Madras High Court
The Divisional Manager vs Muthulakshmi on 24 October, 2024
C.M.A.(MD) No.7 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.7 of 2022
and
C.M.P.(MD) No.57 of 2022
The Divisional Manager,
M/s. National Insurance Co. Ltd.,
No.33, Promenade Road,
Contonment, Trichy District. ... Appellant
Vs.
1.Muthulakshmi
W/o.Late.Thiyagarajan
2.Prasanth
S/o.Late.Thiyagarajan
3.Minor.Dhanya
D/o.Late.Thiyagarajan
represented by the first respondent -
her mother and natural guardian
4.T.Chinniah
S/o.Thennappan
5.Ponnusamy
S/o.Rajappa
6.Muthulakshmi
W/o.Ponnusamy ... Respondents
_______________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 14
C.M.A.(MD) No.7 of 2022
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
05.11.2019 passed in M.C.O.P.No.1757 of 2014 on the file of the Motor
Accident Claims Tribunal (Special District Judge to deal with MCOP
cases), Trichirappalli.
For Appellant : Mr.A.S.Mathialagan
For R1 to R3 & R6 : Mr.B.Prahalad Ravi
*****
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the Tribunal's finding on liability and the quantum of
compensation.
2. The first to third respondents/claimants filed a claim petition
before the Tribunal, stating that on 21.12.2013, at about 10:30 p.m., while
the deceased was riding his two-wheeler bearing registration No.TN-45-
BC-4975, a lorry bearing registration No.TN-55-A-3911, insured with the
appellant, was proceeding in front of the two-wheeler; the driver of the
said lorry, in a rash and negligent manner, had suddenly swerved the lorry
to the left side and applied sudden brake, as a result of which, the
deceased collided with the lorry and sustained fatal injuries.
_______________
https://www.mhc.tn.gov.in/judis
3. The owner of the lorry, the fourth respondent herein, remained ex
parte before the Tribunal.
4. The appellant, Insurance Company, filed a counter before the
Tribunal, stating that the accident took place due to the rash and negligent
riding of the deceased, and the deceased did not keep a safe distance from
the lorry, and therefore, the appellant, as the insurer of the lorry, is not
liable to pay any compensation.
5. The fifth and sixth respondents herein, who are the parents of the
deceased, were shown as respondents in the claim petition. They filed a
counter before the Tribunal, stating that though they were living
separately, they were depending on the income of the deceased.
6. Before the Tribunal, the first to third respondents/claimants
examined P.W.1 to P.W.3 and marked Exs.P1 to P8, and the appellant,
Insurance Company, examined R.W.1 and marked Exs.R1 and R2, and the
Attested Copy of the Service Certificate standing in the name of the
deceased maintained in the Ordinance Factory, Tiruchirappalli, was
marked as Ex.X1.
_______________
https://www.mhc.tn.gov.in/judis
7. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place due to the rash
and negligence of both the lorry driver and the deceased, fixed the
contributory negligence on the deceased at 25% and on the lorry driver at
75%, and directed the appellant, Insurance Company, to pay the award
amount of Rs.55,26,271/-, which is 75% of Rs.73,68,362/- arrived at by
the Tribunal.
8. The learned counsel for the appellant submitted that as per the
Motor Vehicles Act, 1988, the driver of a vehicle has to maintain a safe
distance from the vehicle that is proceeding in front of it; however, the
evidence on record would suggest that the deceased did not keep a safe
distance, and therefore, the contributory negligence fixed on the deceased
at 25% has to be enhanced.
9. The learned counsel for the appellant further submitted that as
regards the quantum of compensation, the Tribunal had accepted Ex.P5,
Pay Certificate of the deceased for the month of November 2013, to arrive
at the income earned by the deceased; that the Tribunal had taken into
account the transport allowances, profit (variable), and overtime
_______________
https://www.mhc.tn.gov.in/judis
allowance (variable), which ought not to have been considered; and that
the deduction towards 'personal expenses' ought to have been 1/3rd instead
of 1/4th, as the parents of the deceased were not living with the deceased
and therefore prayed for deduction of the compensation.
10. The learned counsel for the first to third and sixth respondents,
per contra, submitted that the appellant had not produced any evidence
contra to the evidence let in on the side of the claimants to prove the
manner of the accident; that the FIR was lodged against the lorry driver;
and that the contributory negligence fixed on the deceased does not call
for any interference. The learned counsel further submitted that the
Tribunal had adopted the income of the deceased based on Ex.P5, which
cannot be faulted, and that the overtime allowance should be considered
as salary, and therefore, the Tribunal had rightly taken into account the
same for the computation of compensation under the head 'loss of
dependency' and hence prayed for dismissal of this appeal.
11. The points for consideration in the instant appeal are:
(a) whether the Tribunal's finding on negligence is
justified; and
_______________
https://www.mhc.tn.gov.in/judis
(b) whether the quantum of compensation awarded
by the Tribunal is just and reasonable.
12. As regards the first point, the claimants examined P.W.2 and
P.W.3, who had witnessed the accident. Both P.W.2 and P.W.3 had
deposed that the lorry driver had suddenly turned the lorry to the left side
and applied sudden brake without any indication, and therefore, the
deceased collided with the lorry. The appellant had not let in any contra
evidence to dislodge the evidence produced on the side of the claimants.
The appellant had examined only the Motor Vehicle Inspector as R.W.1.
However, the facts reveal that the accident could have been averted if the
deceased had been more cautious and maintained a safe distance.
Therefore, the contributory negligence fixed on the deceased at 25%
cannot be faulted. Point No.1 is answered accordingly.
13. As regards the quantum of compensation, the learned counsel
for the appellant sought for deduction on two grounds: (i) the overtime
allowance ought not to have been considered as salary; and (ii) the
transport allowance and profit ought not to have been included in the
income earned by the deceased. The Salary Certificate (Ex.P5) would
_______________
https://www.mhc.tn.gov.in/judis
reveal that the deceased earned a Basic Pay of Rs.11,930/-, Grade Pay of
Rs.4,200/-, Dearness Allowance of Rs.14,517/-, HRA of Rs.3,226/-,
Transport Allowance of Rs.1,520/-, Overtime Allowance (variable) of
Rs.9,514/-, and Profit (variable) of Rs.3,243/-, totalling to Rs.48,150/- per
month. The Tribunal, based on the evidence, has taken into account the
lesser gross pay of Rs.45,553/- obtained by the deceased in October 2013
and the higher gross pay of Rs.48,150/- obtained in November 2013, and
fixed the average gross pay of the deceased at Rs.46,851.50 per month.
14. This Court is of the view that the transport allowance and the
profit cannot be treated as salary, and they ought to have been omitted
from the gross pay. At the same time, overtime allowance, though may be
variable, should be considered as part of his income. However, the salary
certificate for the month of October 2013 was not produced by the
claimants to ascertain the exact overtime allowance earned by the
deceased. Hence, one cannot come to a conclusion by just one Salary
Certificate that the deceased was earning an overtime allowance of
Rs.9,500/- for all the months. However, the tendency of the deceased to
work overtime should be taken into consideration while fixing the average
salary of the deceased.
_______________
https://www.mhc.tn.gov.in/judis
15. Considering the evidence on record and income earned by the
deceased under the other heads, this Court is of the view that the overtime
allowance can be fixed at Rs.5,000/- per month to be added to the salary.
Thus, this Court is of the view that the salary would be reckoned as
follows:
Basic Pay - Rs.11,930/-
Grade Pay - Rs. 4,200/-
Dearness Allowance - Rs.14,517/-
H.R.A. - Rs. 3,226/-
Overtime allowance - Rs. 5,000/-
-----------------
Total - Rs.38,873/-
rounded off to Rs.39,000/-
16. The deceased was 44 years old at the time of the accident and
had permanent employment. Hence, 30% has to be added towards future
prospects. Thus, the monthly income of the deceased would be Rs.
50,700/- (Rs.39,000 + Rs.11,700). The annual income would be Rs.
6,08,400/- (Rs.50,700 x 12).
17. As far as income tax deduction is concerned, at the relevant
time, there was no income tax for earnings up to Rs.2,00,000/-. The tax
_______________
https://www.mhc.tn.gov.in/judis
for income between Rs.2,00,001/- and Rs.5,00,000/- was Rs.30,000/-, and
the tax for income between Rs.5,00,001/- and Rs.10,00,000/- was charged
at 20%. Thus, the tax amount for the annual income of the deceased
would be as follows:
Annual income - Rs.6,08,400/-
Up to Rs.2,00,000/- : Nil
For income between
Rs.2,00,001/- and Rs.5,00,000/- : Rs.30,000/-
For income of Rs.1,08,400/- at 20%
(Rs.6,08,400 - 5,00,000) : Rs.21,680/-
----------------
Total : Rs.51,680/-
18. Therefore, a sum of Rs.51,680/- is deducted from the annual
income of Rs.6,08,400/-. After deducting the income tax, the annual
income of the deceased would be Rs.5,56,720/-. The multiplier applicable
is 14. Since there is evidence on record to show that the fifth and sixth
respondents herein, the parents of the deceased, though living separately,
were dependents on the deceased, 1/4th has to be deducted towards
personal expenses. Hence, the compensation under the head 'loss of
dependency' would be Rs.58,45,560/- (Rs.5,56,720/- x 14 x 3/4).
_______________
https://www.mhc.tn.gov.in/judis
19. The compensation awarded by the Tribunal under the other
heads is just and reasonable and is confirmed.
20. Thus, the total compensation awarded by the Tribunal is
modified as follows:
Sl. Description Amount Amount Award
No awarded by awarded by confirmed,
the Tribunal this Court reduced,
enhanced or
granted
1 Loss of Dependency Rs.71,38,362/- Rs.58,45,560/- Reduced
2 Loss of Consortium to the
first respondent Rs. 40,000/- Rs. 40,000/- Confirmed
3 Loss of Parental
Consortium to the fifth
and sixth respondents Rs. 80,000/- Rs. 80,000/- Confirmed
4 Loss of Filial Consortium
to the second and third
respondents Rs. 80,000/- Rs. 80,000/- Confirmed
5 Loss of Estate Rs. 15,000/- Rs. 15,000/- Confirmed
6 Funeral Expenses Rs. 15,000/- Rs. 15,000/- Confirmed
Total Rs.73,68,362/- Rs.60,75,560/- Reduced by
Rs.12,92,802/-
21. After deducting the contributory negligence of 25%, the
compensation payable by the appellant would be Rs.45,56,670/-
[60,75,560 – 15,18,890].
_______________
https://www.mhc.tn.gov.in/judis
22. Other findings of the Tribunal are confirmed.
23. The appellant Insurance Company is directed to deposit the
aforesaid amount of Rs.45,56,670/- together with interest at 7.5% per
annum from the date of the claim petition till the date of realization and
costs, after deducting the amount already deposited, if any, within a period
of six weeks from the date of receipt of a copy of this Judgment.
24. The first to third respondents/claimants are entitled to 80% of
the above compensation of Rs.45,56,670/- equally. Since it is reported
that the fifth respondent is no more, the sixth respondent is entitled to the
remaining 20% of the compensation.
25. The first and second respondents are permitted to withdraw
their shares along with the proportionate interest and costs, less the
amount already withdrawn, if any, by filing suitable application before the
Tribunal.
26. The sixth is also permitted to withdraw her share along with the
proportionate interest and costs, less the amount already withdrawn by her
_______________
https://www.mhc.tn.gov.in/judis
or the fifth respondent during his lifetime, if any, by filing suitable
application before the Tribunal.
27. Since the third respondent is minor, her share is directed to be
deposited in an interest-bearing fixed deposit [F.D.] in any nationalized
bank until she attains majority. The first respondent, who is her natural
guardian and mother, is permitted to withdraw the accrued interest once
every six months.
28. In the result, this Civil Miscellaneous Appeal is partly allowed.
No costs. Consequently, the connected Miscellaneous Petition is closed.
24.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Special District Judge,
Motor Accident Claims Tribunal,
Trichirappalli, Trichirappalli District.
_______________
https://www.mhc.tn.gov.in/judis
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
_______________
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
JEN
and
24.10.2024
_______________
https://www.mhc.tn.gov.in/judis
