Madras High Court
The Divisional Manager vs Saraladevi on 12 September, 2012
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras Dated 12.09.2012 Coram The Honourable Mrs.Justice R.BANUMATHI and The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.690 of 2011 The Divisional Manager, M/s.Royal Sundaram Alliance Ins.Co.Ltd., "Sundaram Towers", No.45 & 46, Whites Road, Chennai-600 014. ..Appellant ..vs.. 1. Saraladevi 2. Krishnapriya 3. Kalpana 4. Chokkubai Ammal 5. Muralidharan ..Respondents Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the award and decree dated 14.12.2010 made in MCOP.No.138 of 2009 on the file of Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Vellore. For Appellant : Mr.N.Vijayaraghavan for M/s.M.B.Gopalan For Respondents: Mr.V.Jeganathan for R1 to R4 JUDGMENT
R.SUBBIAH, J., Challenging the correctness of the Award (14.12.2010) passed by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Vellore, in M.C.O.P.No. 138 of 2009, Royal Sundaram Alliance Insurance company has preferred this appeal.
Respondents 1 to 4 are claimants before the Tribunal and they are the legal heirs of deceased R.Vasanthan, who had died in a motor accident occurred on 28.01.2009.
2. Brief facts are as follows:
On 28.01.2009 at about 5.00 PM while one R.Vasanthan was riding the motor cycle bearing registration No.TN-23-AS-2504 at Sipcot near Reliance Petrol Bunk, in the same direction, a car bearing registration No.TN-23-AF-0048 came in a rash and negligent manner with a hectic speed and hit the backside of the motor cycle. In that process, the said Vasanthan sustained grievous injuries on his head and all over his body and immediately he was admitted in C.M.C.Hospital Vellore, where he died. The accident is the result of rash and negligent driving of the driver of the car. Hence, respondents 1 to 4 made a claim as against the owner as well as the insurer of the car.
3. Resisting the said case, Insurance company filed a counter stating that the accident had occurred only due to the negligent riding of the two wheeler by the deceased and as such, they are not liable to pay the compensation amount.
4. Before the Tribunal, on the side of claimants, the 1st respondent examined herself as P.W.1 besides examining two other witnesses as P.Ws.2 and 3 and marked 15 documents as Exs.A-1 to A-15. On the other side, driver of the car was examined as R.W.1 and the Investigator appointed by the Insurance Company was examined as R.W.2 and two documents were marked as Exs.R-1 an R-2. The Tribunal, after considering the entire evidence, came to the conclusion that the accident had occurred due to the negligent act of the driver of the car in question. By coming to such a conclusion, the Tribunal assessed the compensation under different heads and passed an award for a sum of Rs.37,33,248/- and thus, directed the Insurance Company to pay the said amount, by indemnifying the owner of the car. Aggrieved over the same, the present appeal has been filed.
5. It is the submission of the Appellant-Insurance company that on the date of accident, the car was proceeding from west to east on MBT Main Road. While so, Appellant came in a rash and negligent manner from north to south and entered the main road without noticing the oncoming vehicle and in that process, the two wheeler hit against the car and thus, the deceased himself got involved in the accident. Hence, the driver of the car cannot be held responsible for the accident. It is the further submission that the Criminal Court had also acquitted the driver in the criminal Case filed against him. But, the Tribunal without properly appreciating the evidence of R.Ws.1 and 2, has fixed the entire liability on the part of the insured vehicle. Under such circumstances, the Award is liable to be set aside.
6. On the contrary, it is the submission of respondents 1 to 4 that while the two wheeler was proceeding on the main road, the car, which came from its behind, dashed against the two wheeler and thus, caused the accident. It is further submitted that the damages entry made in Motor Vehicle's Report with regard to the damages caused to the two wheeler, marked as Ex.P-3, would clearly prove the case of claimants that the accident had occurred only due to the negligent driving of the driver of the car.
7. Keeping in mind the submissions of both sides, we have carefully perused the materials available on record. By a perusal of site sketch marked as Ex.R-2 on the side of Appellant Insurance Company, it is seen that the two wheeler was shown lying on the main road; that the accident had occurred when the deceased came from north to south and when he made an attempt to turn the two wheeler on his right side on the main road without noticing the oncoming vehicles. Therefore, we are of the opinion that there is contributory negligence on the part of the deceased also since it is a common knowledge that when a person is coming towards the main road from a side road, he is expected to enter into the main road by observing traffic rules. Ex.P-3- Sketch marked on the side of Claimants would show that the accident had occurred when the deceased made an attempt to enter into the main road suddenly. Therefore, we are of the opinion that deceased was also responsible for the accident.
8. In fact, the Criminal Court judgment marked as Ex.R-2 on the side of Appellant Insurance company would show that the driver of the car was acquitted by the Criminal Court. However, irrespective of criminal court judgment, we are of the opinion, had the driver of the car been vigilant, he could have averted the accident and, as such, there is a contributory negligence on the part of the driver of the car also. Considering the facts and circumstances of the case, the negligence could be fixed on the part of deceased at 25% and on the part of the insured car as 75%. Therefore, we hereby set aside the finding rendered by the Tribunal that driver of the car is wholly responsible for the accident. Consequently, we hold that there is a contributory negligence and the ratio of negligence is fixed as 25 : 75 on the part of deceased and insured car respectively.
9. With regard to the quantum of compensation, it is the case of legal heirs of the deceased that the deceased was working as Additional Engineer in BHEL at Ranipet and was earning Rs.35,000/- per month. In order to speak about the income earned by the deceased, Human Resources (Executive) of BHEL Company, Ranipet, was examined as P.W.3. The salary certificate and Pay Certificate of the deceased were marked as Exs.P-7 and P-13 respectively. On the basis of evidence of P.W.3 and Exs.P-7 and P-13, the Tribunal fixed the monthly salary of the deceased as Rs.50,809/-.
10. On a perusal of records, we find that deceased was 58 years old at the time of his death and he was left with only two years of service. When that being so, the Tribunal, while calculating the amount under the head 'loss of income', ought to have split up the multiplier into two parts and ought to have made the calculation i.e from the date of accident till the date of retirement based on the actual salary and for the remaining years, by fixing 50% of the salary as notional loss of income. Instead of doing so, the Tribunal adopted the multiplier of 8 and made the calculation based on the actual salary, which had resulted in awarding an exorbitant sum of Rs.36,58,248/- as total loss of dependancy. Further we find that Tribunal while making calculation under the head of loss of dependancy, has deducted 1/4th amount towards personal expenses of the deceased. Hence, we hold that the method of multiplier adopted by the Tribunal for arriving at the compensation under 'loss of dependancy' is not correct and the same has to be modified by way of reassessment.
11. As per the judgment of Hon'ble Apex Court reported in Sarla Verma and others .vs. Delhi Transport Corporation and another (2009 (2) TN MAC 1), the correct multiplier between the age of 56 to 60 is 9. Therefore, multiplier of 9 could be taken into consideration for arriving at compensation to the case on hand since the deceased was 58 years at the time of his death. If the actual salary of Rs.50,809/- is taken into consideration, the annual loss of income works out to Rs.6,09,708/-. 10% of the amount is liable to be deducted towards income tax deduction. 10% in the sum of Rs.6,09,708/- comes to Rs.60,970.80 and the same can be rounded off to Rs.61,000/-. If so, the balance amount works out to Rs.5,48,708- (Rs.6,09,708/- minus Rs.61,000/-), rounded off to Rs.5,49,000/-. Hence, annual loss of income could be fixed at Rs.5,49,000/-. For the first two years, the loss of income would be Rs.10,98,000/- (Rs.5,49,000/- x 2 years). For the balance seven years, only 50% annual income has to be taken into consideration as notional income, which comes to Rs.19,21,500/- (Rs.2,74,500/- x 7 years). Therefore, the total loss of income works out to Rs.30,19,500/- (Rs.10,98,000/- + Rs19,21,500/-) .
12. Considering the facts and circumstances, we are of the opinion that 1/3rd amount is liable to be deducted towards personal expenses. If so deducted, balance works out to Rs.20,13,000/- which amounts to total loss of dependancy (Rs.30,19,500/- minus Rs.10,06,500/-). Since there is negligence to the extent of 25% on the part of the deceased, the legal heirs are entitled to Rs.15,09,750/- (Rs.20,13,000/- minus Rs.5,03,250/-).
13. The amounts awarded under other heads are confirmed since they are proper and correct. Consequently, the compensation awarded by the Tribunal is hereby reduced to Rs.15,84,750/- and the details are as follows:
Rs.
Loss of dependency 15,09,750.00
Funeral Expenses 5,000.00
Loss of Estate 10,000.00
Loss of Consortium 10,000.00
Loss of love and affection 50,000.00
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Total 15,84 ,750.00
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In the result, Civil Miscellaneous Appeal is party allowed. Appellant insurance company is directed to deposit the modified amount with interest at 7.5% per annum from the date of petition within a period of six weeks before the Tribunal, after deducting the amount already deposited. On such deposit, the claimants are permitted to withdraw the entire amount. Appellant Insurance Company is also permitted to withdraw the amount more than that of modified amount with accrued interest, if they have already deposited. No order as to costs.
Index: Yes. (R.B.I,J.,) (R.P.S.,J.,) Internet: Yes. 12.09.2012 gl Copy to The Chief Judicial Magistrate, (Motor Accidents Claims Tribunal), Vellore. R.BANUMATHI, J., and R.SUBBIAH, J., gl Pre-delivery judgment in CMA.No.690 of 2011 12.09.2012