The Managing Director vs E.Devaraj (Died) on 19 April, 2022

[Cites 1, Cited by 0]

Madras High Court

The Managing Director vs E.Devaraj (Died) on 19 April, 2022

Feeling aggrieved by the Award dated April 19, 2022 passed in M.A.C.T.O.P.No.1647 of 2016 by the ‘Motor Accidents Claims Tribunal (Special Sub Court No.2, Motor Accidents Claims Petitions) Small Causes Court, Chennai’ [‘Tribunal’ for short], the respondent therein / Transport Corporation has preferred this Civil Miscellaneous Appeal praying to set aside the Award.

2. For the sake of convenience, the parties will hereinafter be referred to as per their rank in the Motor Accident Claims Original Petition.

3. It is to be noted that the claim petition was filed by Mala (victim’s wife) representing the victim – Devaraj, as the victim was in vegetative state at that time. Subsequently, the victim passed away on May 25, 2020 i.e., before passing of the Award and hence, his legal heirs were Page No.2 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 impleaded as petitioners 2 to 5 in the claim petition by the Tribunal. PETITIONERS' CASE

4. On July 15, 2015 at about 05.00 hours, the first petitioner / victim - Devaraj was riding the motorcycle bearing Registration No.TN- 19-9680 in GST Road, near Potheri Bus Stop. At that time, the driver of the respondent's bus bearing Registration No.TN-25-N-0355, drove the bus in a rash and negligent manner, suddenly applied the brakes, started reversing, and dashed against the first petitioner / victim - Devaraj, due to which, he sustained severe brain stem injuries and multiple other injuries resulting in deep vegetative state. As a result of these injuries, first petitioner / victim could not resume his office work and completely lost his limb movements and speech. Further, he became dependant on his family members for all aspects of life including basic needs. According to the petitioners, the accident occurred only due to the rash and negligent driving of the respondent's Bus. At the time of accident, first petitioner / victim was 52 years old and working as Sub-Inspector of Police, thereby earning a sum of Rs.45,000/- per month. Accordingly, claim petition was filed before the Tribunal seeking compensation of Rs.1,00,00,000/- (Rupees One Crore only) from the respondent. During the pendency of Page No.3 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 trial, first petitioner / victim - Devaraj passed away on May 25, 2020 due to the injuries sustained in the above said accident. RESPONDENT'S CASE

5. The respondent filed counter denying all the averments and allegations made in the claim petition. The respondent denied the manner of accident, alleged negligence on the part of the respondent's driver, involvement of the respondent's bus in the alleged accident and the injuries said to be sustained in the accident. It is stated that the petitioners are put to strict proof of the petition averments through proper documentary and oral evidence. According to the respondent, the accident occurred solely due to the negligence of the first petitioner / victim and not due to any negligence on the part of the driver of the respondent’s bus. Accordingly, the respondent prayed to dismiss the petition. TRIBUNAL

6. During enquiry, on the side of petitioners, the 2nd petitioner – Mala was examined as P.W.1, and two other witnesses were examined as P.W.2 and P.W.3, and Ex-P.1 to Ex-P.32 were marked. On the side of the respondent, R.W.1 and R.W.2 were examined, and Ex-R.1 was marked. Page No.4 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3

7. The Tribunal after considering the evidence available on record, found that the accident occurred due to the rash and negligent driving of the driver of the respondent's bus. Since the respondent's bus was not insured with any insurance company, the Tribunal held that the respondent is liable to pay the compensation to the petitioners. It awarded compensation as stated below:-

                              Sl.No.                  Head                                  Amount
                                  1.    Total loss of dependency                            Rs.61,10,174.25
                                  2.    Loss of Consortium                                   Rs.1,60,000.00
                                  3.    Loss of Estate                                        Rs.15,000.00
                                  4.    Funeral Expenses                                      Rs.15,000.00
                                  5.    Medical Expenses                                    Rs.10,97,358.00
                                                 Total                                      Rs.73,97,532.25
                                            Rounded off to                                  Rs.73,97,600.00

8. Challenging the fixation of liability and the quantum of compensation, the respondent / Transport Corporation has preferred this Civil Miscellaneous Appeal.

ARGUMENTS

9. The learned Counsel for the appellant herein / respondent before Tribunal / Transport Corporation would submit that the accident Page No.5 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 had occurred due to rash and negligent acts of the first petitioner himself. The respondent’s bus was driven carefully duly following all the traffic rules, but the first petitioner negligently hit the back side of the bus and sustained injuries. The driver of the respondent’s bus has been examined as R.W.2 and he has deposed that he had been driving the Bus bearing Registration No.TN-25-N-0355 and had stopped at SRM College Bus Stop at the time of accident, and at that time the first petitioner, who was riding his motorcycle bearing Registration No.TN-19-9680 without wearing helmet, hit the back side of the bus, fell down and thus, invited the accident. Further, at the time of accident, the first petitioner did not possess a valid driving license. He would stress on the above points and argue that the accident occurred only due to negligence of the first petitioner. However, the Tribunal failed to note the said fact and erred in fixing negligence on the driver of the respondent’s bus. Accordingly, he prayed to allow the appeal.

10. Per contra, the learned Counsel appearing for the respondents 1 to 4 herein / petitioners would submit that since the victim hit the back side of the bus, it cannot be presumed that he was negligent. Page No.6 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 Had the respondent’s driver driven the bus carefully following the traffic rules duly, the accident could have been averted. The petitioners’ side examined P.W.2, who is an ocular witnesses, and P.W.2’s evidence would show that the accident occurred due to the rash and negligence of the respondent’s bus driver. The Tribunal, upon appreciating the evidence available on record, rightly fixed negligence on the respondent’s bus driver and held the respondent liable to pay compensation to the petitioners. Hence, there is no warrant to interfere with the Award of the Tribunal. Accordingly, he prayed for dismissing the appeal. DISCUSSION

11. This Court considered both sides’ submissions and perused the evidence available on record.

12. The factum of accident is now admitted; its manner is in question. Now, the question that has to be examined is, whether the respondent's driver was negligent or the victim himself was the reason for the accident. R.W.2 – Driver of the respondent's bus in his evidence has deposed that there are no eye-witness to substantiate his version of the accident. In his chief examination, he has deposed that his vehicle was Page No.7 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 stopped at the bus-stop, whereas in his cross examination he has stated that the accident occurred ten meters away from the bus-stop. Further, in his chief examination, he has deposed that the accident was a ‘self-fall’ as the victim rode negligently without wearing helmet, himself collided with the stationed bus, fell down and invited the accident.

13. In this case, First Information Report (FIR) was lodged against the respondent’s driver, pursuant to which, chargesheet was also laid against respondent’s driver by the police after investigation. P.W.2, ocular witness to the accident has deposed that the first respondent’s driver applying sudden brakes and stopping the vehicle without any indication on the centre of the road is the cause for the accident. His evidence is credible and there is no reason to reject the same. In view of the FIR, the Chargesheet as well as the evidence of P.W.2 / ocular witness, this Court is of the view that the accident occurred due to the rash and negligence of the respondent’s bus driver in applying sudden brakes without proper indication in the centre of the road.

14. At the same time, R.W.1 as well as R.W.2 has deposed that Page No.8 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 the victim was not wearing helmet at the time of accident. Further, major injury suffered by the victim is in the head. Had he worn helmet as per rules, he could have reduced the impact of the accident. Hence, 10% contributory negligence is to be mulcted on the victim for not wearing helmet at the time of accident. Since the respondent’s bus was not insured, the respondent is liable to pay 90% of the compensation amount to the petitioners.

15. P.W.3 – Doctor has deposed that the victim sustained head injuries in the accident. At the time of admission, he was on a low scale of Glasgow Coma Scale due to (i) Traumatic Brain Injury with Fronto Temporo Parietal Acute Hematoma (ii) Multiple Bones Fractures. He further deposed that the victim suffered traumatic brain injury, right fronto occipital contusion of brain, fracture right humerus, loss of both eye vision, brain edema, surgery tracheostomy, and then he also developed brain haemorrhage, sacral bed sore, tracheostomy infection, tracheostomy aspiration, right occipital and parietal gliosis due to the accident, and that he died on May 25, 2020 due to respiratory aspirations and its complications, fever and RT Feeding. He further deposed that he Page No.9 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 was admitted in the hospital as in-patient as detailed below:

                       S.No.        Date of          Date of Discharge                       Hospital
                                  Admission
                            1.    15.07.2015              01.08.2015                   MIOT Hospital
                            2.    11.08.2015              16.08.2015                   Annai Arul Hospital
                            3.    26.08.2015              29.08.2015                   Annai Arul Hospital
                            4.    06.07.2016              08.07.2016                   Chengalpattu Hospital
                            5.    02.10.2016              06.10.2016                   Annai Arul Hospital
                            6.    04.10.2017              06.10.2017                   Annai Arul Hospital
                            7.    26.04.2018              28.04.2018                   Annai Arul Hospital

15.1. P.W.3’s deposition is corroborated by Ex-P.4 to Ex-P.17 (Medical evidence and Death Certificate). From the above evidence, a nexus between the accident and the demise of the victim / first petitioner could be inferred.

16. As regards the quantum of compensation, the victim served as a Special Sub Inspector of Police in the Home Department, Government of Tamil Nadu and was earning a sum of Rs.65,595/- per month, which is evident from Ex-P.20 = Ex-P.32 – Pay Slip of the victim. There is no evidence available on record to show whether or not the victim received salary till his passing. In the absence of such evidence, bearing in mind that the victim met with the accident while in harness, this Court presumes that the victim was receiving salary till his demise, which means Page No.10 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 there could be no loss of income till his passing on May 25, 2020. His date of birth being June 3, 1963 (as per Ex-P.20 = Ex-P.32 – Pay Slip), his age was 56 years on the date of his passing, for which the appropriate multiplier as per Sarla Verma -vs- Delhi Transport Corporation reported in (2009) 6 SCC 121 is 9. The Tribunal has rightly adopted the multiplier of 9 and added 15% Future Prospects as per National Insurance Company Limited -vs- Pranay Sethi reported in (2017) 16 SCC 680. However, the Tribunal failed to note that the three sons of the victim are all majors and hence, the appropriate deduction is 1/3rd and not 1/4th. Further, the Tribunal failed to consider that the victim was an income-tax assessee and it ought to have deducted income-tax from his income. Taking personal deduction as 1/3rd instead of 1/4th and after deducting income tax as per Income Tax Slab for the Financial Year 2020-2021 (AY 2021-2022) from the income, compensation towards loss of dependency would come to Rs.48,35,683/-. Accordingly, compensation of Rs.61,10,174.25/- awarded by the Tribunal towards loss of dependency is reduced to Rs.48,35,683/-.

17. The compensation awarded under all the conventional Page No.11 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 heads needs a 10% increase as stipulated in Pranay Sethi’s Case (cited supra), as the Award was passed on April 19, 2022. Further, the Tribunal failed to award attender charges to the petitioners. Considering the period of admission in hospital as in-patient in multiple stints between 2016 and 2020 viz., around 42 days, as well as the fact that the victim fell into vegetative state soon after the accident, this Court is inclined to award a lump-sum amount of Rs.7,50,000/- towards attender charges.

18. Needless to mention that Family Pension is not deductible while awarding compensation towards loss of income [See Judgment of Hon'ble Supreme Court in Helen C. Rebello -vs- Maharashtra SRTC, reported in (1999) 1 SCC 90 and Judgment of this Court in P.T.Saroja

-vs- S.Prabhu (CMA No.1799 of 2022, Neutral Citation : 2025 MHC

243)].

19. To sum up, this Court modifies the compensation awarded by the Tribunal as detailed below:

                              Sl.No.                  Head                                  Amount Rs.
                                  1.    Total loss of dependency*                              48,35,683.00
                                  2.    Loss of Consortium                                      1,76,000.00

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                              Sl.No.                   Head                                  Amount Rs.
                                  3.      Loss of Estate                                            16,500.00
                                  4.      Funeral Expenses                                          16,500.00
                                  5.      Medical Expenses                                      10,97,358.00
                                  6.      Attender Charges                                        7,50,000.00
                                                  Total                                         68,92,041.00
                                                Deduct: 10% for                                (-) 6,89,204.00
                                  7.         Contributory Negligence
                                       Total Compensation payable                               62,02,837.00

*Note: Loss of annual dependency is calculated as per the following table:

S. Description Amount Rs. No. Monthly income of victim as per Ex- 1 65,595.00 P.20 Annual Income 2 7,87,140.00 (monthly income x 12 months) 3 Add: Future Prospects (15%) (+) 1,18,071.00 4 Deduct: Professional Tax (-) 2,500.00 5 Deduct: Income Tax ** (-) 96,764.00 Deduct: 1/3rd deduction for personal 6 (-) 2,68,649.00 expenses 7 Annual Income 5,37,298.00 Loss of dependency 8 48,35,683.00 (Annual Income x multiplier of 9) **Note: Income Tax is calculated as per Income Tax Slab for the Financial Year 2020-2021 (AY 2021-2022) as detailed below:

Page No.13 of 18

https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 Upto Rs.2,50,000/- Nil Rs.2,50,001/- to 5,00,000/- (5%) Rs.12,500.00 Rs.5,00,001/- to 10,00,000/- (20%) Rs.80,542.20 Add: Cess 4% Rs. 3,721.69 Total Income Tax Rs.96,763.89

20. Therefore, appellant / respondent / Transport Corporation is directed to deposit 90% of the Award amount awarded by this Court viz., Rs. 62,02,837/- (Rupees Sixty-Two Lakh Two Thousand Eight Hundred and Thirty-Seven only) along with costs incurred before the Tribunal and interest on Rs. 62,02,837/- at the rate of 7.5% per annum, to the credit of M.A.C.T.O.P.No.1647 of 2016 on the file of Motor Accidents Claims Tribunal (Special Sub Court No.2, Motor Accidents Claims Petitions) Small Causes Court, Chennai, less the amount if any already deposited, within a period of eight weeks from the date of receipt of copy of this Judgment. To be noted, interest for medical expenses and attender charges shall be reckoned from the date of claim petition till the date of deposit while interest for loss of dependency and conventional heads shall be reckoned from the date of demise of the victim viz., May 25, 2020 till the date of deposit. On such deposit being made, the petitioners are entitled to withdraw the same by filing proper application. Apportionment Page No.14 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 shall be proportionate to apportionment made by the Tribunal. Further, the claimants are entitled to proportionate costs and Advocate fees as per Rules.

CONCLUSION

21. Resultantly, the Civil Miscellaneous Appeal is allowed in part and a modified Award is passed as detailed above. Consequently, connected Civil Miscellaneous Petition is closed. In view of the facts and circumstances, the parties shall bear their own costs in this Civil Miscellaneous Appeal.

                                                                         [J.N.B., J.]             [R.S.V., J.]
                                                                                      29 / 04 / 2025
                    Index              : Yes / No
                    Neutral Citation   : Yes / No
                    Speaking Order     : Yes / No

                    TK

                    To

                    To

                    1.The Motor Accidents Claims Tribunal
                      (Special Sub Court No.2,
                      Motor Accidents Claims Petition)
                      Small Causes Court
                      Chennai.

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                    2.The Section Officer,
                      V.R.Section,
                      Madras High Court,
                      Chennai.




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                                                                                   J.NISHA BANU, J.
                                                                                              AND
                                                                                   R.SAKTHIVEL, J.

                                                                                                       TK




                                             PRE-DELIVERY JUDGMENT MADE IN
                                                            CMA NO.993 OF 2023

CMA NOS.423 AND 828 OF 2021CMA NOS.423 AND 828 OF 2021CMA NOS.423 AND 828 OF 2021 CMA NOS.423 AND 828 OF 2021 29 / 04 / 2025 Page No.17 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm ) C MA NO.993 OF 2 0 2 3 Page No.18 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 12:59:27 pm )

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