Madras High Court
Mrs.Mahalakshmi vs M/S.I.C.I.C.I. Bank Ltd on 6 January, 2022
C.M.A.No.1662 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.01.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.1662 of 2018
[through video conferencing]
1.Mrs.Mahalakshmi
2.Mr.Ramprakash
3.Rambarathy .. Appellants
Versus
1.M/s.I.C.I.C.I. Bank Ltd.,
Plot No.634, Melur Madurai Road,
K.K.Nagar, Madurai – 625 020.
2.M/s.IFFCO TOKIO General Insurance Company Limited,
No.82, Preetham Plaza 1st Floor,
Chandrakandhi Nagar,
Ponmalai By Pass Road,
Madurai – 62. .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 24.10.2016 made
in M.C.O.P.No.80 of 2013, on the file of the Special District Judge, to deal
with MCOP Cases, Villupuram.
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C.M.A.No.1662 of 2018
For Appellants : Mr. S. Kalyanaraman
For R1 : Mr.T.Srinivasa Raghavan
For R2 : Mr.N.Vijayaraghavan
for M/s.M.B.Gopalan Associates
*****
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimants for
enhancement of compensation awarded by the Tribunal, by modifying the
award passed in M.C.O.P.No.80 of 2013 dated 24.10.2016, on the file of the
Special District Judge, to deal with MCOP Cases, Villupuram.
2. The appellants herein are the claimants in M.C.O.P.No.80 of 2013, on
the file of the Special District Judge, to deal with the MCOP Cases,
Villupuram. They have filed the above said claim petition, claiming a sum of
Rs.45,00,000/- as compensation for the death of one Bakthinarayanan, who
died in the road accident that took place on 23.07.2009.
3. The facts which related to the filing of the present appeal are that on
23.07.2009 at about 8.40 hours, while the deceased was waiting to cross the
service road in his motorcycle bearing registration No. PY01 AR 4033 on the
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GST Road, near Asanoor Bus stop to go to his school, a Tata Indica car
bearing registration No.TN59 AH 7443 came at a very high speed, driven by
its driver, in a rash and negligent manner and hit against the deceased behind
his motorcycle. As a result of which, the deceased sustained grievous injuries
and immediately, he was taken to the Government Hospital, Ulundurpet,
where, after first aid, he was referred to MIOT Hospital, Chennai. The
deceased had undergone treatment from 23.07.2009 till 14.08.2009, on which
date, he died due to the injuries sustained in the accident. Therefore, the claim
petition was filed seeking compensation of Rs.45,00,000/- against the owner of
the car and it's insurer.
4. Resisting the claim petition, the 2nd respondent / Insurance Company
filed a Counter Affidavit inter alia stating that the driver of the car was not
solely responsible for causing the accident and that the deceased has also
contributed for the accident. According to the 2nd respondent, the deceased,
without following the Road Rules, crossed the National Highways Road in a
hurry. The 2nd respondent also disputed the age, income and occupation of the
deceased and stated that the compensation claimed by the claimants is
excessive.
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C.M.A.No.1662 of 2018
5. Before the Tribunal, on behalf of the claimants, wife of the deceased
was examined as P.W.1 apart from examining two others as P.W.2 & P.W.3
and marked Exs.P1 to P14. On behalf of the respondents no one was examined
and no document marked.
6. The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to the negligence on the part of
the driver of the car as well as the deceased and fixed the ratio of negligence at
80% : 20% respectively. Considering the age and the earning capacity of the
deceased at Rs.15,309/-, the Special District Judge, Villupuram adopted split
multiplier method and directed the 2nd respondent / Insurance Company to pay
a sum of Rs.21,66,265/- [Rupees Twenty One Lakhs Sixty Six Thousand Two
Hundred Sixty Five only] as compensation to the appellants.
7. As against the award passed by the Tribunal, the Insurance Company
has not filed any appeal. However, the claimants have filed this Civil
Miscellaneous Appeal seeking enhancement of compensation.
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C.M.A.No.1662 of 2018
8. The learned counsel appearing for the appellants/claimant would
contend that the Tribunal was not justified in deducting 20% of the amount
towards contributory negligence on the part of the deceased. The Tribunal has
not appreciated the evidence in proper perspective since, which resulted in
miscarriage of justice. According to the learned counsel for the appellants, the
accident occurred solely due to rash and negligent driving of the driver of the
car. Before the Tribunal, on behalf of the respondents, neither any witness was
examined nor any document was marked. While so, the Tribunal ought not to
have fixed the contributory negligence at 20% on the deceased. The learned
counsel further pointed out that the deceased was standing on the left side of
the road and was carefully crossing the road but due to the rash and negligent
driving of the driver of the car, the accident had occurred. Had the driver of
the car driven the vehicle in a normal speed, the accident could have been
averted. The learned counsel would further contend that the Tribunal has failed
to grant compensation under the head of pain and sufferings since the deceased
had suffered enormous pain and sufferings and after few days of
hospitalization, he died. The learned counsel for the appellants would also
contend that the compensation awarded to the legal heirs of the deceased
cannot be construed as income for the purpose of calculating and deducting
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C.M.A.No.1662 of 2018
income tax and therefore, deduction of income tax is legally not sustainable.
With these contentions, the learned counsel for the appellants sought for
enhancement of compensation.
9. Per Contra, the learned counsel appearing for the 2 nd
respondent/Insurance Company contended that the Tribunal on proper
evaluation of the evidence, both oral and documentary, the Tribunal has rightly
awarded compensation by fixing contributory negligence on the part of both
the driver of the car and the deceased and awarded a reasonable compensation
which is liable to be confirmed. Further, the amounts awarded by the Tribunal
under different heads are not meager. The appellants have not made out any
case for enhancement of compensation and therefore, the learned counsel for
the 2nd respondent/Insurance Company prayed for dismissal of the appeal.
10. Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the respondents and perused the entire materials
available on record.
11. Admittedly, there was no witness examined on the side of the
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C.M.A.No.1662 of 2018
respondents before the Tribunal. The respondents have also did not mark any
document in support of their defence. At the same time, merely because the
respondents did not examine any witness or mark documentary evidence, the
Tribunal is not precluded from independently considering the evidence made
available before it. In this case, Tribunal had taken note of the evidence of
P.W.2, an eye witness as well as the copy of the rough sketch marked, Ex.P4.
Based on the deposition of P.W.2 and Ex.P4, the Tribunal rendered a finding
that there is no crossing point, at the place of accident, to cross the road and to
reach the other side of the road. The Tribunal found that there is no signal at
the point where the deceased crossed the road. The Tribunal also considered
Ex.P11, Motor Vehicle Report and concluded that there was no severe
damages caused to the two wheeler driven by the deceased, but there was
damages on the right side of the two wheeler which would suggest that the
deceased did not wait for the car to pass on, but darted across the road even
when the car was fast approaching. Thus, it is evident that the place where the
deceased attempted to cross the road is not a crossing-point for two wheelers to
cross and in spite of the same, the deceased attempted to cross the road to
reach the School which is on the opposite side of the road. In such
circumstances, this Court is of the firm view that the Tribunal is wholly
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justified in fixing 20% negligence on the part of the deceased and
consequently, the findings rendered by the Tribunal in that regard are
confirmed.
12. As regards quantum, admittedly, the deceased was working as a
Teacher and was in receipt of Rs.70,000/- per month. After his death, the 1 st
appellant/wife is in receipt of Rs.15,000/- per month as pension. The deceased
was aged about 51 years at the time of accident and he had a left over service
of 7 years. Taking note of the above, the Tribunal adopted split multiplier. The
Tribunal has taken Rs.30,328/- as the monthly salary of the deceased, after all
the statutory deductions, including personal expenses of the deceased himself,
for the remaining 7 years of left over service, to arrive at Rs.25,47,552/-
(Rs.30,328 X 12 X 7). After retirement of the deceased, the Tribunal had
divided the monthly income of the deceased by half (Rs.30,328 /2) to arrive at
Rs.15,164/- and for four years, after retirement of the deceased, the Tribunal
awarded Rs.7,27,872/-. In effect, a sum of Rs.28,38,701/- was awarded by the
Tribunal towards loss of earning.
13. However, we find that the Tribunal ought to have considered that
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after retirement, the deceased presumed to have survived for another six years,
but the Tribunal has adopted '4' as the multiplier after the age of retirement of
the deceased. This aspect of the matter requires modification. Thus the
compensation awarded by the Tribunal towards “loss of earning” is modified
as follows: {(30328 X 12 X 7 = 2547552) + (30328/2=15164 X 12 X 6 (after
retirement period))= 1091808} = 3639360 + 1091808 (30% future prospects)
= 4731168 X 2/3 (personal expenses) = Rs.3154112/-.
14. Similarly, we find that the Tribunal has awarded Rs.50,000/- as loss
of consortium to the first claimant. As per the off-quoted decision of the
Honorable Supreme Court in Pranay Sethi's case, the 1st appellant/claimant is
entitled only to Rs.40,000/- and therefore, the amount of Rs.50,000/- awarded
by the Tribunal is hereby reduced to Rs.40,000/-.
15. The Tribunal deducted 10% towards income tax liability of the
deceased, which in the opinion of this Court needs no interference. The
deceased was working as a Teacher in a Government School and was earning
Rs.70,000/- per month in the year 2009. Such amount received by the deceased
attract payment of income tax. The compensation payable to the claimants is
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based on the income earned by the deceased. Had the deceased been alive, he
would have definitely paid income tax for his earnings. In such view of the
matter, the Tribunal is right in deducting amount towards payment of income
tax.
16. On perusal of the award passed by the Tribunal, this Court is of the
view that the amount awarded under the heads (i) funeral expenses (ii)
transportation expenses are fair and reasonable and therefore, no interference is
required in the amount awarded by the Tribunal under the aforesaid heads.
17. In effect, the compensation awarded by the Tribunal is modified as
follows:
Sl. Description Amount Amount Award
No. awarded by the awarded by confirmed or
Tribunal this Court enhanced or
(Rs.) (Rs.) granted
1 Loss of earning Rs.28,38,701/- Rs.31,54,112/- Enhanced
2 Loss of consortium for Rs.50,000/- Rs.40,000/- Reduced
the 1st appellant
3 Loss of love and Rs.30,000/- Rs.80,000/- Enhanced
affection for 2nd and
3rd appellants
4 Funeral expenses Rs.25,000/- Rs.25,000/- Confirmed
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Sl. Description Amount Amount Award
No. awarded by the awarded by confirmed or
Tribunal this Court enhanced or
(Rs.) (Rs.) granted
5 Loss of care and
protections (Each Rs.45,000/- --- Rejected
Rs.15,000/-)
6 Transportation Rs.20,000/- Rs.20,000/- Confirmed
Expenses
(-) Negligence 20% Rs.6,01,740/- Rs.6,63,822/-
(-) Income Tax 10% Rs.2,40,696/- Rs.2,65,529/-
Total Rs.21,66,265/- Rs.23,89,761/- Enhanced by
Rs.2,23,496/-
18. In the result, this Civil Miscellaneous Petition is partly allowed and
the compensation awarded by the Tribunal at Rs.21,66,265/- is hereby
enhanced to Rs.23,89,761/- [Rupees Twenty Three Lakhs Eighty Nine
Thousand Seven Hundred and Sixty One only] together with interest at the rate
of 7.5% per annum from the date of filing of petition till the date of deposit.
The 2nd respondent/Insurance Company is directed to deposit the award
amount now determined by this Court along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date of
receipt of a copy of this Judgment to the credit of M.C.O.P.No.80 of 2013, on
the file of the Special District Judge, to deal with MCOP Cases, Villupuram.
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On such deposit, the appellants 1 to 3 are permitted to withdraw their
respective shares of now awarded amounts as per the 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.
Since, this Court had enhanced the compensation, the appellants/claimants are
directed to pay necessary court fee, if any, on the enhanced compensation
awarded amount. In other aspects, the amount awarded by the Tribunal shall
stand confirmed. No costs.
06.01.2022
ssi
Index : Yes / No
Internet : Yes/ No
Speaking Order : Yes/No
To:
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C.M.A.No.1662 of 2018
1.The Special District Judge,
Motor Accidents Claims Tribunal,
Villupuram.
2.The Section Officer,
VR Section,
High Court, Madras.
S.KANNAMMAL, J.
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C.M.A.No.1662 of 2018
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C.M.A.No.1662 of 2018
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