 13 -
NC: 2024:KHC-D:7476-DB
adoption of multiplier of 13 by the Tribunal is proper and
correct which needs no interference.
20. PW4-Doctor, in his cross-examination stated that
original claimant-injured has suffered 100% disability and
further stated that though the injured appeared to be physically
proper, is in a physiologically unfunctional condition. The exact
statement of PW4-Doctor reads as under:
" ಂ ವ ಕ (anatomically)
ಯ ದ çÃಯ ಂ ತ . (Physiologically
unfunctional)"
21. Moreover, subsequent to passing of the judgment
and award, the original claimant-injured died on 17.09.2019
and the PM report which is a subsequent document indicates
that the death is due to septicemnia as a result of prolonged
illness.
22. In the above circumstances, the claimants would be
entitled to compensation on the head of loss of dependency as
under:
Rs.8,750 X 12(months) + 25%(future prospects) x
13(multiplier) x 2/3(deduction) = Rs.11,37,500/-
- 14 -
NC: 2024:KHC-D:7476-DB
23. The claimants would be entitled for Rs.45,000/-
towards medical expenses out of Rs.1,45,000/- claimed in
addition to compensation already granted by the Tribunal on
the head of medical expenses.
24. Since the Tribunal has already granted
compensation on the other heads, we need not consider
granting compensation on the head of 'loss of consortium'.
25. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Pain, Shock and sufferings 75,000/-
2. Food and nourishment 20,000/-
3. Attendant Charges 5,000/-
4. Travelling Expenses 10,000/-
5. Medical expenses 10,00,000/-
6. Loss of income during laid up 20,000/-
period
7. Loss of dependency 11,37,500/-
8. Future medical expenses 1,45,000/-
(i.e.Rs.1,00,000 + Rs.45,000)
9. Future attendant charges 12,000/-
Total 24,24,500
- 15 -
NC: 2024:KHC-D:7476-DB
26. Thus, the claimants would be entitled to total
compensation of Rs.24,24,500/- as against Rs.20,74,000/-
awarded by the Tribunal.
27. Hence, we pass the following:
ORDER
a) Appeal is allowed in part.
b) The impugned judgment & award of
Tribunal is modified to the extent that the
claimants are entitled to total
compensation of Rs.24,24,500/- as
against Rs.20,74,000/- awarded by the
Tribunal.
c) The enhanced compensation amount shall
carry interest at the rate of 6% p.a. from
the date of claim petition till realization.
d) Respondent No.1-Insurance Company shall
deposit enhanced compensation amount
with accrued interest before the Tribunal
within a period of six weeks from the date
of receipt of certified copy of this
judgment.
e) Apportionment, deposit & disbursement
shall be made as per award of Tribunal.
- 16 -
NC: 2024:KHC-D:7476-DB
f) Registry to transmit the records to the
Tribunal, forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
