Madras High Court

Kavitha vs Marimuthu on 15 April, 2021

                                                                                      C.M.A.No.3064 of 2017


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 15.04.2021

                                                          CORAM

                                   THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

                                                 C.M.A.No.3064 of 2017

                  1.Kavitha
                  2.Minor Shrinithi
                    Rep by Mother/Guardian Kavitha                                  ...Appellants

                                                           Vs

                  1.Marimuthu
                  2.The Managing Director,
                    Tamil Nadu State Corporation (Madurai) Ltd.,
                    Bye Pass Road, Madurai 625 006.                                 ... Respondents

                  Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                  Vehicles Act, 1988, prayed to enhance the award amount in the judgment and
                  decree dated 29.10.2015 made in M.C.O.P.No.337 of 2013 on the file of the
                  Motor Accident Claims Tribunal, I Additional District Court, Tirupur.


                                         For Appellants    : Mr.Ma.P.Thangavel
                                         For R2            : Mr.A.Sundaravadhanan




                  1/16


https://www.mhc.tn.gov.in/judis/
                                                                                      C.M.A.No.3064 of 2017




                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed against the judgment and

decree dated 29.10.2015 made in M.C.O.P.No.337 of 2013 on the file of the

Motor Accident Claims Tribunal, I Additional District Court, Tirupur.

2.The appellants are the claimants in M.C.O.P.No.337 of 2013 on the file

of the Motor Accidents Claims Tribunal, I Additional District Court, Tirupur.

They filed the above said claim petition claiming a sum of Rs.2,00,00,000/- as

compensation for the death of Senthilkumar in the accident that took place on

12.02.2013.

3.According to the appellants, on 12.02.2013, at about 12.30 hours, when

the deceased Senthilkumar was driving his car bearing Registration No.TN 37

AZ 8295, a bus bearing Registration No.TN 58 N 1770 came in a rash and

negligent manner and dashed the car. Due to the same, the deceased sustained

injuries and died on the spot. The accident was occurred only due to the rash

and negligent act of the 1st respondent, who is the driver of the 2nd respondent-

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Transport Corporation. The deceased was 36 years old at the time of accident

and he was a Doctor by profession. The deceased was a consultant cardiologist

and specialized in diabetic treatment. He was earning a sum of Rs.1,00,000/- per

month. Therefore, the appellants-wife and daughter of the deceased

Senthilkumar, have filed the claim petition claiming a sum of Rs.2,00,00,000/-

as compensation for the death of Senthilkumar against the Transport

Corporation-2nd respondent and its driver-1st respondent.

4.The Tribunal, considering the pleadings, oral and documentary

evidence, held that the accident was occurred due to the rash and negligent

driving by both the driver of the Transportation Corporation bus-1 st respondent

as well as the deceased and fixed liability to the extent of 75% and 25%

respectively.

5.Challenging the liability as well as quantum of the compensation

awarded by the Tribunal, the appellants have come out with the present appeal.

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Negligence and Liability:

6.The learned counsel appearing for the appellants submitted that the

Tribunal has wrongly inferred Exs.R1 & R2 – AR copies and held that the

accident was occurred due to the negligence on the part of the driver of the car

as well as the driver of the bus. Accordingly, fixed the contributory negligence

as 25% against the driver of the car and 75% against the driver of the bus.

7.The learned counsel further submitted that the FIR and evidence of

P.W.2-eye witness would clearly establish that the accident was occurred only

due to the negligence on the part of the driver of the bus. However, despite this

evidence, the Court below has wrongly fixed 25% contributory negligence on

the part of the driver of the car. Therefore, he insists the Court to set aside the

contributory negligence fixed against the driver of the car to the extent of 25%

and to hold that the entire cause for accident was due to the rash and negligent

driving on the part of the driver of the bus.

8.In reply, the learned counsel appearing for the 2nd respondent submitted

that the accident occurred due to head on collusion. Exs.R1 and R2- AR copies

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would clearly establish that the reason for the accident was not due to the rash

and negligent driving on the part of the driver of the bus but due to the head on

collusion, which resulted heavy damage for both the vehicles and the same was

proved by the evidence of RW2-Motor Vehicle Inspector. Therefore, he

submitted that the accident was occurred due to the reason of head on collusion

and the Tribunal has rightly considered these aspects and fixed the negligence

and liability at 75: 25 ratio, which does not warrant any interference by this

Court.

9.Heard the learned counsel for the appellants as well as the 2nd

respondent and perused the materials available on records.

10.The accident was occurred on 12.02.2013, at about 12.30 hours. The

deceased Senthilkumar was a Doctor and he was working in Coimbatore

Diabetic Foundation, IOB Colony, Coimbatore. When the deceased was

proceeding from Palladam to Dharapuram main road in his car bearing

Registration No. TN 37 AZ 8297 near the Kallakeenaru petrol bunk, he met

with the accident. Ex.P1- F.I.R., was registered on the same day on the basis of

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the complaint by one Sivasubramanian, who is the owner of the said petrol

bunk. Since the accident occurred in front of the petrol bunk, the owner of the

petrol bunk had given the police complaint stating that the accident was

occurred due to the rash and negligent driving on the part of the driver of the

bus.

11.PW2-who is the eye witness for the accident, deposed that the

accident was occurred only due to the rash and negligent driving on the part

driver of the bus. A perusal of Exs.R1 and R2, would show that there were

heavy damages to the car as well as the bus. The chances for such heavy

damages may also due to even if anyone driven the vehicle in a rash and

negligent manner. Ex.P1-F.I.R was filed based on the complaint given by one

Sivasubramanian, who is the owner of the petrol bunk, who witnessed the

accident, stated that the accident was occurred due rash and negligent driving

of the bus driver. Ex.P1 and deposition of the eye witness-P.W.2 cannot be

ignored for the reason that heavy damage occurred to the car as well as bus.

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12.As stated above, the chance of heavy damage may be due to the result

of either head on collusion or due to the rash and negligence on the part of the

driver of the bus as well. When there were more than one possibility for the

cause of accident, the Court should have looked into the deposition of the eye

witness as well as the F.I.R. A perusal of the F.I.R and the evidence of the eye

witness would show that the accident was occurred due to the rash and

negligent on the part of the driver of the bus. Hence, this Court is of the

considered view that, the accident was occurred due to the rash and negligence

on the part of the driver of the bus alone. The Court below without considering

all these aspects and without assigning proper reason, has wrongly held that the

accident was occurred due to the reason of head on collusion, in which case, it

should have provided the reason for non-acceptance of F.I.R and evidence of

eye witness, P.W.2. In the absence of any discussion about FIR and evidence of

P.W.2, this Court is not in a position to accept the fixation of the contributory

negligence against the deceased- driver of the car and the driver of the bus in

the ratio 25:75. Thus, this Court set aside 25% contributory negligence fixed

on the part of the driver of the car and hold that only the driver of the bus is

responsible for the entire cause of the accident. Consequently, since the entire

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cause of the accident was due to rash and negligent driving on the part of the

driver of the bus, the entire liability is fastened on the part of the driver of the

bus. The 2nd respondent being the Transport Corporation is responsible for

payment of entire compensation.

Quantum:

13.The learned counsel appearing for the appellants submitted that the

Tribunal has fixed a sum of Rs.30,000/- as notional income of the deceased.

The deceased was a qualified Doctor and completed his Post Graduation in

Diabetology. He was working at Coimbatore Diabetic Foundation from

06.08.2012. Further, the appellants have filed Ex.P12-agreement between the

deceased and the Coimbatore Diabetes Foundation Resort Hospital and by

referring to the same, the learned counsel for the appellants submitted that the

deceased was drawing a salary of Rs.50,000/- per month. He further submitted

that the Hon’ble Division Bench of this Court, in a similar circumstance, has

awarded a sum of Rs.45,000/- as notional income of the deceased, in the

absence of salary certificate. Therefore, he submitted that the view taken by the

Hon’ble Division Bench of this Court would squarely applicable for the present

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case. However, he has not produced the copy of the judgment before this Court.

In the absence of production of the said judgment, this Court is not in a position

to give any indulgence to the submission made by the learned Counsel

appearing for the appellant.

14.Per Contra, the learned counsel appearing for the 2nd respondent

would submit that the appellants had not produced any evidence to prove that

the deceased was earning a sum of Rs.50,000/- per month in terms of Ex.P12.

The statement of accounts also did not reflect the receipt of a sum of

Rs.50,000/- per month as salary. Further, he submitted that in the event of

receiving a sum of Rs.50,000/- as salary, the deceased supposed to have filed

Income Tax Returns and the same had not been produced before the Court by

the appellants. In the absence of any such evidence, fixing a sum of Rs.50,000/-

as notional income would not be appropriate in the present case. Considering

all these apects and the qualification of the deceased, the Tribunal has rightly

fixed the notional income of the deceased as Rs.30,000/- per month. There is no

merit in the present appeal questioning the quantum of compensation awarded

by the Tribunal, therefore, the same is liable to be dismissed.

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15.Further, the learned counsel appearing for the 2nd respondent

submitted that the Tribunal has awarded a sum of Rs.1,00,000/- towards loss of

consortium to the 1st appellant and a sum of Rs.1,00,000/- towards loss of love

and affection to the 2nd appellant, which are on the higher side and not in

accordance with law laid down by the Hon'ble Apex Court in the case of

National Ins. Co. v. Pranay Sethi & others reported in 2017 (2) TNMAC 609

(SC).

16.This Court heard the submission of the learned counsel appearing for

the appellants as well as the 2nd respondent and perused the judgment passed by

the Tribunal.

17.A perusal of the judgment passed by the Tribunal would show that the

Tribunal has fixed a sum of Rs.30,000/- as notional income of the deceased. At

the time of accident, the deceased was a Doctor. In order to prove the same,

Ex.P12, agreement entered between the deceased and the Coimbatore Diabetes

Foundation Resort Hospital was referred, wherein, the remuneration of the

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deceased was stated as Rs.50,000/- per month. The accident took place on

12.02.2013. The agreement between the said Hospital and the deceased was

entered on 06.08.2012. However, a perusal of the statement of accounts does

not reflect the credit of a sum of Rs.50,000/- per month. No Income Tax

Returns of the deceased was filed by the appellants. In such circumstance,

considering the qualification of the deceased, the Tribunal fixed a sum of

Rs.30,000/- as notional income. Though, this Court does not find any fault in

the fixation of notional income of the deceased, in the absence of production of

any proof towards earning of the deceased at Rs.50,000/- per month, fixing a

sum of Rs.30,000/- as notional income of the Doctor, is on the lower side since

there is no certainty/permanency in the income of the deceased and his

renumeration is not a fixed one. Being a Doctor, the deceased's income would

certainly increase in future over a period of time depending upon his

experience. Taking into consideration all these facts, this Court is inclined to fix

a sum of Rs.40,000/- per month as notional income instead of Rs.30,000/- per

month as fixed by the Tribunal.

18.Further, the deceased was aged about 36 years old at the time of

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accident. As per the law laid down in the Pranay Sethi case (stated supra), for

the appellant's age group it would be appropriate to add 40% towards future

prospect. The Tribunal has applied correct multiplier of 15 and deducted 1/3rd

share towards personal expense. In view of the above, the amount awarded by

the Tribunal towards loss of dependency is re-determined as follows:

Rs.40,000/- + 16,000 (40% of R.40,000/-) x 12 x 15 x 2/3=

Rs.67,20,000/-

19.The Tribunal has awarded a sum of Rs.1,00,000 towards loss of

consortium to the 1st appellant and awarded a sum of Rs.1,00,000/- towards loss

of love and affection to the appellants, which are on the higher side. Thus, this

Court re-determined as a sum of Rs.40,000/- towards each head i.e towards loss

of consortium and loss of love and affection. The amount awarded towards loss

of care and guidance for minor is set aside. A sum of Rs.25,000/- awarded by

the Tribunal towards funeral expenses is on the higher side and the same is

reduced to Rs.15,000/-. The Tribunal has not awarded any amount towards loss

of estate. This Court awards a sum of Rs.15,000/- towards loss of estate. A sum

of Rs.10,000/- awarded by the Tribunal towards transportation stands

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confirmed. Hence, the amount of compensation under the following heads

awarded by the Tribunal is modified as follows:

S.No Description Amount awarded by Amount awarded Tribunal by this Court (Rs) (Rs)

1. Loss of Dependency 54,00,000 67,20,000

2. Loss of Consortium to 1,00,000 40,000 the 1st petitioner

3. Loss of Love and 1,00,000 40,000 Affection for petitioners

4. Loss of care and 1,00,000 -

guidance for minor

5. Funeral Expenses 25,000 15,000

6. Transport Expenses 10,000 10,000

7. Loss of Estate - 15,000 Total 57,35,000 68,40,000

20.The Tribunal has deducted 25% of the award amount towards

contributory negligence. Since this Court fastened the entire negligence on the

part of the driver of the bus-1st respondent and set aside the contributory

negligence fastened on the driver of the car, the 2nd respondent-Transport

Corporation is liable to pay the entire compensation awarded by this Court.

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21.In the result, this Civil Miscellaneous Appeal is partly allowed and the

compensation awarded by the Tribunal at Rs.57,35,000/- is hereby enhanced to

Rs.68,40,000/- with interest at the rate of 7.5% per annum from the date of

petition till the date of realisation. The appellants/claimants shall pay necessary

Court fee, if any, on the enhanced compensation. The 2 nd respondent/Insurance

Company is directed to deposit the enhanced award amount along with interest

and costs now determined by this Court, less the amount already deposited, if

any, within a period of ten weeks from the date of receipt of a copy of this

judgment. On such deposit, the 1st appellant is permitted to withdraw her share

i.e a sum of Rs.38,40,000/-, of the award amount, along with interest and costs,

less the amount if any, already withdrawn. The share of the minor 2nd appellant