Madras High Court
The Managing Director vs D.Ganesh Babu on 18 August, 2023
CMA.Nos.1243 of 2023 and 62 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
Civil Miscellaneous Appeal Nos.1243 of 2023 and 62 of 2022
and
CMP No.12132 of 2023 in CMA No.1243 of 2023
CMA No.1243 of 2023
The Managing Director,
Tamil Nadu State Transport
Corporation (Coimbatore)
Tirupur 641 604. ... Appellant / Respondent
vs.
1. D.Ganesh Babu
2. Minor G.Vidhusha Dhayalini
3. T.Ramkumar
4. R.Renuka @ Renukadevi
(Minor petitioner rep by father, guardina,
NF D.Ganesh Babu, 1st petitioner herein)
… Respondents 1-4 / Petitioners 1-4
5. V.Mythili … 5th Respondent / 1st Respondent
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CMA.Nos.1243 of 2023 and 62 of 2022
6. Divisional Manager
The New India Assurance Co. Ltd.
DO III Floor, No.179 JN Street,
Puducherry 605 001. … 6th Respondent/ 2nd Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated
15.09.2021 made in MCOP No.3180 of 2017 on the file of the Motor
Accident Claims Tribunal/ I Additional District & Sessions Judge,
Cuddalore.
CMA No.62 of 2022
1. D.Ganesh Babu
2. Minor G.Vidhusha Dhayalini
3. T.Ramkumar
4. R.Renuka @ Renukadevi
(Minor petitioner rep by father, guardina,
NF D.Ganesh Babu, 1st petitioner herein)
… Appellants / Petitioners
vs.
1. V.Mythili
2. The Managing Director,
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CMA.Nos.1243 of 2023 and 62 of 2022
Tamil Nadu State Transport
Corporation (Coimbatore)
Tirupur 641 604.
3. The Divisional Manager
New India Assurance Co. Ltd.
DO. 3rd Floor, No.179 JN Street,
Puducherry 605 001. … Respondents/ Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, to allow the Appeal and enhance the compensation
in MCOP No.3180 of 2017 dated 15.09.2021 on the file of the Motor
Accident Claims Tribunal/ I Additional District & Sessions Judge,
Cuddalore.
For Appellants : Mr.M.Murali Vinodh,
for appellant in CMA 1243/23
and for R2 in CMA 62/2022
For Respondents : Ms.Ramya V. Rao,
for RR1 to 4 in CMA 1243/23 and
Appellants in CMA 62/2022
Mr.J.Chandran, for R6 in CMA1243/23
& for R3 in CMA 62/2022
No appearance for R5 in CMA 1243/23
& for R1 in CMA 62/2022
COMMON JUDGMENT
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CMA.Nos.1243 of 2023 and 62 of 2022
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
These two Appeals arise out of the award passed by the Motor
Accident Claims Tribunal, Cuddalore in MCOP No.3180 of 2017.
2. CMA No.1243 of 2023 is filed by the Transport Corporation,
challenging the apportionment of negligence between the drivers of the
Transport Corporation and the driver of the goods vehicle which had
carried iron rods which were protruding outside the main frame of the
vehicle.
3. CMA No.62 of 2022 is filed by the claimant aggrieved by the
deduction of Income Tax at a particular percentage without adhering to
the slab rate.
4. The claimants in MCOP No.3180 of 2017 are the husband,
minor child and parents of one Hemalatha, aged about 29 years, who was
a passenger in the bus. According to the claimants when the bus was
proceeding from west to east on Trichy to Thanjavur Main Road near
Vallam Alakkudi Byepass Bridge, the Tata Ace Goods Vehicle bearing
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CMA.Nos.1243 of 2023 and 62 of 2022
Registration No.TN.48.AF.9482 which was proceeding in front, with iron
rods projecting out in the rear portion endangering human life, slowed
down suddenly without giving any indication. As a result, TNSTC Bus
which was following the goods vehicle rammed into it, resulting in the
iron rods that were protruding piercing into the bus as well as the
passengers who were sitting in the few seats in the front portion of the
Bus. The iron-rods also pierced into the deceased body and she died on
the spot.
5. Terming the negligence on the part of the drivers of both the
vehicles as cause of the accident, the claimants sought for a compensation
of Rs.1,50,00,000/-. The quantum was sought to be justified by pleading
that the deceased was working as a Postal Assistant earning Rs.31,194/-
per month. Since she was employed in the Postal Department and she
was only 29 years old, the future prospects were claimed at 50%. An FIR
was filed against the driver of the Tata Ace Goods Vehicle.
6. At trial, the first claimant examined himself as P.W.1 and also
examined three other witnesses, of whom P.W.4 is an eye witness and
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CMA.Nos.1243 of 2023 and 62 of 2022
Exhibits P1 to P23 were marked. On the side of the respondents, the
driver of the Bus was examined as R.W.1, no documents were produced.
None was examined by the Insurance Company.
7. The Tribunal on a consideration of the manner in which the
accident had occurred concluded that both the drivers had contributed
equally to the accident and apportioned the liability at 50% each. On the
quantum, the Tribunal took the monthly income at Rs.31,194/- added
50% towards future prospects and arrived at the monthly income of
Rs.46,791/-. It worked out the annual income at Rs.5,61,492/-. It
deducted 20% flat towards Income Tax and arrived at the annual income
sans income tax at Rs.4,49,194/-. It deducted 1/4 th towards the personal
expenses of the deceased and the annual loss of dependency was fixed at
Rs.3,36,896/- applying multiplier of 17, the total loss of dependency was
arrived at Rs.57,27,232/-. The Tribunal granted a sum of Rs.44,000/-
towards loss of consortium to the husband and it also granted Rs.40,000/-
towards loss of love and affection for all the four claimants. It awarded a
sum of Rs.15,000/- for transport and Rs.16,500/- towards funeral
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CMA.Nos.1243 of 2023 and 62 of 2022
expenses, the total compensation awarded by the Tribunal worked out to
Rs.58,42,732/-.
8. Aggrieved the claimants and the Transport Corporation are on
Appeal. The Insurance Company has accepted the award and has
deposited its share of the compensation.
9. We heard Mr.M.Murali Vinodh, learned counsel appearing for
the Transport Corporation, Mrs. Ramya Rao, learned counsel appearing
for the respondents 1 to 4 in CMA No. 1243 of 2023 and the appellants
in CMA No.62 of 2022 and Mr.J.Chandran, learned counsel appearing
for the Insurance Company.
10. The first respondent in CMA No.62 of 2022 and the fifth
respondent in CMA No.1243 of 2023 though served not appearing either
through counsel or in person.
11. Mrs. Ramya Rao, learned counsel appearing for the appellants
in CMA 62 of 2022 would submit that she is aggrieved only by deduction
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CMA.Nos.1243 of 2023 and 62 of 2022
of 20% flat towards Income Tax. She would point out that the Tribunal
must have adopted the slab rates of Income Tax. Relying upon the
Income Tax slab rate for women below 60 years of age for the Financial
Year 2017-2018 which is as follows:
Income Tax Slab Income Tax Rate
Income upto Rs.2,50,000 Nil
Income between Rs.2,50,001 – 5% of income exceeding
Rs.5,00,000/- Rs.2,50,000/-
Income between Rs.5,00,001 – 20% of income exceeding
Rs.10,00,000/- Rs.5,00,000/-
Income above Rs.10,00,000/- 30% of income exceeding
Rs.10,00,000/-
the learned counsel would contend that the Tax payable by the deceased
at best would have been only Rs.24,800/-, if the slab rate is adopted.
Adoption of flat rate of Income Tax at 20% on the entire income, has
resulted in the Tribunal deducting a huge sum of Rs.1,12,298/- towards
income tax. We find considerable force in the submission of the learned
counsel, neither the counsel for the Insurance Company nor the counsel
for the Transport Corporation are able to support the action of the
Tribunal deducting 20% flat on the entire income. If the slab rate as
stated above is applied the income tax that should have been deducted is
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CMA.Nos.1243 of 2023 and 62 of 2022
only Rs.24,800/-. Therefore, the compensation has to be reworked.
12. The admitted income of the deceased is Rs.31,194/- per month.
If we are to add 50% towards future prospects it works out to
Rs.46,791/-. Therefore, the annual income would be Rs.5,61,492/-, if we
are to deduct Rs.24,800/- towards income tax, the annual income sans
income tax would be Rs.5,36,692/-. If we deduct 1/4th towards personal
expenses of the deceased, the annual income would be Rs.4,02,519/-.
Applying the multiplier of 17, which is not in dispute, the total loss of
dependency would be Rs.68,42,823/-. We have to add a sum of
Rs.44,000/- towards loss of consortium to the husband, Rs.44,000/-
towards loss of love and affection to the child and Rs.88,000/- towards
loss of filial consortium to the parents. The award under the head of
transport is reduced to Rs.5,000/-. The award under the head of loss of
estate and funeral expenses is fixed at Rs.16,500/- each. Thus the total
compensation is arrived at Rs.70,56,823/- and the same is rounded off to
Rs.70,56,000/-.
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CMA.Nos.1243 of 2023 and 62 of 2022
13. The same is apportioned as follows:
The husband/the first claimant will take a sum of Rs.19,56,000/-;
for the minor child/the second claimant will take Rs.36,00,000/- and the
parents/ claimants 3 and 4 will each get Rs.7,50,000/-. The claimants
would be entitled to interest at 7.5% per annum from the date of petition
till date of payment. The Tribunal is directed to deposit the share of the
minor, namely the second claimant, in an cummulative interest earning
fixed deposit in any one of the Nationalised Banks till she attains
majority.
14. Adverting to the Appeal by the Transport Corporation
Mr.M.Murali Vinodh would contend that the Tribunal erred in fixing the
liability equally. The Tribunal ought to have considered that there is a
violation of Sub Rule 8 of Rule 93 of the Central Motor Vehicles Rules,
by the owner and the driver of the Tata Ace Goods Vehicle. All the
witnesses had spoken about the fact that the iron rods were protruding
outside the main frame of the vehicle. Rule 93(8) of the Central Motor
Vehicle Rules reads as follows.
Rule 93 (8):- No motor vehicle shall be loaded in
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CMA.Nos.1243 of 2023 and 62 of 2022
such a manner that the load or any part thereof
extends.—
(i) laterally beyond the side of the body;
(ii) to the front beyond the foremost part of the
load body of the vehicle;
(iii) to the rear beyond the rearmost part of the
vehicle;
(iv) to a height beyond the limits specified in sub-
rule (4);
Sub Section (3) of Section 190 of the Act makes use of vehicle in unsafe
condition a punishable offence.
15. In view of the said statutory violation, the learned counsel for
the Transport Corporation would contend that the Tribunal should have
fixed the liability on the goods carrier at a higher rate than 50%.
Mr.J.Chandran, learned counsel appearing for the Insurance Company
would submit that the evidence of P.W.4 would go to show that the driver
of the bus had driven the bus in a rash and negligent manner , therefore,
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CMA.Nos.1243 of 2023 and 62 of 2022
the Tribunal had balanced the interest of the Insurer as well as the
Transport Corporation and said action of the Tribunal does not call for
interference at our hands.
16. We have considered the rival submissions.
17. No doubt P.W.4 in his evidence has deposed that the driver of
the bus was driving the bus in a rash and negligent manner, but the same
witness in his cross-examination has admitted that the accident would not
have happened but for the protruding iron rods. He has also admitted
that there was no red flag at the end of the iron rods to indicate that they
are protruding outside the vehicle. A Goods Carrier is prohibited from
carrying goods which extend outside its main frame under Rule 93 of the
Central Motor Vehicles Rules. If there is a violation of a Rule then the
violator must face the consequences. It is also seen that an FIR has been
rightly lodged under more serious offences against the driver of the Tata
Ace Goods Vehicle.
18. We are therefore of the considered opinion that the
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CMA.Nos.1243 of 2023 and 62 of 2022
contributory negligence cannot be equally attributed to both the vehicles.
We therefore fix the contributory negligence at 65% on the Tata Ace
Goods Vehicle and 35% on the TNSTC Bus. The Insurance Company is
stated to have deposited 50% of the compensation as awarded by the
Tribunal. It will deposit the balance amount, both the enhanced
compensation and enhanced percentage of negligence within a period of
twelve (12) weeks from the date of receipt of a copy of this order. The
Transport Corporation will also have twelve (12) weeks to deposit the
compensation as awarded by this Court. needless to state that the
claimants would be entitled to interest on the enhanced compensation at
7.5% from the date of petition till date of payment.
19. In view of the fact that the Transport Corporation has also
succeeded in the Appeal in part, we direct the parties to bear their own
costs. The claimants will pay the additional Court Fee payable on the
award. Consequently, the connected miscellaneous petition is closed.
(R.SUBRAMANIAN, J .) (R.KALAIMATHI, J.)
18.08.2023
jv
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CMA.Nos.1243 of 2023 and 62 of 2022
Index : No
Internet : Yes
Neutral Citation : No
Speaking order
To
1. The I Additional District & Sessions Judge,
Motor Accident Claims Tribunal,
Cuddalore.
2. The Section Officer,
V.R. Section.
Madras High Court.
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CMA.Nos.1243 of 2023 and 62 of 2022
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
jv
Civil Miscellaneous Appeal Nos.1243 of 2023 and 62 of 2022
and
CMP No.12132 of 2023 in CMA No.1243 of 2023
18.08.2023
https://www.mhc.tn.gov.in/judis
