Madras High Court
National Insurance Company Limited vs R.Bettaiyan on 8 January, 2024
Author: M.Sundar
Bench: M.Sundar
C.M.A.No.2 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.M.A.No.2 of 2024
and
C.M.P.No.9 of 2024
in
C.M.A.No.2 of 2024
National Insurance Company Limited
Divisional Office – 11
Trichy and at
State Bank Road, Coimbatore ... Appellant
Vs.
1.R.Bettaiyan
Son of Ramaiya Gowder
2. Smt.B.Suseela
Wife of Bettaiyan .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, praying to set aside the decree and judgment passed in
M.A.C.T O.P.No.920 of 2019 dated 30.03.2023 on the file of the Motor
Accidents Claims Tribunal, 3rd Additional District Court, Coimbatore.
Page Nos.1/18
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C.M.A.No.2 of 2024
For Appellant : Ms.N.B.Surekha
For Respondents : Mr.C.Veeraraghavan
JUDGMENT
[Order of the Court was made by M.SUNDAR, J.,]
Captioned main 'Civil Miscellaneous Appeal' [hereinafter 'CMA' for
the sake of brevity] has been filed in this Court on 30.10.2023.
2. Captioned CMA is a Statutory Appeal under Section 173 of 'the
Motor Vehicles Act, 1988' [hereinafter 'MV Act' for the sake of brevity].
3. Short facts [shorn of elaboration and particulars not imperative for
appreciating this order] are that a young veterinary doctor i.e., Dr.B.Karthik
was riding a two wheeler on 21.02.2019 at about 11.30pm in the night near
Thiyaga Perumanallur, Vilamal Bus Stand in Tiruvarur District; that the 28
year old young veterinary doctor was riding a motor cycle bearing
registration No.TN 40 Q 3666; that a truck bearing registration No.TN 49
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AB 1454 coming in the opposite direction and driven by one A.Loganathan,
first respondent before 'Motor Accident Claims Tribunal' i.e., 'MACT' for
the sake of brevity and third respondent before this Court collided with the
two wheeler and Dr.Karthik sustained severe injuries; that he was rushed to
Tiruvarur Government Medical Hospital; that he unfortunately died the next
day i.e., he succumbed to the injuries; that pertaining to this road accident,
Tiruvarur police registered a case against A.Loganathan vide Crime No.79
of 2019, initially under Sections 279 and 337 of 'The Indian Penal Code (45
of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and it
was later altered to Sections 279 and 304 (A) of IPC; that father and mother
of late Dr.Karthik arraying themselves as 1st and 2nd claimants respectively
filed a claim inter alia under Section 166 (1)(c) of MV Act seeking
compensation of one crore; that this claim was filed in III Additional
District Court, Coimbatore which shall hereinafter be referred to as 'said
MACT' for the sake of brevity. This claim is vide M.C.O.P.No.920 of 2019
on the file of said MACT; that in said MACT, driver of the truck
A.Loganathan was arrayed as first respondent and the Insurance Company
which had insured the truck was arrayed as third respondent; that after full
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contest, said MACT in and by an 'award dated 30.03.2023 in
M.C.O.P.No.920 of 2019' [hereinafter 'impugned award' for the sake of
brevity, convenience and clarity] awarded a compensation of a little over 56
lakhs [56,16,900 INR to be precise] as against one Crore claim; that
Insurance company [third respondent before said MACT] is in appeal before
us.
4. Ms.N.B.Surekha, learned counsel on record for the appellant
Insurance Company [to be noted, captioned CMA is listed in the Admission
Board today] notwithstanding very many grounds raised in the
memorandum of grounds of appeal, predicated her campaign against the
impugned award on the following points:
i) deceased Late Karthik was under the influence of alcohol
at the time of road accident and therefore, said MACT ought not
to have granted compensation;
ii) a rough sketch depicting the accident was marked as
Ex.P5 before said MACT and this rough sketch shows that the
truck did not err but late Dr.Karthik had erred by riding on the
wrong side of the road;
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iii) said MACT fell in error in fixing the monthly salary of
Late Dr.Karthik at Rs.40,000/-.
5. Before we proceed further, it is to be noted that
Mr.C.Veeraraghavan, learned counsel for the claimants / Respondents 1 and
2 is before us on the 'videoconferencing' ['VC' for the sake of brevity]
platform. It is also to be noted that Ms.N.B.Surekha, learned counsel for
appellant Insurance Company is in physical court. It is further to be noted
that this is a hybrid hearing which is a daily / routine feature in this Court.
6. While Mr.C.Veeraraghavan, learned counsel submitted that he had
lodged a caveat, learned counsel for appellant Insurance Company
submitted that caveat had not been lodged and that Mr.C.Veeraraghavan,
learned counsel had only appeared at the pre-numbering stage of captioned
CMA (in condonation of delay in filing petition). Mr.Veeraraghavan,
learned counsel is unable to give the caveat number readily but it is not
necessary to go into this controversy in the light of the view we are taking
in the Admission Board. Suffice to record that Mr.Veeraraghavan, learned
counsel submits, on instructions, that claimants have not filed any appeal
assailing the impugned award. To be noted, as captioned matter is in
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Admission Board appearance of Mr.Veeraraghavan is noted for this limited
purpose. In the light of the points raised by learned counsel for appellant
Insurance Company in her campaign against the impugned award [captured
elsewhere supra in this order], the following points for consideration arise:
i) Whether the version that deceased was under the
influence of alcohol at the time of the accident was proved
before said MACT?;
ii) Whether Late Dr.Karthik was riding the two wheeler
on the wrong side of the road and as to whether this is evident
from Ex.P5?;
iii) Whether said MACT fell in error in fixing monthly
income of deceased Dr.Karthik at Rs.40,000/- per month?
7. This Court carefully considered the submissions made by learned
counsel for the appellant Insurance Company, perused the case file, this
Court comes to the conclusion and that captioned CMA does not pass
muster in the Admission Board, therefore captioned CMA deserves to be
dismissed and the reasons are set out infra.
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8. Before setting out the reasons infra, we make it clear that we shall
be setting out the points urged, discussion on the same and our dispositive
reasoning together in the reasons infra and an adumbration of the same is as
follows:
i) The first point urged is that the deceased Dr.Karthik was
under the influence of alcohol. Learned counsel strenuously urged
that a person, who is riding a two wheeler under the influence of
alcohol and/or his dependent [parents in this case, who are claimants
before MACT] should not be given the benefit of an award under the
MV Act. Learned counsel in support of her contention pointed out
that the postmortem was done 16 hours later and a blood sample had
not been taken forthwith. We carefully considered the case file. We
find that paragraph 9 of the impugned award is a clincher in this
regard as the same reads as follows:
'9. In this case, it is important to note that as per
Ex.R2 Karthik was unconscious. It is also reported that
he was having head injury. He might be unconscious
due to head injury. This circumstance is not ruled out by
proper medical evidence. And no blood test report is
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available to show the quantity of Alcohol present in the
blood at the time of accident. Under these
circumstances, this tribunal is not inclined to accept the
version of the 3rd respondent that the accident happened
as two wheeler was driven by Karthik under the
influence of Alcohol.'
(double underlining made by this
Court for the sake of ease of
reference)
In this regard the preceding paragraph in the impugned award i.e.,
paragraph 8 is also relevant and the same reads as follows:
'8) Any how, RW1 the 1st respondent has deposed that Karthik
was under the influence of alcohol and he did not wear helmet.
RW2 the Medical records officer of Tiruvarur, Medical College
Hospital on summons has produced the accident register copy of
Karthik dated 22.02.2019. He has deposed that as per the same
Karthik was under the influence of alcohol. But during his cross
examination he was shown Ex.P9 which is the postmortem
certificate of Karthik and he has admitted that it does not disclose
the presence of alcohol in his stomach at the time of dissection. The
postmortem as per Ex.P9 was conducted on 22.02.2013 at about
4.00pm, hardly 14 hours after accident. If Karthik was under the
influence of alcohol as stated in Ex.R2 the copy of accident register
then the presence of alcohol would have been noted in the
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postmortem certificate. Further, consumption of alcohol and under
the influence of alcohol are two different circumstances.'
Said MACT i.e., learned District Judge presiding over said MACT,
on appreciation of evidence before her, has come to the conclusion
that the possibility of the deceased having become unconscious
due to head injury had not been ruled out (on appreciation of
evidence). Said MACT has also noticed that Ex.P9-Postmortem
Certificate of Dr.Karthik on which the Medical Records Officer of
Tiruvarur Medical College Hospital deposed during cross-
examination that the Postmortem Certificate [Ex.P9] does not
disclose the presence of alcohol in his stomach at the time of
dissection. This is captured in paragraph 8 of the impugned award
which has been extracted and reproduced supra. A MACT can
only go by the records and evidence [evidence in the form of
deposition of witnesses and exhibits marked] and return a finding.
In the case on hand, we find that there is nothing to show
perversity qua appreciation of evidence in this regard. Be that as it
may, said MACT has come to the conclusion that the possibility of
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Late Dr.Karthik having become unconscious due to head injury
had not been ruled out by way of proper medical evidence and
therefore, the benefit of doubt has been given to the claimants in
making the impugned award. We remind ourselves that Section
166 of MV Act is a provision which falls under the category of
beneficial legislation and the broad principle that a beneficial
legislation has to be benevolently and liberally construed.
Therefore, we find no error in MACT i.e., learned presiding
Officer of said MACT having given the benefit of doubt to the
claimants.
ii). This takes us to the next point that has been urged. The
next point is that the rough sketch shows that late Dr.Karthik was
riding the two wheeler on the wrong side of the road. Learned
counsel submitted that Ex.P5 would amply demonstrate this. This
Court wanted to know whether this plea had been taken before said
MACT. In response to our query, learned counsel for appellant
Insurance Company drew our attention to one paragraph in counter
affidavit of Insurance Company filed before said MACT.
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Intriguingly, two paragraphs have been given Paragraph No.11 but
learned counsel drew our attention to first of the two paragraphs
assigned No.11 and the same reads as follows:
'11. The accident is only due to the negligence of the
deceased Karthick, who drove his two wheeler under the
influence of alcohol and without wearing the helmet. The
deceased driven the two-wheeler negligently and invited the
accident. The contrary allegations are invented for the
purpose of this case.'
A careful perusal of the aforementioned paragraph 11 makes it clear
that the Insurance Company has only raised the point that deceased
was under the influence of alcohol at the time of accident and the
point that late Dr.Karthik was allegedly riding on the wrong side of
the road has not been raised. This point (point that deceased was
under the influence of alcohol) has already been discussed and our
dispositive reasoning has been set out while dealing with the
previous point supra. Therefore, that by itself is good enough to say
that the second point does not cut ice with us.
iii). This takes this Court to the third point i.e., quantum of
monthly salary fixed for Dr.Karthik. Learned counsel for appellant
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Insurance Company submitted that Late Dr.Karthik was in a
temporary employment and that his salary ought not to have been
taken as Rs.40,000/- per month. In this regard, we carefully perused
the impugned award and find that Paragraphs 13 and 14 of the
impugned award deal with monthly salary and the same read as
follows:
'13. The petitioners claim that the deceased was
working as a Veterinary Assistant Surgeon in Government
Veterinary Dispensary, Peralam, Thiruvarur District and he
was earning Rs.40,000/- per month. The petitioners have
produced Ex.P21 to prove his income and employment.
Ex.P21 is the appointment order issued by Animal
Husbandry & Veterinary Services, Chennai on 07.11.2018.
As per Ex.P21 his salary was Rs.40,000/-. This accident
happened on 21.02.2019. Ex.P13 is the certificate of
Registration of Karthik issued by Tamil Nadu Veterinary
Council. Ex.P13 shows that his date of birth is 11.01.1991.
And so, on the date of accident i.e., on 21.02.2019, his age
was 28 years. The multiplier for calculating loss of
dependency as per Sarala Verma Vs.Delhi Transport
Corportaion is 17. The Future prospectus of the deceased is
taken as 50% of his income in terms of the law laid down in
National Insurance Vs. Pranay Sethi. The deceased being
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a bachelor ½ of his income is deducted towards his personal
expenses. If it is so, Rs.40,000/- + Rs.20,000/- (50% of
40,000)= Rs.60,000, ½ of Rs.60,000= Rs.30,000/-,
Rs.60,000/- - Rs.30,000/- = Rs.30,000/-, Rs.30,000/- x 12 x
17 = Rs.61,20,000/-. This amount is arrived as
compensation for loss of dependency.
14. As per the law laid down in Magma General
Insurance .Vs.Nanuram @ Chuhruram dated 18.09.2018,
New India Assurance Company Limited Vs.Somwati. The
petitioners are entitled to compensation for loss of filial
consortium as parents. Rs.40,000/- as per National
Insurance Company .vs.Pranay Sethi is to be awarded as
compensation in this head. Any how, as per the above ruling
this amount is to be enhanced at the rate of 10% in every 3
years. The National Insurance Cmpany .vs.Pranay Sethi
judgment was delivered on 31.10.2017. Now three years
have passed. So 10% is to be enhanced while awarding
compensation for loss of consortium. If it is so that 10%
comes to Rs.4000/- if the same is added to Rs.40,000/- it
comes to Rs.44,000/-. This amount is awarded as
compensation for loss of filial consortium to the petitioners 1
and 2. Thus in total the petitioners are awarded Rs.88,000/-
as compensation for loss of filial consortium.'
A careful perusal of the above shows that said MACT has inter alia
proceeded on the basis of Pranay Sethi principle. We find that only
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the date of Pranay Sethi judgment i.e., 31.10.2017 has been given
in the impugned award. Therefore, we deem it appropriate to write
that Pranay Sethi rendered on 31.10.2017 by a Constitution Bench
of Hon'ble Supreme Court is reported in (2017) 16 SCC 680.
Paragraph 59 of Pranay Sethi (paragraphs as in the SCC report) is
the summation of the conclusions and as regards salary. Paragraphs
59.3 and 59.4 are relevant, which read as follows:
'59.3. While determining the income, an addition of
50% of actual salary to the income of the deceased towards
future prospects, where the deceased had a permanent job
and was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased was
between 40 to 50 years. In case the deceased was between
the age of 50 to 60 years, the addition should be 15%. Actual
salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established income
should be the warrant where the deceased was below the age
of 40 years. An addition of 25% where the deceased was
between the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years should be
regarded as the necessary method of computation. The
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established income means the income minus the tax
component.'
Considering that Rs.40,000/- per month has been arrived at by
appreciating evidence i.e., Ex.P21 which is a copy of the
appointment letter of Late Dr.Karthik issued by the Animal
Husbandry and Veterinary Services, Chennai [Appointment letter
dated 07.11.2018], we find that the appellant is unable to point
out any infirmity much less demonstrate that the finding rendered
by said MACT is contrary to the declaration of law made by
Hon'ble Supreme Court in Pranay Sethi.
9. The narrative discussion and dispositive reasoning thus far is an
adumbration of reasons for our conclusion which we have already set out
supra elsewhere. To be noted, the conclusion is that CMA does not pass
muster in the Admission Board and it deserves to be dismissed.
10. All the three points urged by the appellant Insurance Company
have been set out by us in the narrative, discussion and dispositive
reasoning supra. The three points for determination narrated by us supra
also stands answered against the appellant. This Court also notices that in a
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fatal accident where a young 28 years old veterinary doctor died, father and
mother who were 58 and 49 years of age at the time of filing of claim before
said MACT [claim was filed before said MACT on 30.04.2019] have been
awarded a sum of a little over Rs.56.16 lakhs in all [56,16,900 INR to be
precise]. It is also to be noted that father and mother i.e., parents of the
deceased young veterinary doctor would now be 62 years and 53 years of
age respectively.
Apropos, the sequitur is captioned CMA fails and the same is
dismissed. Consequently captioned Civil Miscellaneous Petition is also
dismissed. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
08.01.2024
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
gpa
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To
1. The Presiding Officer
Motor Accident Claims Tribunal (Special Court)
3rd Additional District Court, Coimbatore
2. The Section Officer
V.R.Section
High Court, Madras.
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
08.01.2024
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