Madras High Court
Sudha vs Rajendran on 29 November, 2023
C.M.A. Nos. 2079 and 2529 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. Nos. 2079 and 2529 of 2021
(a). C.M.A. No.2079 of 2021
1. Sudha
2. Minor Pooja
3. Minor Kanisha
4. Thanigachalam ... Appellants / Petitioners
Vs.
1. Rajendran
2. M/s. Shriram General Insurance Co. Ltd.,
No.5-F, Sachin Plaza,
Reddiyur, Block No.1,
Shriram Nagar,
Alagapuram, Salem - 16. ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 09.02.2021
passed in M.C.O.P. No.1580 of 2018 on the file of the Special District
Judge, Motor Accident Claims Tribunal, Salem.
For Appellant : Mr. M. Guruprasad
For R1 : D/W
For R2 : Mr. S. Dhakshnamoorthy
(b). C.M.A. No.2529 of 2021
1/21
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C.M.A. Nos. 2079 and 2529 of 2021
Sathish ... Appellant / Petitioner
Vs.
1. Rajendran
2. M/s. Shriram General Insurance Co. Ltd.,
No.5-F, Sachin Plaza,
Reddiyur, Block No.1,
Shriram Nagar,
Alagapuram, Salem - 16. ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 09.02.2021
passed in M.C.O.P. No.06 of 2019 on the file of the Special District Judge,
Motor Accident Claims Tribunal, Salem.
For Appellant : Mr. M. Guruprasad
For R1 : D/w
For R2 : M/s. V. Pushpa
******
JUDGMENT
These Civil Miscellaneous appeals arising out of the common award
passed in M.C.O.P. Nos.1580 of 2018 and 06 of 2019 on the file of the
Special District Judge, M.C.O.P. Tribunal, Salem, dated 09.02.2021. As far
as M.C.O.P. No. 1580 of 2019 is concerned, the claim petition is filed for
seeking compensation for a sum of Rs.50,00,000/- for the death of Gopinath,
who died in a motor accident occurred on 10.09.2018. The M.C.O.P. No.06
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of 2019 is filed for seeking compensation for a sum of Rs.13,00,000/- for the
injuries sustained by the claimant namely Sathish in the above same
accident.
2. For the sake of convenience, the parties are referred herein
according to their litigative status and rank before the Tribunal.
3. The case of the both the claim petitions is that on 10.09.2018,
the deceased Gopinath was riding a two wheeler bearing Registration
No.TN-34-K-6264 along with injured Sathish, who was a pillion rider on
Pallipalaym - Tiruchengode main road. While, they reached near selvam
Powerloom Factory, Aalampalayam, a Mahindra Maximo Vehicle bearing
Registration No.TN-37-BP-4937 came in the opposite direction driven by its
driver in rash and negligent manner, dashed against the two wheeler of the
deceased, causing instantaneous death to the rider Gopinath in M.C.O.P.
No.1580 of 2018 and serious injuries to the claimant Sathish in M.C.O.P.
No. 06 of 2019. A criminal case was also registered against the driver of the
goods vehicle bearing Registration No.TN-37-BP-4937 in Cr.No.549 of
2018 U/s. 279,304-A and 337 of I.P.C on the file of the Pallipalayam Police
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Station. Due to loss of deceased Gopinath, the claimants, who are the
mother, children and father of the deceased has come forward with a claim
petition in M.C.O.P. No. 1580 of 2018 seeking compensation for a sum of
Rs.50,00,000/- along with interest and the claim petition in M.C.O.P. No. 06
of 2019 has been filed by the injured seeking compensation for a sum of
Rs.13,00,000/- along with interest and both these petitions have been filed
U/s. 166 of Motor Vehicles Act.
4. The first respondent is the owner of the Mahindra Maximo
goods vehicle bearing Registration No.TN-37-BP-4937 has not contested the
claim and remained ex-parte. The second respondent - insurance company
has filed a counter and disputed the manner in which the accident has taken
place and also contended that the accident was taken place only due to the
rash and negligent riding of the deceased, who suddenly moved to right side
in the busy road without noticing the first respondent's vehicle, which
resulted in accident. The insurance company also disputed the age,
occupation, income of the deceased and the claimant in both the petitions.
The insurance company also submitted that both the deceased and claimant
was not wearing helmet at the time of accident and further contended that
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the compensation claimed under various heads is on the higher side, hence
prays to dismiss the claim petitions.
5. Before the Tribunal, on the side of the claimants P.W.1 to
P.W.3 were examined and Exs.P.1 to P.30 and Ex.C.1 were marked. On the
side of the respondents, R.W.1 was examined and Exs.R1 and R.2 were
marked.
6. Based on the evidence placed on record, the Tribunal in point
Nos.1 and 2, has held that driver of the Mahindra Maximo goods vehicle
bearing Registration No.TN-37-BP-4937 is responsible for the accident and
held that he is a tortfeasor and contributory negligence of 15% is fixed on
the part of the deceased Gopinath, who rode the two wheeler without
wearing a helmet at the time of accident. In point no.3, the Tribunal has
held that the driver of the offending goods vehicle has not possess a valid
batch, which is mandate to drive a transport vehicle, hence directed the
second respondent - insurance company to pay the compensation to the
claimants in both the claim petitions and recover the same from the first
respondent, who is the owner of the offending vehicle. In point no.4, the
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Tribunal has quantified and granted compensation for a sum of
Rs.13,55,200/- along with interest @ 7.5% per annum from the date of filing
of petition till the date of realization for the claim made under M.C.O.P.
No.1580 of 2018 and granted compensation for a sum of Rs.3,24,898/- along
with interest @ 7.5% per annum from the date of filing of petition till the
date of realization for the claim made under M.C.O.P. No.06 of 2019.
7. Aggrieved over the award of compensation, the claimants in
both the claim petitions have come forward with separate appeals seeking
enhancement of compensation.
8. The learned counsel appearing for the claimants have
submitted that the Tribunal without proper appreciation of the evidence
placed on record, has fixed notional income of Rs.9,000/- per month, which
is not proper, hence prays to modify the same based on the evidence placed
on record more particularly, the evidence relating to the avocation of the
deceased and also contended that the compensation awarded under various
heads is on the lower side, hence prays to modify and enhance the
compensation.
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9. Per contra, the learned counsel for the insurance company has
submitted that the Tribunal based on the evidence placed on record has
granted a just compensation and there is no need of modifications and as far
as the deceased is concerned, the Tribunal has not properly deducted
towards the personal expenses, hence prays to confirm the same.
10. Heard the submissions made on both sides and perused the
materials placed on record:
11. The case in M.C.O.P. No.1850 of 2021, it is stated that the
deceased Gopinath was a tourist taxi driver and to prove his avocation, the
claimants have examined P.W.3, who is the employer of the deceased and
Ex.P.27, the payments made to the deceased was also marked. The P.W.3
has stated that he was running a travels by engaging various drivers and the
deceased received Rs.18,000/- per month but there is no appropriate
documents to show that the payment of salary to the deceased by the P.W.3.
Hence, the Tribunal has rejected the evidence of P.W.3 and fixed monthly
notional income of Rs.9,000/-.
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12. On perusal of evidence of P.W.3 the employer of the
deceased shows that, even though, the avocation of the deceased could be
accepted, but evidence of payment of Rs.20,165/- is not supported by
acceptable documentary evidence. However, this Court finds the notional
income fixed on the deceased who is a driver, is on the lower side. The
Division Bench judgment of this Court in Andal and others vs. Avinav
Kannan and others [2019 (1) TN MAC 54 (DB)] has laid down guidelines
for fixing the notional income of various categories of persons whose
income has not been proved and based on cost of index filed by CBDT, the
notional income was permitted to be fixed, based on Apex Court judgement
of Syed Sadiq Vs. United India Insurance Company [2014 (1) TNMAC
459], held in paragraph nos.11, 12, 13 and 14 as follows:
"11. However, the Tribunal had accepted the views,
principles and the method of income arrived by the Apex
Court in Syed Sadiq Vs. United India Insurance Company,
reported in 2014 (1) TNMAC 459 case. In the said case
the Hon'ble Apex Court fixed the monthly notional income
at Rs.6,500/- for a vegetable vendor, who sustained
injuries in the accident which occurred in the year 2008.
The Tribunal also took the same figure of Rs.6,500/- for
the deceased who met with accident and died during the
year 2014. However, the Tribunal failed to consider that
the accident occurred during the year 2014 and other
factors as mentioned below before fixing the monthly
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salary of the deceased.
(i) The rise in the cost of living affects everyone
across the board. It does not make any distinction between
rich and poor. As a matter of fact, the effect of rise in
prices which directly impacts the cost of living is minimal
on the rich and maximum on those who are self-employed
or who get fixed income/emoluments. They are the worst
affected people. Therefore, they put extra efforts to
generate additional income necessary for sustaining their
families.
(ii) The salaries of those employed under the
Central and State Governments and their
agencies/instrumentalities have been revised from time to
time to provide a cushion against the rising prices and
provisions have been made for providing security to the
families of the deceased employees. The salaries of those
employed in private sectors have also increased manifold.
Till about two decades ago, nobody could have imagined
that salary of Class IV employee of the Government would
be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one
lakh.
(iii) Although, the wages/income of those employed
in unorganised sectors has not registered a corresponding
increase and has not kept pace with the increase in the
salaries of the Government employees and those employed
in private sectors but it cannot be denied that there has
been incremental enhacement in the income of those who
are self-employed and even those engaged on daily basis,
monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges
posed by high cost of living, the persons falling in the
latter category periodically increase the cost of their
labour. In this context, it may be useful to give an example
of a tailor who earns his livelihood by stitching cloths. If
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the cost of living increases and the prices of essentials go
up, it is but natural for him to increase the cost of his
labour.
"12. Therefore it is just and necessary to increase
the notional income of Rs.6,500/- fixed by the Hon'ble
Apex Court during the year 2008 corresponding to the
cost of living, prices of the essentials and inflation. Hence
to determine the notional income of the deceased who
was working as a daily wager in "The Ark Chicken
Mutton Corner" in the year 2014, we decided to apply the
cost of inflation index as issued by the Central Board of
Direct Tax (CBDT) for the purpose of determination of
notional income of the deceased person.
13. The CBDT vide Notification No.370142 (E)
(No.26/2008) (F.No.370/42/3/2008-TPL) dated
13.06.2008 specifies the cost of inflation index as
mentioned in column No.3, for the financial year
mentioned in the corresponding entry in column No.2 in
the below said tabular column:-
S.No. Financial Year Cost of Inflation Index
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S.No. Financial Year Cost of Inflation Index
14. As per the above said index, the cost of
inflation index for the year as 2007-2008 is 129 and for
the year 2013-2014 will be 220. Now we determine the
notional income of the deceased in the manner stated
below:-
The notional income fixed Cost of Inflation Index
by the Hon'ble Supreme for the vegetable
X
Court of India (i.e., vendor for the year
Rs.6,500/-) 2013-2014
i.e., (Rs.6,500/- X 220)/ 129 = Rs.11,085/-(notional
income of the deceased)"
13. Hence, this Court is inclined to modify the notional income
fixed by the Tribunal based on the dictum laid down in the Hon'ble Apex
Court judgment cited supra and the same is calculated as follows:
Date of accident = 10.09.2018
Cost of Inflation index = 280 (Financial Year 2018-2019)
Notional income of the deceased = (6,500/- x 280) / (129)
= Rs.14,108.52/-
= Rs. 14,109/- (Round off)
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14. The Tribunal has rightly followed the dictum as laid down in
National Insurance Co. Ltd., vs. Pranay Sethi and other reported in
[2017(2) TN MAC 609 (SC): 2017 (16) SCC 680] and fixed 40% as future
prospectus and as per Sarla Verma and others Vs. Delhi Transport
Corporation and others reported in [2009 ACJ 1298 SC : 2009 (6) SCC
121], the multiplier is fixed as '15' by considering the age of the deceased at
the time of the accident. The Ex.P.7, the driving licence of the deceased, in
which the date of birth of the deceased is mentioned as 20.04.1980, hence,
the deceased is aged about 38 years at the time of accident, hence, this Court
finds no infirmity in the above fixing of future prospectus and multiplier
adopted by the Tribunal and hence, confirms the same. After deducting one-
third (1/3) of his monthly income towards his personal and living expenses,
the compensation under loss of dependency with modified monthly notional
income of Rs.14,109/- is assessed as follows:
Annual income (Rs.14,109/- x 12) = Rs.1,69,308/-
Future prospects @ 40% = Rs.67,723.20
Yearly income of the deceased = Rs.2,37,031.20
Yearly contribution to his family (deduction of 1/3) = Rs.1,58,020.80
Applicable Multiplier = 15
Total compensation (Rs.1,58,020.80 x 15) = Rs.23,70,312/-
15. The Tribunal in its award has held that the deceased was also
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contributed to the accident to the extent of 15% by not wearing helmet at the
time of accident. The Ex.P.2, the postmortem certificate shows that the
deceased has sustained grievous head injuries during the accident and
succumbed to injuries. This Court judgment in C.M.A.(MD). No. 987 of
2014, Branch Manager (Oriental Insurance Company Limited) vs.
Indirani and others has held as follows:
11. Without wearing a helmet, no rider can drive
the two wheeler and as per Section 129 of the Motor
Vehicles Act, 1988, it is mandatory. Section 129 of the
Motor Vehicles Act, 1988, is usefully extracted hereunder:
"129. Wearing of protective headgear.- Every
person driving or riding (otherwise than in a side car, on
a motor cycle of any class or description) shall, while in a
public place, wear [protective headgear conforming to the
standards of Bureau of Indian Standards]:
Provide that the provisions of this section shall not
apply to a person who is a Sikh, if he is, while driving or
riding on the motor cycle, in a public place, wearing a
turban:
Provided further that the State Government may, by
such rules, provide for such exceptions as it may think fit.
Explantion.- "Protective headgear"means a helmet
which,-
(a) by virtue of its shape, material and
construction, could reasonably be expected to afford to the
person driving or riding on a motor cycle a degree of
protection from injury in the even of an accident; and
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(b) is securely fastened to the head of the wearer
by means of straps or other fastenings provided on the
headgear."
16. In view of the above, this Court is inclined to confirm the
contributory negligence of 15% fixed on the part of the deceased by the
Tribunal.
17. The Tribunal has awarded Rs.40,000/- towards loss of spouse
consortium but as per the Hon'ble Apex Court in Magma General
Insurance Co. Ltd., vs Nanu Ram reported in 2018 ACJ 2018, all the
claimants are entitled for consortium. In this case, the claimants are the wife,
children and father of the claimant, hence, this Court is inclined to grant the
claimants spouse consortium, parental consortium and filial consortium to
the wife, children and father of the deceased Gopinath, respectively as per
the Apex Court Judgment stated supra, accordingly, this Court is inclined to
modify the loss of consortium to Rs.40,000/- to each of the wife, children
and father of the deceased. Whereas the other heads are concerned, the
compensation awarded by the Tribunal are just and the same are hereby
confirmed.
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18. Accordingly, the award passed by the Tribunal in M.C.O.P. No.
1580 of 2018 under various heads are hereby modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
1. Loss of dependency 12,85,200/- 23,70,312/- Enhanced
(after deducting
15% contributory
negligence)
2. loss of consortium 40,000/- 1,60,000/- Enhanced
3. Loss of estate 15,000/- 15,000/- Confirmed
4. Funeral expenses 15,000/- 15,000/- Confirmed
Total 13,55,200/- 25,60,312/- Enhanced
Deduction with respect
to 15% Contributory --- 3,84,046.80
negligence
Total Compensation 13,55,200/- 21,76,265/- Enhanced
(Round off)
19. The injured Sathish, who is the claimant in M.C.O.P. No.06
of 2019 has sustained fracture injuries on the tibia of right leg and in thumb
finger of his right arm. The learned counsel for the claimant has made his
submission that the claimant was driver by profession and due to the injuries
sustained by him, he could not continue his earlier avocation and the
disability has drastically reduced his earning capacity, hence prays to grant
compensation by adopting multiplier method instead of percentage method
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C.M.A. Nos. 2079 and 2529 of 2021
as awarded by the Tribunal. The Ex.C.1, disability certificate of the
claimant issued by the medical board states the claimant has sustained 30%
permanent disability. On perusal of the disability certificate, the fracture
sustained by the claimant is subsequently cured, hence the nature of injury
could not be treated as functional permanent disability, so, the Tribunal has
rightly awarded compensation by awarding Rs.5,000/- per percentage of
disability, as per the norms followed by this Court, hence, this Court is
inclined to confirm the same.
20. The Tribunal has not awarded compensation under the head
pain and suffering. The Ex.P.18, discharge summary of the injured Sathish
shows that he was hospitalized from 10.09.2018 to 15.09.2018 and
18.11.2020 to 21.11.2020, hence the Tribunal treated that the claimant
would be unemployed for atleast three months, hence awarded compensation
for a sum of Rs.27,000/- (Rs.9,000/- per month) as loss of income during his
treatment period. Considering the nature of injury and period of
disablement, this Court is inclined to award compensation of Rs.50,000/-
under the head pain and suffering. The Tribunal has also awarded
Rs.10,000/- each towards extra nourishment and for attender charges and
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based on the Ex.P.22, medical bills, the Tribunal has awarded Rs.1,27,898/-
towards medical expenses. This Court finds the award of the Tribunal under
other heads are just and the same is hereby confirmed.
21. Accordingly, the award passed by the Tribunal in M.C.O.P.
No. 06 of 2019 under various heads are hereby modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
1. Loss of income 27,000/- 27,000/- Confirmed
2. Permanent Disability 1,50,000/- 1,60,000/- Confirmed
3. Nourishment 15,000/- 15,000/- Confirmed
4. Attender charges 15,000/- 15,000/- Confirmed
5. Medical bills 1,27,898/- 1,27,898/- Confirmed
6. Pain and Suffering --- 50,000/- Granted
Total Compensation 3,24,898/- 3,74,898/- Enhanced
22. In the result, these Civil Miscellaneous Appeals are partly
allowed and the compensation awarded by the Tribunal in M.C.O.P.
No.1580 of 2018 at Rs.13,55,200/- is hereby enhanced to Rs.21,76,265/-
[Rupees Twenty One Lakh Seventy Six Thousand Two Hundred and
Sixty Five only] and in M.C.O.P. No.06 of 2019 at Rs.3,24,898/- is hereby
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enhanced to Rs.3,74,898/- [Rupees Three Lakh Seventy Four Thousand
Eight Hundred and Ninety Eight only], together along with interest at the
rate of 7.5% per annum from the date of filing of Claim Petition till the date
of deposit (excluding the default period, if any). The second respondent -
Insurance Company is directed to deposit the amount awarded 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.Nos.1580 of 2018 and 06 of 2019 on the
file of the Special District Judge, Motor Accidents Claims Tribunal, Salem
and to recover the same from the first respondent thereafter. On such
deposit, the appellants/ claimants are permitted to withdraw the award
amount now determined by this Court along with interest and costs, less the
amount if any, already withdrawn. The claimants in M.C.O.P. No.1580 of
2018 are entitled for compensation as per the apportionment fixed by the
Tribunal. The Tribunal shall disburse the amount now awarded by this
Court by directly giving credit to the Savings Bank Account of the
claimants. Since this Court has enhanced the compensation, the
appellants/claimants are directed to pay the necessary Court fee, if any, on
the enhanced compensation. The claimants are not entitled for interest to the
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compensation for the default period if any. Consequently, connected civil
miscellaneous petition is closed. There shall be no order as to costs in the
present appeal.
29.11.2023
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The Special District Judge,
Motor Accidents Claims Tribunal,
Salem.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
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K. RAJASEKAR, J.
stn
C.M.A. Nos. 2079 and 2529 of 2021
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29.11.2023
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