The Managing Director Another vs Smt. Madde Chinnubai 4 Others
2022 Latest Caselaw 646 Tel

      THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                          AND
           THE HON'BLE SRI JUSTICE M.LAXMAN

                  M.A.C.M.A. No.3081 OF 2016

JUDGMENT:    (Per Hon'ble Sri Justice M.Laxman)


1.   This appeal assails the order and decree dated 17.11.2015 in

O.P.No.366 of 2013 on the file of the Court of the Motor Accident

Claims Tribunal (VIII Additional District Judge) at Nizamabad,

whereunder the Tribunal granted compensation of Rs.47,95,425/-

for the death of the deceased in the motor vehicle accident. The

appellants herein are the respondents and the respondents herein

are the claimants before the Tribunal.

2. There is no dispute with regard to the accident. On

06.02.2012 when the deceased was proceeding from Nizamabad to

Armoor on motorcycle, the RTC bus which was coming from

Armoor side to Nizamabad, met with accident at about 3.45 near

Manikbhandar Village on National Highway 63.

3. The learned counsel for the appellants-RTC has contended

that the Tribunal has not considered the plea of contributory

negligence on the part of the deceased by seeing the evidence on

record, more particularly rough sketch prepared by the Police

under Ex.A-6. According to him, there is head-on collision between

two vehicles and there is ample evidence from the driver of the bus

to show that the accident occurred when the deceased was trying to

overtake the vehicle ahead of him. In that process, the deceased

came into contact with the right side of the bus resulting in the

present accident. He has also contended that the Tribunal has

granted a sum of Rs.1,00,000/- to claimant No.4 towards loss of

consortium and Rs.1,00,000/- to claimant Nos.2 and 3 towards

loss of love, care and guidance ignoring the decision of the Apex

Court in National Insurance Co. Ltd. Vs. Pranay Sethi1, wherein

the consortium is fixed at Rs.40,000/- for each of the dependant

and the same was the view taken even in another decision of the

Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram

Alias Chuhru Ram2.

4. The learned counsel for the claimants has contended that the

Tribunal, while considering the monthly income of the deceased,

has not considered the gross salary minus professional taxes, but it

has excluded other amounts, which were not to be excluded. As

such, the quantum of compensation was awarded less than what is

entitled.

5. In the light of the said contentions, the points to be

considered are (i) whether there was contributory negligence on the

part of the deceased in causing the accident? and (ii) whether the

calculation arrived by the Tribunal is just and reasonable in the

facts and circumstances of the case?

6. In the present case, the claimants to support the negligence

on the part of the driver of the bus, have relied upon the Police

records under Exs.A-1, A-2, A-5 and A-6. Ex.A-1 is FIR, Ex.A-2 is

2017 (6) 170 (SC)

2018 LawSuit (SC) 904

charge sheet, Ex.A-5 is scene of offence and Ex.A-6 is rough

sketch. Apart from the documentary evidence, the claimants also

relied upon the evidence of P.W.3 - eyewitness to the accident. The

Road Transport Corporation, to support their case to prove the

contributory negligence on the part of the deceased, has relied

upon Ex.A-6 and the statement of R.W.1 - the driver of the bus.

7. The evidence of eyewitness supports the claimants' version

that the accident had occurred on account of sole negligence of the

driver of the bus, whereas the evidence of R.W.1 shows that there

was no negligence on his part and the accident had occurred due to

the negligence of the deceased himself. According to R.W.1, the

accident had occurred when the deceased was trying to overtake

the vehicle ahead of him, and in that process, he came extreme to

the right side of the road, thereby hit the bus on the right side,

resulting in the present accident.

8. On seeing Ex.A-6 rough sketch, which is not in dispute by

both the parties, the place of accident has been indicated almost in

the middle of the road. To some extent, a little bit away to the main

road to the right side of the bus direction. The rough sketch shows

that the bus driver a little bit crossed half of the road. There is a

road also to the left side of the motor cyclist direction and the road

is a straight road. There was an occasion for the deceased to

observe the vehicle coming from the opposite direction even if there

was negligence on the part of the driver of the bus in driving the

bus in high speed.

9. In this regard, it is relevant to refer to the decision of the Apex

Court Rasikbhai Jhaveri v. Karmasey Kunvargi Tak3, wherein

the Apex Court had dealt with the contributory negligence, and

held as under:

"The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an 'author of his own wrong'."

10. The Apex Court in Municipal Corporation of Greater

Bombay v. Laxman Iyer4 has explained the meaning of

'contributory negligence' as follows:

"Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or

AIR 2002 SC 2864

AIR 2003 SC 4182

omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn., Para 328)."

11. In Jiju Kuruvila v. Kunjujamma Mohan5, the Apex Court

held as under:

"23. There is no evidence on record to suggest any negligence on the part of the deceased. Ext.-B2, 'Scene Mahazar' also does not suggest any rash and negligent driving on the part of the deceased.

24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. Depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."

12. A reading of the above judgments would show that when a

plea of contributory negligence is taken, it is not the negligence

which is on the part of the person against whom contributory

negligence is pleaded but he was made liable for contributory

negligence only on the ground that had he taken reasonable care,

he would have avoided the accident even though there is negligence

on the part of the other tort-feasor.

13. From the facts on record, more particularly Ex.A-6, it clearly

shows that the deceased completely gone to the middle of the road

(2013) 9 SCC 166

when there is sufficient place on the left side of the road. The

evidence of R.W.1 shows that the deceased has overtook the vehicle

ahead of him, and in that process, he came to the right side of the

road. Though such a case is not found in the Police investigation,

but it is probable that the deceased came to the right side, when

there is place available to the left side. Even though there was rash

and negligence driving by the driver of the bus who drove in high

speed, if the deceased had taken reasonable precaution by going to

left side, he could have avoided the accident. From the totality of

the evidence on record, we can sufficiently hold that there is also

some negligence in the form of contributory from the deceased side.

Considering the facts and circumstances of the case, we fix the

negligence in the ratio of 30:70 on the part of the deceased and the

driver of the bus respectively. This point is decided accordingly.

14. With regard to fixation of quantum of compensation, there is

no dispute that the deceased was working as AR Constable and he

was drawing monthly gross salary of Rs.25,250/-. In Ex.A-8/X-1 -

salary certificate, the net income is shown as Rs.22,570/- after

various deductions either under the heads of contributions or tax.

The Tribunal has taken the net income while calculating the

compensation. The view of the Tribunal in taking the net income

ignoring the principles of deductions is apparently untenable. The

only deduction which is in the form of tax can only be deducted in

computing the monthly salary and other deductions are

contributions of the employee and they are redeemable either on

natural death or retirement of the employee which cannot be

deducted in fixing the salary.

15. In the present case, the only deduction to be made is

professional tax which is Rs.200/- and the rest of the deductions

relate to the contributions under various heads, which are

redeemable on retirement. Therefore, the Tribunal ought not to

have deducted such amounts in fixing the salary of the deceased.

After giving deduction of Rs.200/-, the salary to be taken for

fixation of compensation is Rs.25,050/-.

16. As per the decision of the Apex Court in Pranay Sethi's case

(supra), if the deceased is permanent employee and below 40 years,

50% shall be added towards future prospects. In the present case,

the Tribunal has found that the deceased was 39 years and he was

a Police Constable, which is a permanent job. Therefore, the

appellants are entitled for 50% towards future prospects, which

comes to Rs.12,525/-. After addition of future prospects, the

monthly salary comes to Rs.37,575/-. Out of the said amount,

1/4th amount has to be deducted towards personal expenses, since

the deceased was having five dependants. After giving such

deduction, which is Rs.9,393.75 paise, the monthly salary comes to

Rs.28,181.25 paise and annual amount comes to Rs.3,38,175/-.

17. While fixing the compensation, the Tribunal ought to have

taken into consideration the tax liability of the deceased under the

Income Tax Act. In the present case, the incident occurred on

06.02.2012 and the relevant financial year is 2012-13. The tax

exempted limit during the said financial year was Rs.1,80,000/-.

From Rs.1,80,000/- upto Rs.5,00,000/- the rate of tax was @ 10%.

If Rs.1,80,000/- is given deduction from the annual income of the

deceased, the taxable income comes to Rs.1,58,175/-. In the

salary component, there are certain deductions, which are

exempted from tax, but there are no clear-cut details made out by

the claimants in their evidence. However, considering the

contributions which are exempted, we take into consideration the

amount of Rs.58,175/- as the contributions exempted from tax and

Rs.1,00,000/- which is liable to be taxed @ 10%, which comes to

Rs.10,000/-. This means, out of annual income of Rs.3,38,175/-,

Rs.10,000/- has to be given deduction. Hence, the annual income

comes to Rs.3,28,175/-.

18. In the present case, the deceased was 39 years old and the

appropriate multiplier as per the decision of the Apex Court in

Smt.Sarla Varma Vs. Delhi Transport Corporation6 is '15'.

Hence, the compensation under the head 'loss of dependency'

comes to Rs.49,22,625/- (Rs.3,28,175 X 15).

19. Under the conventional head, the Tribunal has granted a sum

of Rs.1,00,000/- to claimant No.4 towards loss of consortium and

Rs.1,00,000/- to claimant Nos.2 and 3 towards loss of love, care

and guidance which is contrary to the decisions of the Apex Court

in Pranay Sethi (supra). In Pranay Sethi's case (supra), the Apex

2009(6) SCC 121

Court has granted Rs.40,000/- to each of the claimant towards loss

of consortium, Rs.15,000/- towards loss of estate to the wife and

Rs.15,000/- towards funeral expenses. The same are required to

be awarded in the present case also. The total of the said amounts

comes to Rs.2,30,000/-.

20. In Nanu Ram Alias Chuhru Ram's case (supra), the Apex

Court while considering the decision in Pranay Sethi's case (supra)

with regard to grant of conventional heads under love and affection,

has granted Rs.50,000/- to each dependant towards loss of love

and affection. In this case also, the claimants are entitled to

Rs.50,000/- each towards loss of love and affection, total of which

comes to Rs.2,50,000/-. Therefore, the total quantified amount

comes to Rs.54,02,625/- (Rs.49,22,625/- + Rs.2,30,000/- +

Rs.2,50,000/-).

21. As per the findings on issue No.1, this Court held that there

was contributory negligence on the part of the deceased and fixed

his negligence at 30%. Therefore, 30% has to be deducted from

total quantified amount, which comes to Rs.16,20,787/-. If the

same is deducted, the total amount comes to Rs.37,81,838/-

(Rs.54,02,625/- X 70%).

22. In the result, the appeal is partly allowed reducing the

compensation from Rs.47,95,425/- to Rs.37,81,838/-. The

claimants are entitled to the compensation amount, as per the

apportionment fixed by the Tribunal. Miscellaneous petitions

pending, if any, shall stand closed. There shall be no order as to

costs.

____________________________ A.RAJASHEKER REDDY, J

_______________ M.LAXMAN, J Date:15.02.2022 TJMR