Karnataka High Court
Smt Girijamma vs Sri P Gunasekar on 22 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 5189 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 5189 OF 2014 (MV)
BETWEEN:
1. SMT GIRIJAMMA,
W/O VENKATAMUNIREDDY,
AGED ABOUT 34 YEARS,
2. KUM.GOWTHAMI,
D/O VENKATAMUNIREDDY,
AGED ABOUT 5 YEARS,
3. SRI.CHANGALARAYAREDDY,
S/O VENKATAREDDY,
AGED ABOUT 69 YEARS,
4. SMT.RAJAMMA
W/O CHANGALARAYAREDDY,
AGED ABOUT 64 YEARS,
Digitally signed
2ND MINOR APPELLANT IS REPRESENTED BY
by RAMYA D NATURAL GUARDIAN/MOTHER,
Location: HIGH
COURT OF
1ST APPELLANT, HEREIN
KARNATAKA
ALL THE APPELLANTS ARE
RESIDING AT BATAVARIPALLY VILLAGE,
MALLANAYAKANAHALLI POST, THAYALUR HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT.
NOW RESIDING AT MARUTHINILAYA,
PALASANDRA LAYOUT, KOLAR.
...APPELLANTS
(BY SRI GOPALKRISHNA N, ADVOCATE)
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MFA No. 5189 of 2014
AND:
1. SRI P GUNASEKAR,
S/O R.PANDURANGAN,
MAJOR IN AGE,
NO.115, PALLAVAN STREET,
UTHIRAMPET VILLAGE, AYARPADI POST,
ARAKONAM T.K.DISTRICT,
VELLORE, TAMIL NADU.
2. THE NEW INDIA ASSURANCE COMPANY LTD.,
BAGIYAN TMN COMPLEX, 1ST FLOOR, 136,
MBT ROAD, RANIPET, TAMIL NADU, PIN-632402
REP. BY ITS MANAGER.
...RESPONDENTS
(R1- NOTICE HELD SUFFICIENT V/O/DT:15.02.2018
SRI M P SRIKANTH, ADV. FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.2.2014 PASSED IN MVC
NO.56/2010 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE, MACT, KOLAR, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
1. This appeal is filed under Section-173(1) of the
Motor Vehicles Act 1988, (hereinafter referred to as 'MV
Act' for brevity) by the appellants-claimants, challenging
the judgment and award dated 25.02.2014, passed in MVC
No.56/2010, on the file of I Addl. Senior Civil Judge, Kolar
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(hereinafter referred to as 'the Tribunal' for brevity),
thereby, dismissed the claim petition.
Brief facts of the case are as follows:-
2. On 05.08.2009 at 12:15 a.m. (mid night) the
deceased Venkatamunireddy was riding the TVS moped
towards Mulbagal near N. Vaddahalli Gate and at that time
a lorry No.TN-07-A-1111 driven by the driver in a rash and
negligent manner at high speed, overtook the TVS moped
and abruptly stopped the vehicle on the middle of the
highway NH-4 road without any signal. Hence, the
deceased was on a straight hit to the lorry due to which,
he has sustained grievous injuries and hospitalized at
various hospitals such as Victoria hospital, NIMHANS
hospital, R.L Jalappa hospital, Kolar and Government
hospital Mulbagal. But succumbed to the injuries on
05.01.2010. Therefore, the claimants have filed a claim
petition under Section 166 of the Motor Vehicles Act for
claiming compensation. But the Tribunal has dismissed
the claim petition on the reason that there is no nexus
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proved between the accidental injuries and death and also
on the reason that it is hit and run case, but the lorry was
falsely implanted in the case. Therefore, with these
reasons the claim petition was filed.
3. The learned counsel appearing for the
appellants-claimants submitted that there is no delay in
lodging a complaint. Soon after the accident, a complaint
was lodged before the police by mentioning the number of
lorry as TN-07-A-1111. Considering the proximity of the
time of accident and time of lodging the complaint to the
police, there could not be manipulation. Hence, there is a
prompt in lodging of complaint. Furthermore, considering
the nature of injury sustained as the claimant was
suffering bleeding in the brain resulting cardio respiratory
arrest, hence died. It is proved from the post mortem
report and also as per the evidence of the doctor-PW-3.
Therefore, submitted that the order passed by the Tribunal
is not correct and prays for grant of compensation.
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4. On the other hand, learned counsel for the
respondents submitted that the date of accident and the
date of death is too wide to believe that deceased died due
to accidental injuries. Further, the lorry was seized on
07.09.2009 and that TVS motor vehicle on 19.01.2010
and charge sheet has been filed after the death of
deceased. All these delay creates suspiciousness
regarding accident and death of the deceased. Therefore
submit that it is hit and run case and offending lorry is not
met with accident. Therefore, justified the judgment and
award passed by the Tribunal. Hence, prays to dismiss
the appeal.
5. Evidence are appreciated. It is alleged in the
complaint Ex.P.2 that on 04.08.2009 at 10.00 pm the
deceased had left his house but it is TVS champ moped
and was proceeding towards Mulbagal at that time and at
12:15 am on 05.08.2009 the accident was caused. In the
said accident the deceased had sustained grievous
injuries. The complainant is younger brother of the
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deceased. The date of accident is 05.08.2009 at 12:15
am (mid night). Complaint is lodged on 05.08.2009 in the
morning at 9:00 am. Therefore, there is no much time
gap between the time of the accident and the time of the
lodging a complaint before the police. Hence, there could
not have been chances of manipulating so as to insert a
vehicle showing in the accident. Therefore, considering
these proximity of times, all the events which are facts in
issue are occurred in natural course of events.
6. The accident caused on 05.08.2009 and
deceased died on 05.01.2010. There is a time gap of four
months from the date of accident and the date of death.
Just because charge sheet is filed after the death of the
deceased is not the ground to raise suspicious regarding
the accident and injury sustained and resultantly death
occurred. The PW-3 doctor who has conducted the post
mortem examination has deposed that the deceased has
sustained grievous injury to the head and bleeding in the
brain and resultantly due to cardio respiratory arrest the
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deceased died. Ex.P-11 is the post mortem report and
PW-3 doctor had conducted medical examination. The
cause of death is shown due to intracranial hemorrhage
i.e. cardio respiratory arrest. It is the opinion of the
doctor that there are bleedings in the brain due to that,
there is a cardio respiratory arrest. The Tribunal has erred
in not appreciating this evidence and merely thought that
it is a cardio respiratory arrest. But what is reason for
cardio respiratory arrest is not appreciated by the
Tribunal. Since there are bleeding in the brain, therefore,
resulting into intracranial hemorrhage which is grievous
injury to the brain resulting into cardio respiratory arrest.
This is lost sight of the Tribunal. The doctor PW-3 proved
that the deceased was taken to various hospitals such as
Victoria hospital, NIMHANS hospital, RL Jalappa hospital,
Kolar and Governmental hospital Mulbagal. But ultimately,
the deceased died. The Tribunal has merely found fault
with that the TVS moped was seized on 19.01.2010 after
the death of the deceased and lorry was seized on
07.09.2009. This is not the correct reason assigned by
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the Tribunal in appreciating the materials on record.
Further, the Tribunal has observed that the medical
documents contain no signature of doctors. Hence, has
not believed. Therefore, the award of the Tribunal is
totally perverse and illegal while appreciating the evidence
on record. Therefore, it is proved that the deceased died
due to accident caused by the lorry No.TN-07-A-1111 as
discussed above and the deceased died in the said
accident. Considering the nature of injury sustained by
the deceased and considering the date of accident and
date of death, there is no much time gap so as to
disbelieve the case of claimants. Therefore, for the
reasons stated above, it is proved that it is not the case
that it is hit and run case. The Tribunal has failed to
appreciate the contents of the complaint and the proximity
of time in lodging the complaint by mentioning the lorry
number. Therefore, the judgment and award is liable to
be set-aside and accordingly, set-aside. Hence, the
claimant is entitled for compensation.
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7. The claimants are wife, minor daughter, father
and mother of the deceased. The deceased was 40 years
old as on the date of accident. It is stated that the
deceased was agriculturist and was earning Rs.10,000/-
per month. There is no proof of income. Therefore,
notional income of Rs.5,000/- per month is taken into
consideration as per the chart prepared by the Karnataka
State Legal Services Authority. As per principle of law laid
down by the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. Vs. Pranay Sethi reported in
(2017) 16 SCC 680, 40% of his monthly income is
added towards 'Loss Of Future Prospects In Life' i.e.,
Rs.2,000/- (Rs.5,000/- x 40%). Therefore, the monthly
income of the deceased is taken at Rs.7,000/-
(Rs.5,000/- + Rs.2,000/-). Further, the appropriate
multiplier applicable as per the judgment of the Hon'ble
Supreme Court in the case of Smt.Sarla Verma &
Others. Vs. Delhi Transport Corpn And Another
reported in AIR 2009 SC 3104 is '15', since the deceased
was aged 40 years at the time of accident. Further, there
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are four legal dependents. Hence, 1/4th amount to be
deducted towards personal expenses of the deceased.
Therefore, the compensation under the head of 'Loss of
Dependency' is calculated and quantified as follows:-
Rs.5,000+2,000=7,000x3/4x15x12=Rs.9,45,000/-.
Accordingly, compensation of Rs.9,45,000/- is awarded
under the head 'loss of dependency'.
8. As per the judgment of the Hon'ble Supreme
Court in the case of Magma General Insurance Co.
Limited v. Nanu Ram & Others, reported in 2018 ACJ
2782, each claimants are entitled for Rs.40,000/- with
10% escalation. Hence, in the present case, there are four
dependants. Therefore, compensation of Rs.1,76,000/-
(Rs.40,000/- x 4 dependants + 10% escalation) is
awarded under the head 'loss of consortium' including 'loss
of love and affection'.
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9. The compensation of Rs.16,500/-
(Rs.15,000/- + 10% escalation) is awarded under the
head 'loss of estate'.
10. The compensation of Rs.16,500/-
(Rs.15,000/- + 10% escalation) is awarded under the
head 'transportation of dead body and funeral expenses'.
11. Thus, in all, the appellants/claimants are
entitled to total compensation as follows:
Loss of dependency Rs. 9,45,000/-
Loss of consortium including Rs. 1,76,000/-
loss of love and affection
Loss of estate Rs. 16,500/-
Transportation of dead body Rs. 16,500/-
and funeral expenses
Total 11,54,000/-
12. Thus, the appellants/claimants are entitled for
total compensation of Rs.11,54,000/- along with interest
at the rate of 6% per annum from the date of petition till
the date of realization.
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13. There is no dispute regarding the liability in
view of existence of insurance policy. Therefore, the
second respondent-Insurance Company shall indemnify
the owner of the offending vehicle and pay compensation
to the claimants.
14. Thus the appeal is liable to be allowed in terms
of above reasons. Hence, I prefer to pass the following
order:-
15. Accordingly, I pass the following;
ORDER
i. Appeal is allowed.
ii. The judgment and award dated 25.02.2014, passed in
MVC No.56/2010 on the file of I Addl. Senior Civil
Judge, Kolar are set-aside.
iii. The appellants are entitled to a compensation of
Rs.11,54,000/- along with interest at the rate of 6%
per annum from the date of petition till the date of
realization. The appellants are not entitled to interest
for the delayed period of 49 days.
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iv. The second respondent-Insurance Company is
directed to deposit the above said compensation
amount within a period of 30 days from the date of
receipt of the copy of this judgment.
v. Registry is directed to return the Trial Court Records to
the Tribunal, along with certified copy of the order passed
by this Court forthwith without any delay.
vi. Draw award accordingly.
vii. No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
CHS
