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 Respondents : 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.

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

The insurance 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 https://www.mhc.tn.gov.in/judis

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

Tribunal is 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 https://www.mhc.tn.gov.in/judis

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

the rough 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                            =     34,88,692/-

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.23,33,704/- alone. The https://www.mhc.tn.gov.in/judis

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

amount of Rs.23,33,692/- shall be kept in fixed deposit