Madras High Court
The Managing Director vs K.Anitha on 1 August, 2022
C.M.A.No.2692 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2692 of 2021 and
C.M.P.No.15468 of 2021
The Managing Director,
Tamil Nadu State Transport Corpn (Vpm Dvn) Ltd.,
3/137, Salamedu, Vazhuthareddy,
Villupuram. .. Appellant
Vs.
1.K.Anitha
2.Minor. K.Gokulakrishna
3.Minor. K.Sri Devanathan .. Respondents
(Minor respondents 2 & 3 are
represented by their Mother /
Guardian, 1st respondent herein)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
22.12.2020, made in M.C.O.P.No.1176 of 2018, on the file of the Motor
Accident Claims Tribunal, Special Sub Court, Cuddalore.
For Appellant : Mr.K.J.Sivakumar
For Respondents : Ms.Ramya V.Rao
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C.M.A.No.2692 of 2021
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
Transport Corporation against the judgment and decree dated
22.12.2020, made in M.C.O.P.No.1176 of 2018, on the file of the Motor
Accident Claims Tribunal, Special Sub Court, Cuddalore.
2.The appellant is the respondent in M.C.O.P.No.1176 of 2018, on
the file of the Motor Accident Claims Tribunal, Special Sub Court,
Cuddalore. The respondents/claimants filed the said claim petition,
claiming a sum of Rs.90,00,000/- as compensation for the death of one
R.Kaliyaperumal, who died in the accident that took place on
26.07.2017.
3.According to the respondents, on 26.07.2017, at around
07.05 hours, while the deceased R.Kaliyaperumal was riding the
motorcycle bearing Registration No.TN 31 BS 9004 from North to South
direction at a moderate speed on the extreme left side of the Panruti –
Kumbakonam Road opposite to Bismi Beef Shop, near RTO Office, the
driver of the bus bearing Registration No.TN 32 N 3589, who was
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C.M.A.No.2692 of 2021
driving the bus from the opposite direction, drove the same in a rash and
negligent manner and dashed against the motorcycle driven by the said
R.Kaliyaperumal and caused the accident. Due to the said impact, the
said R.Kaliyaperumal was thrown out of the motorcycle and died on the
spot. Hence, the respondents filed the claim petition claiming
compensation against the appellant.
4.The appellant filed counter statement and denied all the
averments made by the respondents in the claim petition. The appellant
denied the manner of accident as alleged by the respondents. According
to appellant, on 26.07.2017, while the driver of the bus was driving the
bus towards Pondicherry near RTO Office, Panruti, the deceased who
was driving the motorcycle from North to South, overtook the lorry which
was proceeding ahead of him and without noticing the bus, which was
coming in the opposite direction, dashed on the centre portion of the front
bumper of the bus, fell down and died on the spot. Further, F.I.R. was
registered against the deceased by the Panruti Police Station. The death
could have been avoided, had the rider of the motorcycle worn helmet at
the time of accident. The accident has occurred only due to the negligence
of the deceased and hence, the appellant is not liable to pay any
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C.M.A.No.2692 of 2021
compensation to the respondents. The owner and insurer of the
motorcycle driven by the deceased have to be impleaded as necessary
parties in the claim petition. The deceased was not possessing driving
license at the time of accident. The respondents have to prove that they
are the only legal heirs of the deceased. The respondents have to prove
the age, avocation and income of the deceased. In any event, the quantum
of compensation claimed by the respondents are highly excessive and
prayed for dismissal of the claim petition as against the appellant.
5.Before the Tribunal, the 1st respondent examined herself as
P.W.1, one Masilamani, eyewitness to the accident was examined as
P.W.2, one Vasanthi, Community Liaison Officer of SNS Datascribe &
Software (P) Ltd. was examined as P.W.3 and 15 documents were
marked as Exs.P1 to P15. The appellant did not let in any oral and
documentary evidence.
6.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving by the driver of the bus belonging to appellant-Transport
Corporation and directed the appellant-Transport Corporation to pay a
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C.M.A.No.2692 of 2021
sum of Rs.60,82,584/- as compensation to the respondents.
7.To set aside the said award dated 22.12.2020, made in
M.C.O.P.No.1176 of 2018, the appellant has come out with the present
appeal.
8.The learned counsel appearing for the appellant contended that
the accident occurred only due to rash and negligent driving by the
deceased. At the time of accident, the deceased was not wearing helmet.
He died due to head injury. Had he been wearing helmet, he could not
have suffered serious head injury. The income earned by the deceased is a
taxable income. The Tribunal without deducting Income Tax, erroneously
granted excess amount towards loss of dependency. The amounts granted
by the Tribunal for loss of love and affection is excessive and prayed for
setting aside the award of the Tribunal.
9.The learned counsel appearing for the respondents made
submissions in support of the award passed by the Tribunal. She further
submitted that respondents 2 and 3 are minors and the Tribunal has
rightly granted Rs.2,50,000/- towards loss of love and affection. The same
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C.M.A.No.2692 of 2021
is not excessive and prayed for dismissal of the appeal.
10.Heard the learned counsel appearing for the appellant-Transport
Corporation as well as the learned counsel appearing for the respondents
and perused the entire materials available on record.
11.From the materials on record, it is seen that it is the case of the
respondents that while the deceased was riding the Motorcycle, the driver
of the Bus belonging to the appellant drove the Bus in a rash and
negligent manner, dashed on the Motorcycle and caused accident. Due to
the injuries sustained in the accident, he died. To substantiate their
contention, the respondent examined one Masilamani as P.W.2, who
travelled in the Bus at the time of accident. P.W.2 categorically deposed
that driver of the Bus drove the same in a rash and negligent manner and
caused accident. P.W.2 was present at the time of accident and he also
went to the hospital, along with the body of the deceased and he gave his
phone number to the relatives of the deceased. Nothing favourable was
elucidated in the cross-examination done by the counsel for the appellant.
On the other hand, it is the case of the appellant that while the deceased
was trying to overtake a Lorry, dashed on the Bus and invited the
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C.M.A.No.2692 of 2021
accident. To prove their case, they did not examine the driver of the Bus
or any other eye-witness to substantiate their contention. The appellant
relied on the contents of FIR, marked as Ex.P1, which was registered
against the deceased. The FIR was registered based on the complaint
given by one Kaliaraj, father-in-law of the deceased. He is not an
eyewitness and according to the FIR, he gathered information from the
person in the place of occurrence and gave complaint. The learned
counsel appearing for the respondents before the Tribunal, issued notice
to higher Police Officials, within 20 days of the accident, stating that
Police took signature of Kaliaraj in blank paper, filled up and registered
the FIR. Even if the said Kaliaraj has given the complaint based on which
FIR is registered, it is only based on hearsay evidence of P.W.2 given on
oath. In view of the above materials, the negligence fixed on the driver of
the Bus by the Tribunal is proper and valid.
12.The contention of the learned counsel appearing for the
appellant that deceased was not wearing helmet at the time of accident is
not proved by the appellant. Hence, the liability fixed on the appellant is
not interfered with.
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C.M.A.No.2692 of 2021
13.As far as the quantum of compensation is concerned, the
respondents claimed that deceased was working as General Manager at
SNS Datascribe & Software (P) Ltd., Coimbatore and was earning a sum
of Rs.41,125/- per month. To substantiate the same, the respondents
examined one Vasanthi, Community Liaison Officer of SNS Datascribe &
Software (P) Ltd. as P.W.3 and marked Exs.P9, P10, P12 to P15. As per
Ex.P8 / Passbook of the deceased and Ex.P14 / salary certificate of the
deceased, he was earning a sum of Rs.41,125/- per month. The salary
earned by the deceased is taxable income. As per Ex.P2/postmortem
certificate of the deceased, the deceased was aged 42 years at the time of
accident. As per the judgments of the Hon'ble Apex Court reported in
2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay
Sethi and others] and 2009 (2) TNMAC 1 SC Supreme Court, [Sarla
Verma & others Vs. Delhi Transport Corporation & another], the
Tribunal has rightly granted 25% enhancement towards future prospects
and applied multiplier '14'. The Tribunal failed to deduct any amount
towards Income Tax. Thus, the calculation for arriving annual income of
the deceased after deducting income tax for the assessment year 2018-
2019 is as follows :-
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C.M.A.No.2692 of 2021
Monthly salary of the deceased ... Rs.41,125.00
ADD: 25% enhancement towards
future prospects ... Rs.10,281.25
-------------------
Rs.51,406.25
-------------------
(rounded off to Rs.51,406/-)
Annual income (Rs.51,406 x 12) ... Rs.6,16,872/-
Income Tax Slab for Assessment Year 2018-2019:
Upto Rs.2,50,000/- - Nil
Rs.2,50,000/- to Rs.5,00,000/- (5%)
[ Rs.2,50,000/- x 5%] - Rs.12,500.00
Rs.5,00,000/- to Rs.10,00,000/- (20%)
[Rs.6,16,872/- - Rs.5,00,000/-
= Rs.1,16,872/-]
[Rs.1,16,872/- x 20%] - Rs.23,374.40
-------------------
Rs.35,874.40
-------------------
(rounded off to Rs.35,874/-)
Annual income of the deceased after
deducting income tax
(Rs.6,16,872 – Rs.35,874/-) - Rs.5,80,998/-
13(i). There are three dependants of the deceased and the Tribunal
has rightly deducted 1/3rd towards personal expenses of the deceased.
Thus, the compensation awarded by the Tribunal towards loss of
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C.M.A.No.2692 of 2021
dependency is modified to Rs.54,22,648/- (Rs.5,80,998/- x 14 x 2/3). The
Tribunal has awarded a sum of Rs.2,50,000/- towards loss of love and
affection to the respondents 2 & 3, which is not correct and the same is
liable to be set aside and it is hereby set aside. The respondents 2 & 3,
who are the minor sons of the deceased are entitled to a sum of
Rs.40,000/- each towards parental consortium. The amounts awarded by
the Tribunal under other heads are just and reasonable and hence, the
same are hereby confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 57,57,584/- 54,22,648/- Reduced
2. Loss of Estate 15,000/- 15,000/- Confirmed
3. Loss of consortium 40,000/- 40,000/- Confirmed
to 1st respondent
4. Loss of love and 2,50,000/- - Set aside
affection
5. Parental consortium - 80,000/- Granted
to respondents 2 & 3
6. Funeral expenses 15,000/- 15,000/- Confirmed
7. Transportation 5,000/- 5,000/- Confirmed
Total Rs.60,82,584/- Rs.55,77,648/- Reduced by
Rs.5,04,936/-
(Rs.60,82,584/-
-
Rs.55,77,648/-)
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C.M.A.No.2692 of 2021
14. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.60,82,584/- is
hereby reduced to Rs.55,77,648/-. The appellant-Transport Corporation is
directed to deposit the award amount now determined by this Court along
with interest at the rate of 7.5% per annum from the date of petition till
the date of deposit, less the amount already deposited, if any, within a
period of twelve weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P.No.1176 of 2018, on the file of the
Motor Accident Claims Tribunal, Special Sub Court, Cuddalore. On such
deposit, the 1st respondent is permitted to withdraw her respective share
of the award amount now determined by this Court as per the ratio of
apportionment fixed by the Tribunal, along with proportionate interest
and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. The share of the minor
respondents 2 & 3 are directed to be deposited in any one of the
Nationalized Banks, till the minor respondents 2 & 3 attain majority. On
such deposit, the 1st respondent, being the Mother of the minor
respondents 2 & 3 is permitted to withdraw the accrued interest once in
three months for the welfare the minor respondents 2 & 3. The appellant
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C.M.A.No.2692 of 2021
is permitted to withdraw the excess amount lying in the credit of
M.C.O.P.No.1176 of 2018, if the entire award amount has been already
deposited by them. Consequently the connected Miscellaneous Petition is
closed. No costs.
(V.M.V., J) (S.S., J)
01.08.2022
krk / gsa
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Cuddalore.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.2692 of 2021
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk / gsa
C.M.A.No.2692 of 2021
01.08.2022
https://www.mhc.tn.gov.in/judis
