Madras High Court
M/S. Icici Lombard General vs Palani Devi on 27 June, 2022
C.M.A.Nos.4019 of 2019 & 1258 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.Nos.4019 of 2019 & 1258 of 2020
and
C.M.P.No.22711 of 2019
C.M.A.No.4019 of 2019:
M/s. ICICI Lombard General
Insurance Company Ltd.,
'Zenith House',
Keshavrao Khade Marg
Mahalaxmi,
Mumbai – 400 034. .. Appellant
Vs.
1.Palani Devi
2.Minor. Jayavel Rajan
3.Minor. Nithyashri Aruna
(Minor respondents 2 & 3 are represented
by their Mother and Guardian, Palani Devi,
1st respondent herein)
Velusamy (died)
4.Jayalakshmi
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.4019 of 2019 & 1258 of 2020
5.T.A.Subramanian
6.S.Elayaraja .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
23.11.2018, made in M.C.O.P.No.464 of 2015, on the file of the Motor
Accident Claims Tribunal, District Court No.II, Kanchipuram.
For Appellant : Mrs.R.Sree Vidhya
For RR 1 to 4 : Mr.M.Sivakumar
for Mr.N.Sudarasan
For RR 5 & 6 : Not ready in notice
C.M.A.No.1258 of 2020:
1.Palani Devi
2.Minor. Jayavel Rajan
3.Minor. Nithiyashri Aruna
(Minor appellants 2 & 3 are represented
by their Mother / Guardian, Palani Devi,
1st appellant herein)
Velusamy (died)
4.Jayalakshmi .. Appellants
Vs.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.4019 of 2019 & 1258 of 2020
1.T.A.Subramanian
2.S.Elayaraja
3.ICICI Lombard General Insurance,
Zenith House, Keshavrao Khade Marg,
Mahalaxmi,
Mumbai – 400 034. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
23.11.2018, made in M.C.O.P.No.464 of 2015, on the file of the Motor
Accident Claims Tribunal, District Court No.II, Kanchipuram.
For Appellants : Mr.M.Sivakumar
For R1 : No appearance
For R3 : Mrs.R.Sree Vidhya
COMMON JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
C.M.A.No.4019 of 2019 has been filed by the appellant-Insurance
Company against the award dated 23.11.2018, made in M.C.O.P.No.464
of 2015, on the file of the Motor Accident Claims Tribunal, District
Court No.II, Kanchipuram.
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
2.C.M.A.No.1258 of 2020 has been filed by the appellants-
claimants challenging the 5% contributory negligence fixed on the part
of the deceased and seeking enhancement of compensation granted by
the Tribunal in the award dated 23.11.2018, made in M.C.O.P.No.464 of
2015, on the file of the Motor Accident Claims Tribunal, District Court
No.II, Kanchipuram.
3.Both the appeals arise out of same accident and same award and
hence, disposed of by this common judgment.
4.The parties are referred to as per their ranks in the claim petition,
for the sake of convenience.
5.The claimants filed M.C.O.P.No.464 of 201, claiming a sum of
Rs.1,00,00,000/- as compensation for the death of one V.Mohana
Pandiyarajan, who died in the accident that took place on 16.12.2008.
6.According to the claimants, on 16.12.2008, at about 03.00 A.M.,
while the deceased V.Mohana Pandiyarajan along with co-worker was
travelling in the car bearing Registration No.TN 45 AB 2437 on the
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
Kovai – Trichy Main Road, near Kosapalayam road, the driver of the
lorry bearing Registration No.TN 31 J 5505 belonging to 1st respondent,
parked the lorry in the road without following any traffic rules and proper
signal. Without knowing the same, the car in which the said V.Mohana
Pandiyarajan travelled dashed on the backside of the lorry and thus, the
accident occurred. In the accident, the said V.Mohana Pandiyarajan
sustained severe injuries in the fore head and immediately after the
accident, co-worker James took the said V.Mohana Pandiyarajan to
Kumaran Hospital, Thirupur. The duty Doctor examined the said
V.Mohana Pandiyarajan and reported he was brought dead. The accident
occurred only due to rash and negligent driving by the driver of the lorry
belonging to 1st respondent and hence, the claimants filed the said claim
petition claiming a sum of Rs.1,00,00,000/- as compensation against the
respondents who are the owner, driver and insurer of the lorry
respectively.
7.The respondents 1 & 2, being the owner and driver of the lorry
remained exparte before the Tribunal.
8.The 3rd respondent-Insurance Company filed counter statement
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
and denied all the averments made by the claimants. The 3rd respondent
denied the manner of accident as alleged by the claimants. According to
the 3rd respondent, the driver of the car only drove the same in a rash and
negligent manner and dashed on the rear side of parked and halted lorry
belonging to 1st respondent and invited the accident. There is no
negligence on the part of the driver of the lorry belonging to 1 st
respondent. Only with a view to get compensation from the Insurance
Company of the lorry, F.I.R. was registered against the driver of the lorry.
Hence, the 3rd respondent is not liable to pay any compensation to the
claimants. Further, the 2nd respondent – driver of the lorry was not
possessing valid driving license to drive the lorry and the lorry belonging
to 1st respondent was not insured at the time of accident. The 3rd
respondent denied the age, avocation and income of the deceased. In any
event, the quantum of compensation claimed by the claimants are highly
excessive and prayed for dismissal of the claim petition.
9.Before the Tribunal, the 1st claimant examined herself as P.W.1,
one Uthaya Prakash, was examined as P.W.2 and marked 15 documents
as Exs.P1 to P15. The 3rd respondent-Insurance Company examined one
Ramkumar, Manager of 3rd respondent as R.W.1 and marked
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
Ex.R1/Policy schedule. One Muniappan was examined as C.W.1 and five
documents were marked as Exs.C1 to C5.
10.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to negligent act of the
driver of the lorry belonging to 1st respondent and fixed 95% negligence
on the part of the driver of the lorry belonging to 1st respondent and 5%
negligence on the part of the driver of the car for not vigilant enough at
the time of accident and awarded a sum of Rs.97,89,000/- being 95% of
the award amount as compensation to the claimants.
11.Challenging the liability fastened on them as well as quantum
of compensation granted by the Tribunal in the award dated 23.11.2018
made in M.C.O.P.No.464 of 2015, the 3rd respondent-Insurance Company
has come out with an appeal in C.M.A.No.4019 of 2019.
12.Challenging the portion of the award fixing 5% contributory
negligence on the part of the driver of the car and not being satisfied with
the amounts awarded by the Tribunal, the claimants have come out with
an appeal in C.M.A.No.1258 of 2020.
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
13.The learned counsel appearing for the 3rd respondent-Insurance
Company contended that the lorry was parked in the mud road in the left
hand side of the road following the road traffic rules with parking signal.
The driver of the car only drove the same in a rash and negligent manner
and without noticing the parked lorry, dashed on the backside of the lorry
and caused the accident. The road was straight road. The driver of the car
would have seen the lorry from the distance with head light of the car and
could have avoided the accident. The accident occurred at 03.00 A.M.
and it is possible that driver of the car would have been sleepy and
caused the accident. The Tribunal erroneously fixed only 5%
contributory negligence on the part of the driver of the car instead of
fixing entire negligence on the part of him. The claimants have stated
that the deceased was Director of Reymount Commodities Private
Limited and Leader Properties and Estates Private Limited and was
earning a sum of Rs.16,00,000/- per month. But curiously they have
submitted that the income of the deceased may be fixed at Rs.1,00,600/-
per month as per Ex.P15. This creates suspicion on their claim with
regard to income of the deceased. The Tribunal without properly
appreciating this aspect, erroneously accepted Ex.P15 / salary certificate
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of the deceased and fixed monthly income of the deceased at Rs.60,000/-
and granted excessive compensation. The claimants have not filed the
Income Tax Returns or PAN card of the deceased. In Ex.P14 / bank
statement of the deceased, there is no credit of Rs.1,00,600/- every
month. In the F.I.R. registered based on the complaint given by one
James, co-worker of the deceased, it has been stated that the deceased
was Manager of Chennai Branch. Exs.P6 to P14 are not proved by
examining the Auditor. The monthly income of the deceased fixed by the
Tribunal is excessive and prayed for allowing C.M.A.No.4019 of 2019
filed by the Insurance Company, setting aside the award of the Tribunal
and for dismissal of C.M.A.No.1258 of 2020 filed by claimants.
14.Though notice has been served on the 1st respondent in
C.M.A.No.1258 of 2020, there is no representation for him, either in
person or through counsel.
15.The learned counsel appearing for the claimants submitted that
the driver of the lorry parked the lorry in the road without following the
road traffic rules and without any signal. Due to the negligent parking of
the driver of the lorry, the driver of the car dashed on the lorry. The
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
accident occurred only due to the negligent act of the driver of the lorry.
F.I.R. was registered only against the driver of the lorry belonging to 1 st
respondent. The claimants examined independent eyewitness as P.W.2
and proved that the accident occurred only due to negligent act of the
driver of the lorry. The 3rd respondent-Insurance Company did not
examine the driver of the lorry or any eyewitness to prove the negligence
on the part of the driver of the car. In such circumstances, 5%
contributory negligence fixed on the part of the driver of the car is
erroneous.
15(i). The learned counsel appearing for the claimants further
submitted that at the time of accident, the deceased was Director of two
companies, viz., Reymount Commodities Private Limited and Leader
Properties and Estates Private Limited and earned profitable income. In
addition to that the deceased was paid a sum of Rs.1,00,600/- per month
as salary. The claimants proved the avocation and income of the deceased
by marking the documents as Exs.P6 to P15. The Tribunal erroneously
fixed meagre sum of Rs.60,000/- as monthly income of the deceased
despite of marking salary certificate as Ex.P15. The Tribunal erroneously
deducted incentives of Rs.40,000/- paid to the deceased. The claimants
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
are entitled to enhanced compensation and prayed for setting aside the
portion of the award fixing 5% contributory negligence on the part of the
car as well as for enhancement of compensation and for dismissal of
C.M.A.No.4019 of 2019 filed by the Insurance Company.
16.Heard the learned counsel appearing for the claimants as well as
the learned counsel appearing for the 3rd respondent-Insurance Company
and perused the entire materials on record.
17.It is the case of the claimants that on 16.12.2008 at about
03.00A.M., while the deceased along with his co-worker James and
driver Sivakumar were travelling in the car bearing Registration No.TN
45 AB 2437 on the Kovai – Trichy Main Road near Kosapalayam road,
due to negligent parking of the lorry by the driver of the lorry belonging
to 1st respondent and insured with 3rd respondent, the driver of the car
dashed on the backside of the lorry and thus the accident occurred. In the
accident, the said V.Mohana Pandiyarajan sustained injuries and died. To
prove their case, the claimants examined the 1st claimant as P.W.1 and
examined one Uthaya Prakash, alleged eyewitness as P.W.2 and marked
F.I.R., which was registered against the driver of the lorry as Ex.P1. On
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
the other hand, it is the case of the 3rd respondent-Insurance Company in
the counter statement that the driver of the lorry parked the lorry in the
mud road on the left hand side of the road. Without noticing the same, the
driver of the car drove the car in a rash and negligent manner and dashed
on the parked lorry. To prove their case, the 3rd respondent-Insurance
Company did not examine the driver of the lorry or any eyewitness. F.I.R.
is registered against the driver of the lorry based on the complaint given
by James, who travelled in the car along with deceased at the time of
accident. The 3rd respondent examined one Muniappan, attached to S.I.
of Police, Avinashi Palayam as C.W.1 and marked the final report as
Ex.C5, wherein it was mentioned that the driver of the lorry parked the
lorry without any signal. The Tribunal considering the evidence of P.W.2,
the alleged eyewitness, C.W.1, Ex.P1 & Exs.C1 to C5 and in the absence
of any contra evidence let in by the respondents, held that the accident
occurred due to negligent parking by the driver of the lorry belonging to
1st respondent. At the same time, the Tribunal also held that the driver of
the car could have avoided the accident had he been vigilant enough
while driving the car and fixed 5% negligence on the part of the driver of
the car and 95% negligence on the part of the driver of the lorry.
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
18.From the materials on record, it is seen that the accident
occurred in a straight line. The driver of the car would have seen the
lorry from a distance. F.I.R. was registered based on the complaint given
by James, occupant of the car at the time of accident. The claimants did
not examine the complainant James, who lodged the complaint based on
which the F.I.R. was registered. There is no explanation as to why they
have not examined the said James. Considering these facts, we are of the
opinion that 5% contributory negligence fixed on the part of the driver of
the car is meagre. Accordingly, the contributory negligence on the part of
the driver of the car is fixed at 15% and the negligence on the part of the
driver of the lorry is fixed at 85%.
19.As far as quantum of compensation is concerned, it is the case
of the claimants that at the time of accident, the deceased was aged 38
years, Director in two companies, viz., Reymount Commodities Private
Limited and Leader Properties and Estates Private Limited and was
earning a sum of Rs.16,00,000/- per month and filed Exs.P6 to P13 to
that effect. The claimants have not proved the income of the deceased by
examining the Auditor or Accountant of the Company. Further, the
claimants filed Ex.P15 / salary certificate of the deceased to show that
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the deceased was getting a sum of Rs.1,00,600/- per month and prayed to
fix the monthly income at Rs.1,00,600/-. As rightly pointed out by the
learned counsel appearing for the 3rd respondent-Insurance Company, the
claimants have not produced the Income Tax Returns or even the PAN
card of the deceased. The Tribunal considering Ex.P15, fixed the monthly
income of the deceased at Rs.60,000/-. From the said salary certificate, it
is seen that the deceased was paid a sum of Rs.40,000/- as incentive. The
incentive will be paid only when the person is in employment to
encourage him to work efficiently. When the employee is not in service
and in case of deceased, the incentive cannot be taken into account to
arrive the quantum of compensation for loss of dependency. The Tribunal
after deducting the said sum of Rs.40,000/- towards incentive, fixed a
sum of Rs.60,000/- as monthly income of the deceased. In view of
non-filing of Income Tax Returns and PAN card of the deceased, the
monthly income fixed by the Tribunal at Rs.60,000/- is in order.
The accident has occurred on 16.12.2008. During the financial
year 2008-2009, upto Rs.1,50,000/-, there is nil tax. Thus, the
calculation for arriving annual income is as follows :-
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
Monthly salary of the deceased ... Rs.60,000.00
40% enhancement towards
future prospects ... Rs.24,000.00
------------------
Rs.84,000.00
------------------
Annual income (84,000 x 12) ... Rs.10,08,000/-
Income Tax Slab for financial year 2008-2009
Upto Rs.1,50,000/- - Nil
From Rs.1,50,000/- to Rs.3,00,000/- (10%)
[ Rs.1,50,000/- X 10%] - Rs.15,000.00
Rs.3,00,000/- to Rs.5,00,000/- (20%)
[Rs.2,00,000/- X 20%] - Rs.40,000.00
Above Rs.5,00,000/- (30%)
[Rs.10,08,000/- - Rs.5,00,000/-
= Rs.5,08,000/-
= Rs.5,08,000/- X 30%] - Rs.1,52,400.00
-------------------
Rs.2,07,400/-
-------------------
Annual income after deducting income tax
(Rs.10,08,000/- – Rs.2,07,400/-) - Rs.8,00,600/-
Thus, the compensation awarded by the Tribunal towards loss of
dependency is modified to Rs.90,06,750/- (Rs.8,00,600/- X 15 X ¾).
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
19(i). A sum of Rs.40,000/- awarded by the Tribunal to the minor
claimants 2 & 3 towards parental consortium is meagre. The minor
claimants 2 & 3 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 awarded Amount Award
No by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted
1. Loss of dependency 96,39,000/- 90,06,750/- Reduced
[1,13,40,000/- - (after
17,01,000/- (5% deducting
towards contributory income tax)
negligence + 10%
towards income tax)]
2. Loss of Estate 15,000/- 15,000/- Confirmed
3. Transportation and 15,000/- 15,000/- Confirmed
funeral expenses
4. Loss of consortium 40,000/- 40,000/- Confirmed
to 1st claimant
5. Parental consortium 40,000/- 80,000/- Enhanced
to claimants 2 & 3
6. Filial consortium to 40,000/- 40,000/- Confirmed
4th claimant
Total Rs.97,89,000/- Rs.91,96,750/- Reduced by
Rs.19,71,760/-
85% of Rs.78,17,237.5 (97,89,000/-
compensation rounded off to -
(15% contributory - Rs.78,17,240/- 78,17,240/-)
negligence fixed on
deceased)
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
20.In the result, both the appeals are partly allowed. The
compensation awarded by the Tribunal at Rs.97,89,000/- is hereby
reduced to Rs.78,17,240/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 3rd
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.464 of 2015, on the file of the Motor Accident Claims
Tribunal, District Court No.II, Kanchipuram. On such deposit, the
claimants 1 & 4 are permitted to withdraw their 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 claimants 2 & 3
are directed to be deposited in any one of the Nationalized Banks, till the
minor claimants 2 & 3 attain majority. On such deposit, the 1st claimant,
being the Mother of the minor claimants 2 & 3 is permitted to withdraw
the accrued interest once in three months for the welfare of the minor
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
claimants 2 & 3. The 3rd respondent-Insurance Company is permitted to
withdraw the excess amount lying in the credit of M.C.O.P.No.464 of
2015, 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)
27.06.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The District Judge No.II,
Motor Accidents Claims Tribunal,
Kanchipuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.Nos.4019 of 2019 & 1258 of 2020
and
S.SOUNTHAR, J.
krk
C.M.A.Nos.4019 of 2019 & 1258 of 2020
27.06.2022
https://www.mhc.tn.gov.in/judis
