New India Assurance Company Limited Vs M.Koushika — Motor Accident Claims | Madras HC (2024)

New India Assurance Company Limited Vs M.Koushika — Motor Accident Claims | Madras HC (2024)

C.M.A(MD)No.925 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 11.09.2024

CORAM:

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN and THE HON'BLE MR JUSTICE K.K. RAMAKRISHNAN

C.M.A(MD)No.925 of 2021 and C.M.P(MD)No.8717 of 2021

New India Assurance Company Limited Rep by its Divisional Manager, Kerala Office at: Pothenkode (760506) Pavan Towers, Post Office Building, Near IOC Pump, Pothenkode Post, Trivandrum, Kerala 695 584.

... Appellant Vs. 1.M.Koushika 2.M.Reethika 3.M.Deepika 4.M.Mary Samuel 5.I.Ponnuthayee1 ... Respondents

(R4 set exparte in Tribunal : Notice Dispensed with)

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PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, 1988 to set aside the judgment and Decree in M.C.O.P.No.888 of 2018 dated 28.04.2021, on the file of the Motor Accidents Claims Tribunal, IV Additional District Court, Madurai.

For Appellant : Mr.J.S.Murali For R1 to R3 : Mr.D.Balasubramanian For R4 : Dispensed with For R5 : No appearance

JUDGMENT

[Judgment of the Court was made by K.K.RAMAKRISHNAN.J.]

Being aggrieved over the award passed by the Motor Accident Claims Tribunal, IV Additional District Court, Madurai in M.C.O.P.No. 888 of 2018, dated 28.04.2021, the Insurance Company has filed the present appeal.

The appellant insurance company is the second respondent in M.C.O.P.No.888 of 2018, on the file of the Motor Accident Claimsd Tribunal, IV Additional District Court, Madurai. The respondents 1 to 3 are the claimants, the fourth respondent is the driver of the car and the

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fifth respondent is the mother of the deceased. The respondent Nos.1 to 3 filed the claim petition in M.C.O.P.No.888 of 2018, claiming a sum of Rs.1,60,00,000/-(Rupees One Crore and Sixty Lakhs Only) as compensation for the death of their father in the accident occurred on 17.05.2018. By the order, dated 28.04.2021, the tribunal awarded a sum of Rs.97,05,474/- (Rupees Ninety Seven Lakhs Five Thousand and Four Hundred and Seventy Four only) as compensation.

3. Facts of the Case:

According to the respondent Nos.1 to 3, on 17.05.2018 at about 10:00 hours, the deceased was riding his motorcycle bearing registration No.TN-81-B-7203 in a moderate speed from the north to south on Madurai-Chennai bye-pass road (four way track road) and he crossed the provision on the said road just opposite to Mannapuram 117 Military Battalion Camp at Trichy, and proceeded on the road and turned towards north. While so, the appellant insured vehicle bearing registration number KL-01-BY-5859, came at a rapid speed on the said road and dashed against the two wheeler, which was driven by the deceased from behind. Due to that, the deceased sustained serious injuries and succumbed to the 3/28

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injuries on the way to the hospital. The deceased was aged about 49 years at the time of accident and he was working as Assistant Manager in Indian Bank, Contonement Branch, Trichy and earning a sum of Rs.81,000/- per month. The FIR was registered against the driver of the car. The accident occurred only due to the rash and negligent driving of the driver of the car, which was insured with the appellant. Therefore, the respondent Nos.1 to 3 filed the claim petition claiming a sum of Rs.1,60,00,000/-(Rupees One Crore and Sixty Lakhs only) as compensation.

The appellant filed the counter and denied all the averments made in the claim petition and contended that the accident did not occur due to the rash and negligent driving of the driver of the car. The deceased himself is the cause for the accident and prayed for dismissal of the claim petition.

Before the Tribunal, the first respondent examined herself as P.W.1 and other two witnesses were examined as P.W.2 and P.W.3 and marked 19 exhibits as Ex.P1 to Ex.P19. The appellant examined one 4/28

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Godson, driver of the car as R.W.1 and R.W.2 who was the investigator and marked two exhibits as Ex.R1 and Ex.R2.

6 . Finding of the Tribunal

The Tribunal, considering the pleadings, oral and documentary evidence and arguments of the counsel for the appellant and claimants held that the accident occurred only due to the rash and negligent driving by the driver of the car and directed the insurance company to pay a sum of Rs.97,05,474/- (Rupees Ninety Seven Lakhs Five Thousand and Four hundred and Seventy Four Rupees only) as a compensation and the

details are as follows:

*Sl.No.*	*Heads*	*Amount in* *Rupees*
1	Loss of Income	95,22,474/-
2	Loss of Estate	16,500/-
3	Funeral Expenses	16,500/-
4	Loss of love and affection to the petitioner Nos.1 to 3	1,50,000/-
	*Total*	97,05,474/-

Aggrieved over the same, the appellant filed this appeal.

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7. Submission of the learned counsel for the appellant:

(i)The learned counsel for the insurance company submitted that from the records, Ex.P2 and the motor vehicle report, it is clear that the deceased himself is responsible for the accident. The car driver was coming on the right direction and only due to the negligence of the deceased by suddenly crossing the road (four-way track road) the accident has occurred.

(ii)The learned counsel further submitted that the Tribunal granted exorbitant award without following the guidelines issued by the Hon'ble Supreme Court. In the said circumstances, this court may reconsider the finding of the learned trial judge by appreciating the evidence on record.

8. Submission of the learned counsel for the respondent:

(i)The learned counsel for the claimants submitted that the plea of the insurance company that due to the negligence of the driver of the twowheeler, namely the deceased the accident happened is not correct. The learned trial judge considered the evidence of P.W.2 independent witness and also the evidence of the R.W.1 who drove the vehicle/car and the exhibits came to the conclusion that the accident happened only due to 6/28

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the negligence of the car driver. He also considered the evidence of R.W.1. The learned trial judge specifically came to the conclusion that the driver of the car without reducing his speed at the intersection, lost his control and hit the two-wheeler. Further, the learned trial judge considered that after hitting the vehicle, the deceased was thrown ten feet away from the occurrence place. From the said fact, it is clear that the driver of the car was responsible for the accident. Apart from that, the learned trial judge considered the final report filed against R.W.1. P.W.2, in his evidence, clearly deposed about the manner of accident, in which, he clearly deposed that only due to the negligence of the driver of the car, namely R.W.1, the accident happened.

9.We heard the learned counsel appearing for the appellant insurance company and the learned counsel appearing for the respondent Nos.1 to 3 and also perused all the materials available on record.

10.The following points arise for consideration of this appeal:

10.1.Whether the Tribunal below is correct in relying the testimony

of the chance witness, namely, P.W.2 to fix negligence on the driver of the 7/28

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car insured with the appellant insurance company?

10.2.Whether the contention of the claimant that the Motor Accident Claims Tribunal has no authority to deduct the income tax while determining the compensation under the Motor Vehicle Act for the death arising out of the accident caused by the tortfeasor is correct or not?

Question No.1:

11.1.It is contented that P.W.2 is a chance witness and his presence

is unbelievable for the reason that after the accident, he has not preferred any complaint before the respondent police. To appreciate the same, this Court is duty bound to recapitulate the principle laid down by the Hon'ble Supreme Court and the various Courts relating to the appreciation of the chance witness in both criminal cases and the accident cases.

11.2.The Hon'ble Supreme Court in the case of Rana Pratab Vs.

State of Haryana reported in 1983 (3) SCC 327 , onwards has accepted the testimony of the chance witnesses with the caution that his presence in the scene of occurrence must be adequately explained which reads as 8/28

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follows:

3. There were three eyewitnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as “chance witnesses” implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression “chance witnesses”. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere “chance witnesses”. The expression “chance witnesses” is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence

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elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are “chance witnesses”, even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.

11.3.The said principle is also reiterated in the case of Rajesh

Yadav Vs. State of UP reported in 2022 (12) SCC 200 The Hon'ble Surpeme Court has held as follows:

A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times.

12.The accidents are not committed soliciting the presence of somebody who is related to the victim and naturally, it could be seen only

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by the Passer-by or the Bye-stander. Accident means mishap or an untoward happening not expected and designed. The motor accidents may happen/occur any time without knowledge of the person who suffers by it and therefore, “it cannot be proved always by direct evidence. Every motor accident occurs unexpectedly. Therefore, if accident is caused on the road side, only “passer-by” will witness. Hence, in majority of the motor vehicle accidents case only “passer-by” is competent witness to speak of the involvement of the vehicle and negligence and consequently his testimony could not be brushed aside dubbing them as “chance witness”.

13.Therefore, the above principle laid down by the Hon'ble Supreme Court is applicable to the Motor Vehicle Accidents cases to appreciate the evidence of “chance witness” and the same has been followed by the Hon'ble Supreme Court and various High Courts.

13.1.The Hon'ble Division Bench of this Court presided over by the Hon'ble Thiru. Chief Justice P.Sathasivam,(as he then was) has elaborated the said issue in the case of Pallavan Transport Corporation v. Saroj Goyal, reported in 2001 SCC OnLine Mad 37 and held as follows : 11/28

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8. Likewise, merely because the eye witness

did not inform the police nor made any specific complaint it did not diminish his statement before the Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable, even in the absence of the fact that he did not inform the police regarding the manner of accident, it can safely be accepted. In this regard learned counsel appearing for the claimants very much relied upon Natchathiram and others v. Jayasekaran and others (2000 ACJ 902). The learned Judge in a similar circumstance has held,

“10. ……The mere fact that he has not given any complaint to the police will not diminish the credibility of the witness to any extent as observed by the tribunal…….”

We are in agreement with the view expressed by the learned judge.

9. In Varadamma v. H. Mallappa Gowda and others (1972 A.C.J. 375), the Division Bench of the High Court of Mysore at Bangalore has held that, merely because the witness was not examined by the police or that he was not

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examined in the connected criminal case, it cannot be said that his evidence should not be relied upon. We are also in respectful agreement with the said observation of the Division Bench.

13.2.The Hon'ble Supreme Court in the case of Parmeshwari v.

Amir Chand , reported in (2011) 11 SCC 635 : at page 638

12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.

14.But only difference is that in the case of criminal trial, his presence is proved beyond reasonable doubt. Per contra, such much

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rigidity is not applicable in the motor vehicle accident cases for the reason that they are summary proceedings and the burden of the claimant is to be in compliance with preponderance of the probabilities. The proceedings of the Motor Accidents Claims before the Motor Accidents Claims Tribunal is summary in nature and the claimants need not establish their claim beyond reasonable doubt and they have to establish

their case on preponderance of probability. The Tribunal has to take a holistic view in appreciating the pleadings and evidence. When human misery is pitted against the operational negligence of motor vehicle, the Tribunal is duty bound to redress the same by approaching in a pragmatic way by appreciating the whole evidence so as to avoid accidental victim being left in lurch. The Hon'ble Supreme Court in AIR 1980 SCC 1354 (N.K.V.Brothers (P) Ltd., Vs. Karumai Ammal and others) emphasized the above requirement in the following words:-

“3. ..... Accidents Tribunals must take special

care to see that innocent victim do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable.

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The court should not succumb to neceties, technicalities and mystic maybes.”

15. Hence, from the above principle, in order to rely the evidence of chance witness, following factors may be considered:

15.1.His presence in the scene of occurrence must adequately be explained

15.2.His evidence should neither be doubtful nor create any suspicion.

15.3. merely because the eye witness did not inform the police nor made any specific complaint it did not diminish his statement before the Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable, even in the absence of the fact that he did not inform the police regarding the manner of accident, it can safely be accepted.

15.4.For assessing the same, his evidence has to be examined from point of view of probabilities and account given by him . On holistic appreciation of the testimony of the passer-by if the Court finds that either his presence or his arrival at the time of the accident is

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adequately presumed to be true and his testimony is truthful, there is no bar to rely his evidence either to prove the involvement of the vehicle or the negligence of the driver.

16.It is the case of the claimants that on 17.05.2018 at 10.00 hours, when the deceased was riding his two wheeler from north to south on Madurai-Chennai bye-pass road, the driver of the car bearing registration No.KL-01-By-5859 came at a rapid speed on the said road in the same direction and dashed against the two wheeler and due to the impact, the deceased died. The FIR was registered against the driver of the car in Crime No.129 of 2018 for the offence under Sections 279 and 304(A) of IPC. After investigation, final report was filed against the driver of the car. P.W.2 deposed that he is the resident of Trichy and he produced his Aadar Card under Ex.P9 to prove the same. He went to TrichyMannarpuram Railway Battalion camp to meet his friend Murugehsan on 17.05.2018 at 10.00 a.m. At that time he witnessed the accident ie., when the deceased rode his two wheeler in the south-north Chennai-Madurai Bye pass road from north to south direction and turned to northern side and at that time, the insured car came in a rash and negligent manner and 16/28

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dashed the two wheeler and in result, the deceased sustained injuries. The above said evidence of P.W.2 is cogent and his presence is natural and no evidence was adduced on the side of the insurance company to show that he has any motive as against the car driver. Further nothing was elicited on the side of the insurance company that he made false claim in order to help the deceased. Apart from that, it is admitted by the insurance company FIR was registered as against the driver of the insured vehicle and final report was also filed against the driver of the insured vehicle. Further, even though P.W.2 was subjected to incisive cross examination, no material was brought on record to falsify his testimony. He cogently deposed before the Court below without any infirmities. Further, no materials were adduced on the side of the appellant insurance company to disbelieve his presence. Therefore, the evidence of P.W.2, even though he is a chance witness, is trustworthy and the learned trial Judge correctly believed his version.

17.It is the specific case of the claimant that the deceased entered into the four way track road (North to south road) by taking “U” turn into the 30 feet road proceeding towards south to north. There was no enough 17/28

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space available to the appellant insurance company's car driver and hence, the finding of the learned trial Judge, fixing the negligence on the part of R.W.1 is justifiable. Even if the deceased had taken “U” turn in the said road, enough space of more than 20 feet was available as per the Sketch. Therefore, in the said circumstances, the finding of the learned trial Judge, fixing the negligence on the driver is without perversity and the same is not liable to be interfered. The learned trial judge after considering the non-wearing of the helmet and also considering that the deceased drove his vehicle without licence fixed 15% negligence, on the part of the deceased and fixed the 85% negligence on the part of the driver of the car. Hence, the appellant insurance company is liable to pay the compensation.

18. Question No.2

The learned counsel for the claimant opposed to deduct the income

tax and he specifically submitted that the compensation is awarded to recompense for the death caused due to the “act of tortfeasor”. Therefore, he submitted that the present practice of deducting the income tax from deceased income while calculating the compensation is against the law as 18/28

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laid down by the Hon'ble Supreme Court and the various Division Bench of the various High Courts. He elaborated the above argument on the basis of the following judgment:

18.1.In the case of All India Reporter Ltd. v. Ramchandra D.

Datar , reported in AIR 1961 SC 943.

The Hon'ble Three Member Bench of the Supreme Court has not accepted the contention that there should be a deduction of the income tax while calculating the compensation payable to an employee by an employer for wrongful termination of the employment in the following

3. We are not concerned to decide in this appeal whether in the hands of the respondent the amount due to him under the decree, when paid, will be liable to tax; that question does not fall to be determined in this appeal. The question to be determined is whether as between the appellant company and the respondent the amount decreed is due as salary payment of which attracts the statutory liability imposed by Section 18. The claim decreed by the civil court was for compensation, for wrongful termination of employment, arrears of salary, salary due for the period of notice and

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interest and costs, less withdrawals on salary account. The amount for which execution was sought to be levied was the amount decreed against which was set off the claim under the cross-decree. A substantial part of the claim decreed represented compensation for wrongful termination of employment and it would be difficult to predicate of the claim sought to be enforced what part thereof if any represented salary due. Granting that compensation payable to an employee by an employer for wrongful termination of employment be regarded as in the nature of salary, when the claim is merged in the decree of the court, the claim assumes the character of a judgment-debt and to judgment-debts Section 18 has not been made applicable. The decree passed by the civil court must be executed subject to the deductions and adjustments permissible under the Code of Civil Procedure. The judgment-debtor may, if he has a cross-decree for money, claim to set off the amount due thereunder. If there be any adjustment of the decree, the decree may be executed for the amount due as a result of the adjustment. A third person who has obtained a decree against the judgmentcreditor may apply for attachment of the decree and

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such decree may be executed subject to the claim of the third person : but the judgment-debtor cannot claim to satisfy, in the absence of a direction in the decree to that effect the claim of a third person against the judgment-creditor, and pay only the balance. The rule that the decree must be executed according to its tenor may be modified by a statutory provision. But there is nothing in the Income Tax Act which supports the plea that in respect of the amount payable under a judgmentdebt of the nature sought to be enforced, the debtor is entitled to deduct income tax which may become due and payable by the judgment-creditor on the plea that the cause of action on which the decree was passed was the contract of employment and a part of the claim decreed represented amount due to the employee as salary or damages in lieu of salary.

18.2.The Hon'ble Division Bench of the Allahabad in [2012] 211

TAXMAN 369(AII) in the case of Commissioner of Income tax Vs. The Oriental Insurance Co. Ltd., has held that the amount of compensation under the Motor Vehicle Act do not come within the definition of income and has held as follows in Paragraph No.40:

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40. To our opinion, the award of compensation

under motor accudents claims cannot be regarded as

income. The award is in the form of compensation to

the legal heirs for the loss of life of their bread earner.

18.3.The Hon'ble Thiru. Justice J.B.Padriwala, (as he then was)

leading the Division Bench of Gujarat High Court, after eloquent discussion has held as follows:

73.The upshot of the aforesaid discussion is that the compensation received under the Motor Vehicle act is either on account of loss of earning capacity on account of death or injury or on account of pain and suffering and such receipt is not by way of earning or profit. The award of compensation is on the principle of restitution to place the claimant in the same position in which he would have been as the loss of life or injury would not have been suffered.

18.4.From the above discussion, this Court accepts the argument of

the learned counsel for the claimant and declines to deduct 10% of the amount as claimed by the learned counsel appearing for the insurance company and holds that the claimant is entitled to receive the entire 22/28

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compensation without any income tax deduction.

19. Discussion on quantum

The learned trial Judge granted compensation of Rs.97,05,474/-

(Rupees Ninety Seven Lakhs Five Thousand and Four Hundred and Seventy Four only). The learned counsel for the appellant insurance company submitted that the learned trial Judge granted exorbitant amount as compensation. To appreciate the said contention, this Court perused the salary certificate of the deceased and other relevant documents and observes as follows:

19.1.The deceased was working as Assistant Manager, Indian Bank and he is aged about 49 years and his salary certificate was marked as Ex.P.5 & Ex.P.10. As per the salary certificate, his salary is Rs.69,563/(Rupees Sixty Nine Thousand Five Hundred and Sixty Three only) per month. No contrary evidence was let in to disbelieve the above monthly

income. Therefore, this Court is fixing the monthly income of the deceased as Rs.69,563/-. He was a Government Servant and hence, 30% for future prospects also is fixed as per the judgment reported in 2017 (2) TNMAC 609 (SC) in the case of National Insurance Co.Ltd., v. 23/28

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Pranay Sethi ). 30% for the future prospects around Rs .69,563/- X 30/100 - 10% =20,869/- . Hence, the total monthly income of the deceased is Rs.69,563/- + Rs.20,869/- = Rs.90,432/-.

19.2.The age of the deceased is 49 years since there are three dependents 1/4 is deducted for his personal expenses and applying the multiplier of “13” the amount comes around as follows:

90,432/- X 12 X 13 X 3/4 =1,05,80,544

19.3.The non pecuniary damages as per the Pranay Sethi case is

calculated as follows:

Loss of estate : Rs.16,500/Funeral Expenses : Rs.16,500/-

Loss of Love and Affection to the respondent Nos.1 to 3 : Rs.1,50,000/-.

19.4.Therefore, we are of the considered view that the

compensation awarded by the Tribunal is just and fair and does not require any interference.

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20. Conclusion:

In the light of the above said discussion, claimants would be entitled to claim the following amounts as compensation under the various heads enumerated hereunder:

_S.No _	*Under the head*	*a)Calculation*	*b)Amount in* *Rupees*
1	Monthly income(monthly income + future prospects 30%)	Rs.69,563/- + Rs.20,869/-	Rs.90,432/-
2	Deduction of 1/4 for his personal expenses	Rs.22,608/-	Rs.67,824/-
3	Annual Loss of Income	Rs.67,824 X 12	Rs.8,13,888/-
4	Loss of Incomes after applyingthe multiplier 13	Rs.90,432/- X 12 X 13 X 3/4	Rs.1,05,80,544/-
5	*Compensation*		*Amount* in *Rupees*
	a)Loss of Income		Rs.1,05,80,544/-
	b)Loss of Estate		16,500/-
	c)Funeral Expenses		16,500/-
	d)Loss of love and affection Nos.1 to 3	to the respondent	1,50,000/-
	*Total*		*1,07,63,544/-*

After deducting the 15% award amount on account of 15 %

negligence that has been fixed on the part of the deceased, the award

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amount is likely to come to Rs.91,49,012/-.

Accordingly, this Civil Miscellaneous Appeal is dismissed and the judgment and award passed by the Motor Accidents Claims Tribunal, IV Additional District Judge, Madurai in M.C.O.P.No.888 of 2018, dated 28.04.2021 is hereby confirmed. The appellant insurance company is directed to deposit the award amount with proportionate accrued interest and costs, after deducting the amount if already deposited, within a period of eight weeks from the date of receipt of a copy of this order.

The respondent Nos.1 to 3 are entitled to Rs.28,83,004/- each with proportionate cost and interest and the fifth respondent is entitled to Rs.5,00,000/- with proportionate interest in the above said award amount.

(V.B.S.J.,) (K.K.R.K.J.,) 11.09.2024 NCC : Yes/No Index :Yes/No Internet :Yes/No sbn Note: Issue order copy on 20.09.2024

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To

1.The IV Additional District Judge, Motor Accident Claims Tribunal, Madurai.

2.V.R.Section, Madurai Bench of Madras High Court, Madurai.

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V.BHAVANI SUBBAROYAN.J., and K.K. RAMAKRISHNAN.J.,

sbn

C.M.A(MD)No.925 of 2021

11.09.2024

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