Madras High Court
Sangeetha vs The National Insurance Co. Ltd on 20 June, 2013
Author: R.Banumathi
Bench: R.Banumathi, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2013
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM
Civil Miscellaneous Appeal No.621 of 2010
1. Sangeetha
2. Minor S.Hariharan
3. Minor S.Praghadheeshvar
( Minors rep. by mother
and next friend Sangeetha ) .. Appellants
Vs.
1. The National Insurance Co. Ltd.,
(Pondy Branch)
First Floor,
312, Jawaharlal Nehru street,
(opp. Murugan's)
Pondicherry-605 001.
2. Iyyanarappan
3. M.Veeriah .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Order dated 12.10.2009 made in M.C.O.P.No.1464 of 2008 on the file of Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai.
For Appellants : Mr.E.J.Ayyappan
For Respondents : Mr.S.Arunkumar for R1
Ms.Christella for R2
R3 No Appearance
JUDGMENT
R.BANUMATHI,J Being aggrieved by fastening of 50% contributor negligence upon the deceased and also dissatisfied with the quantum of compensation of Rs.64,26,720/- awarded by Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes), Chennai in M.C.O.P.No.1464 of 2008 (12.10.2009) for the death of deceased Sekar in the road traffic accident on 25.6.2007, Claimants have filed this appeal.
2. Brief facts are that on 25.6.2007, deceased Sekar and his wife (1st Claimant), co-brother Sathish Balaji, his co-brother's wife Deepa Rohini, their son Pranav Arun and his mother-in-law Susheela were returning in Tata Indigo car bearing registration No.AP-09 Q 3990 on East-Coast Road, after going for an outing at Muttukadu Boat House. When the car was nearing Pannai Ayvagam on East-Coast Road at about 3.00 P.M., the bus bearing registration No.PY-01 L 5199 coming on the opposite direction and proceeding towards Pondicherry, cut across the centre median line and collided head on with Tata Indigo car. Due to the impact Sekar and other occupants of the car sustained grievous injuries and the car was damaged. Immediately after the accident, injured persons were sent to Malar Hospitals, Adyar. Sekar succumbed to injuries on the same day. Regarding the accident, a criminal case was registered against the bus driver in Crime No.559 of 2007 under Sections 279 and 337 I.P.C. of Neelangarai Police Station. At the time of accident, Sekar was working as Vice-President in Polaris Software Lab Limited, Chennai and was earning Rs.2,25,000/- per month. Alleging that the accident was due to rash and negligent driving of the bus driver and that they have lost the bread winner of the family, the Claimants who are wife and minor sons of deceased Sekar have filed Claim Petition claiming compensation of Rs.6,17,65,000/-.
3. In the Tribunal, Respondents [driver, owner and insurer of the bus] remained exparte.
4. Before the Tribunal, 1st Claimant-Sangeetha examined herself as P.W.1. Exs.P1 to P14 were marked. Respondents including the 1st Respondent-Insurance Company remained exparte before the Tribunal.
5. Upon consideration of oral evidence of P.W.1 and Ex.P10-rough sketch, Tribunal held that the bus bearing registration No. PY-01 L 5199 proceeding towards Pondicherry cut across the centre median and collided head on with the car bearing registration No.AP-09 Q 3990, which was driven by the deceased in the opposite direction. Holding that had the deceased driven the car along the left side of the road, the collision could have been averted and held that both the deceased and the driver of the bus were responsible for the accident and fixed 50% contributory negligence to the deceased. Based on Ex.P5-pay slips, Tribunal had taken the monthly income of the deceased at Rs.1,23,110/- and the annual income at Rs.14,77,320/-. Deducting one-third for personal expenses i.e. Rs.9,84,880/- per annum and adopting multiplier "13", the loss of contribution to the family is calculated at Rs.1,28,03,440/-. Adding conventional damages, Tribunal calculated the total compensation at Rs.1,28,53,440/- and awarded 50% of compensation at Rs.64,26,720/- payable to the Claimants with interest at the rate of 7.5% per annum.
6. Mr.E.J.Ayyappan, learned counsel for Appellants-Claimants contended that when the Tribunal has come to the conclusion that the deceased was driving well within the road width on his side and when 2nd Respondent-bus driver had crossed the centre median line and hit the vehicle of the deceased in a rash and negligent manner, absolutely there was no reason to arrive at 50% contributory negligence to the deceased. It was further submitted that when the deceased was driving well within his limits, there is absolutely no scope to reduce the quantum of award by 50%. Learned counsel for Appellants submitted that Tribunal erred in taking the monthly income of the deceased at Rs.1,23,110/- and prayed for allowing the appeal.
7. Mr.S.Arun Kumar, learned counsel for 1st Respondent-Insurance Company submitted that due to communication gap, the 1st Respondent-Insurance Company could not enter appearance and adduce evidence and the award passed is an exparte award and not sustainable. Learned counsel for 1st Respondent-Insurance Company submitted that Tribunal rightly attributed 50% contributory negligence to the deceased. Insofar as quantum of compensation, the learned counsel for 1st Respondent-Insurance Company submitted that the monthly income fixed by the Tribunal is excessive and that the total compensation awarded by the Tribunal is exorbitant.
8. We have also heard Ms.Christella, learned counsel appearing for 2nd Respondent.
9. Upon consideration of evidence, findings of Tribunal and rival contentions, the following points arise for consideration in this appeal.
1.Whether the deceased Sekar who was driving Tata Indigo car bearing registration No.AP-09 Q 3990 contributed to accident by his own negligence and whether the Tribunal was right in fastening 50% contributory negligence upon the deceased Sekar?
2.Whether the total compensation of Rs.64,26,720/- being 50% awarded by the Tribunal is just and reasonable?
3.Whether the compensation of Rs.64,26,720/- awarded by the Tribunal is to be enhanced and if so, what is the quantum?
10. Point No. 1:-
On 25.6.2007, the deceased Sekar was driving Tata Indigo car bearing registration No.AP-09 Q 3990 along with his wife Sangeetha and family members viz., co-brother Sathish Balaji, co-brother's wife Deepa Rohini, their son Pranav Arun and his mother-in-law Susheela and were returning to Tiruvanmiyur to go to the residence of deceased. At about 3.00 P.M., when they were nearing Pannai Ayvagam on East Coast Road, the Ashok Leyland bus bearing registration No.PY-01 L 5199 owned by 3rd Respondent and driven by 2nd Respondent-Iyyanarappan, insured with the 1st Respondent-Insurance Company came in the opposite direction in a rash and negligent manner, cut across the centre median and head on collision with the car, which the deceased Sekar had driven.
11. In her evidence, P.W.1-Sangeetha, wife of deceased had clearly spoken about the negligence of the bus driver and also the bus cut across the centre median and hit against the Tata Indigo car and that the accident was due to rash and negligent driving of the bus driver. P.W.1 who was travelling in the car is the natural witness to speak about the accident and also about the negligence. Her evidence is corroborated by the recitals in Ex.P1-FIR, which was registered on the complaint lodged by Sathish Balaji, co-brother of the deceased.
12. From Ex.P10-rough sketch, it is seen that the total width of the East Cost Road is 40 feet apart from 5 feet mud road on either sides. The Tata Indigo car was proceeding from south to north and the bus was proceeding from north to south. Accident occurred when the bus cut across the centre median and collided with the car. As per Ex.P10-rough sketch, the accident is said to have taken place 25 feet from the eastern side and 15 feet from the western side. The bus which was proceeding from north to south to proceed in the correct direction ought to have kept its side on the eastern side of the median, but the bus crossed the centre median and collided with the car, thereby showing that the accident was due to negligence of the bus driver. Ex.P10 is only the rough sketch. Merely because the bus cross the median, based on Ex.P10-rough sketch, 100% liability cannot be fastened on the bus driver.
13. From Ex.P10-rough sketch, it is seen that the car which was proceeding from south to north also was proceeded in the centre of the road, just abutting the centre median. When the bus clearly cut across the centre median, Tribunal is not right in fixing 50% contributory negligence on the car driver.
14. Contention of Appellants is that Ex.P10 is the only rough sketch and based on Ex.P10-rough sketch, Tribunal ought not to have discussed a hypothetical situation saying that had the deceased driven his vehicle to the left side of the road, the accident could have been averted and the Tribunal erred in fixing 50% contributory negligence on the deceased.
15. Learned counsel for 1st Respondent-Insurance Company submitted that Claimants have not adduced any independent evidence to substantiate the plea that the accident was due to negligence of the bus driver. Learned counsel for 1st Respondent-Insurance Company further submitted that Ex.P10 is only the rough sketch and upon analysis of evidence, Tribunal recorded factual finding fastening 50% contributory negligence to the deceased Sekar and the said factual finding cannot be interfered with.
16. As pointed out by the Tribunal, the car which was proceeding from south to north was proceeded just abutting the centre median. When the car was proceeding in the National Highways, the car driver must have left safe distance from the median. It is pertinent to point out that when the vehicles proceeding in the National Highways, drivers of the vehicles must anticipate that oncoming vehicles might cut across the centre median and are expected to adopt a defensive driving. Deceased Sekar does not appear to have adopted such defensive driving but was proceeding just abutting the median and therefore, marginal percentage of contributory negligence has to be fastened upon the deceased Sekar.
17. It is also pertinent to note that other than the evidence of P.W.1-wife of the deceased, Claimants have not adduced any other evidence. Sathish Balaji, who lodged the complaint and based on which Ex.P1-FIR was registered, was also not examined. Claimants have also not produced the driving licence of the deceased Sekar and also the Insurance Policy of the car.
18. Keeping in view that deceased has not left safe distance from the median, for contributory negligence certain extent is to be fastened upon the deceased Sekar. Having regard to Ex.P10-rough sketch and in the facts and circumstances of the case, 50% contributory negligence attributed to the deceased Sekar is reduced to 20% and negligence of the bus driver is fixed at 80%. As is seen from Ex.P13-Policy, at the time of accident, the bus bearing registration No.PY-01 L 5199 was insured with the 1st Respondent-Insurance Company and that the 1st Respondent-Insurance Company is liable to pay 80% of the compensation awarded. Point No.1 is answered accordingly.
19. Point Nos.2 and 3:-
Learned counsel for Appellants submitted that Tribunal has completely carried away the last drawn salary of the deceased for the month of May 2007. It was submitted that the gross income of the deceased was Rs.27 lakhs per annum with a fixed component of Rs.24 lakhs and a variable component of Rs.3 lakhs per annum and while so, Tribunal erred in taking the last drawn salary of the deceased for the month of May 2007 and the Tribunal ought to have seen that the annual income of the deceased has been proved through documentary evidence Exs.P4 to P6 and prayed for enhancement.
20. Deceased Sekar was working as Vice President in Polaris Saftware Laboratory, Chennai. Ex.P4 is the appointment order (October 2006) in which it is stated that Sekar would be getting salary of Rs.27 lakhs and variable component of Rs.3 lakhs per annum. In Ex.P4-appointment order, it is stated that Sekar will be on probation up to a maximum period of six months and that he will be confirmed in the services based on the performance. Ex.P5-series are the salary slips of the deceased for various months (January 2007 to June 2007). For the month of May 2007, his total earning was Rs.1,79,177/- per month and total deduction was Rs.56,067/- and the net pay was Rs.1,23,110/-.
21. In Ex.P4-appointment order, it is stated that deceased Sekar would be getting salary of Rs.27 lakhs per annum i.e. Rs.2,25,000/- per month. As pointed out earlier, for the month of May 2007, his net pay was Rs.1,23,110/- after deducting the income tax, which was deducted at source. While taking the monthly income of the deceased at Rs.1,23,110/-, Tribunal has not given any addition towards future prospects.
22. In (2012) 6 SCC 421 [Santosh Devi v. National Insurance Company Limited and others) and 2013 (2) CTC 680 (SC) [Reshma Kumari and others v. Madan Mohan and another], the Hon'ble Supreme Court held that even in cases where the deceased was self employed or employed in private sector or unorganised organisation, for future prospects additions are to be made. Admittedly, deceased Sekar was working as Vice-President in Polaris Software Lab Limited, Chennai a private company. However, he had permanent job with prospects for future promotion and increment and he had minimum ten more years of service. Had he been alive, deceased would have had prospects of doing well in his employment and getting higher. Keeping in view the avocation of the deceased, salary drawn and the future prospects, we deem it appropriate to take the monthly income of the deceased at Rs.1,40,000/-. Tribunal had taken the income of the deceased at Rs.1,23,110/- based on the salary slip for the month of May 2007 (Ex.P5-series) and the said amount was only after deduction of income tax. Having regard to the marginal increase i.e. Rs.17,000/- given to the salary of the deceased, no further deduction need be made towards income tax.
23. Deceased Sekar was aged 48 years at the time of accident. As per Second Schedule to M.V. Act, the proper multiplier to be adopted is "13", which the Tribunal has rightly adopted. Taking the monthly income of the deceased at Rs.1,40,000/- per month, the annual income is calculated at Rs.16,80,000/- (Rs.1,40,000 x 12 = Rs.16,80,000/-). Deducting one-third i.e. Rs.5,60,000/-, the annual contribution to the family is calculated at Rs.11,20,000/-. Adopting multiplier "13", the total "loss of dependency" is calculated at Rs.1,45,60,000/- (Rs.11,20,000 x 13 = Rs.1,45,60,000/-).
24. Insofar as conventional damages, Tribunal has awarded Rs.10,000/- towards "transport to hospital" and "funeral expenses" and the same is maintained. Tribunal awarded Rs.20,000/- for "loss of consortium" to the 1st Claimant-wife. 1st Claimant aged 33 years at the time of accident has lost her husband at her young age and having regard to her age, the compensation of Rs.20,000/- awarded by the Tribunal for "loss of consortium" is enhanced to Rs.1,00,000/-. Tribunal also awarded Rs.10,000/- each to Claimants 2 and 3 for "loss of love and affection". 2nd Claimant aged 12 years and 3rd Claimant aged 7 years at the time of accident have lost their father at their young age and considering their age, Rs.20,000/- awarded for "loss of love and affection" is enhanced to Rs.1,00,000/-. Thus the total compensation of Rs.1,28,53,440/- arrived at by the Tribunal is enhanced to Rs.1,45,60,000/- as under:-
Loss of dependency : Rs.1,45,60,000.00 (Rs.11,20,000/- x 13) Loss of consortium : Rs. 1,00,000.00 Loss of love and affection (Rs.50,000/- each to Claimants 2 and 3) : Rs. 1,00,000.00 Transport Charges and Funeral expenses : Rs. 10,000.00
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Total : Rs.1,47,70,000.00
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Since contributory negligence on the part of the bus driver is fixed 80%, the Appellants-Claimants 1 to 3 are entitled to Rs.1,18,16,000/- (Rs.1,47,70,000 x 80 w 100 = Rs.1,18,16,000/-). The compensation amount of Rs.1,18,16,000/- is to be apportioned amongst the Claimants 1 to 3 as follows:-
1st Claimant-wife would be entitled to Rs.78,16,000/-. 2nd Claimant-minor son would be entitled to Rs.20,00,000/-. 3rd Claimant-minor son would be entitled to Rs.20,00,000/-. Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained.
25. In the result, compensation of Rs.64,26,720/- awarded by the Tribunal in M.C.O.P.No.1464 of 2008 (12.10.2009) on the file of Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai is enhanced to Rs.1,18,16,000/- payable with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit and the appeal is partly allowed.
It was stated before us that 1st Respondent-Insurance Company has deposited Rs.77,88,480/- before the Tribunal and 1st Claimant is said to have withdrawn portion of the amount. 1st Claimant is permitted to withdraw the balance amount apportioned to her along with proportionate accrued interest immediately after the receipt of copy of this judgment.
1st Respondent-Insurance Company is directed to deposit the balance compensation amount along with accrued interest at the rate of 7.5% per from the date of Claim Petition till the date of deposit within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the 1st Claimant is entitled to withdraw her share along with proportionate accrued interest. The share in respect minor Claimants 2 and 3 are ordered to be invested in anyone of the nationalised bank till the minor Claimants 2 and 3 attains majority. In respect of 3rd Claimant's apportioned compensation, 1st Claimant-mother is permitted to withdraw the accrued periodical interest once in three months directly from the bank. As and when the Claimants 2 and 3 attains majority, they are permitted to withdraw their respective share on filing necessary application before the Tribunal declaring them as major.
Consequently, connected M.P. if any is closed. No costs.
bbr To The Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes, Chennai