Karnataka High Court
Icici Lombard General Insurance Co. Ltd vs Manjula W/O Prakash Paradeshi on 28 February, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 22466 of 2012
C/W MFA No. 25177 of 2012
IN THE HIGH COURT OF KARNATAKA R
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.22466 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.25177 OF 2012
IN M.F.A. NO.22466 OF 2012
BETWEEN:
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
REGD. OFFICE, ICICI BANK TOWERS,
BANDRA KURLA COMPLEX, BANDRA (EAST)
MUMBAI REP. BY ITS MANAGER (LEGAL)
ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.,
BELLAD BUILDING, GOKUL ROAD, HUBLI.
...APPELLANT
(BY SRI S.K. KAYAKAMATH, ADVOCATE)
AND:
Digitally signed by
MALLIKARJUN
RUDRAYYA
KALMATH 1. SMT. MANJULA W/O. PRAKASH PARADESHI,
Location: HIGH
COURT OF AGE: 39 YEARS, OCC: HOUSEWIFE,
KARNATAKA
2. KUMAR VIJAY
AGE: 16 YEARS,
3. KUMARI ARATI,
AGE: 14 YEARS,
4. KUMAR SURESH
AGE: 10 YEARS,
ALL ARE R/O KILLA, GADAG,
DIST: GADAG
(RESPONDENTS NO.2 TO 4 ARE BEING
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MFA No. 22466 of 2012
C/W MFA No. 25177 of 2012
MINORS REPRESENTED BY THEIR NATURAL
GUARDIAN MOTHER, RESPONDENT NO.1)
5. MANAGING DIRECTOR
SUN MICRO SYSTEMS
INDIA PVT. LTD.,
5TH FLOOR, THE CAPITAL COURT
OF PALME MARG, NEW DELHI.
...RESPONDENTS
(BY SRI M.M. PATIL, ADVOCATE FOR R5;
NOTICE TO R1 IS SERVED;
(R2 TO R4 ARE MINORS REP. BY R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, PRAYING TO ALLOW THE APPEAL
AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 05.04.2012 PASSED BY THE DISTRICT JUDGE AND MEMBER
MACT, GADAG IN MVC.NO.239/2005 WITH COST IN THE INTEREST
OF JUSTICE AND EQUITY.
IN M.F.A. NO.25177 OF 2012
BETWEEN:
1. SMT. MANJULA
W/O. PRAKASH PARADESHI,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
2. KUMAR. VIJAY
S/O. PRAKASH PARADESHI,
AGE: 16 YEARS, OCC: STUDENT,
3. KUMARI. ARATI
D/O. PRAKASH PARADESHI,
AGE: 14 YEARS,
4. KUMAR. SURESH
S/O. PRAKASH PARADESHI,
AGE: 10 YEARS,
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MFA No. 22466 of 2012
C/W MFA No. 25177 of 2012
ALL ARE R/O: KILLA, GADAG.
THE APPELLANT NO.2 TO 4 BEING MINORS,
REP. BY THEIR NATURAL GUARDIAN MOTHER,
APPELLANT NO.1
...APPELLANTS
(BY SRI S.M. KALWAD, ADVOCATE.)
AND:
1. MANAGING DIRECTOR,
SUN MICRO SYSTEMS INDIA PVT. LTD.,
5TH FLOOR, THE CAPITAL COURT OF PALME
MARG, MUNIRKA NEW-DELHI.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
REGD. OFFICE, ICICI BANK TOWERS,
BANDARA, KURTA COMPLEX, BANDRA
(EAST) MUMBAI.
...RESPONDENTS
(BY SRI S.K. KAYAKAMATH, ADVOCATE FOR R2;
R1-SERVICE OF NOTICE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 05-04-2012 PASSED IN MVC
NO.239/2005 ON THE FILE OF DISTRICT JUDGE AND MEMBER,
MACT, GADAG, AND CONSEQUENTLY ENHANCE THE COMPENSATION
AS PRAYED FOR IN THE CLAIM PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 22466 of 2012
C/W MFA No. 25177 of 2012
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
MFA No.22466/2012 is filed by the Insurance Company
on the ground that there is no nexus between accidental
injuries and death of deceased as well as quantum of
compensation. Whereas, MFA No.25177/2012 is filed by the
claimants seeking enhancement of compensation, being
aggrieved by the judgment and award dated 05.04.2012,
passed in MVC No.239/2005, by the Court of District and
Sessions Judge and Member, MACT, Gadag (for short,
'Tribunal').
2. It is the case of claimants that claimants are wife
and children of deceased Prakash Paradeshi (for short,
'deceased'). On 29.05.2005, at 12.00 hours, the deceased
was carrying sweet products from the factory of his employer
to the godown and by looking to the heavy traffic, he
stopped his hand pull cycle near Pai Hotel, Hubli. At that
time, one car being driven by its driver came with a high
speed and in rash and negligent manner, with an intention to
overtake another vehicle and dashed to deceased and
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caused the accident. As a result, deceased sustained severe
injuries i.e., fracture of right clavicle and right radius and
tibia. The accident occurred on 29.05.2005, but injured died
on 03.06.2005. Therefore, the claimants have filed claim
petition seeking compensation.
3. In the present case, the Tribunal awarded
compensation under various heads as follows:
Sl.No. Heads. Amount in
(Rs.)
1. Pain and suffering. 50,000
3. Loss of consortium. 15,000
4. Love and affection. 15,000
5. Loss of estate. 15,000
6. Funeral and obsequies. 10,000
Total 1,05,220
4. The Tribunal has awarded compensation of
Rs.1,05,220/- along with interest at the rate of 6% per
annum from the date of petition till the date of realization.
5. The learned counsel for the Insurance Company
submitted that injured, who later died, had suffered only
fractures of right clavicle and right radius and tibia, which
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are not serious injuries and fractures to cause death of
deceased. Therefore, death of deceased is not due to
accidental injuries, but has caused due to heart attack.
Therefore, claimants are entitled to compensation under the
pecuniary damages and loss to estate only. The claimants
are not entitled to compensation under the head non-
pecuniary damages. Hence, prays to reduce the quantum of
compensation awarded by the Tribunal.
6. On the other hand, learned counsel for the
claimants submitted that considering the proximity of dates
of accident and death, there is only four days gap. Therefore,
claimants are entitled to compensation under the head loss
of dependency. Hence, prays for enhancement of
compensation.
7. The question that arises before this Court is that
whether death of deceased is having any nexus to the
accidental injuries suffered by him, is to be considered.
8. Admittedly, in the present case, deceased has
sustained fractures of right clavicle and right radius and
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tibia. These are the only injuries sustained by the deceased.
Admittedly, the accident occurred on 29.05.2005 and he died
on 03.06.2005. Just because, there is only four days gap
between the date of accident and date of death, whether the
death of deceased is caused due to accidental injuries is to
be considered in the light of the evidence adduced before the
Tribunal.
9. Ex.P9 is post mortem report. As per post mortem
report, death of deceased is caused due to cardiac failure
consequent upon heart disease only, which is clearly
indicated in the Histopathology report. Ex.P10 is the letter
issued by Dr.B.G.Shalawadi, who has furnished information
to the Police Inspector, Hubli North Traffic P.S, Hubli, which
reads as follows:
"I am of the opinion that the death of
Sri.Prakash Namdev Pardeshi might have
been caused due cardio respiratory failure
caused by pulmonary embolism consequent
upon the injuries sustained due to road traffic
accident."
10. The learned counsel for the claimants has argued
by pacing reliance on Ex.P10-letter issued by
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Dr.B.G.Shalawadi, Department of Forensic Medicine,
Karnataka Institute of Medical Sciences, Hubli. The death of
deceased might have caused due to cardiac respiratory
failure caused by pulmonary embolism consequent upon the
injuries sustained due to road traffic accident.
11. Therefore, upon considering the evidence of
RW.2-Dr.Gajanan Naik, Ex.P9-P.M report and Ex.P10-letter
issued by Dr.B.G.Shalawadi, Department of Forensic
Medicine, Karnataka Institute of Medical Sciences, Hubli,
admittedly, Dr.B.G.Shelvadi, has not conducted post
mortem, but RW.2-Dr.Gajanan Naik in his evidence stated
that he has conducted post mortem and accordingly has
given report as per Ex.P9. In support of Ex.P9, the said
Dr.B.G.Shalawadi is not examined. But RW.2-Dr.Gajanan
Naik, who has given report as above stated, has deposed
that he has conducted post mortem and has given report
annexed with Ex.P9-P.M report. According to his opinion,
death is caused due to cardiac failure consequent upon heart
disease only. This RW.2-Dr.Gajanan Naik has specifically
stated that deceased died due to cardiac respiratory failure
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only by specifically stressing on the cardiac failure. Further,
RW.2-Dr.Gajanan Naik has given opinion that death of
deceased is caused due to cardiac failure consequent upon
heart disease and it is no way related to the road traffic
accident or injuries sustained. The injuries sustained by the
deceased are fractures of right clavicle and right radius and
tibia. Therefore, the evidence of RW.2 carries more weight as
he has conducted post mortem and given opinion as per
Ex.P9. Therefore, Ex.P10 document is not believable. While
noticing the evidence, when there are two opinions regarding
death, which are contrary to each other, then the relevant
evidence is the doctor who gave evidence and issued report
but not mere opinion given by Mr. B.G. Shalawali who is not
examined. Moreover, who gave the opinion as per Ex.P10
has not conducted the post mortem. Therefore, the evidence
of RW.2 along with Ex.P9-P.M report is found to be relevant,
to be considered in this case.
12. Therefore, as per the evidence discussed above
and nature of injuries sustained by the claimant, which
specifically shows that death of deceased is caused due to
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cardiac failure consequent upon heart disease and is not
related to the injuries sustained in the road traffic accident.
Therefore, the death of deceased is proved to be having no
nexus with the accidental injuries.
13. Then the next question arises for consideration
before this Court is that under what heads the claimants are
entitled for compensation. The claimants are not entitled to
compensation under the head of loss of dependency, since it
is proved that there is no nexus between the injuries and
death.
14. This Court has made distinguish between the
compensation amount to be awarded under the head of loss
of estate and loss to estate. This Court in the judgment of
MFA No.9071/2015, dated 22.02.2023, between VINOD
BABU.M Vs. MR. HASANABBA SHEIKH, has held as
follows:
"14. 'Loss Of Estate' and 'Loss To Estate' are
two different subjects. This Court in the case of
PUTTASWAMY GOUDA vs. R.C. GANGAPPA
NAIK1 , by relying on the judgment of the High
Court of Kerala in the case of Omana referred to
LAWS (KAR) 1994 1 20
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supra and after referring to the judgment of the
High Court of Andhra Pradesh and also the
judgment of Hon'ble Supreme Court has
observed at para-7 as follows:
"the assumption that a succession certificate
is necessary for payment of compensation to the
dependants of a person who dies on account of
accident is evidently not correct. The claim by
the dependents is not as legal representatives of
the deceased but in their own statutory right
under section 1-a, fatal accidents act. The
compensation represented what would have
been obtained by them during the life time of
the deceased i.e., what he would have provided
them in case he had not died as a result of the
accident. Section2, fatal accidents act provides
for the claim by the estate of any pecuniary loss
to the estate. Barring cases of difficulty, in All
matters where the accountable party is satisfied
that All the dependants are before it and are
agreed on the receipt of the amount there
should be no objection to the payment of
the compensation to them in the proportion
they are entitled to. "in view of the
foregoing, w e are clearly of the view that
the contention of Sri Chinnappa has to be
rejected. Not only that, the conclusion of
the learned member of the tribunal in the
instant case that on account of the death of
claimants 1 and 2 during the pendency of
the claim petition, the third claimant
Puttaswamy gouda, appellant herein would be
entitled only to compensation payable under
section 92-a of the act for "no fault liability" and
not for compensation for "loss of dependency" is
wholly incorrect and unsustainable. The learned
member of the tribunal failed to apply his mind
to the several provisions of the act before he
came to that conclusion. In other words, on the
death of claimants 1 and 2, viz., Smt. Siddamma
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wife and Smt. Malavamma, mother of deceased
Ramegowda, the appellant Puttaswamy gouda,
the third claimant being the son of the deceased
Ramegowda is certainly entitled to the
compensation payable not only to him as the
dependent of, the deceased but also to the
deceased claimants 1 and 2 who would have
been entitled to it had they been alive.
15. 'Loss to Estate' means when the
deceased died and if the deceased is survived by
legal heirs, what would be his savings and what
would be inherited to other legal heirs that
would be 'loss to estate' and this compensation
under the 'loss of estate' is determined on the
savings by using capitalization method, which
means applying multiplier. Therefore, what the
other dependants would have got upon the
death of the deceased that is 'loss to estate' and
this 'Loss to estate' comes to legal heirs of the
deceased.
16. On the other hand, the 'loss of estate'
means compensation to be given to the
dependants of the deceased for 'pain and
sufferings', 'loss of enjoyment in life / loss of
amenities' etc. Therefore, the 'loss to estate'
means what would be the savings of the
deceased after deducting expenses and the
same goes to the dependants, and that is called
'Loss to Estate'. But awarding compensation
under the head 'loss of estate' is for abstract
things for 'pain and sufferings', 'loss of
enjoyment in life / loss of amenities' and that
goes to all the dependants as all these are non-
pecuniary terms."
15. Therefore, it is proved that the death of the
deceased is not due to accidental injuries but the injuries
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sustained also can be considered as a factor accelerated, the
death of the deceased as per evidence of the doctor the
deceased was suffering from heart disease. Therefore, under
these circumstances, the claimants are entitled for
compensation under the head loss to estate. As discussed
above, there is difference between loss to estate and loss of
estate.
16. The High Court of Kerala in the case O.P.(C)
No.2949/2011(O) dated 31.10.2011 in the case between
Omana P.K. and others and Francis Edvin and others, has
observed at paragraph No.7 as under:
"7. Now the question is whether the said
amount forms part of loss of estate or loss to the
estate of the deceased. There is fundamental
distinction between 'loss of estate' and 'loss to the
estate'. This is highlighted in The Chairman,
A.P.S.R.T.C., Hyderabad v. Smt. Shafiya Khatoon
and others. In paragraph 10, it is held that loss of
'benefit to the estate' of the deceased is the loss
arising to the estate under the heads of mental
and physical pain, loss of expectation of life and
loss of amenities. The said amounts are payable
to the legal heirs under the provisions of the Legal
Representatives Suits Act, 1855 read with
Sec.306 of the Indian Succession Act, 1925.
Sec.1A of the Fatal Accidents Act deals with the
right of legal heirs to claim compensation as
referred to therein. The decision of the Supreme
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Court cited by the learned counsel for 1st
respondent (Gobald Motor Service Ltd. and
another v. R.M.K. Veluswami and others) also
supports the above view. There, in paragraph 11
an illustration is drawn that 'X' is the income of
the estate of the deceased, 'Y' is the yearly
expenditure incurred by him on his dependents
and therefore 'X' - 'Y' = 'Z' is the amount he saves
every year. The capitalized value of the income
spent on the dependents, subject to relevant
deductions, is the pecuniary loss sustained by the
members of his family through his death. The
capitalized value of his income, subject to relevant
deductions, would be the loss caused to the estate
by his death. In otherwords what amount the
dependents would have got less deductions if any
that could be made under law is the loss to the
estate (of the deceased). That goes to the legal
heirs of the deceased. On the otherhand, loss of
estate includes compensation for pain and
suffering, loss of enjoyment of amenities, etc. of
the deceased. That amount goes to the legal heirs
and by virtue of Sec.1A of the Fatal Accidents Act.
In Kumaran v. Mohammed Khader, in paragraph 8
this position is made clear. It is stated that the
exemption from attachment applies only to
compensation awarded for the pecuniary loss
sustained by defendants 2 to 7 (ie. legal heirs of
the deceased)."
17. This Court in the judgment in MFA
No.30313/2008 disposed of on 04.12.2008, in the case of
Smt.Siddawwa and another vs. Sri Karabasappa and
another, at paragraph No.14 has held as follows:
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"14. The Division Bench further held that the
procedure for determination of loss to estate is
broadly the same as the procedure for
determination of the loss of dependency. Both
involve ascertaining the multiplicand and
capitalizing it by multiplying it by an appropriate
multiplier. But the significant difference is in the
figure arrived at as multiplicand in cases where
the claimants who are dependants claim loss of
dependency and in cases where the claimants who
are not dependants claim loss to estate. The
annual contribution to the family constitutes the
multiplicand in the case of loss of dependency
whereas the annual savings of the deceased
becomes the multiplicand in the case of loss to
estate. The method of selection of multiplier is
however, the same in both the cases."
18. Therefore, though the claimants are not entitled
for compensation under the head loss of dependency, but
are entitled for compensation under the head loss to estate,
otherwise there would be great injustice to the claimants.
Since they have proved the death of the deceased is not
having nexus to the injuries in the accident and the injured
died within four days from the accident, therefore, the case
cannot be considered for grant of compensation as if in
injury case. As the compensation determined in the injury
cases would be under the heads of non pecuniary damages,
but in the present case the deceased had sustained injuries,
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and the injuries do not relate to the case of death as per the
doctor's evidence above discussed. Therefore, the
compensation under the head loss of dependency also
cannot be granted. But the deceased died soon after the
accident. Therefore, under the circumstances, the claimants
are entitled for compensation under the head loss to estate
caused to the claimants.
19. The Hon'ble Supreme Court in similar
circumstances has awarded compensation in the case of
Oriental Insurance Company Limited vs. Kahlon alias
Jasmail Singh Kahlon (deceased) through his legal
representative Narinder Kahlon Gosakan and another,
reported in (2022) 13 SCC 494 has awarded
compensation under the head loss to estate. Therefore, the
claimants are entitled for compensation under the head loss
to estate and on other pecuniary damages viz., medical
expenses and expenses towards incidental to the accident.
The Hon'ble Supreme Court at paragraph No.20 has
assessed the quantum of compensation under the head loss
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to estate. The Hon'ble Supreme Court at paragraph No.17,
18 and 19 has held as follows:
"17. The Tribunal, on technicalities rejected
his claim for salary, medical expenses and
percentage of disability and granted a measly
compensation of rupees one lakh only by a cryptic
order. We are, therefore, of the opinion that while
the claim for personal injuries may not have
survived after the death of the injured unrelated to
the accident or injuries, during the pendency of
the appeal, but the claims for loss of estate caused
was available to and could be pursued by the legal
representatives of the deceased in the appeal.
18. In Parminder Singh vs.New India
Assurance Co. Ltd., (2019) 7 SCC 217,
compensation on the basis of complete loss of
income, the percentage of disability, future
prospects were granted applying the relevant
multiplier. Again, in Kajal v. Jagdish Chand, (2020)
4 SCC 413, the injured was assessed as 100%
disabled, considering all of which compensation
was awarded on the notional future prospects
along with relevant multiplier. The loss of income
to the injured in the facts of the present case has
to be assessed at 75%. In view of Raj Kumar6
there shall be no deduction towards personal
expenses.
19. We see no reason to deviate from the
consistent judicial view taken by more than one
High Court that loss of estate would include
expenditure on medicines, treatment, diet,
attendant, doctor's fee, etc. including income and
future prospects which would have caused
reasonable accretion to the estate but for the
sudden expenditure which had to be met from and
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depleted the estate of the injured, subsequently
deceased."
20. The deceased was employee in condiments shop
and was earning Rs.3,500/- per month. The accident was
caused on 29.05.2005. Therefore an income of Rs.3,500/- is
taken for consideration. The claimant was aged 38 years old
at the time of accident. 15% of the income is to be added
towards loss of future prospects. Considering the age of the
deceased, the appropriate applicable multiplier is 15.
Further, 50% of the income is to be deducted and the
remaining 50% is the loss to estate, because of death of the
deceased. Otherwise, he would have saved 50% income if
the deceased was alive. Then the loss to estate comes to
Rs.3,62,250/- (3,500 + 15% minus 50% x 12 x 15).
21. Further, an amount of Rs.10,000/- is awarded
towards medical expenses and Rs.10,000/- is awarded
towards incidental expenses like food, nourishment,
travelling, attendant charges, etc.,. Further the
compensation of Rs.16,500/- is awarded towards funeral
expenses and Rs.10,000/- is awarded towards transportation
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of dead body in ambulance. Thus, in all the claimants are
entitled for total compensation under various heads as
under:
Sl. Heads. Amount in
No. (Rs.)
1. Loss to estate. 3,62,250
(3,500 + 15% minus 50% x 12 x
15).
2. Medical expenses. 10,000
3. Incidental expenses like food, 10,000
nourishment, travelling, attendant
charges, etc.,.
4. Funeral expenses. 16,500
5. Transportation of dead body. 10,000
Total: 4,08,750
22. Therefore, the claimants are entitled for total
compensation of Rs.4,08,750/- along with interest at the
rate of 6% p.a. from the date of filing of the petition till
realization, as against Rs.1,05,220/- awarded by the
tribunal. The insurance company is directed to deposit the
compensation within eight weeks from the date of receipt of
a certified copy of this judgment.
23. In the result, I proceed to pass the following:
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ORDER
i) The appeal in MFA No.22466/2012
filed by the insurance company is dismissed.
ii) The appeal in MFA No.25177/2012
filed by the claimants is allowed in part.
iii) The judgment and award dated
05.04.2012, passed by the District and Sessions
Judge and Member, MACT, Gadag, in MVC
No.239/2005, is modified.
iv) The claimants are entitled for total
compensation of Rs.4,08,750/- along with interest
at the rate of 6% p.a. from the date of petition till
its realization, as against the compensation of
Rs.1,05,220/- awarded by the tribunal.
v) The insurance company shall deposit
the amount within a period of eight weeks from
the date of receipt of a copy of this judgment.
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vi) The order with regard to
apportionment of compensation, deposit and
release of amount would be as per order of
tribunal.
vii) Send back the trial Court records along
with a copy of this judgment and award to the
tribunal.
viii) No order as to costs.
ix) Draw award accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP-para 1 to 14.
MRK-para 15 to end.
CT: UMD.
