V.Mythili vs S.Vijayakumar on 15 October, 2009

Madras High Court
V.Mythili vs S.Vijayakumar on 15 October, 2009
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 15/10/2009

CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN

C.M.A.(MD)No.974 of 2007

1. V.Mythili
2. V.Karthik
3. V.Deepa
4. V.Geetha			... Petitioners/Claimants
	
Vs

1. S.Vijayakumar
2. United Indian Insurance Company Limited,
   Chidambaram Branch,
   Represented by its
   Branch Manager.		... Respondents/Respondents


Prayer

Appeal filed under Section 171 r/w 173 of Motor Vehicles Act 1988,
against the judgment and decree dated 17.06.2002 made in M.C.O.P.No.177 of 2001
on the file of the Motor Accidents Claims Tribunal/Additional District and
Sessions Judge, cum Chief Judicial Magistrate, Thanjavur at Kumbakonam and
enhance the award of compensation from Rs.4,70,060/- to Rs.8,00,000/-.
	
!For Appellants  	 ... Mr.A.Thiruvadi Kumar
^For Respondent No.1	 ... Mr.S.C.Herold Singh
For R.2			 ... Mr.J.S.Murali
					* * * * *
:JUDGMENT

This Civil Miscellaneous Appeal has been filed by the
appellants/petitioners against the decree and judgment dated 17.06.2002 made in
M.C.O.P.NO.177 of 2001 on the file of the M.A.C.T.(Additional District and
Sessions Judge cum Chief Judicial Magistrate), Thanjavur, Kumbakonam in
restricting the award of compensation, for the death of husband/father by name
K.Vaduganathan, aged about 54 years in the road accident, for a sum of
Rs.4,70,060/- with interest of 9% per annum from the date of petition till date
of judgment as against the claim of Rs.10,00,000/-, nwo restricted in the appeal
to Rs.8,00,000/-.

2. The short facts of the case are as follows:

The first petitioner is the wife, the petitioners 2 to 4 are the son and
daughters of the deceased. The petitioners are the dependants and legal heirs
of the deceased. The deceased was employed as a head cashier in the UCO Bank
Branch at Woraiyur, Panruti Taluk. He used to go to the Bank for duty in his
Hero Honda Motor Cycle bearing No.TN 21 W 6952. On 21.07.2000, at about 8.15
a.m., the deceased Vaduganathan was proceeding in his motor cycle at
Paravanarupalam from Sethiyathopu side towards Vadalur side. At that time, the
lorry bearing No. TN 31 Y 6390 (Raman Roadways Lorry) came in the opposite
direction in a rash and negligent manner and violently dashed against the
motorcycle in which the deceased was coming. Consequent to the violent impact,
the deceased received severe injuries on his head and the motorcycle was very
badly damaged. One Valavan, who happened to be an eye witness to the accident
took the deceased to Cuddalore hospital in an Auto but the deceased succumbed to
the injuries on the way.

3. On a complaint given by the said Valavan, Vadalur Police have
registered a case against the said lorry driver in Crime No.353 of 2000 under
Section 304(A) of I.P.C. The investigation is pending. the accident was caused
solely by the rash and negligent driving of the said lorry by its driver.

4. The deceased was employed as Head cashier in the UCO Bank branch of
Woraiyur. He was about to be promoted as Manager(within 15 days). He was 53
years at the time of his death. He was drawing a salary of Rs.14,636.95/-. He
has got another 7 years of service to his credit. The first petitioner, the
wife of deceased, the second and the third petitioners who are students and the
fourth petitioner who is married but receiving support from her deceased father
are dependants of the deceased and hence have claimed a compensation of
Rs.10,00,000/-. The first respondent, the owner of the lorry and the second
respondent, its insurer are jointly and severally liable to pay the compensation
with interest at rate of 15% per annum and costs.

5. The first respondent, in his counter has resisted the claim stating
that the deceased was not careful in riding the Hero Honda motorcycle. As the
deceased was riding in the wrong side of the road, on seeing the lorry suddenly
changed his course towards his left. The driver of the lorry tried to avoid the
accident even in the last second. Further, the driver of the lorry has vast
experience in driving the heavy vehicles and has valid driving licence for
riding the motorcycle with gear. As such, the insurer of the Hero Honda is the
necessary party to this proceeding and unless the insurer is impleaded as a
respondent, the petition is bad for non-joiner of parties. The petitioners will
have to prove the negligence or rashness of the lorry driver. As the lorry has
been insured with the second respondent, only the second respondent is liable to
pay compensation. Further, the income of deceased and dependancy of the 4th
petitioner on the deceased has not been admitted. The claim of Rs.10,00,000/-
is excessive and exorbitant.

6. The second respondent/United India Insurance Company Limited,
Chidambaram in its counter had resisted the claim stating that the petitioner
has not impleaded the owner of the motorcycle bearing No. TN 21 W 6952 as
necessary party, and as such the petitioner has got to be dismissed. Further,
the accident was caused only by the rash and negligent driving of the deceased.
Further, the age, occupation and monthly income of the deceased was not
admitted. Further, the petitioners have not filed any legal heir certificate to
prove that the petitioners are the only legal heirs. Further, the amount
claimed is huge and claimed without any base.

7. The Motor Accident Claims Tribunal framed three issues namely (1)
whether the accident was caused by the rash and negligent driving of the driver
of the first respondent’s lorry bearing registration No. TN 51 OY 6390? (2)
Whether the petitioners are entitled to get compensation from the respondents?
(3) If so, who should pay the compensation and what is the quantum of
compensation they are entitled to get?

8. On the petitioners’ side, three witnesses were examined and 13
documents were marked as Exhibits P.1 to P.13. P.W.2, the eye witness for the
said accident was examined. In his evidence, he has deposed that on 21.07.2000
at about 8.15 hours, while he was putting urea in his land situated near the
edge of the road near the Chettiyathope Paravalam bridge, a lorry which was
coming from the west to east side, driven by its driver in a rash and negligent
manner and with high speed had dashed against the motorcycle and due to this the
motorcyclist fell down and sustained severe injuries. The motorcycle was
smashed and as the motorcyclist had fractured his head, PW2 had dipped a piece
of cloth in the water and tied it on the head of the motorcyclist. Then he took
him in an auto to Cuddalore Government hospital, but he was declared dead by the
hospital authorities. On looking at the motorcyclist’s diary, PW2 came to know
that the name of the deceased was Vaduganathan and that he was employed in UCO
Bank,Uraiyur. Then he had telephoned the petitioners and after their arrival,
he had given a complaint at Vadalur Police Station and the complaint was marked
as Ex.P.1 and the F.I.R. as P.W.2 was the only eyewitness and as it was felt
that he had given the complaint in an unbiased manner, the tribunal had held
that he was a valuable witness. On the respondents’ side, no one was examined
as eye witness more specifically the lorry driver. Documents marked as Exs.P.1
to P.5 were in consonance with the evidence given by P.W.2. P.W.2 has
categorically stated that the lorry driver had driven the lorry in a rash and
negligent manner and the respondents had not examined the lorry driver and
adduced any contrary evidence to this. Further P.W.2 has deposed that the
motorcyclist was riding slowly on the left side of the road. From this the
tribunal had come to a conclusion that the deceased was not the cause for the
accident. P.W.1 had deposed in her evidence that the registration number of the
lorry involved in the accident was TN 51 Y 5390. On comparing the evidence of
P.W.1 with the other documents produced as Exhibits P.1 to P.5, the tribunal has
come to a conclusion that the lorry involved in the accident had registration
No. TN 51 Y 6390. Further from P.W.1 and P.W.2’s evidence and on scrutiny of
exhibits P.1 P.2 and P.5 which are the F.I.R., copy of postmortem and copy of
crime report, it was deduced that the motorcyclist had died due to severe head
injury in the said accident. Hence the tribunal decided that it was due to the
rash and negligent driving of the driver of the lorry bearing registration No.
TN 51 Y 6390, which belongs to the first respondent, that the accident had
occurred.

9. Further, a criminal complaint has been registered only against the
lorry driver. No complaint has been given by the lorry driver against the
driver of the said motorcycle. Further, as the petitioners have not asked for
any compensation for the damages caused to the motorcycle, the tribunal decided
that it was not necessary for the insurer of the motorcycle to be added as
necessary party in this case. Hence, the tribunal decided that as the guilt of
the lorry driver had been established, the second respondent being the insurer
of the above lorry is liable to pay compensation to the petitioners, who are the
legal heirs of the deceased.

10. P.W.1 in her evidence has stated that her husband was 53 years old at
the time of his and that he was the chief cashier at UCO Bank. Further she has
stated that the deceased had 7 years service left and that his monthly salary
was Rs.14,000/- But from the examination of exhibit P.2, postmortem report, it
was established that the age of the deceased was 54 years. Further on
examination of exhibit P.13 marked by P.W.3, it was established that the date of
birth of the deceased was 2.6.1946 and that he was due to retire on 1.7.2006,
and that he was working as chief cashier at UCO Bank, Uraiyur and getting a
monthly income of Rs.14,000/-. Further P.W.3 has submitted in his evidence,
that the deceased had the chance to be promoted as Manager of UCO Bank and that
he was eligible for such promotion. But the tribunal did not consider this as
future increments or future raise in status could not be ganged accurately and
correctly. Hence the tribunal considered only the fact that the deceased had 6
years of service and that the deceased was drawing a monthly salary of
Rs.14,000/- at the time of his death. Therefore taking a monthly salary of
Rs.14,037/- and calculating total loss of income to his family, till his
retirement, it arrived at the figure of Rs.9,96,556/-. Deducting 1/3 of this
for his personal expenses, it arrived at a figure of Rs.9,96,556-3,32,155/- =
Rs.6,64,401/-. Deducting 20% from the total gross income of 9,96,556 for payment
of income tax, the tribunal deducted Rs.1,99,311/- from Rs.6,64,401/- and
arrived at the figure of Rs.4,65,060/-. Accordingly the tribunal decided that
an amount of Rs.4,65,060/- is to be paid by the second respondent towards loss
of income to the petitioners. The petitioners have not asked specifically for
consortium and funeral expenses. Therefore, the tribunal granted Rs.2,000/-
towards funeral expenses and Rs.3,000/- as consortium to the first petitioner,
and payable by the second respondent. As such, the tribunal granted a sum of
Rs.4,70,060/- as compensation to the petitioners and payable by the second
respondent.

11. Further the tribunal considering that the first petitioner was aged 47
and the fourth petitioner was married but the second and the third petitioner
were unmarried and studying decided that the quantum of share compensation
payable to the second and the third petitioners should be higher than that
payable to the first and the fourth petitioners. The tribunal therefore ordered
the second respondent to pay a compensation of Rs.4,70,060/- with interest at
the rate of 9% per annum from the date of filing the petitioner till date of
deposit of compensation, with costs within two months from the date of its
order. Further it apportioned rupees one lakh each to the first and the fourth
petitioner and Rs.1,35,030/- each to the second and the third petitioner.
Further the apportioned share of the second and the third petitioner should have
to be deposited in a nationalised bank and the first petitioner was permitted to
withdraw the interest on the deposits made on the second and the third
petitioners share and use it for the maintenance and educational expenses of the
second and the third petitioners. Court fees for the award amount was to be
paid by the petitioners and the Advocate fees was fixed at Rs.11,700/-.

12. The learned Counsel for the appellants has argued in his appeal that
award arrived at after deducting 1/3 from total gross income for personal
expenses of deceased and then deducting 20% again from the total gross income of
deceased and then arriving at the compensation is not correct. Further, it was
argued that the findings of the tribunal negativing the promoting aspects of the
deceased is unsound and erroneous. Further, the order passed by the tribunal
awarding a meagre sum of RS.3,000/- for loss of consortium is on the lower side.
Further only a sum of Rs.2,000/- is awarded the funeral expenses. No award has
been awarded for love and affection to the children.

13. The tribunal failed to appreciate the structured formula laid in the
case reported in 1994 ACJ 1, 1996 ACJ Vol.2, 831, 2002 ACJ 1635. As such the
learned Counsel for the appellant has prayed for setting aside the judgment and
decree dated 17.06.2002 and enhance the award of compensation from Rs.4,70,060/-
to rupees eight lakhs.

14. The learned Counsel for the appellant has argued that the loss of
income arrived at by the tribunal by deducting 1/3 from the gross income is
wrong and that it should have been as follows:

Loss of income = Rs.9,96,556/-

	20% tax				= Rs.1,99,311/-
	Income after deducting tax	= Rs.7,97,245/-
	(RS.9,96,556-Rs.1,99,311/-)
	1/3 deduction
	(Rs.7,97,245/3)			= Rs.2,65,748/-
	Loss of income
	(Rs.7,97,245/- -
	Rs.2,65,748/-)			= Rs.5,31,497/-

15. The learned Counsel for the appellant has cited three judgments in
support of his case (1) (1994)2 Supreme Court cases 176, General Manager, Kerala
State Road Transport Corporation, Trivandram, appellant Vs. Susamma Thomas (Mrs)
and others, respondents, the head line notes of which are as under:
Motor Vehicles Act, 1939 – Ss. 110-A and 110-B – Motor accident –
Compensation – Determination of – It must be just, fair and reasonable –
Multiplier method of computation, held, is the proper, logically sound and well-
established method for determining first compensation – Departure from,
justified only in rare and extraordinary circumstances and very exceptional
cases – Multiplier method explained and applied to determine quantum of
compensation in case where deceased aged 38 years employed in a newspaper
established on a monthly salary of Rs.1032 died in a motor accident in Feb.1984
leaving behind his parents, widow and children as claimants – Multiplier of 12
and multiplicand of Rs.17,000 per annum, adopted – Interest awarded – Tribunal
should also consider the safety measures to be taken to protect the interest of
minors and other illiterate or semi-literate claimants – Principles approved by
the Supreme Court in Union Carbide case (1991)4 SCC 584, regarding appropriate
investment of the amount awarded as compensation must be kept in mind – Fatal
Accidents Act
, 1855, S.1-A – Motor Vehicles Act, 1988, Ss.166 and 168.

(2) 2007(4) CTC 792, High Court of Madras, M.Kathyayani and Others, appellants
Vs. V.Mahendran and another, respondents, the head line notes of which are as
under:

Motor Vehicles Act, 1988(59 of 1988), Sections 168 & 173 – Compensation –
Consideration of promotional opportunities in arriving at – Promotional
opportunities as well as future pay scale revisions on recommendations of Pay
Commission should be considered in fixing compensation – Judgment of Apex Court
in New India Assurance Co.Ltd. V. Kala Devi, 1996 ACJ 16 relied on.
and (3) 2008(4) CTC 609, High Court of Madras (Madurai Bench) K.Rengasamy and
another, appellants Vs. Revathi and three others, respondents, the headline
notes of which are as under:

Average gross monthly future income could be arrived at by adding actual gross
income at time of death to maximum which deceased would have otherwise got but
for premature death and dividing said resultant figure by 2 – 1/3rd has to be
deducted for personal expenses and other liabilities from average gross monthly
income spread over future career and amount arrived at has to be taken as datum
figure per month which has got to be multiplied by adopting proper multiplier –
In arriving at this amount future prospects of deceased should be sounded in
terms of money to augment multiplicand – Multiplier – Calculation of –
Determined by two factors – Rate of interest appropriate to a stable economy and
age of deceased or of the claimants, whichever is higher – Factors relevant to
evaluate contingencies of future are also to be put into scales for evaluation –
Ratio laid down by Apex Court in Sarala Dixit’s case, 1996(3) SCC 179 and
G.M.Kerala SRTC’s case, 1994(2) SCC 176 applied.

16. The learned Counsel for the respondent argued that the tribunal had
calculated property and awarded the compensation for loss of earning. Further
the tribunal has also awarded compensation on two heads namely funeral expenses
and consortium. As such, there is no error in the judgment and decree passed by
the tribunal.

17. After going through the above judgment of the tribunal, grounds of
appeal and arguments of the learned Counsel for the respective parties and facts
and circumstances of the case, the Court is of the opinion that the structured
formula which the learned Counsel for the appellant had pointed out is correct.
As such this Court awards a compensation of Rs.5,31,497/- towards loss of income
of deceased to the petitioners. The funeral expenses of Rs.2,000/- awarded by
the tribunal is on the lower side, and so this Court enhances the award under
this head to Rs.10,000/-.

18. Further, the tribunal had awarded Rs.3,000/- for consortium, which
this Court feels, is on the lower side. And so, this Court enhances the amount
under this head Rs.10,000/-. Besides this, this Court grants Rs.10,000/- each
to the second and the third claimants under the head of love and affection, as
they were not married at the time of accident. In total, the Court grants
Rs.5,71,497/- as total compensation to the claimants. As per tribunal order,
the award amount will carry 9% interest. The additional compensation of
Rs.1,01,437/- awarded by this Court will carry an interest at the rate of 7.5%
from the date of filing the application till date of payment. Already the
tribunal granted rupees one lakh each to the first and the fourth claimants and
the second and the third claimants were awarded Rs.1,35,030/- each. This should
be followed as it is. The additional compensation amount will be apportioned as
follows:

19. The first claimant is awarded Rs.25,609/-; the second claimant is
awarded Rs.28,609/-; the third claimant is awarded Rs.28,609/-; and the fourth
claimant is awarded Rs.18,609/-.

20. The Court hereby directs the second respondent/Insurance Company to
comply with this Court order and deposit the balance amount as mentioned above
within a period of six weeks from the date of this order and deposit the award
with accrued interest at rate specified above into the credit of M.C.O.P.NO.177
of 2001 on the file of Motor Accident Claims Tribunal, Thanjavur at Kumbakonam.
As the accident happened in the year 2000, it is open to the
appellants/claimants to receive the balance amount lying to the credit of
M.C.O.P.NO.177 of 2001 on the file of Motor Accident Claims Tribunal –
Additional District Judge, Thanjavur at Kumbakonam, by filing necessary payment
out application in accordance with law.

21. In the result, the Civil Miscellaneous Appeal is allowed in the above
terms and consequently the award passed by the Motor Accident Claims Tribunal –
Additional District Judge, Thanjavur at Kumbakonam in M.C.O.P.NO.177 of 2001 is
modified. The parties are directed to bear their own cost in this appeal.

ssl
To
The Motor Accidents Claims Tribunal/
Additional District and Sessions Judge,
cum Chief Judicial Magistrate,
Thanjavur at Kumbakonam.

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