Madras High Court
Marylatha vs Sundaramoorthy on 5 July, 2023
C.M.A.No.3493 of 2014
IN THE HIGH OF JUDICATURE AT MADRAS
DATED : 05.07.2023
Coram
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.A.No.3493 of 2014
1. Marylatha
2. Jenifer Silvia
(minor declared as major, and her natural
guardian, first appellant is discharged from
guardianship, vide Court's order, dated 21.06.2023, made in
C.M.P.No.12198 and 12199 of 2023 of this Appeal.
3. Mervin Anto (minor)
4. Santhanamary
5. Madhalaimuthu ... Appellants
Vs.
1. Sundaramoorthy
2. Royal Sundaram Alliance Insurance Comp. Ltd.,
Sundaram Towers,
45 and 46, Whites Road,
Chennai – 600 014. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle
Act, 1988, against the judgment and decree, made in M.C.O.P.No.314 of
2010 on the file of the Motor Accident Claims Tribunal (Principle District
Judge), Dharmapuri, dated 18.03.2011.
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For Appellants : Mr.S.Sathiaseelan
For Respondent -1 : No appearance
For Respondent-2 : Mr.M.B.Raghavan
Judgement
The present Civil Miscellaneous Appeal is filed challenging both
quantum of compensation as well as fixation of 20% contributory negligence
on the part of the deceased by the Motor Accidents Claims Tribunal
(Principal District Judge) Dharmapuri (hereinafter, referred to as 'the
Tribunal') in and by its award passed in M.C.O.P.No.314 of 2010, dated
18.03.2011
2. On 26.01.2010, at about 10.30 p.m. when the deceased Maria
David was standing on the opposite side of Amiriya Petrol Bunk, waiting for
the bus, a Lorry, bearing Regn.No.TN-39-AS-7420, which came from
Bangalore in a rash and negligent manner, dashed against the deceased, due
to which, the deceased sustained grievious injuries and died on the spot.
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3. At the time of the accident, the deceased was aged 34 years and
working as a Fitter, in Karnataka Engineering Solutions Company and
earning Rs.9,200/-. Hence, the wife, two children and parents of the
deceased Mr.Maria David, have filed a Claim Petition seeking a sum of
Rs.20,00,000/- as compensation.
4. Before the Tribunal, in order to prove the claim, the first claimant
examined herself as P.W.1, besides examining three other witness as P.Ws.2
to 4 and marked 14 documents as Ex.P.1 to Ex.P.14. On behalf of the
Insurance Company, no witness was examined, however, one document was
marked as Ex.R.1.
5. The Tribunal, after analyzing the entire evidence (both oral and
documentary) has come to the conclusion that the accident occurred due to
20% negligence on the part of the deceased and 80% negligence on the side
of the Offending Vehicle and held that the both first and second respondents
are jointly and severally liable to pay 80% compensation to the claimants.
By coming to such a conclusion, the Tribunal passed an award for a total
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C.M.A.No.3493 of 2014
compensation amount of Rs.6,38,960/- with interest at the rate of 7.5% p.a.
from the date of petition till the date of deposit of the award amount.
6. Mr.S.Sathiaseelan, learned counsel appearing for the
appellants/claimants submitted that, accident had occurred solely due to the
negligence act of the driver of the offending Vehicle, whereas, the Tribunal
has given a finding that accident occurred both due to recklessness of the
deceased and driver of the Offending Vehicle, and thereby, fastened 20%
contributory negligence on the part of the deceased and 80% negligence on
the side of the Offending Vehicle. The learned counsel submitted that the
Tribunal, while determining the negligence aspect, completely ignored the
evidence of two eyewitnesses to the accident, who were examined as P.W.2
and P.W.3 and gave high pedestal to Ex.A.1/FIR and Rough Sketch/Ex.R.1
and arrived at such a wrong conclusion.
6.1 The learned counsel contended that both P.W.2 and P.W.3 have
given testimony that the accident had occurred when the deceased was
standing on the left side of the road near the Bus Stand, waiting for the bus.
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C.M.A.No.3493 of 2014
However, the Tribunal, based on Ex.P.1/F.I.R., wherein, it is stated that the
deceased met with the accident, when he cross the road and Ex.R.1/Rough
Sketch, wherein, it is stated that the accident had occurred in the middle of
the road, disbelieved the evidence of P.W.2 & PW.3 and arrived at such
wrong conclusion. The learned counsel contended that though both the
eyewitnesses, during their cross-examination have not denied whatever
shown in Ex.P.R.1/Rough Sketch, however, P.W.2, in his cross-examination
has very clearly stated that, at the place of occurrence, there is no zebra
crossing provision for the pedestrians to cross the road and similarly, P.W.3
stated that, ''though the complainant has stated in the complaint that the
accident occurred when the deceased was crossing the road, it is incorrect to
say that, he (PW.3) has given false evidence to hide the same''.
6.2 Therefore, the learned counsel contended that from the very
testimony of P.W.2 and P.W.3, it is clear that accident occurred when the
deceased was standing at the Bus Stop, waiting for the bus, however, the
Tribunal, relying on Ex.P.1/FIR and Ex.R.1/Rough Sketch came to the
wrong conclusion that the accident occurred due to 20% negligence on the
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C.M.A.No.3493 of 2014
part of the deceased. It is further contended by the learned counsel that
statements of eyewitnesses were made before the Court on solemn affidavit,
whereas, FIR is never lodged on solemn affirmation, and therefore, Tribunal
ought not to have given much importance to the statement recorded in
Ex.P.1/FIR and disregarded the evidence of eyewitnesses/P.W.2 and P.W.3.
Therefore, learned counsel prayed to set aside the findings of the Tribunal
with regard to 20% contributory negligence fastened against the deceased
and consequently, to fix 100% negligence on the side of the driver of the
Offending Vehicle.
6.3 The learned counsel further submitted that the deceased was
working as Fitter, in a Karnataka Engineering Solutions Ltd., and was
earning Rs.9,200/- and in support of the same, the owner of the said
Company was examined as P.W.4. and the Salary Certificate was marked as
Ex.P.10, however, the Tribunal, regardless of the evidence of P.W.4 and
Ex.P.10, fixed the monthly income of the deceased only at Rs.5,000/-. The
learned counsel also placed reliance on the decision of the Honourable
Supreme Court, in the case of Syed Sadiq Vs. United India Insurance
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Company, reported in 2014 (1) TNMAC 459 (SC), wherein, the
Honourable Supreme Court even for a vegetable vendor, who sustained
injuries in the accident occurred in the year 2008, fixed the notional monthly
income at Rs.6,500/-.
6.4 Further, the learned counsel submitted that, the Tribunal also
failed to add any amount towards future prospects, which also resulted in
awarding an inadequate compensation of Rs.7,65,000/- towards Loss of
Dependency. In support of his contention that 40% should be added
towards Future Prospects, he has placed reliance on the law laid down by
the Honourable Supreme Court, in re National Insurance Company
Limited Vs. Pranay Sethi and others reported in 2017 (2) TN MAC 601.
Therefore, the learned counsel prayed this Court to determine the
compensation towards Loss of Dependency by fixing the notional monthly
income of the deceased in accordance with the ratio laid down by the
Hon'ble Supreme Court, in Pranay Sethi's case (cited supra) and to add
40% towards future prospect as per the decision rendered in Syed Sadiq's
case (cited supra).
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6.5 The learned counsel also submitted that the compensation
awarded by the Tribunal towards Funeral Expenses at Rs.5,000/- is low and
requires appropriate enhancement. It is also the grievance of the learned
counsel that the Tribunal has failed to award compensation under other
conventional heads, viz., Loss of Estate, Loss of Consortium, and Loss of
Love and Affection, Transportation and hence, prayed for awarding just and
fair compensation under the aforementioned heads.
7. Mr.M.B.Raghavan, learned counsel for second
respondent/Insurance Company submitted that though P.W.2 and P.W.3, in
their chief examination have stated that the accident occurred when the
deceased was standing near the Bus Stand, however, during their cross-
examination, both of them have admitted the fact that whatever stated in the
Ex.R.1 are correct. Further, P.W.2 has deposed that, he was standing very
far from the place, where, the accident occurred, and therefore, he was not
able to see the occurrence clearly, which aspect was rightly taken note of by
the Tribunal and has rightly disbelieved the evidence of P.W.2 and
P.W.3/Eyewitnesses and relied on the statements made in Ex.P.1/FIR and
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Ex.R.1/Rough Sketch and arrived at a finding that the accident occurred due
to negligence of both the deceased and driver of the Offending Vehicle and
rightly fixed 20% contributory negligence on the part of the deceased and
80% negligence on the driver of the Vehicle and held that both the first and
second appellants are jointly or severally liable to pay the compensation and
the said findings need not be interfered with.
7.1 The learned counsel for the second respondent/Insurance
Company further submitted that the quantum of compensation awarded by
the Tribunal is also just and fair and the same requires no interference.
8. I have given due consideration to the submissions made by
Mr.S.Sathiaseelan, learned counsel appearing for appellants/claimants and
.M.B.Raghavan, learned counsel for second respondent/Insurance Company
and also perused the materials available on record.
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i) Quantum of Liability:-
9. On a closure scrutiny of deposition of eyewitneses, viz., P.W.2
and P.W.3, it is clear that the accident took place when the deceased was
standing near the Bus Stop. Though P.W.2 has given evidence in his chief-
examination that, at the time of the accident, he was standing very far-off
from the place, where, the accident occurred, and therefore, he was not able
to see the occurrence clearly, however, during his cross-examination has
stated that in the place of occurrence, there is no zebra crossing provision for
the pedestrians to cross the road. In a similar way, when P.W.3 was posed
with a question, ''whether the deposition given by him is contrary to
whatever contained in the FIR?, his reply, is 'No''. Thus, when there is no
provision at the place, where the accident had occurred for the pedestrians
to cross the road, the question, as to whether the accident occurred while the
deceased was crossing the road or otherwise itself would not arise. All these
aspects were failed to be considered by the Tribunal and Tribunal has
merely gone by the statements made in Ex.P.1/F.I.R. and Ex.R.1/Rough
Sketch, and disbelieved the evidence of P.W.2 and P.W.3 for arriving at
such wrong findings.
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9.1 This Court is inclined to point out that, when eyewitnesses are
available, the Tribunal is expected to go by the evidence given by the
eyewitneses, and has to find out whether the oral evidence is corroborated
by documentary evidence. In the event, no eyewitnesses are available, in
such case, the Tribunal may take into consideration FIR or Rough Sketch or
any other documentary evidence, that too, depending upon the facts and
circumstances of the case. As far as this case is concerned, eyewitnesses
are very much available, and hence, the Tribunal ought to have taken into
consideration the deposition of eyewitneses, while finding out the negligence
aspect, however, the Tribunal based on Ex.P.1/F.I.R. and Ex.R.1/Rough
sketch, attributed 20% contributory negligence on the part of the deceased,
which is unsustainable. Therefore, this Court is hereby, set aside the
findings of the Tribunal, whereby, 20% of contributory negligence was
fastened on the deceased and holds that the accident had occurred solely due
100% negligence on the part of the driver of the Offending Vehicle.
ii) Quantum of Compensation :-
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10. As far as quantum of compensation towards Loss of
Dependency is concerned, it is seen that the Tribunal fixed the monthly
income of the deceased as Rs.5,000/-. It is case of the claimants that the
deceased was working as Fitter, in Karnataka Engineering Solutions
Company and earning Rs.9,200/-. As proof to the same, Proprietor of the
said Company was examined as P.W.4, who deposed that the deceased was
working in their Company four years prior to the occurrence and was
earning Rs.8,400/- and batta of Rs.950/- p.m and the Salary Certificate was
marked as Ex.P.10. However, since objection was raised by the
respondent/Insurance Company by stating that had the deceased was
employed in the said Company, he would have been issued with
appointment order for having been appointed there and the claimants also
failed to produce any documentary evidence to show that at the relevant
point of time, (i.e., at the time of the accident) deceased was earning
Rs.9,200/-,Tribunal has taken the monthly income of Rs.5,000/- only.
10.1 However, in view of the law laid down by the Hon'ble Apex
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Court, in the case of Syed Sadiq's case (cited supra), wherein, the Hon'ble
Apex Court fixed the notional monthly income even for a vegetable vendor
at Rs.6,500/-, who sustained injuries in the accident occurred in the year
2008, in the absence of any proof for income, this Court deems it fit to fix
the notional monthly income of the deceased, at Rs.8,000/-, since in the
present case, the deceased was stated to have worked as a Fitter in a
Company and earned an monthly income of Rs.9,200/-.
10.2 Thus, by fixing the monthly income of the deceased at
Rs.8,000/-; adding 40% towards his future prospects; deducting 1/4th
towards his personal expenses (since the deceased was a married person,
having wife and two children as dependents), and adopting the multiplier of
'16' (since the deceased is aged 34 years), the total Loss of Dependency is
calculated as under:-
Notional Monthly income + 40% future prospects
works out to Rs.11,200/- (i.e. Rs.8,000/- + Rs.3,200)
Multiplier of '16' and Deduction of 1/4th towards personal expenses
Rs.11,200 x 12 x 16 x ¼ = Rs.16,12,800/-
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Loss of Dependency = Rs.16,12,800/-.
10.3 As rightly pointed out by the learned counsel for the
appellants/claimants, the Tribunal has failed to award any compensation
under the conventional heads and the compensation awarded under the head
Funeral Expenses at Rs.5,000/- is low. Therefore, this Court is inclined to
award a sum of Rs.40,000/- as compensation towards Loss of Consortium to
the wife of the deceased, and Rs.40,000/- each towards Love and Care of
two children and Rs.40,000/-towards Love and Affection of the deceased's
parents. As far the failure of the Tribunal to award compensation under
Funeral Expenses and Loss of Estate are concerned, this Court is inclined to
fix a sum of Rs.15,000/- under each heads. So far the compensation to be
awarded under Transportation is concerned, this Court is inclined to award
Rs.10,000/-.
11. Thus, the compensation awarded by the Tribunal is enhanced
from Rs.7,98,700/- to Rs.18,12,800/-, out of which, the first appellant/wife
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is entitled to a sum of Rs.8,12,800/-; second and third appellants, viz.,
children of the deceased are entitled to a sum of Rs.3,50,000/-each, and the
parents of the deceased, viz., the fourth and fifth appellants are entitled to a
sum of Rs.1,50,000/- each.
12. In the result, the Civil Miscellaneous Appeal filed by the
appellants/claimants is partly allowed on the following terms:-
(i) Second respondent/Royal Sundaram Alliance Insurance Company
Ltd., is directed to deposit the entire amount awarded by this Court equally
along with interest at 7.5% p.a. from the date of claim petition till the date of
deposit and costs before the Tribunal within a period of eight weeks from
the date of receipt of a copy of this judgment, after deducting the amount
already deposited, if any.
(ii) On such deposit being made by the Insurance Company, the
Tribunal shall transfer the amount, as per the apportionment mentioned
supra to the claimants' respective bank account through RTGS within a
period of three weeks thereon or from date of which, the RTGS particulars
are furnished by the claimants, whichever is later.
(iii) The claimants are entitled to withdraw their respective share as
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apportioned by this Court with proportionate interest accrued thereon by
making necessary application before the Tribunal.
iv) The claimants are further directed to pay the court fee for the
enhanced compensation, if any, and the Registry is directed to draft the
decree only after the payment of Court fee.
(v) The compensation amount payable to the minor claimant, viz.,
the third appellant is concerned, the same is directed to be deposited in any
one of the Nationalised Banks in a fixed deposit in an interest bearing
account and till the minors attain majority. Out of such deposit, the first
claimant/mother, viz. the first appellant herein is permitted to withdraw
accrued interest once in three months.
(vi) Connected Miscellaneous Petition is closed. No costs.
05.07.2023
Index ; Yes/No
Internet : Yes/No
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To
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C.M.A.No.3493 of 2014
1. The Motor Accident Claims Tribunal/
(Principal District Judge) Dharmapuri.
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C.M.A.No.3493 of 2014
Krishnan Ramasamy,J.,
sd
C.M.A.No.3493 of 2014
05.07.2023
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