Priya v. Vinothkumar,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.10.2024
CORAM:
THE HON'BLE Mrs. JUSTICE V.BHAVANI SUBBAROYAN AND THE HON'BLE Mr. JUSTICE K.K.RAMAKRISHNAN and C.M.A.(MD).No.474 of 2023 C.M.A.(MD).No.555 of 2023:
1. Priya
2. Minor Mercy Jacob ( The Minor petitioner rep. by her mother and natural guardian of the 1st petitioner) ... Appellants Vs.
1. Vinothkumar
2. The Branch Manager, National Insurance Company Limited, No.6, 1st Floor, West Veli Street, Madurai-1.
3. Jacob
4. Esther ... Respondents (R-1 Ex-party before the Trial Court.
Hence, notice may be dispensed with) Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, praying to enhance the compensation amount in favour of the Appellants herein in M.C.O.P.No.1535 of 2018 on the file of the Motor Accident Claims Tribunal/Special District Court to deal with the Motor Accidents Cases, Madurai dated 08.11.2022 and allow this appeal. For Appellants : Mr.K.Kumaravel For Respondents : No appearance for R2, R3 & R4 : R1 - Ex-parte C.M.A.(MD).No.474 of 2023:
Priya ... Appellants Vs.
1.Vinothkumar 2.The Branch Manager, National Insurance Company Limited, No.6, 1st Floor, West Veli Street, Madurai-1. ... Respondents (R1 Ex-parte before the Trial Court. Hence, notice may be dispensed with)
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, praying to enhance the compensation amount in favour of the Appellant herein in M.C.O.P.No.1534 of 2018 on the file of the Motor Accident Claims Tribunal/Special District Court to deal with the Motor Accidents Cases, Madurai, dated 08.11.2022 and allow this appeal. For Appellants : Mr.K.Kumaravel For Respondents : No appearance for R2 : R1 - Ex-parte COMMON JUDGMENT [Order of the Court was made by Mr.K.K.RAMAKRISHNAN, J.] The claimants in the M.C.O.P.Nos.1534 and 1535 of 2018, filed these Civil Miscellaneous Appeals in C.M.A(MD).Nos.555 and 474 of 2023, challenging the fixation of negligence of 50% on the deceased and to enhance the quantum granted by the learned trial Judge.
2. The appellants in C.M.A.(MD).No.555 of 2023 are the wife and minor child of the deceased Karl Jacob. The deceased Karl Jacob was a practicing advocate in the Madurai Bench of Madras High Court. The first appellant entered into wedlock with the said Karl Jacob and out of the said marriage, the second appellant was born. The said Karl Jacob had love marriage with the first appellant and her house was situated in Virattipatthu, some distance away from the Madurai Bench of Madras High Court. On 17.03.2017 at 04.
00 pm, while, the deceased was riding his two wheeler bearing registration number TN-01-P-8449 in Goripalayam-Kalpalam one way road, to reach the house of the first appellant near Meenakshi college, the auto proceeding before suddenly stopped in the middle of the road and in result, even though the deceased drove his two wheeler with all precaution, he was unable to stop it and hit the said auto. After the hit, all the persons fell down from the two wheeler. In result, the deceased even though wore the helmet, sustained head injuries. The first appellant sustained the injuries over her leg and all over the body and the child also sustained minor injuries.
Hospital and was declared dead. Thereafter, the first appellant was admitted in Meenakshi Mission Hospital on 20.03.2017 and thereafter, she was taken to Jeyam Hospital. She was taking treatment as outpatient till the filing of the claim petition.
3. Therefore, the first appellant filed the claim petition claiming compensation for the deceased husband along with the dependent, namely, minor child and impleaded her father-in-law and the mother-in-law as third and fourth respondents, on account of the strained relationship. The first appellant also filed a separate M.C.O.P.No.1535 of 2018, for her personal injury sustained by her in the said accident.
4. The learned counsel for the second respondent insurance company filed the counter denying the allegation and also denied the negligence on the part of the auto driver and he sought for the dismissal of the claim petition. Further, in the counter, the appellant specifically denied that due to the rash and negligence, the deceased hit the ongoing auto and hence, the insurance company is not liable to pay compensation.
5. The parents of the deceased filed the counter afffidavit denying the marriage that took place between the first appellant and the deceased. Further, strangely the parents of the deceased took a stand that there was no marriage at all and they also claimed the entire compensation for them. They also declared that they were claiming more compensation on the ground that after his demise, huge liability was incurred on the account of the nonpayment of the car loan borrowed by the deceased, even if the marriage was accepted.
6. In the said circumstances, to prove the case, on the side of the appellant, P.W.1 to P.W.5 were examined and Ex.P1 to Ex.P17 were marked. The father of the deceased also examined as R.W.1 and marked the marriage invitation and the driving license of the deceased and other documents. On the side of the Court, Ex.C1 disability certificate of the appellant in C.M.A(MD).No.474 of 2023, was filed and exhibited X1 and X2 also marked.
7. After considering the entire aspect, the learned Tribunal judge fixed the negligence 50-50 upon the auto driver and the deceased, on the ground that no sufficient distance was maintained by the deceased. The learned trial judge took the monthly income of the deceased as Rs.15,000/- and calculated the loss of income only to the extent of Rs.30,24,000/-. The total amount of Rs.32,20,261/- was awarded.
8. So far as the injury case, namely, for the appellant Priya, is concerned, they granted only Rs. 2,26,034, by passing the impugned order. The tribunal also awarded a sum of Rs.1,00,000/-to the parents of the deceased Rs.50,000/- each. Challenging the same, the appellants filed this appeal.
9. The learned counsel for the appellants in C.M.A.(MD).No.555 of 2023, has made the following submissions:
(i) to prove the negligence on the part of the auto driver, the injured claimant P.W.1 was examined and independent witness P.W.2 also
examined and the FIR was registered against the auto driver and the final report also was filed against the auto driver. There was a clear evidence that due to the negligence of the auto driver only, the accident happened. Hence, fixing the 50% negligence, on the part of the deceased without any evidence is against law.
(ii)He further stated that because of the sudden stopping of the auto by the auto driver, the accident happened. It is common that auto drivers always stop the vehicle in the middle of the road in order to pick up the passengers.
(iii)In such circumstances, the learned trial judge fixing 50% deceased is against law. He further stated that the deceased being an Advocate after enrolment in the year 2007, was practicing under the learned senior Jacob, and other associates.
(iv)He was practicing in the high court and filing number of cases, both on civil and criminal side. For which, he produced number of case details and also he contributed for the release of the book by his senior advocate. Considering all aspect, the learned trial judge ought to have fixed the monthly income of the deceased above Rs.70,000/- but fixed only
Rs.15,000/-. But the same was against the record. Even the documents show that he was regularly appearing before the Madurai bench for filing number of cases.
(v)From the year 2010 onwards, he was filing number of cases. In the said circumstances, the award amount by fixing the monthly income as Rs.15,000/- is very low and the appeal is made for fixing more monthly income, namely, above Rs.50,000/-. He has also relied the division bench judgment of this court, in which, the monthly income of the advocate, having practicing experience of fifteen years or more is declared as Rs. 35,000/-.
(vi)In this case, the petitioner Advocate is having practicing experience for more than the 15 years and hence, she seeks for fixing a sum of Rs.35,000/- as monthly income.
10.The learned counsel for the appellant in C.M.A.(MD).No.474 of 2023 has made the following submissions:
(i) the appellant in C.M.A.(MD).No.474 of 2023 injured claimant, was admitted in the various hospitals for treatement. The medical
expenditure incurred by her was more than her financial position. Besides the financial burden, she has undergone numerous problems after the accident. Hence, the awarded amount of Rs. 2,26,000 /- is not as per law, providing compensation to the affected litigants. Sheseeks for enhancement of the awarded amount.
(ii)She has sustained multiple injuries. Even though the medical board has assessed the disability as 9%, the impact of the loss of earning is more than the 9%. Due to the accident, she is unable to do any work, even continue her earlier job. Hence, the multiplier method to be adopted by the learned trial judge needs to be revised. In the said circumstances, she seeks for the enhancement of the amount.
11.The learned counsel for the insurance company, on instructions and also upon the record submitted that the manner of the accident as spoken by the witnesses itself showed that the deceased did not maintain the proper distance and hence he sought for the confirmation of the 50-50% in the negligence aspect, even though no evidence is adduced on the side of
the insurance company. Without any evidence on the side of the deceased, ie.other aspects like income tax, etc., the learned trial judge has considered themonthly income as Rs.15,000/- in accordance with the law.Hence, he seeks for the dismissal of the appeal, even on the quantum also. 12.For the injured case concerned, the learned trial judge has correctly fixed the awarded amount. Regarding the 9% disability, the trial Judge has granted Rs.45,000/- rupees by calculating the Rs.5,000/- rupees per percentage as per the division bench order of this court in 2013 (2) TNMAC 583. Hence, the learned trial judge has correctly fixed the awarded amount for the injured case also. In the said circumstances, he seeks for dismissal.
13. This Court perused the records and considered the rival submissions made on either side and also precedents relied upon by the appellant's counsel.
14.The following points arise for consideration of this appeal: 14.1.Whether the finding of the tribunal in 50% of the contributory neglignece upon the deceased is in accordance with law? 14.2.Whether the appellants are entitled to enhanced compensation? 15.Discussion on negligence The deceased drove his two-wheeler, bearing registration No.TN-01P-8449. The driver of the auto was driving his vehicle in front of the deceased's two wheeler. The said auto driver suddenly applied the brake. The specific evidence of the injured claimant, PW1, is that the deceased drove his vehicle, two wheeler only with the speed of 20 to 30 km. Hence, due to the sudden application of the brake by the auto driver, the accident happened.
According to the topography of the Madurai GoripalayamKalpalam Road, the accident took place opposite to the Meenakshi College. The road was one-way single road and the auto driver suddenly stopped the vehicle. In the said circumstances, the rider of the two-wheeler, namely deceased, while driving his vehicle slowly with 20-30 kms speed wearing helmet hit the auto.
down and the helmet was also broken and he sustained injuries. The said manner of the accident and the said evidence of PW1 was corroborated by the independent evidence of PW2. PW1 and PW2 was subjected to the incisive cross examination relating to the negligence aspect. But, no fruitful answer was elicited by the insurance company. The auto driver was not examined and the owner also did not come to the witness box. However the insurance company disputed the manner of the accident. 15.1.In the said circumstances, without any contra-evidence, on the side of the insurance company, fixing the negligence of 50% upon the insurance company, in spite of the registration of the case against the auto driver and final report filed against the auto driver, the learned counsel for the Appellant rightly relied the judgment of the Hon'ble Supreme Court reported in 2022-1 TNMAC 152 where the Hon'ble Supreme Court has held as follows:
10. The primary grievance of the appellants are two-fold namely, (i) that the finding of contributory negligence is wholly arbitrary and unjustified; and (ii) that both the Tribunal and the
High Court failed to take care of the future prospects, in the light of the law laid down in National Insurance Company Limited v. Pranay Sethi1.
11. The first grievance of the appellants about the finding of contributory negligence is liable to be sustained for three reasons namely, (i) that even according to the Tribunal and the High Court, the spot where the lorry was parked, as indicated in Exhibits P-1 to P-6 (FIR, complaint, spot magazar etc.) and Exhibit P-22 (spot sketch), was not a parking place;
(ii) that according to the High court, the driver of the lorry ought to have parked the vehicle on the left side of the road by giving proper indication/signal, but it was not done;
and (iii) that as per the finding of the High court, the accident occurred at about 4.30 A.M. when the lighting should have been poor.
12. The view expressed by the High Court to effect that if the driver of the car had been vigilant and driving the vehicle carefully following the traffic rules, the accident would not have happened, is presumptuous and not based on any evidence.
There was nothing on record to indicate that the driver of the car was not driving at moderate speed nor that he did not follow traffic rules. On the contrary, the High Court holds that if the lorry had not been parked on the highway, the accident would not have happened even if the car was driven at a high speed.
13. Therefore, the entire reasoning of the High Court on Issue No. 1 is riddled with inherent contradictions. To establish contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person against whom it is alleged.
In Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak2 this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd.3, to hold that "...where, by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty". In fact, the statement of law
in Swadling v. Cooper4, that "...the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence...", was also quoted with approval by this Court. Therefore, we are compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence.
15.2.The Hon'ble Supreme Court has stated that in order to arrive at the contributory negligence, some act or omission which materially contributed to the accident should be attributed to the deceased. In this case, no such thing happened. Admittedly, the auto driver stopped the vehicle in the middle of the road, without any signal. According to the evidence of P.W.1, the deceased drove his vehicle with the speed of 20 to 30 kms. In spite of that, the sudden brake applied by the auto driver caused the accident. The said evidence also corroborated with the evidence of P.W.2. There is no contra evidence on the side of the insurance company. Further, there is no circumstances either available on record or evidence of the witnesses to presume auto driver was put in danger situation, which had been impelled him to apply sudden break. In addition to that, there is no
explanation on the side of the auto driver to show and prove that due to the unavoidable circumstnaces, the auto was stopped in the middle road. Therefore, in the peculiar circumstance of the case, as obsreved by the Hon'ble Supreme Court in the above judgement in para 13 is applicable to this case. Hence, in this case, the failure to take exonerate precaution by the deceased does not amount to negligence. Hence, fixing the contributory negligence of 50% upon the deceased is against law laid down by the Hon'ble Supreme Court. Hence, this Court has set aside the negligence aspect, finding of negligence, the 50% negligence against the deceased without any contra evidence to overcome the evidence of P.W.1 and P.W.
2 and the final report filed against the auto driver, the finding of the learned Tribunal Judge is perverse, and hence, it is liable to be set aside and this Court fixed the entire negligence upon the auto driver. 16.Discussion on quantum in C.M.A.(MD).No.555 of 2023: As far as the quantum is concerned, the deceased was a practicing advocate in Madurai Bench of Madras High Court.
Bench. More particularly, Ex.P27 was filed. Ex.P27, was filed to prove that he was practicing an all fields including criminal and civil and writs, including the tax matters and service matters, and also has filed second appeals. Hence it is a proven fact that he was continuously practicing before the court. Further, the respondent's father also adduced the evidence. The, experience certificate was produced from his Senior Advocate. The document, Ex.P-23 was marked. The senior counsel of the respondent published a book under the caption of landmark judgments on matrimonial matters containing the Supreme Court and the High Court's judgments on marriage, divorce, etc. In the said book, the deceased contributed substantially and the same was endorsed by the author, namely the senior of the deceased in such a way, invented Kamala. I am also thankful for assistance of my brothers and Mr.K.Jakob.
17.In the said circumstances, from the above, it is clear that the deceased was practicing in the legal profession. In these circumstances, this Court fixes the monthly income of the deceased as Rs.40,000/-. (i)Taking consideration of the age, 31 years, As per the 2017(2)
TNMAC 609 (SC) [National Insurance Co. Ltd., v. Pranay Sethi], 40% future prospect is to be taken. 40% of future prospect calculated as Rs. 40,000 X 40/100= Rs.16,000/- and hence, his total monthly income comes around Rs.56,000/-.
As per the case reported in 2009(2) TN MAC 1 (SC) (Smt. Sarla Verma and Others Vs. Delhi Transport corporation and another) the proper multiplier is 14 and taken into consideration of the four claimants, the deduction was taken as 1⁄4. Hence, the loss of income is calculated as follows:
Rs.56,000 X 3⁄4 X 12 X 16.
80,64,000/- 17.1.Further, the Tribunal has rightly awarded a sum of Rs.1,96,261/- as general damages under the conventional following heads: Loss of spouse consortium =Rs.40,000/- Loss of Parental consortium = Rs.40,000/- Loss of filial consortium = Rs.80,000/- Feneral Expenses = Rs.15,000/- Loss of Estate =Rs.15,000/-
Transport Expenses =Rs.5,000/- Medical Expenses =Rs.1,261/- ------------------ Total =Rs.82,60,261/- ------------------
18. Conclusion In the light of the above said discussion, the claimants would be entitled to receive the following amounts as compensation under the various heads enumerated hereunder:
S.No. Under the head a) Calculation b) Amount in Rupees Monthly income (monthly income + future prospects 10%) Rs.40,000/- X 40/100 = 16,000/ 56,000/- 2.
Annual Loss of Income Rs.56,000 X 12 = 6,72,000/- 6,72,000/- Deduction of 1/4 for his personal expenses Rs.6,72,000/4 = Rs.1,68,000/- 1,68,000/- Total Loss of Income after applying the multiplier "16"
Rs.5,04,000 X 16 =Rs.80,64,000/- 80,64,000/-
Compensation Amount in Rupees a) Loss of Income 80,64,000/- b)Loss of spouse consortium 40,000/- c) Loss of Parental consortium 40,000/- d)Loss of filial consortium 80,000/- e)Feneral Expenses 15,000/- Loss of Estate 15,000/- Transport Expenses 5,000/- Medical Expenses 1,261/- Total 82,60,261/- Unfortunately, in this case, the parents of the deceased, namely, the third and the fourth respondents herein disputed the marriage between the the first appellant herein and their deceased son. The oral evidence and the documents adduced by the first appellant clearly revealed that the marriage between the first appellant and the deceased on 22.11.2013. Out of their marriage, the second appellant was born on 30.05.2014. But, the respondent Nos.3 and 4 disputed the same for some other purpose.
From the pleadings and the evidence, the deceased and the first appellant loved each other from their college days and had love marriage in the presence of the bar members and also the deceased's uncle, namely, the brother of the third respondent.
appellant has not married the deceased. The third and fourth respondents claimed that the deceased borrowed huge amount from him for purchasing car and there was some dispute relating to the same. They neither made any payment towards the medical expenditure nor the school fees of the child. The first appellant alone filed this appeal, challenging the finding of the tribunal on the negligence aspect and also to enhance the award amount. The apportionment of the compensation is to be made not as per personal law, but, as per the loss of dependency.
Having regard to the mandate of provision of Section 168 of the MV Act, coupled with the settled legal position, it is held that the compensation awarded by a Motor Accident Claims Tribunal, after determination of just and fair compensation, has to apportion the payment of compensation amongst the claimants, as considered to be appropriate to the Tribunal in view of the loss of dependency to the Claimant, disregarding the inheritance as per personal law of the claimants. In normal course, as against the mother of the deceased, who would have been in an advanced age, the wife of the deceased being of young age, could have been granted a lion's share in the compensation. The wife of the deceased has to go a long way.
take care of the child. From the strained relationship between the parents of the deceased and the first appellant, now, the first appellant with accident injuries is in a position to maintain herself and the minor child. Apart from that, the first appellant is aged about 27 years and the child was 3 years on the date of the accident. The first appellant has to provide good education to her child. Therefore, the interest of justice requires more amount to be apportioned to the wife of the deceased. considering the overall circumstances, this Court inclines to give 60% of the compensation amount to the wife of the deceased and 20% of the compensation to the minor child and 10% each to the mother and father of the deceased respectively.
19. Accordingly, this Civil Miscellaneous Appeal in C.M.A. (MD).No.555 of 2023 is partly allowed in the following terms: (i)the judgment and award passed in M.C.O.P.No.1535 of 2018, by the Motor Accident Claims Tribunal/Special District Court, dated 08.11.2022 is hereby set aside.
(ii)the second respondent is liable to pay 70% of the total compensation determained in this C.M.A.
(iii)the claimants are entitled to the apportion the amount in the following ration:
Rank Amount in Rs.
First appellant 49,56,157/- Second appellant 16,52,052/- Third respondent 8,26,026/- Fourth respondent 8,26,026/-
20. The second respondent/insurance company is hereby directed to deposit the entire amount with proportionate accrued interest and costs after deducting the amount already deposited, within a period of 6 weeks from the date of receipt of a copy of this award. On such deposit being made, the first appellant, third and the fourth respondents are hereby permitted to withdraw their respective share. The share of the minor child/second appellant's share is directed to be deposited in the interest bearing account till she attains majority and the first appellant is permitted to withdraw the accrued interest once in every six months. No costs.
21.Discussion on quantum in C.M.A.(MD).No.474 of 2023:- So far as the compensation relating to the civil miscellaneous appeal in C.M.A.(MD).No.474 of 2023 is concerned, Priya is a practicing advocate. She had love marriage with deceased. She is also having separate legal practicing experience. Even in Ex.P-16, Ex.P-23, his senior Jacob was thanking his contribution for releasing the book. In the said circumstances, granted the compensation of Rs.2,26,034/-. The permanent disability, Rs.45,000 was awarded and for the pain and suffering, Rs.25,000 alone awarded. The same is enhanced to Rs.1,00,000/- for the reason that she has sustained injury all over the body. For the future medical expenditure Rs.5,000/- is only given. As per the evidence of the claimant/ Priya, she is taking treatment till now.
Therefore, this Court feels that for the future medical expenditure the amount is enhanced to Rs.50,000/- and the attendant charges is granted only Rs.5,000/-. The, learned trial judge has failed to consider that both had love marriage and the child could not be taken care of property,due to the injuries. She has sustained injuries all over the body and also lost her husband.
22.In the said circumstances, the awarded attendant charge of Rs.5,000 is not correct and the same is enhanced to Rs.25,000/-. Due to the accident, she is unable to do her practice continuously. After the accident, even though disability is 9%, she is unable to continue her active practice as done before the accident. Hence, this Court has adopted the multiplier method to fix the loss of income by calculating 9%. She also has the practicing experience in the legal field and hence monthly income is fixed as Rs.10,000/-. She is 30 years old and 17 multiplier applied and calculated the earning capacity and loss of income as Rs.10,000/-X12X9/100X17=Rs. 1,83,600/-.
23. Conclusion In the light of the above said discussion, the claimant would be entitled to receive the following amounts as compensation under the various heads enumerated hereunder:
S.
No.
Under the head Awarded by the Tribunal Awarded by this Court Award confirmed or enhanced or granted 1.
For Permanent Disability Rs.45,000/- Rs.1,00,000/- Enhanced
2.
For Pain and sufferings Rs,25,000/- Rs.1,00,000/- Enhanced 3.
For Medical Expenses Rs.1,32,034/- Rs.1,32,034/- Confirmed 4.
For Future Medical Expenses Rs.5,000/- Rs.50,000/- Enhanced 5.
For Rich and Nutrious Food Rs.2,000/- Rs.2,000/- Confirmed 6.
For Attender Charges Rs.5,000/- Rs.25,000/- Enhanced 7.
For Transport Expenses Rs.2,000/- Rs.2,000/- Confirmed 8.
For loss of Expectation Rs.10,000/- Rs.10,000/- Confirmed 9.
For loss of earning capacity - Rs.1,83,600/- Awarded
10. For loss of income - Rs.10,800/- Awarded Total Rs.2,26,034/- Rs.6,15,434/- Enhanced 24.In the said circumstances, C.M.A(MD).No.474 of 2023, also allowed in part by enhancing the compensation awarded by the Tribunal from Rs.2,26,034/- to Rs.6,15,434/- along with interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realisation. The second respondent/insurance company is hereby directed to deposit the
entire amount with proportionate accrued interest and costs after deducting the amount already deposited within a period of six weeks from the date of receipt of a copy of this order. On such deposit being made, the appellant/claimant is permitted to withdraw the amount as per the order of the Tribunal. No costs.
[V.B.S.J] [K.K.R.K.J.] 28.10.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No sbn To
1. The Motor Accident Claims Tribunal/ Special District Court to deal with the Motor Accidents Cases, Madurai.
2. The Section Officer, VR Section(Records), Madurai Bench of Madras High Court, Madurai.
V.BHAVANI SUBBAROYAN, J.
and K.K.RAMAKRISHNAN, J.
sbn C.M.A.(MD).No. 555 of 2023 28.10.2024