{"id":268885,"date":"2009-10-15T00:00:00","date_gmt":"2009-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-mythili-vs-s-vijayakumar-on-15-october-2009"},"modified":"2016-09-14T02:55:34","modified_gmt":"2016-09-13T21:25:34","slug":"v-mythili-vs-s-vijayakumar-on-15-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-mythili-vs-s-vijayakumar-on-15-october-2009","title":{"rendered":"V.Mythili vs S.Vijayakumar on 15 October, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
V.Mythili vs S.Vijayakumar on 15 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 15\/10\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE C.S.KARNAN\n\nC.M.A.(MD)No.974 of 2007\n\n1. V.Mythili\n2. V.Karthik\n3. V.Deepa\n4. V.Geetha\t\t\t... Petitioners\/Claimants\n\t\nVs\n\n1. S.Vijayakumar\n2. United Indian Insurance Company Limited,\n   Chidambaram Branch,\n   Represented by its\n   Branch Manager.\t\t... Respondents\/Respondents\n\n\nPrayer\n\nAppeal filed under Section 171 r\/w 173 of Motor Vehicles Act<\/a> 1988,\nagainst the judgment and decree dated 17.06.2002 made in M.C.O.P.No.177 of 2001\non the file of the Motor Accidents Claims Tribunal\/Additional District and\nSessions Judge, cum Chief Judicial Magistrate, Thanjavur at Kumbakonam and\nenhance the award of compensation from Rs.4,70,060\/- to Rs.8,00,000\/-.\n\t\n!For Appellants  \t ... Mr.A.Thiruvadi Kumar\n^For Respondent No.1\t ... Mr.S.C.Herold Singh\nFor R.2\t\t\t ... Mr.J.S.Murali\n\t\t\t\t\t* * * * *\n:JUDGMENT\n<\/pre>\n
\tThis Civil Miscellaneous Appeal has been filed by the
\nappellants\/petitioners against the decree and judgment dated 17.06.2002 made in
\nM.C.O.P.NO.177 of 2001 on the file of the M.A.C.T.(Additional District and
\nSessions Judge cum Chief Judicial Magistrate), Thanjavur, Kumbakonam in
\nrestricting the award of compensation, for the death of husband\/father by name
\nK.Vaduganathan, aged about 54 years in the road accident, for a sum of
\nRs.4,70,060\/- with interest of 9% per annum from the date of petition till date
\nof judgment as against the claim of Rs.10,00,000\/-, nwo restricted in the appeal
\nto Rs.8,00,000\/-.\n<\/p>\n
\t2. The short facts of the case are as follows:\n<\/p>\n
\tThe first petitioner is the wife, the petitioners 2 to 4 are the son and
\ndaughters of the deceased.  The petitioners are the dependants and legal heirs
\nof the deceased.  The deceased was employed as a head cashier in the UCO Bank
\nBranch at Woraiyur, Panruti Taluk.  He used to go to the Bank for duty in his
\nHero Honda Motor Cycle bearing No.TN 21 W 6952.  On 21.07.2000, at about 8.15
\na.m., the deceased Vaduganathan was proceeding in his motor cycle at
\nParavanarupalam from Sethiyathopu side towards Vadalur side. At that time, the
\nlorry bearing No. TN 31 Y 6390 (Raman Roadways Lorry) came in the opposite
\ndirection in a rash and negligent manner and violently dashed against the
\nmotorcycle in which the deceased was coming.  Consequent to the violent impact,
\nthe deceased received severe injuries on his head and the motorcycle was very
\nbadly damaged.  One Valavan, who happened to be an eye witness to the accident
\ntook the deceased to Cuddalore hospital in an Auto but the deceased succumbed to
\nthe injuries on the way.\n<\/p>\n
\t3. On a complaint given by the said Valavan, Vadalur Police have
\nregistered a case against the said lorry driver in Crime No.353 of 2000 under
\nSection 304(A)<\/a> of I.P.C. The investigation is pending.  the accident was caused
\nsolely by the rash and negligent driving of the said lorry by its driver.\n<\/p>\n
\t4. The deceased was employed as Head cashier in the UCO Bank branch of
\nWoraiyur.  He was about to be promoted as Manager(within 15 days).  He was 53
\nyears at the time of his death.  He was drawing a salary of Rs.14,636.95\/-.  He
\nhas got another 7 years of service to his credit.  The first petitioner, the
\nwife of deceased, the second and the third petitioners who are students and the
\nfourth petitioner who is married but receiving support from her deceased father
\nare dependants of the deceased and hence have claimed a compensation of
\nRs.10,00,000\/-.  The first respondent,  the owner of the lorry and the second
\nrespondent, its insurer are jointly and severally liable to pay the compensation
\nwith interest at rate of 15% per annum and costs.\n<\/p>\n
\t5. The first respondent, in his counter has resisted the claim stating
\nthat the deceased was not careful in riding the Hero Honda motorcycle.  As the
\ndeceased was riding in the wrong side of the road, on seeing the lorry suddenly
\nchanged his course towards his left.  The driver of the lorry tried to avoid the
\naccident even in the last second.  Further, the driver of the lorry has vast
\nexperience in driving the heavy vehicles and has valid driving licence for
\nriding the motorcycle with gear.  As such, the insurer of the Hero Honda is the
\nnecessary party to this proceeding and unless the insurer is impleaded as a
\nrespondent, the petition is bad for non-joiner of parties.  The petitioners will
\nhave to prove the negligence or rashness of the lorry driver.  As the lorry has
\nbeen insured with the second respondent, only the second respondent is liable to
\npay compensation.  Further, the income of deceased and dependancy of the 4th
\npetitioner on the deceased has not been admitted.  The claim of Rs.10,00,000\/-
\nis excessive and exorbitant.\n<\/p>\n
\t6. The second respondent\/United India Insurance Company Limited,
\nChidambaram in its counter had resisted the claim stating that the petitioner
\nhas not impleaded the owner of the motorcycle bearing No. TN 21 W 6952 as
\nnecessary party, and as such the petitioner has got to be dismissed.  Further,
\nthe accident was caused only by the rash and negligent driving of the deceased.
\nFurther, the age, occupation and monthly income of the deceased was not
\nadmitted.  Further, the petitioners have not filed any legal heir certificate to
\nprove that the petitioners are the only legal heirs.  Further, the amount
\nclaimed is huge and claimed without any base.\n<\/p>\n
\t7. The Motor Accident Claims Tribunal framed three issues namely (1)
\nwhether the accident was caused by the rash and negligent driving of the driver
\nof the first respondent’s lorry bearing registration No. TN 51 OY 6390? (2)
\nWhether the petitioners are entitled to get compensation from the respondents?
\n(3) If so, who should pay the compensation and what is the quantum of
\ncompensation they are entitled to get?\n<\/p>\n
\t8. On the petitioners’ side, three witnesses were examined and 13
\ndocuments were marked as Exhibits P.1 to P.13. P.W.2, the eye witness for the
\nsaid accident was examined.  In his evidence, he has deposed that on 21.07.2000
\nat about 8.15 hours, while he was putting urea in his land situated near the
\nedge of the road near the Chettiyathope Paravalam bridge, a lorry which was
\ncoming from the west to east side, driven by its driver in a rash and negligent
\nmanner and with high speed had dashed against the motorcycle and due to this the
\nmotorcyclist fell down and sustained severe injuries.  The motorcycle was
\nsmashed and as the motorcyclist had fractured his head, PW2 had dipped a piece
\nof cloth in the water and tied it on the head of the motorcyclist.  Then he took
\nhim in an auto to Cuddalore Government hospital, but he was declared dead by the
\nhospital authorities.  On looking at the motorcyclist’s diary, PW2 came to know
\nthat the name of the deceased was Vaduganathan and that he was employed in UCO
\nBank,Uraiyur.  Then he had telephoned the petitioners and after their arrival,
\nhe had given a complaint at Vadalur Police Station and the complaint was marked
\nas Ex.P.1 and the F.I.R. as P.W.2 was the only eyewitness and as it was felt
\nthat he had given the complaint in an unbiased manner, the tribunal had held
\nthat he was a valuable witness.  On the respondents’ side, no one was examined
\nas eye witness more specifically the lorry driver. Documents marked as Exs.P.1
\nto P.5 were in consonance with the evidence given by P.W.2.  P.W.2 has
\ncategorically stated that the lorry driver had driven the lorry in a rash and
\nnegligent manner and the respondents had not examined the lorry driver and
\nadduced any contrary evidence to this.  Further P.W.2 has deposed that the
\nmotorcyclist was riding slowly on the left side of the road.  From this the
\ntribunal had come to a conclusion that the deceased was not the cause for the
\naccident.  P.W.1 had deposed in her evidence that the registration number of the
\nlorry involved in the accident was TN 51 Y 5390.  On comparing the evidence  of
\nP.W.1 with the other documents produced as Exhibits P.1 to P.5, the tribunal has
\ncome to a conclusion that the lorry involved in the accident had registration
\nNo. TN 51 Y 6390.  Further from P.W.1 and P.W.2’s evidence and on scrutiny of
\nexhibits P.1 P.2 and P.5 which are the F.I.R., copy of  postmortem and copy of
\ncrime report, it was deduced that the motorcyclist had died due to severe head
\ninjury in the said accident.  Hence the tribunal decided that it was due to the
\nrash and negligent driving of the driver of the lorry bearing registration No.
\nTN 51 Y 6390, which belongs to the first respondent, that the accident had
\noccurred.\n<\/p>\n
\t9. Further, a criminal complaint has been registered only against the
\nlorry driver.  No complaint has been given by the lorry driver against the
\ndriver of the said motorcycle.  Further, as the petitioners have not asked for
\nany compensation for the damages caused to the motorcycle, the tribunal decided
\nthat it was not necessary for the insurer of the motorcycle to be added as
\nnecessary party in this case.  Hence, the tribunal decided that as the guilt of
\nthe lorry driver had been established, the second respondent being the insurer
\nof the above lorry is liable to pay compensation to the petitioners, who are the
\nlegal heirs of the deceased.\n<\/p>\n
\t10. P.W.1 in her evidence has stated that her husband was 53 years old at
\nthe time of his and that he was the chief cashier at UCO Bank.  Further she has
\nstated that the deceased had 7 years service left and that his monthly salary
\nwas Rs.14,000\/- But from the examination of exhibit P.2, postmortem report, it
\nwas established that the age of the deceased was 54 years.  Further on
\nexamination of exhibit P.13 marked by P.W.3, it was established that the date of
\nbirth of the deceased was 2.6.1946 and that he was due to retire on 1.7.2006,
\nand that he was working as chief cashier at UCO Bank, Uraiyur and getting a
\nmonthly income of Rs.14,000\/-.  Further P.W.3 has submitted in his evidence,
\nthat the deceased had the chance to be promoted as Manager of UCO Bank and that
\nhe was eligible for such promotion.  But the tribunal did not consider this as
\nfuture increments or future raise in status could not be ganged accurately and
\ncorrectly.  Hence the tribunal considered only the fact that the deceased had 6
\nyears of service and that the deceased was drawing a monthly salary of
\nRs.14,000\/- at the time of his death.  Therefore taking a monthly salary of
\nRs.14,037\/- and calculating total loss of income to his family, till his
\nretirement, it arrived at the figure of Rs.9,96,556\/-.  Deducting 1\/3 of this
\nfor his personal expenses, it arrived at a figure of Rs.9,96,556-3,32,155\/- =
\nRs.6,64,401\/-. Deducting 20% from the total gross income of 9,96,556 for payment
\nof income tax, the tribunal deducted Rs.1,99,311\/- from Rs.6,64,401\/- and
\narrived at the figure of Rs.4,65,060\/-.  Accordingly the tribunal decided that
\nan amount of Rs.4,65,060\/- is to be paid by the second respondent towards loss
\nof income to the petitioners.  The petitioners have not asked specifically for
\nconsortium and funeral expenses.  Therefore, the tribunal granted Rs.2,000\/-
\ntowards funeral expenses and Rs.3,000\/- as consortium to the first petitioner,
\nand payable by the second respondent.  As such, the tribunal granted a sum of
\nRs.4,70,060\/- as compensation to the petitioners and payable by the second
\nrespondent.\n<\/p>\n
\t11. Further the tribunal considering that the first petitioner was aged 47
\nand the fourth petitioner was married but the second and the third petitioner
\nwere unmarried and studying decided that the quantum of share compensation
\npayable to the second and the third petitioners should be higher than that
\npayable to the first and the fourth petitioners.  The tribunal therefore ordered
\nthe second respondent to pay a compensation of Rs.4,70,060\/- with interest at
\nthe rate of 9% per annum from the date of filing the petitioner till date of
\ndeposit of compensation, with costs within two months from the date of its
\norder.  Further it apportioned rupees one lakh each to the first and the fourth
\npetitioner and Rs.1,35,030\/- each to the second and the third petitioner.
\nFurther the apportioned share of the second and the third petitioner should have
\nto be deposited in a nationalised bank and the first petitioner was permitted to
\nwithdraw the interest on the deposits made on the second and the third
\npetitioners share and use it for the maintenance and educational expenses of the
\nsecond and the third petitioners.  Court fees for the award amount was to be
\npaid by the petitioners and the Advocate fees was fixed at Rs.11,700\/-.\n<\/p>\n
\t12. The learned Counsel for the appellants has argued in his appeal that
\naward arrived at after deducting 1\/3 from total gross income for personal
\nexpenses of deceased and then deducting 20% again from the total gross income of
\ndeceased and then arriving at the compensation is not correct. Further, it was
\nargued that the findings of the tribunal negativing the promoting aspects of the
\ndeceased is unsound and erroneous.  Further, the order passed by the tribunal
\nawarding a meagre sum of RS.3,000\/- for loss of consortium is on the lower side.
\nFurther only a sum of Rs.2,000\/- is awarded the funeral expenses.  No award has
\nbeen awarded for love and affection to the children.\n<\/p>\n
\t13. The tribunal failed to appreciate the structured formula laid in the
\ncase reported in 1994 ACJ 1, 1996 ACJ Vol.2, 831, 2002 ACJ 1635.  As such the
\nlearned Counsel for the appellant has prayed for setting aside the judgment and
\ndecree dated 17.06.2002 and enhance the award of compensation from Rs.4,70,060\/-
\nto rupees eight lakhs.\n<\/p>\n
\t14. The learned Counsel for the appellant has argued that the loss of
\nincome arrived at by the tribunal by deducting 1\/3 from the gross income is
\nwrong and that it should have been as follows:\n<\/p>\n
\tLoss of income\t\t\t= Rs.9,96,556\/-\n<\/p>\n
\t20% tax\t\t\t\t= Rs.1,99,311\/-\n\tIncome after deducting tax\t= Rs.7,97,245\/-\n\t(RS.9,96,556-Rs.1,99,311\/-)\n\t1\/3 deduction\n\t(Rs.7,97,245\/3)\t\t\t= Rs.2,65,748\/-\n\tLoss of income\n\t(Rs.7,97,245\/- -\n\tRs.2,65,748\/-)\t\t\t= Rs.5,31,497\/-\n\n<\/pre>\n
\t15. The learned Counsel for the appellant has cited three judgments in
\nsupport of his case (1) (1994)2 Supreme Court cases 176, General Manager, Kerala
\nState Road Transport Corporation, Trivandram, appellant Vs. Susamma Thomas (Mrs)
\nand others, respondents, the head line notes of which are as under:
\n\tMotor Vehicles Act<\/a>, 1939 – Ss. 110-A and 110-B – Motor accident –
\nCompensation – Determination of – It must be just, fair and reasonable –
\nMultiplier method of computation, held, is the proper, logically sound and well-
\nestablished method for determining first compensation – Departure from,
\njustified only in rare and extraordinary circumstances and very exceptional
\ncases – Multiplier method explained and applied to determine quantum of
\ncompensation in case where deceased aged 38 years employed in a newspaper
\nestablished on a monthly salary of Rs.1032 died in a motor accident in Feb.1984
\nleaving behind his parents, widow and children as claimants – Multiplier of 12
\nand multiplicand of Rs.17,000 per annum, adopted – Interest awarded – Tribunal
\nshould also consider the safety measures to be taken to protect the interest of
\nminors and other illiterate or semi-literate claimants – Principles approved by
\nthe Supreme Court in Union Carbide case (1991)4 SCC 584, regarding appropriate
\ninvestment of the amount awarded as compensation must be kept in mind – Fatal
\nAccidents Act<\/a>, 1855, S.1-A – Motor Vehicles Act<\/a>, 1988, Ss.166 and 168.\n<\/p>\n
(2) 2007(4) CTC 792, High Court of Madras, M.Kathyayani and Others, appellants
\nVs. V.Mahendran and another, respondents, the head line notes of which are as
\nunder:\n<\/p>\n
Motor Vehicles Act<\/a>, 1988(59 of 1988), Sections 168<\/a> & 173<\/a> – Compensation –
\nConsideration of promotional opportunities in arriving at – Promotional
\nopportunities as well as future pay scale revisions on recommendations of Pay
\nCommission should be considered in fixing compensation – Judgment of Apex Court
\nin New India Assurance Co.Ltd. V. Kala Devi, 1996 ACJ 16 relied on.
\nand (3) 2008(4) CTC 609, High Court of Madras (Madurai Bench) K.Rengasamy and
\nanother, appellants Vs. Revathi and three others, respondents, the headline
\nnotes of which are as under:\n<\/p>\n
Average gross monthly future income could be arrived at by adding actual gross
\nincome at time of death to maximum which deceased would have otherwise got but
\nfor premature death and dividing said resultant figure by 2 – 1\/3rd has to be
\ndeducted for personal expenses and other liabilities from average gross monthly
\nincome spread over future career and amount arrived at has to be taken as datum
\nfigure per month which has got to be multiplied by adopting proper multiplier –
\nIn arriving at this amount future prospects of deceased should be sounded in
\nterms of money to augment multiplicand – Multiplier – Calculation of –
\nDetermined by two factors – Rate of interest appropriate to a stable economy and
\nage of deceased or of the claimants, whichever is higher – Factors relevant to
\nevaluate contingencies of future are also to be put into scales for evaluation –
\nRatio laid down by Apex Court in Sarala Dixit’s case, 1996(3) SCC 179 and
\nG.M.Kerala SRTC’s case, 1994(2) SCC 176 applied.\n<\/p>\n
\t16. The learned Counsel for the respondent argued that the tribunal had
\ncalculated property and awarded the compensation for loss of earning.  Further
\nthe tribunal has also awarded compensation on two heads namely funeral expenses
\nand consortium.  As such, there is no error in the judgment and decree passed by
\nthe tribunal.\n<\/p>\n
\t17. After going through the above judgment of the tribunal, grounds of
\nappeal and arguments of the learned Counsel for the respective parties and facts
\nand circumstances of the case, the Court is of the opinion that the structured
\nformula which the learned Counsel for the appellant had pointed out is correct.
\nAs such this Court awards a compensation of Rs.5,31,497\/- towards loss of income
\nof deceased to the petitioners.  The funeral expenses of Rs.2,000\/- awarded by
\nthe tribunal is on the lower side, and so this Court enhances the award under
\nthis head to Rs.10,000\/-.\n<\/p>\n
\t18. Further, the tribunal had awarded Rs.3,000\/- for consortium, which
\nthis Court feels, is on the lower side.  And so, this Court enhances the amount
\nunder this head Rs.10,000\/-.  Besides this, this Court grants Rs.10,000\/- each
\nto the second and the third claimants under the head of love and affection, as
\nthey were not married at the time of accident.  In total, the Court grants
\nRs.5,71,497\/- as total compensation to the claimants.  As per tribunal order,
\nthe award amount will carry 9% interest.  The additional compensation of
\nRs.1,01,437\/- awarded by this Court will carry an interest at the rate of 7.5%
\nfrom the date of filing the application till date of payment.  Already the
\ntribunal granted rupees one lakh each to the first and the fourth claimants and
\nthe second and the third claimants were awarded Rs.1,35,030\/- each.  This should
\nbe followed as it is.  The additional compensation amount will be apportioned as
\nfollows:\n<\/p>\n
\t19. The first claimant is awarded Rs.25,609\/-; the second claimant is
\nawarded Rs.28,609\/-; the third claimant is awarded Rs.28,609\/-;  and the fourth
\nclaimant is awarded Rs.18,609\/-.\n<\/p>\n
\t20. The Court hereby directs the second respondent\/Insurance Company to
\ncomply with this Court order and deposit the balance amount as mentioned above
\nwithin a period of six weeks from the date of this order and deposit the award
\nwith accrued interest at rate specified above into the credit of M.C.O.P.NO.177
\nof 2001 on the file of Motor Accident Claims Tribunal, Thanjavur at Kumbakonam.
\nAs the accident happened in the year 2000, it is open to the
\nappellants\/claimants to receive the balance amount lying to the credit of
\nM.C.O.P.NO.177 of 2001 on the file of Motor Accident Claims Tribunal –
\nAdditional District Judge, Thanjavur at Kumbakonam, by filing necessary payment
\nout application in accordance with law.\n<\/p>\n
\t21. In the result, the Civil Miscellaneous Appeal is allowed in the above
\nterms and consequently the award passed by the Motor Accident Claims Tribunal –
\nAdditional District Judge, Thanjavur at Kumbakonam in M.C.O.P.NO.177 of 2001 is
\nmodified.   The parties are directed to bear their own cost in this appeal.\n<\/p>\n
ssl
\nTo
\nThe Motor Accidents Claims Tribunal\/
\nAdditional District and Sessions Judge,
\ncum Chief Judicial Magistrate,
\nThanjavur at Kumbakonam.<\/p>\n","protected":false},"excerpt":{"rendered":"
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. … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-268885","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nV.Mythili vs S.Vijayakumar on 15 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-mythili-vs-s-vijayakumar-on-15-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.Mythili vs S.Vijayakumar on 15 October, 2009 - 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