Madras High Court
The Divisional Manager vs Ganesan on 20 March, 2019
Author: N. Kirubakaran
Bench: N. Kirubakaran, R. Pongiappan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.03.2019
CORAM
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
AND
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
C.M.A. No. 69 of 2016
&
C.M.P. No. 690 of 2016
1. The Divisional Manager,
Oriental Insurance Co. Ltd.,
Arunagiri Complex, Ground Floor,
26-C Byepass Road, Hosur. ..Appellant
Vs.
1. Ganesan
2. Malliga
3. R. Eswari
4. Minor R. Mahadevi
(minor rep. by N.F. Mother
R. Eswari)
5. N.S. Sowrinathan ..Respondents
Prayer: Civil Miscellaneous Appeal as against the judgment and decree
dated 26.02.2015 passed in M.C.O.P. No. 655 of 2013 by the Motor Accidents
Claims Tribunal (District Court, Krishnagiri).
For Appellant :: Mr.S. Arunkumar
For Respondents :: Mr.K. Prasanna for
Mr.Mukund R. Pandiyan for
R1 to R3
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JUDGMENT
(Judgment of the Court was delivered by N. KIRUBAKARAN,J.) Is it a sin to be born as a daughter to a woman, who lost her husband, in a road traffic accident, due to the negligence of a third party? Given the conservative nature of our Society, the answer is in the affirmative as the 4th respondent, who was an unborn child at the time of the accident, could not even see her father's face, as he passed away when she was in her mother's womb, thereby casting a stigma on her, even before her arrival in this world. The 4th respondent was not only born fatherless but with a stigma that she, in a way, is responsible for her father's death, as our conservative society would always try to find out a scapegoat to fix the blame for an ill-fated tragedy that happens in the life of someone. We cannot blame either God or nature and it is only a manmade accident, which took away the precious life of the 3rd respondent's husband/4th respondent's father. When the father of the 4th respondent/minor died in the accident, it was not known at that time that the 3rd respondent got conceived as the minor girl was born after 9months i.e, on 04.09.2013, from the date of the accident, which was on 10.12.2012. Any child has got an inalienable right to have mother's love and affection and father's care and guidance and it is unfortunate that the 4th respondent has been deprived of that inasmuch as she would not be able to have her father's love, care, affection and guidance throughout her life. The mental agony and http://www.judis.nic.in 3 suffering, which the child would undergo on seeing other children in the company of their father is really unimaginable and definitely, the child would crave for the love and affection of father when she realises that she has been deprived of the same lifelong. No amount of money could compensate the loss, suffering, mental agony and grief endured by the little girl including the stigma cast upon her.
2. The sorrow and suffering which the claimants are undergoing is due to the negligent act of a stranger, the driver of the bus. Noone should be responsible for causing any injury or death of a person. Neither the family of the victim nor the victim was an enemy of the driver, but he played with a woman’s life by taking away her soulmate by his negligent and reckless driving. Everyone, who drives a vehicle should drive the vehicle properly, adhering to the rules and regulations, as otherwise, it will cause havoc not only in other’s family, but also in their own family, if anything happens to him/her because of rash riding or driving of the vehicle.
3. Our country stands first in the number of road traffic accidents throughout the world even though the number of vehicles plying in our country is less when compared to United States of America. Everyday, we are losing precious lives due to road traffic accidents caused on account of rash and http://www.judis.nic.in 4 negligent driving, drunken driving, etc. The following statistics would show the number of road accidents occurred from 2005 to 2017:
Number of Number of Persons Number of Persons Year Accidents killed per 100 Total Fatal Killed Injured Accidents 2005 4,39,255 83,491 94,968 4,65,282 21.6 2006 4,60,920 93,917 1,05,749 4,96,481 22.9 2007 4,79,216 1,01,161 1,14,444 5,13,340 23.9 2008 4,84,704 1,06,591 1,19,860 5,23,193 24.7 2009 4,86,384 1,10,993 1,25,660 5,15,458 25.8 2010 4,99,628 1,19,558 1,34,513 5,27,512 26.9 2011 4,97,686 1,21,618 1,42,485 5,11,394 28.6 2012 4,90,383 1,23,093 1,38,258 5,09,667 28.2 2013 4,86,476 1,22,589 1,37,572 4,94,893 28.3 2014 4,89,400 1,25,828 1,39,671 4,93,474 28.5 2015 5,01,423 1,31,726 1,46,133 5,00,279 29.1 2016 4,80,652 1,36,071 1,50,785 4,94,624 31.4 2017 4,64,910 1,34,796 1,47,913 4,70,975 31.8 In 2012, the International Road Federation (IRF) estimated that traffic collision in India results in an annual monetary loss of $20 Billion. The deaths due to motor accidents are avoidable and have to be averted at any cost. When a person cannot end even his own life by committing suicide, no one has got any right either to injure or cause death of other road users. Therefore, an individual cannot injure himself or harm others or cause death of others by his reckless act. However, the cases, which are filed in respect of road traffic http://www.judis.nic.in 5 accidents are mechanically done without including the appropriate provisions of Indian Penal Code as well as Motor Vehicles Act, 1988. Even if a person drives without licence, as per Section 3 r/w 94 of Motor Vehicles Act, 1988, the Police are negligent in including the relevant provision while registering the case. Therefore, the Police should be sensitised to invoke the correct provision of law in the FIRs, which are registered based on road traffic accidents.
4. Punishments imposed for causing deaths in a road traffic accident are not adequate enough and drivers, who are rash and negligent and who drive at great speed, are let off with a warning or minimum sentence. The Honourable Supreme Court, on many occasions, has deprecated this practice and directed the Police Authorities to invoke Section 304 Part II IPC so that it would have a deterrent effect on the riders/drivers and make them abide by road rules.
5. In Alister Anthony Pareira v. State of Maharashtra reported in (2012) 2 Supreme Court Cases 648, the Honourable Supreme Court while upholding the conviction under Sections 304-Part I, 337 and 338 I.P.C., for causing deahs and injuries by rash and negligent driving of motor vehicle, observed, as follows:
http://www.judis.nic.in 6 "41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash and negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law-in view of the provisions of IPC-
the cases which fall within the last clause of Section 299 but not within clause "Fourthly" of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.
42. A person, responsibile for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. There is no incongruity, if simultaneously with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for http://www.judis.nic.in 7 the offence under Section 338 IPC.
43. In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally coexist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences.
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47. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304-A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC.
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96. The World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to the National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB report also states http://www.judis.nic.in 8 drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that lawmakers revisit the sentencing policy reflected in Section 304-A IPC."'
6. This case is one such case wherein because of the rash and negligent driving, by the driver of the bus, belonging to the 5th respondent and insured with the appellant Insurance Company bearing Registration No. TN-21- AY-6000, it hit against one Raghu, aged about 20 years, a building mason, earning about Rs.9000/- per month, causing the accident and subsequently, resulting in the death of the said mason. The date of accident was on 10.12.2012. The bus driven rashly and negligently by its driver dashed against the victim from behind, when he was walking on the left side of five roads to Krishnagiri new bus stand road and he sustained fatal injuries. Therefore, the claim petition was filed. On contest, the Tribunal found that the accident occurred because of the rash and negligent driving of the 5th respondent bus insured with the appellant Insurance Company and awarded a sum of Rs.18,88,000/-. The said award is being challenged before this Court by the appellant Insurance Company.
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7. Heard Mr.S. Arunkumar, learned counsel for the appellant and Mr.K. Prasanna, learned counsel representing Mr.Mukund R. Pandiyan, learned counsel for the claimants.
8. Learned counsel for the appellant would submit that in the absence of proof regarding income, the Tribunal erroneously fixed Rs.9000/- per month. Therefore, the said amount has to be reduced. Relying upon the judgment of the Constitution Bench of the Honourable Apex Court in National Insurance Company Limited V. Pranay Sethi and Others reported in 2017 ACJ 2700, the learned counsel would submit that Rs.1 lakh awarded towards “Loss of Consortium” and Rs.2 lakhs awarded towards “Loss of love and affection” are on the higher side and hence, he seeks to reduce the amount awarded.
9. However, Mr. Prasanna, learned counsel for the claimants would argue that the compensation granted by the Tribunal requires enhancement.
10. It is evident from the records that the accident occured on 10.12.2012. It was alleged by the claimants that the victim was walking on the road and the bus which was coming behind, dashed against him causing the http://www.judis.nic.in 10 accident and resulting in his death. Ex-P1 FIR was given by the 2nd respondent mother. In the said FIR, it has been specifically stated as follows:
@10/12/12k; njjp md;W fhiyapy; Chpy; ,Ue;J fpUc&;zfphpf;F brd;whd;/ mtd; g[jpa g!; !;nlz;L mUfpy; md;dhrpiy mUnf ele;J brd;wnghJ gpd;dhy; g!; ;!;nlz;L nehf;fp brd;w g!; TN 21 AY 6000 -I Xl;ote;j ilth; mjpntfkhft[k; m$hf;fpuijahft[k; Xl;obrd;W vd; kfd; kPJ nkhjp tpgj;J Vw;gLj;jptpl;ljhft[k; mjdhy; ,Lg;g[ gFjpapy; gyj;j mog;gl;Ltpl;ljhft[k; Mk;g[yd;R K:yk; fpUc&;zfphp GH-y; rpfpr;iff;F nrh;f;fg;gl;ljhft[k; rpfpr;ir gyd; ,d;wp ,we;Jtpl;ljhft[k; bjhpe;J GH-f;F te;J ghh;j;njd;/...@ The 3rd respondent, the widow, aged about 19 years, at the time of accident, who was examined as P.W.1, would state in her evidence as follows:
@1k; vjph;kDjhuUf;F brhe;jkhd TN 21 AY 6000 vd;w gjpt[ vz; bfhz;l ngUe;ij Xl;o te;j mjd; Xl;Ldh; bg';fS:h; nuhoypUe;J g[jpa ngUe;J epiyak; nehf;fp mjpntfkhft[k; m$hf;fpuijahft[k;. vt;tpj xypg;ghiza[k; mof;fhky;. ntfkhf Xl;o te;J jd; fl;Lg;ghl;il ,He;J. nuhod; ,lJ g[wk; Xukhf ele;J brd;Wf; bfhz;oUe;j vd; fzthpd; gpd; g[wj;jpy; nkhjp tpgj;J Vw;gLj;jp tpl;lhh;/@ Similarly, the eye-witness to the occurrence, who deposed as P.W.2, specifically stated that, “because of the rash and negligent driving of the 5th http://www.judis.nic.in 11 respondent bus, the accident was caused”. From the above, it is clear that the bus was driven rashly and negligently and at great speed. Therefore, the Tribunal was right in holding that the accident occurred because of the rash and negligent driving of the bus belonging to the 5th respondent insured with the appellant Insurance Company. Further, there is no rebuttal evidence adduced either on behalf of the 5th respondent or on behalf of the appellant/Insurance Company.
11. As far as the quantum of compensation is concerned, though it is the contention of Mr.S. Arunkumar, learned counsel for the appellant, that in the absence of any proof regarding monthly income, the Tribunal fixed Rs.9000/- as the monthly income of the deceased, which is on the higher side and therefore, the same has to be reduced, the Honourable Supreme Court, in the judgment rendered in Syed Sadiq and others V. Divisional Manager, United India Insurance Company Limited reported in 2014 ACJ 627, fixed Rs.6500/- as the monthly income for a vegetable vendor, who got injured in the accident, which occurred in 2008 whereas in the case on hand, the accident had occurred on 10.12.2012. Therefore, the Tribunal was right in determining the monthly income at Rs.9000/- and the same is confirmed.
12. No “Future Prospects” was awarded by the Tribunal, though http://www.judis.nic.in 12 the deceased was aged about 20 years, as proved by Ex-P2, postmortem certificate and he was self-employed. As per the Constitution Bench's judgment of the Honourable Apex Court in Pranay Sethi's case (stated supra), 40% of the income has to be added towards “Future Prospects”. Accordingly, adding the same, the “total monthly income” would be, Monthly Income :: Rs.9000/-
ADD: 40% towards “Future Prospects” :: Rs.9000/- (+) 40%(Rs.9000/-) Total Monthly Income :: Rs.9000/- (+) Rs.3600/-
:: Rs.12,600/-
13. Though the size of the family is four and the Tribunal adopted one-fourth deduction towards “Personal and Living Expenses” of the deceased, Mr.S. Arunkumar, learned counsel for the appellant would submit that the father would not come under the category of “dependents” and further, the father of the victim in this case is not proved to be a dependent of the deceased. However, P.W.1 has categorically stated in her evidence as follows:
@tajhd vd; khkdhh; kw;Wk; khkpahiu ed;F guhkhpj;J mth;fSf;F czt[. cil. itj;jpa bryt[fis ghh;j;jpUg;ghh;/ vd; fzth; xUthpd; tUkhdj;ijf; bfhz;L jhd; kDjhuh;fshfpa eh';fs; thH;e;J te;njhk;/ v';fsJ vjph;fhyKk; ey;ygoahf re;njhrkhf ,Ue;jpUf;Fk;/ vd; fzthpd; http://www.judis.nic.in 13 ,wg;gpdhy; kDjhuh;fshfpa eh';fs; kdjstpYk; bghUshjhu mstpYk; kpft[k; ghjpg;gpw;F Mshfp ,Uf;fpnwhk;/@ There was no cross-examination of P.W.1 on the above point. Thus, it is proved by the categorical evidence of P.W.1 that the father of the deceased was also dependent on him. That being so, as rightly done by the Tribunal, one-fourth deduction has to be made towards “Personal Expenses” of the deceased. Applying the said deduction, “the Monthly Contribution of the deceased to his family” would be, Total Monthly Income :: Rs.12,600/-
Less: one-fourth towards
“Personal Expenses” :: Rs.12,600/- (-) ¼ (Rs.12,600/-)
Monthly Contribution :: Rs.9,450/-
Annual Contribution :: Rs.9,450 x 12
As proved by Ex-P2, postmortem certificate, the age of the deceased was 20 years and the appropriate multiplier applicable is “18”, as per the judgment of the Honourable Apex Court in Smt. Sarla Verma and others V. Delhi Transport Corporation and another reported in [(2009) 6 SCC 121]. Applying the said multiplier, “Loss of Income” to the family of the deceased is, Loss of Income :: Rs.9,450 x 12 x 18 :: Rs.20,41,200/-
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14. It is true that in the recent judgment in National Insurance Company Limited V. Pranay Sethi and Others reported in 2017 ACJ 2700, the Constitution Bench of the Honourable Apex Court, stated that only Rs.40,000/- has to be awarded towards “Loss of Consortium”. This is definitely a different case, which should be viewed with compassion. The 3rd respondent/widow of the deceased lost her husband at the age of 19 years and she was carrying a one month's foetus in her womb. She could not have enjoyed the joy of attaining motherhood and even the customary functions would not have been celebrated with great pomp, rather, it would have been an agonizing ordeal for the young woman, in the absence of her husband. There will not only be lack of celebration, enjoyment and deprivation of marital pleasures, but she will be under constant mental agony, grief, apart from carrying a stigma of losing her husband within a short period of her marriage. Added to this, companionship and security provided by the husband, which she would have had, throughout her life is also lost. It is not that if her husband had been alive, he would have been always available by her side to protect her. It is only the secured feeling, the moral support, which she would have experienced, by her husband's presence, which she has been deprived of. The physiological and emotional disturbances caused to the lady cannot be http://www.judis.nic.in 15 narrated, that too, she is a young girl, in her teens, who has been driven to this plight. These are the factors, which have to be necessarily considered while awarding “Consortium”. Therefore, as a departure from awarding Rs.40,000/- towards “Loss of Consortium”, this Court has to necessarily award a sum of Rs. 2 lakhs towards “Loss of Consortium”.
15. Similar is the case of the 4th respondent/minor child. It is very pathetic that the child was born after the death of the father. Our conservative society, would definitely brand the child as “unlucky” as her father left this world when she was in her mother's womb and she would have to carry this stigma all through her life. As already stated, for no fault committed by either the child or the mother or the victim himself, the entire family is made to suffer because of the irresponsible act committed by a stranger, namely, the driver of the bus, who drove the vehicle, rashly and negligently, unmindful of the consequences. The love and affection, care and guidance, which a child usually gets from a father, is totally lost. For normal growth and upbringing of a child, the love and affection of both parents are essential. Even when both of them are available to take care of the child, it is very difficult to bring up the child, normally, owing to various factors prevalent in our society. The role of a father, in the bringing up of a girl child, at the time of her marriage and even thereafter, is very significant and no one http://www.judis.nic.in 16 can take his place. Moreover, being a girl child, the 4th respondent is bound to have problems in this patriarchal society and people would try to take advantage of the absence of the father. No child is born unlucky and it would not be proper to cast a stigma on a child, for no fault of hers, because of an untoward incident. All these aspects need to be taken into consideration by this Court. Therefore, the sum of Rs.1 lakh awarded towards “Loss of love and affection” to the 4th respondent, is enhanced to Rs.2 lakhs for the reasons stated above.
16. Though no amount was awarded towards “Loss of love and affection” in the judgment of the Honourable Supreme Court in Pranay Sethi’s case, the Honourable Apex Court would not have meant that no amount, under any circumstance, could be awarded towards “ Loss of love and affection”. The award of amount towards ‘ Loss of love and affection” to the 4th respondent child for the loss of her father is akin to “ Loss of Consortium” granted to the 3rd respondent widow. Therefore, in an endeavour to do complete justice and in the extraordinary circumstances of the case, as narrated above, the sum of Rs.2 lakhs is granted towards “ Loss of love and affection”. The other amounts, namely, Rs.10,000/- towards “ Transporatation Expenses” is confirmed while Rs.20,000/- awarded towards “Funeral Expenses” is reduced to Rs.15,000/-. No amount was awarded http://www.judis.nic.in 17 towards “ Loss of Estate” and hence, a sum of Rs.15,000/- is awarded under the said head. The amount of Rs.25,000/- is awarded to each of respondents 1 and 2 for “Loss of love and affection”. Hence, the total compensation payable to the claimants works out to, Loss of Income :: Rs. 20,41,200/-
Loss of consortium :: Rs. 2,00,000/-
Loss of Love and Affection
to the 4th respondent :: Rs. 2,00,000/-
Loss of Love and Affection
to respondents 1 & 2 :: Rs. 50,000/-
Funeral Expenses :: Rs. 15,000/-
Transportation Expenses :: Rs. 10,000/-
Loss of Estate :: Rs. 15,000/-
Total :: Rs. 25,31,200/-
rounded off to :: Rs. 25,30,000/-
17. Though the appeal has been filed by the Insurance Company, as against the award of the Tribunal to the tune of Rs. 18,88,000/- to the claimants, this Court enhances the compensation to Rs.25,31,200/-, rounded off to Rs.25,30,000/-, by re-appreciating the evidence on record and applying the correct position of law as on date. As the appeal is a continuation of http://www.judis.nic.in 18 original proceedings, by invoking Order XLI Rule 33 CPC and Section 151 CPC and Article 227 of the Constitution of India, this Court has got power and jurisdiction to enhance the compensation in the appeal filed by the Insurance Company, even in the absence of appeal/cross-appeal by the claimants, which has been recognized bythe Honourable apex Court in the judgment rendered in Nagappa V. Gurdayal Singh reported in 2004 (2) TN MAC 398 (SC). This Court finds that the compensation awarded by the Tribunal is not just and reasonable and therefore, with a view to award just compensation, the award of Rs.18,88,000/- is enhanced to Rs.25,30,000/-. The provisions of Motor Vehicles Act, are benevolent in nature and they are aimed at consoling, comforting and compensating the unfortunate victims of road traffic accidents. Therefore, this Court has to deal with such matters, with compassion and as per law.
18. The Civil Miscellaneous Appeal is dismissed and the amount awarded by the Tribunal is enhanced suo motu from Rs.18,88,000/- to Rs.25,30,000/-with interest @ 7.5% per annum.
19. Out of the award amount, the 1st and the 2nd respondents are entitled to Rs.2 lakhs each. The 4th respondent is entitled to Rs.11,30,000/- and the 3rd respondent/widow is entitled to Rs.10 lakhs. The claimants shall pay additional court-fee, if any.
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20. The appellant Insurance Company is directed to deposit the entire award amount, as per the modified award passed by this Court, with interest and costs, before the Tribunal, after deducting the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the respective shares of the major claimants, shall be transferred to their respective bank accounts, as per the apportionment of this Court, as above, through RTGS, by the Tribunal, within a period of one week thereafter. The share of the 4th respondent/minor shall be deposited in interest bearing Fixed Deposit in any one of the Nationalised Banks till she attains majority and the 3rd respondent is permitted to withdraw interest accruing on such deposit once in three months. Connected miscellaneous petition is closed. No costs.
21. Before parting with this case, we opine that this case should be an eye-opener for vehicle drivers/riders to drive/ride the vehicles at a normal speed following the rules and regulations. Any violation of road rules like drunken driving, reckless driving, speaking over mobile phone while driving, etc, would not only cause death or injuries to third parties, but also cause injuries or death to the driver, who is not following the rules and regulations. The drivers should understand that they are capable of causing http://www.judis.nic.in 20 death or injury to others due to their rash and negligent driving. Therefore, this Court, with folded hands, appeals to each and every motorist to be careful while driving, as lives of not only the motorists, but also innocent people who are coming on the road and their families, are in their hands.
(N.K.K.J.) (R.P.A.J.)
nv 20.03.2019
Note: Issue Order Copy on 03.05.2019
To
The MACT (Prl. District Court),
Krishnagiri.
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N. KIRUBAKARAN, J.
AND
R. PONGIAPPAN, J.
nv
C.M.A. No. 69 of 2016
Dated : 20.03.2019
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