- 1 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 IN THE HIGH COURT OF KARNATAKA 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: 1. SMT. MANJULA W/O. PRAKASH PARADESHI, AGE: 39 YEARS, OCC: HOUSEWIFE, 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 R Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4028 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, - 3 - NC: 2025:KHC-D:4028 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: - 4 - NC: 2025:KHC-D:4028 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 - 5 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 2. Medical bills. 220 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 - 6 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 7 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 8 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 9 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 10 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 1 LAWS (KAR) 1994 1 20 - 11 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 12 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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. 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 - 13 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 14 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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: - 15 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 “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, - 16 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 17 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 18 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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 - 19 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 of dead body in ambulance. Thus, in all the claimants are entitled for total compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Loss to estate. (3,500 + 15% minus 50% x 12 x 15). 3,62,250 2. Medical expenses. 10,000 3. Incidental expenses like food, nourishment, travelling, attendant charges, etc.,. 10,000 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: - 20 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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. - 21 - NC: 2025:KHC-D:4028 MFA No. 22466 of 2012 C/W MFA No. 25177 of 2012 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. List No.: 1 Sl No.: 41