Madras High Court

Vellaiyammal vs K.Senthilvel on 13 December, 2022

                                                                            C.M.A(MD)No.1106 of 2022

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated : 13.12.2022

                                                      CORAM

                                    THE HONOURABLE MRS.JUSTICE N.MALA

                                              C.M.A(MD)No.755 of 2022


                1.Vellaiyammal
                2.Muniaselvi
                3.Gurupriya                                            ... Appellants/ Petitioner.

                                                         Vs

                1.K.Senthilvel


                2.M/s.United India Insurance Company Limited,
                  Through its Divisional Manager,
                  No.7-A, West Veli Street,
                  Madurai-1.                                  ...Respondents/Respondents

                PRAYER :-

                           This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                Vehicles Act for enhancement of compensation and also the finding on

                negligence by the Motor Accidents Claims Tribunal/Special District Judge

                (MACT) of Madurai, dated 06.06.2022 passed in MCOP No.885 of 2019.

                                  For Appellant    : Mr.V.Sakthivel
                                  For R1           : No Appearance
                                  For R2           : Mr.G.Prabhu Rajadurai

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                                                                        C.M.A(MD)No.1106 of 2022


                                                   JUDGMENT

The main grounds of challenge are the finding of the Tribunal on the

issue of negligence, quantum of compensation fixed by the Tribunal and the

deduction of income tax on the income of the appellant.

2. The brief facts of the case are that A.Ganapathy, who was working in

the Selvanayagapuram Co-operative Society while crossing the road on

20.04.2019 at 13.00 hours was hit by a motor bike bearing Registration

No.TN-65-V7287, sustained injuries and died on the spot. The deceased was

earning a salary of Rs.34,056/- at the time of accident and therefore, the

claimant filed claim petition seeking a sum of Rs.40,00,000/- as compensation

against the respondents.

3. The insurance company contested the claim petition by filing a

counter, wherein, it was stated that the deceased A.Ganapathy was negligent in

crossing the road and therefore, the accident occurred only due to the

negligence of the deceased. The insurance company further stated that the

insurance company was not liable to pay compensation because the rider of the

motor bike did not have a valid and effective driving licence and therefore, the

liability should be fastened only on the owner of the vehicle. The insurance

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C.M.A(MD)No.1106 of 2022

company further disputed the quantum of compensation claimed by the

respondents.

4. The Tribunal on an assessment of the entire evidence on record found

that the deceased was also negligent and hence deducted 30% of the

compensation amount determined by it towards contributory negligence of the

deceased and fixed the compensation amount at Rs.25,82,480/-with interest

7.5% per annum from the date of petition till the date of deposit. The claimants

aggrieved by the judgment and decree of the Tribunal have filed the above

appeal.

5. The learned counsel for the appellant submits that the Tribunal erred

in deducting 30% towards contributory negligence and the finding of the

Tribunal in that aspect is un-sustainable. The learned counsel further submitted

that for fixing quantum of compensation, the Tribunal has taken the net salary

instead of gross salary and further towards future prospect, only 10% was

added instead of 15%.

6. In contra, the learned counsel for the respondents submits that the

Tribunal had considered the entire materials on record and returned the finding

of the negligence against the deceased and as such finding of the Tribunal is https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.1106 of 2022

un-assailable. On the issue of quantum, the learned counsel for the respondents

submitted that the compensation fixed by the Tribunal is just fair and no

interference is called for. The learned counsel for the respondents therefore

submitted that there are no merits in the appeal and the same deserved to be

rejected.

7. The Tribunal on the issue of negligence has given a cryptic finding.

The Tribunal observed that If the driver of the motor bike had seen the

deceased at short distance, he should have applied the brake for avoiding the

accident, but be he did not do so, in spite of such observations, the Tribunal

held that the deceased contributed to the accident as he was not responsible or

cautious while crossing the road. It is true that the evidence of P.W.1 and P.W.2

does not support the claimant's case but on the facts of the case, I am of the

view that the principles of res ipsa loquitor will apply. Admittedly, the deceased

pedestrian was crossing the road at the time of accident which occurred at

01.00 p.m., in the afternoon. If the bike was driven at reasonable speed, the

driver could have avoided the accident by applying the brakes. The very fact

that the deceased died on the spot would establish that the motor bike rider was

driving the vehicle in a rash and negligent manner and at great speed.

Therefore, I am of the view that the finding of the Tribunal that the deceased

contributed to the accident cannot be sustained. I have gone through the rough https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.1106 of 2022

sketch Exhibit P.3, I find that the point of accident is on the extreme left side of

the thar road. It would be pertinent to note that the insurance company has not

chosen to examine the driver of the motor bike, which in my view is fatal to the

case of the insurance company. If the driver of the motor bike was examined,

the claimant would have had an opportunity to cross-examine him and elicit

the true facts from him. The insurance company has not put forward the best

evidence and therefore, adverse inference can be drawn against the insurance

company. For all the above reasons, the finding of the tribunal that the

deceased contributed to the accident cannot be sustained and the same is set

aside.

8. On the issue of quantum, it is seen that the Tribunal has fixed the

income of the deceased at Rs.34,056/- on the basis of Exhibit P.8 and P.19, the

Tribunal added 10% towards future prospect and arrived at Rs.37,461/- per

month. As the dependents of the deceased are 3, the Tribunal deducted 1/3

towards the personal expenses of the deceased from the said amount of Rs.

37,461/- and arrived at a monthly income of Rs.34,056/-. The multiplier 9 was

adopted considering that the deceased was aged about 57 years at the time of

accident and on the basis of the above, the Tribunal arrived at a total

compensation of Rs.24,27,480/-.

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C.M.A(MD)No.1106 of 2022

9. The learned counsel for the appellant submitted that the Tribunal

adopted net income instead of gross income. The gross income of the deceased

as per Exhibit P.8 and P.19 was Rs.40,062/-. Therefore, the monthly income of

the deceased would be Rs.40,062/-. As per the judgment of the Hon’ble

Supreme Court in the case of National Insurance Company Limited Vs

Pranay Sethi and others, 15% should be added towards future prospect, but

10% was applied by the Tribunal. Therefore, following Pranay Sethi's case,

15% is added towards future prospect and the income is fixed at Rs.

46,071/-. The annual income thus works out to Rs.5,52,852/- and the income

tax deductable as per the income tax slab for the year 2019-2020 would be Rs.

23,070/-. Therefore, the total annual income is Rs.5,29,782/- and after

deducting Rs.1,76,594/- being the one third towards personal expenses, the

annual loss of income is Rs.3,53,188/- If the multiplier 9 is adopted

commensurate with the age of the deceased, the compensation towards loss of

income is Rs.31,78,692/-. The amounts under other heads awarded by the

Tribunal at Rs.1,55,000/- is reasonable. Thus, the compensation payable to the

claimants is enhanced to Rs.33,33,692/- and if the amount already awarded by

the Tribunal is deducted, the enhanced compensation works out to Rs.

15,25,956/-.

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C.M.A(MD)No.1106 of 2022

10. In view of the above, this Court finds that the appellant is entitled to

the following amounts towards compensation:

                          Loss of Income                    =     31,78,692/-

                          Loss of spousal consortium        =        40,000/-

                          Loss of parental consortium       =        80,000/-

                          Funeral Expenses                  =        15,000/-

                          Loss of Estate                    =        15,000/-

                          Transport Expenses                =          5,000/-

                          Total                             =     33,33,692/-

11. The counsel submits that the Tribunal had erroneously adopted 10%

towards future prospect instead of 15%. Therefore, the Court fee was paid for

the appeal valued at 14,10,000/-. The counsel therefore seeks permission of

this Court to pay the balance Court fee for the difference of sum of Rs.

1,19,956/-.

12. The appellant is directed to pay the Court fee for the balance sum of

Rs.1,19,956/-. It is further directed that apportionment of compensation would

be as follows:

The first appellant is entitled to withdraw the accrued

interest on the sum of Rs.23,33,692/- alone. The amount of https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.1106 of 2022

Rs.23,33,692/- shall be kept in fixed deposit yielding interest