Appeal by claimants challenging quantum of compensation in a motor accident death case. Court set aside 15% contributory negligence deduction, recalculated income using gross salary with 40% future prospects, awarded loss of love and affection, and enhanced compensation.
Compensation enhanced from Rs.23,43,360/- to Rs.47,33,000/-
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CMA NO.740 OF 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2024
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
CMA NO.740 OF 2022
1.Anaimuthu
4.Anitha ... Appellants / Petitioners
Vs.
1.P.Sangeetha
2.M/s.Cholamandalam General Insurance Co. Ltd., Rajaji Road, Near Lakshmi Vilas Bus Stop, Salem – 7. ... Respondents / Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 10.02.2020 made in M.C.O.P.No.169 of 2018 on the file of MACT / Special District Court, Salem.
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CMA NO.740 OF 2022
For Appellants : Mr.Ma.P.Thangavel For Respondent-1 : Served – No appearance For Respondent-2 : Mrs.R.Sree Vidhya
J U D G M E N T
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The claimants who are the parents and sisters of the deceased
Anandhakumar, who died in a motor accident that occurred on 06.12.2017
are on appeal aggrieved by the quantum of compensation awarded at
Rs.23,43,360/-.
2.According to the claimants, while the deceased was riding
his motorcycle bearing Registration No.TN54-Y-2832 on the Namakkal to
Tiruchengode Road, he has taken a 'U' turn on the highway and reached the
extreme left side of the Tiruchengode to Namakkal Road, a Car bearing
Registration No.TN28-AJ-0005 which was going towards Namakkal came
Page No.2 of 16
CMA NO.740 OF 2022
from behind and hit against the motorcycle. As a result of the accident, the
deceased sustained grievous injuries and died on 08.12.2017. Terming the
negligence on the part of the Driver of the Car as the cause of the accident and drawing support from the fact that the FIR was registered against the
driver of the Car in Crime No.1054 of 2017, the claimants sought for compensation from the insurer of the Car. The claim of Rs.2,00,00,000/- as compensation was sought to be supported by contending that the deceased was working as a Manager in Kotak Mahindra Bank Ltd., Namakkal and was earning a sum of Rs.60,000/- per month as salary. It was also contended that the parents and the unmarried sisters of the deceased were
wholly depending on the deceased for their sustenance.
3.The Insurance Company resisted the claim contending that
the accident did not occur in the manner suggested by the claimants. It was
the contention of the Insurance Company that the deceased had invited the
Page No.3 of 16
CMA NO.740 OF 2022
accident by taking a sudden 'U' turn on the National Highway without looking for the oncoming vehicles. His age and salary particulars were
denied. The claimants were put to strict proof of the quantum of compensation claimed.
4.At trial before the Tribunal, the second claimant – mother of
the deceased was examined as P.W.1 and two other witnesses were
examined as P.W.2 and P.W.3. No oral evidence was let in on the side of
the insurance company. Ex-P.1 to Ex-P.25 were marked on the side of the
claimants and the pay slip of the deceased was marked as Ex-X.1. The Authorization Letter and the Investigation Report were marked as Ex-R.1
and Ex-R.2.
5.On the available evidence, the Tribunal concluded that the
accident occurred due to the negligence of the Driver of both the vehicles.
Page No.4 of 16
CMA NO.740 OF 2022
It came to the conclusion that the rider of the two wheeler / deceased has
also contributed to the accident relying upon the oral evidence of the eye witness, namely P.W.2. The Tribunal quantified the percentage of contribution at 15. On the quantum, the Tribunal took the monthly income at Rs.21,000/- on the basis of Ex-X.1. It applied future prospects at 50%, deducted 50% towards personal expenses and arrived at the monthly loss of dependency at Rs.15,750/-. It adopted a multiplier of 16 and arrived at the total loss of dependency at Rs.30,24,000/-. The Tribunal further deducted 10% towards personal and living expenses of the deceased and arrived at the entitlement of the claimants at Rs.27,21,600/- under the head 'loss of dependency'. The Tribunal awarded a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. It also deducted 15% for contributory negligence and arrived at the total compensation at Rs.23,43,360/-. The Insurance Company accepted the award. The claimants are on appeal seeking enhancement.
Page No.5 of 16
CMA NO.740 OF 2022
6.We have heard Mr.Ma.P.Thangavel, learned counsel
appearing for the appellants and Mrs.R.Sree Vidhya, learned counsel
appearing for the respondent – Insurance Company.
7.The owner of the Car though served is not appearing either
in person or through counsel duly instructed.
8.Mr.Ma.P.Thangavel, learned counsel for the appellants
would vehemently contend that the Tribunal erred in determining the
monthly income at Rs.21,000/-. Drawing our attention to the salary
certificate namely Ex-X.1, the learned counsel would submit that the
deceased was drawing a sum of Rs.48,970/-. The Tribunal erred in taking
only the basic salary i.e., Rs.21,000/-. Learned counsel would also fault the
Tribunal for having deducted 60% (50% + 10%) towards personal and
living expenses of the deceased. Since the deceased was a Bachelor, the
Page No.6 of 16
CMA NO.740 OF 2022
deduction as suggested by the Hon'ble Supreme Court in Sarla Verma &
Ors. Vs. Delhi Transport Corporation & Another reported in (2009) 6
SCC 121 could be only upto a maximum of 50% and not above. The learned counsel would also fault the Tribunal for having deducted 15% towards contributory negligence. Heavily relying upon Ex-P.15 and Ex-
P.16, the learned counsel would submit that the Tribunal has misread the
evidence of P.W.2, the eye witness and come to the conclusion that the deceased has also contributed to the accident. Learned counsel would also
submit that the Tribunal erred in not awarding any amount towards loss of
love and affection to the parents namely the appellants 1 and 2. Therefore,
according to the learned counsel, the quantum of compensation awarded
by the Tribunal needs to be enhanced.
9.Contending contra, Mrs.R.Sree Vidhya, learned counsel
appearing for the second respondent / Insurance Company would submit
Page No.7 of 16
CMA NO.740 OF 2022
that the other allowances which are part of the salary cannot be brought
under the head of 'loss of dependency' and therefore, the Tribunal was right
in taking the basic salary only. She would also contend that the Tribunal ought to have deducted a certain percentage towards income tax since the
income is assessed more than the taxable limit. The learned counsel would
also submit that on the evidence of P.W.2, the conclusion of the Tribunal in
fixing contributory negligence at 15% is justified.
10.We have considered the rival submissions.
11.Since the Insurance Company has accepted the award, we
will have to decide the question of contributory negligence first.
12.The Tribunal has come to the conclusion that the deceased
has contributed to the accident based on the evidence of P.W.2. We have
Page No.8 of 16
CMA NO.740 OF 2022
been taken through the evidence of P.W.2, the rough sketch and the Motor
Vehicle Report of the Car. From the rough sketch, we find that the accident
has occurred on the extreme left side of the west to east Tiruchengode to Namakkal Road. From the evidence available, it is seen that the two wheeler had taken a 'U' turn in a permitted 'U' turn spot on the National Highway and has almost gone to the extreme left of the other side of the road. The Car has come from behind and hit the two wheeler. The damages
that are caused to the Car are on the front left side of the Car. The nature of
the damages that have been noted in the Motor Vehicles Report namely breakage of front windscreen glass, front left rear view mirror, headlight,
foglamp and front left side bumper would show that the Car has hit the two
wheeler at its left side and the spot where the accident took place is shown
on the extreme left side of the road in Ex-P.16, the rough sketch.
13.A cumulative effect of these two documents would show
that the two wheeler had taken a 'U' turn and had crossed the entire road
Page No.9 of 16
CMA NO.740 OF 2022
and reached the extreme left side of the road. As the two wheeler had taken
a 'U' turn, it could not have travelled at a high speed. Therefore, unless the Car driver had travelled at a breakneck speed, the accident could have been avoided very easily. We find that the Tribunal has read the evidence of P.W.2 to the exclusion of the documentary evidence which had lead to the
Tribunal reaching the wrong conclusion.
14.Even in his evidence, P.W.2 has not said that the deceased
took a sudden 'U' turn. P.W.2 had very specifically stated in his cross examination that the deceased had taken a 'U' turn in an admitted portion
and has almost crossed the road. The relevant portion of the evidence of
P.W.2 is as follows:
“ ,Urf;fu thfdj;jpy; te;jtu; bjw;fpypUe;J tlf;F nehf;fp nuhl;il fle;Jtpl;lhu;. mtu; kPJ nkhjpa !;nfhlh fhu; 50 mo J}uj;jpy; te;J bfhz;oUe;jJ. fhupy; te;j egu; ,Urf;fu thfdk; FWf;nf tUk; vd;W vjpu;ghu;f;ftpy;iy. nuhl;il flf;Fk;nghJ mtUf;F ,lJ g[wkhf jhd; !;nfhlh fhu; te;jJ... ”
Page No.10 of 16
CMA NO.740 OF 2022
14.1.In his chief examination, he has explained the manner of
accident as follows:
“...mg;bghGJ Rkhh; 30 taJ kjpf;fjf;f egu;
,Urf;fu thfdk; gjpt[ vz;. TN-54-Y-2832 vd;w thfdj;jpy; jiyf;ftrk; mzpe;Jf;bfhz;L nuhl;od; ,lJ g[w Xukhf rhiytpjpfis
mDrupj;J ehkf;fy; to jpUr;br';nfhL nuhl;oy; gjpefu; gpupt[ nuhl;od; mUfpy; mDkjpf;fg;gl;l ,lj;jpy; nuhl;il bjw;fpypUe;J tlf;F nehf;fp fpuh!; bra;J ehkf;fy; gf;fk; jpUk;gp brd;w bghGJ jpUr;br';nfhL gf;fkhf ,Ue;J ehkf;fy;iy nehf;fp te;j !;nfhlh fhu; gjpt[ vz;. TN-28-AJ-0005 vd;w fhupid mjd; Xl;Ldu; mjpntfkhft[k;/ m$hf;fpuijahft[k;/ Mud; mof;fhkYk;/ Xl;o te;J nkw;go egu; Xl;or;brd;w ,Urf;fu thfdj;jpd; kPJ gykhf nkhjpajpy; nkw;go egu; J}f;fp vwpag;gl;L fPnH tpGe;Jtpl;lhh;... ”
15.The above evidence, in our opinion, does not suggest that
the two wheeler rider took a sudden 'U' turn, taking the Car driver by
surprise. A combined effect of the evidence of P.W.2, the Motor Vehicles
Report Ex-P.15 and rough sketch Ex-P.16 would show that the two wheeler
Page No.11 of 16
CMA NO.740 OF 2022
rider was on the extreme left side of the road and it was the Car driver,
who was driving the Car at great speed and could not avoid the accident
due to the speed. We are therefore unable to sustain the finding of the Tribunal that the two wheeler rider/deceased has contributed to the
accident. Hence, the deduction of 15% towards contributory negligence is
set aside.
16.On the quantum, we find that the Tribunal has grievously
erred in taking only the basic salary. As per Ex-X.1, the salary certificate,
we find that the deceased was drawing a monthly gross salary of
Rs.48,970/- which consists of the following:
| Particulars | Monthly Rate | Current Month | Total | |
|---|---|---|---|---|
| Basic | 21000.00 | 21000.00 | 0.00 | 21000.00 |
| Monthly Rent Allowance | 10500.00 | 10500.00 | 0.00 | 10500.00 |
| Transport Allowance | 1600.00 | 1600.00 | 0.00 | 1600.00 |
| Professional Allowance | 11620.00 | 11620.00 | 0.00 | 11620.00 |
| Medical Reimbursement | 1250.00 | 1250.00 | 0.00 | 1250.00 |
| Advance Against LTA | 3000.00 | 3000.00 | 0.00 | 3000.00 |
| Gross Earnings | 48970.00 |
Page No.12 of 16
CMA NO.740 OF 2022
17.As rightly contended by Mr.Ma.P.Thangavel, the Tribunal
erred in not taking into account the HRA and the Professional Allowance.
Even if we are exclude a sum of Rs.1,600/- paid as Transport Allowance, Rs.1,250/- paid as Medical reimbursement and Rs.3,000/- paid as advance against LTA, the salary drawn by the deceased would be Rs.43,120/-. Therefore, the Tribunal was wrong in fixing only Rs.21,000/- towards monthly income. We take the monthly income at Rs.43,000/- as a round figure.
18.The Tribunal has adopted future prospects at 50%. The deceased was not working in any Government organisation or in a permanent job. He was a Manager at a private Bank. Hence, para 59.4 of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi & Ors reported in (2017) 16 SCC 680
would apply to the facts and circumstances of this case. Hence, we take the
Page No.13 of 16
CMA NO.740 OF 2022
future prospects at 40%. Thus, the monthly income would be Rs.60,200/-. The annual income would be Rs.7,22,400/- (Rs.60,200/- X 12= Rs.7,22,400/-). The income tax slab for the income of Rs.7,22,400/- is 20%. Therefore, if we are to deduct 20% from the annual income, the annual income after tax would be Rs.5,77,920/-. Since the age of the deceased has been fixed as 32, the multiplier applicable would be 16. Therefore, the total loss of income would be Rs.92,46,720/-. Since the claimant died as a Bachelor, we will have to deduct 50% towards his personal and living expenses. Therefore, the total loss of dependency for the claimants would be Rs.46,23,360/-. If we add conventional damages, namely loss of love and affection at Rs.40,000/- each to the parents i.e., Rs.80,000/- and Rs.15,000/- each towards loss of estate and funeral expenses, the total compensation worked out to Rs.47,33,360/-. We round it off to Rs.47,33,000/- (Rupees Forty Seven Lakh Thirty Three
Thousand Only).
Page No.14 of 16
CMA NO.740 OF 2022
19.In fine, the appeal is partly allowed and the compensation
fixed by the Tribunal is enhanced to Rs.47,33,000/- (Rupees Forty Seven
Lakh Thirty Three Thousand Only) . The interest awarded by the Tribunal is confirmed. The parents will take the enhanced award amount equally. The Insurance Company has already deposited monies as per the award of the Tribunal. The Insurance Company will have eight weeks time from the date of receipt of a copy of this judgment to deposit the enhanced amount as per our judgment. There shall be no order as to costs.
[R.S.M., J.] [R.S.V., J.] 12.07.2024 Index : No Internet : Yes Neutral Citation : No Speaking Order TK To The Motor Accidents Claims Tribunal / Special District Court Salem.
Page No.15 of 16
CMA NO.740 OF 2022
R.SUBRAAR.SUBRAMANIAN, J.
ANAND
R.SAKTHIVEL, J.
TK
CMA NO.740 OF 2022
12.07.2024
Page No.16 of 16
3 issues framed by the court
Whether the Tribunal erred in holding the deceased contributorily negligent
Whether the Tribunal erred in basing income only on basic salary
Whether loss of love and affection should be awarded to parents
Colour shows how this judgement treated each authority
Sarla Verma & Ors. Vs. Delhi Transport Corporation & AnotherReferred¶78
Sarla Verma & Ors. Vs. Delhi Transport Corporation & Another reported in (2009) 6 SCC 121 · Who else cites this
National Insurance Company Limited vs. Pranay Sethi & OrsRelied on¶158
National Insurance Company Limited vs. Pranay Sethi & Ors reported in (2017) 16 SCC 680 · Who else cites this
1 provisions across 1 enactments
Anaimuthu
Lakshmi
Akila
Anitha
P.Sangeetha
M/s.Cholamandalam General Insurance Co. Ltd.
R.Subramanian
R.Sakthivel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
R.Subramanian and R.Sakthivel
Parties & counsel
