High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.03.2012CORAM:THE HONOURABLE MRS.JUSTICE R.BANUMATHIandTHE HONOURABLE MRS.JUSTICE S.VIMALAC.M.A.Nos.3345 and 3346 of 2008&C.M.A.SR.Nos.93684 and 93687 of 2007Hari Arabind (Minor)declared as major and his grandmother and next frienddischarged from the guardianshipvide order dated 15.11.2011 inM.P.1 & 1/11... 1st Appellant in both CMAs/ Petitioner and 1st Respondent in CMA.Sr.Nos.93684 & 93687/072. S. Arumugam3. A. Eswari...2nd & 3rd appellants in CMA.3346/08 and respondents 2 & 3 in CMA.Sr.No.93684/07.Vs..1.Udaya Suriyan2.M/s.C.P.M.Metals Coimbatore – 1...Respondents 1 and 2 in both CMAs and Respondents 4 & 5 in both CMA SRs.3.United India Insurance Company Ltd. Coimbatore..3rd Respondent in both C.M.As. and thePetitioenr in both CMA.SRs4.S.Suriya Kumari5.T.Sivasamy .. 4th and 5th Respondents in C.M.A.No.3345 of 2008/ Petitioner & Respondents 2 & 3 in CMA.Sr.No.93687/07Prayer in both C.M.As.: Civil Miscellaneous Appeals filedunder Section 173 of the Motor Vehicles Act, 1988, against commonjudgment dated 28.06.2007 made in M.A.C.T.O.P.Nos.861 and 862 of2002 on the file of the Motor Accident Claims Tribunal (FirstAdditional District Judge), Erode. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr. C.Munusamy (in both C.M.As.) for M/s.C.K.Law Firmand for respondents/ claimants in both CMASRsFor Respondents: Mr.N.Vijayaraghavan, for R3(in both C.M.As.) &and for petitioners in CMASRSCOMMON JUDGMENT S.VIMALA, J.Hari Arabind, the minor/petitioner, unfortunately lost both ofhis parents i.e., Mother-Gowri and Father-Balasubramaniam, in thesame accident that took place on 10.11.2001. In respect of deathof Gowri, who is the mother of the first Petitioner and daughter ofPetitioners 2 and 3, the Petitioners have filed a claim petition inM.A.C.T.O.P.No.861 of 2002 seeking compensation for a sum ofRs.30,00,000/-.2. In respect of death of Balasubramaniam, who is the fatherof the first Petitioner and son of Petitioners 2 and 3, thePetitioners have filed a claim petition in M.A.C.T.O.P.No.862 of2002 seeking compensation for a sum of Rs.90,00,000/-.3. The brief facts of the cases are as follows:-The deceased-Balasubramaniam was driving the car bearingRegistration No.TN-1-P-5178, and he was travelling along with hisWife-Gowri and relative girl. When he was going from Coimbatore toMettupalayam, a mini lorry bearing Registration No.TN-37-W-4114came in the opposite direction which was driven by its driver in arash and negligent manner and dashed against the car and thus theaccident occurred. Due to the said impact, all the inmates of thecar died. 3.1. The deceased-Gowri had been a brilliant student throughout her student-hood i.e., while in the College as well as in theSchool and she had been selected for the National Merit Scholarshipin the year 1984. After she married the deceased Balasubramaniam,she was a full time Partner in Mathanki Sizing Mills, a TextileProcessing Unit at Erode. She was also a Partner in Devi MahalKalyana Mandapam and was earning substantially and contributing forthe upliftment of the family. 3.2. The deceased Balasubramaniam was a B.Tech. Graduate andalso M.B.A. Graduate and was evolving as a big business magnet.Towards the upliftment of his business, he incurred loans fromvarious establishments. He was a member of Technical Associationof Pulp and Paper Industry in 1999. His total annual income wasRs.4,23,750/-. He was aged 37 years at the time of accident. https://hcservices.ecourts.gov.in/hcservices/

4. The claim was resisted by the third Respondent-InsuranceCompany on the following grounds :-a) The manner of accident and the financial capability ofthe deceased are not admitted; b) The rash and negligent driving was only on the part ofthe deceased and not on the part of the lorry driver;c) The first Respondent had no valid driving licence onthe date of accident and, therefore, the Insurance Company is notliable to pay any compensation;d) At the time of accident, the deceased had fittedL.P.G. cylinder in the car without approval of the RegionalTransport Officer (R.T.O.) and, as, there was no endorsement forthe same in the R.C. Book, there is violation of provisions ofMotor Vehicles Act; ande) As the above act of the deceased is prohibited underlaw and, as he is guilty of negligence, the Insurance Company isnot liable to pay any compensation. In any event the deceased isat least guilty of contributory negligence. 5. The Tribunal framed issues regarding rash and negligentdriving and has given a finding that the accident took place onlydue to the rash and negligent driving of mini lorry driver. But,at the same time, while considering the issue regarding cause ofdeath of the deceased, the Tribunal has given a finding that thedeceased, having fitted L.P.G. cylinder in the car, without anyendorsement from the R.T.O. is guilty of 20% contributorynegligence.6. With regard to the quantum of compensation, the Tribunalhas awarded the compensation under the following breakup details inrespect of death of Gowri and Balasubramaniam respectively.Sl.No.HeadsC.M.A.No.3345/2008(M.A.C.T.O.P.No.861/2002)AmountC.M.A.No.3346/2008(M.A.C.T.O.P.No.862/2002)Amount1Mental agony and Shock tothe Minor Petitioner15000150002Loss of Love and affection10000150003Funeral Expenses500050004Loss of Dependency10200003200000Total10500003235000Less:- Contributorynegligence 20% on the lossof Dependency 210000 640000Grand Total8400002595000 https://hcservices.ecourts.gov.in/hcservices/

7. So far as the loss of dependency is concerned, theTribunal has taken the monthly income of Gowri at Rs.7,500/-. Theannual dependency has been calculated at Rs.90,000/- (Rs.7,500/- x12 months) and deducting 1/3rd i.e., Rs.30,000/- towards personalexpenses, Rs.60,000/- has been fixed as annual loss of dependancy.Considering the age of the victim as well as the age of thebeneficiaries, the Tribunal has adopted the multiplier of '17' andhas arrived at the total quantum at Rs.10,50,000/- and deducting20% for contributory negligence i.e., a sum of Rs.2,10,000/-, thebalance payable was Rs.8,40,000/-(Rs.10,50,000/- - Rs.2,10,000/- =Rs.8,40,000/-), out of which, Rs.7,50,000/- has been awarded to theminor and Rs.90,000/- has been awarded to the second Petitioneri.e., the mother of the deceased-S.Surya Kumari. So far as thethird Petitioner i.e., the father of the deceased is concerned, theclaim petition has been dismissed.8. In respect of death of Balasubramaniam taking the annualincome at Rs.3,00,000/- and deducting Rs.1,00,000/- towardspersonal expenses, the balance amount of Rs.2,00,000/- has beentaken as annual dependency and adopting the multiplier of '16' anddeducting 20% towards contributory negligence, the loss ofdependency has been arrived at Rs.25,60,000/- and awarding a sum ofRs.15,000/- towards mental shock and Rs.15,000/- towards loss ofLove and affection and Rs.5,000/- towards funeral expenses, thetotal compensation amount has been arrived at Rs.25,95,000/-, outof which, apportionment has been given to the extent ofRs.20,00,000/- to the minor Petitioner, Rs.2,95,000/- has beengiven to the second Petitioner and Rs.3,00,000/- has been given tothe third Petitioner. Now, the claimants have filed these appealschallenging the quantum of compensation as inadequate and thefinding that the deceased was guilty of contributory negligence tothe extent of 20% as erroneous.9. Learned counsel for the Appellants submitted that theTribunal having given a finding that the accident arose only onaccount of rash and negligent driving of the first Respondentshould not have held that the deceased Balasubramaniam, is guiltyof contributory negligence.9.1. On the other hand, the learned counsel representing forthe Insurance Company contended that the finding of the Tribunalthat the deceased Balasubramaniam was guilty of contributorynegligence only to the extent of 20% is erroneous and thepercentage of contributory negligence ought to have been more thanthat.9.2. The circumstances leading to the finding regardingcontributory negligence has to be discussed with reference to theevidence available. The main allegation against the deceasedBalasubramaniam was that he drove the car, which was fitted with https://hcservices.ecourts.gov.in/hcservices/ L.P.G. fuel without conversion kit being approved and also withoutany endorsement on the R.C. Book. 9.3. Learned counsel for the Insurance Company pointed outthat the Petitioners have not chosen to produce R.C. Book evidentlywanting to hide the fact that there is no endorsement of R.T.O., inthe R.C. Book, with regard to L.P.G. being used as fuel. It isalso pointed out that the Petitioners have not chosen to file MotorVehicle Inspector's Report of the car, even though they have chosento file the Motor Vehicle Inspector's Report of the mini lorry. Noexplanation has been offered with regard to non-production of thosetwo documents. 9.4. In the evidence of RW1, who is the Assistant in theRegional Transport Office, he has stated that using of L.P.G.cylinder in the passenger vehicle is prohibited by Law. RW2, theMotor Vehicle Inspector has stated in his evidence that during hisexamination, he found the damaged car had been fitted with L.P.G.cylinder. 9.5. The Liquefied Petroleum Gas (Regulation of use in MotorVehciles) Order 3(3) of 2001 reads that no person shall purchase oruse auto LPG in a motor vehicle or vehicle unless it is fitted withthe auto LPG tank permanently fitted in the motor vehicle and aconversion kit as approved by the authorities/testing agencies asnotified in the Central Motor Vehicles (Amendment) Rules, 2001.Further it is contended that the Transport Department has issued aCircular, wherein, the Transport Commissioner has pointed out thatthe use of domestic L.P.G. fuel is not permitted under Section 52of Motor Vehicles Act read with Central Motor Vehicles Rules 115(c) (3) (b). Use of L.P.G. as fuel in the light motor vehicle andother vehicles shall be permitted only if the kit and the type areapproved for usage as L.P.G. as fuel and necessary entries made inRegistration Certificate by the Regional Transport Officers. Asper the Circular, it is very clear that usage of L.P.G. in cars isnot totally prohibited but it is permitted, provided an appropriateapproval is obtained from the R.T.O. for using the conversion kit.9.6. In this case, it is contended that the R.C. Book itselfhas not been produced, because, the production of R.C. Book willexpose the fact that there was no necessary endorsement with regardto the usage of L.P.G. as alternative fuel. For non-production ofR.C. Book, in the absence of any explanation adverse inference hasto be drawn. However, before drawing adverse inference, the pointto be considered is whether the use of L.P.G. cylinder would havebeen the cause for the accident or it could have been the cause forthe consequence of the accident. If it is found to be the cause forthe accident, whether it is the direct cause or remote cause isalso an issue to be considered. The perusal of the records go toshow that there are circumstances which reveals that the accident https://hcservices.ecourts.gov.in/hcservices/ could have happened only due to the rash and negligent driving ofthe first respondent.9.7. The first Respondent has appeared before the CriminalCourt to answer the charge regarding rash and negligent driving andhe has admitted the offence and has paid a fine of Rs.10,000/-(Ex.P6-copy of the judgment). 9.7 (a). The best person to speak about the manner of accidentis either the driver of the car or the driver of the mini lorry.The driver of the car is dead in the accident. The only personavailable to speak about the accident is the driver of the minilorry and he remained exparte before the Tribunal. The owner alsoremained exparte. The Insurance Company did not take any effortsto examine both of them on the side of the Respondents. There isalso no explanation as to why they were not examined. 9.7 (b). PW3, who is the Author of Ex.A1-First InformationReport has stated in his evidence that the accident took placesolely on the ground of rash and negligent driving on the part ofthe driver of the mini lorry. The Tribunal has also considered allthe circumstances in detail and has given a finding that theaccident took place only on account of rash and negligent drivingof the first Respondent. Therefore, it is quite clear that theinitial cause for the accident is only the negligent act of thedriver i.e., the first Respondent. 10. It is contended that, even though the first Respondent hadbeen rash and negligent driving, in any event, the consequences oforiginal impact had been aggregated by the use of L.P.G. cylinder.Had there been no L.P.G., the deceased persons would have escapedwith injuries alone and only because of the usage of L.P.G. as fuelthe deceased persons had died of burn injuries also. In theevidence, it is stated that the dead bodies were seen as charredbodies. This evidence indicates that but for the use of L.P.G., itis quite probable that the consequences of the accident would nothave been so ruinous. Therefore, the finding that the deceasedBalasubramaniam was guilty of contributory negligence at 20% cannotbe said to be reasonable. But the finding of contributorynegligence with regard to the claim made in respect of deceasedGowri has no basis and the deduction towards contributorynegligence has to be set aside and it is set aside accordingly. 11. The next contention of the learned counsel for theAppellants is that the amount of compensation awarded is grosslyinadequate. It is pointed out that the deceased Gowri was apersonality with extraordinary academic excellence and moreover shewas also a person showing keen interest in very many socialactivities. She was not only managing the business activities butalso she was managing household activities. https://hcservices.ecourts.gov.in/hcservices/

12. Learned counsel for the Appellants has also pointed outthat the contribution of the deceased towards household serviceshas not been quantified. The decision reported in 2009 1 TNMAC 671(National Insurance Company Limited, Greams Road, Chennai-6, Vs. 1.Minor Deepika rep. by her guardian and next friend, Ranganathan andOthers), recognizes how the most of the unpaid work around theworld is performed by women, how it goes unrecognized, how servicesof the woman towards family welfare helps the other partner todevote his energy time and attention to tasks that augment hisincome and generate property for the family, and the need toquantify and to include economic value of those services in theGross National Product, and of course to quantify it while valuingthe dependency. 13. The Tribunal has taken the monthly income of the deceasedGowri at Rs.7,500/-. The income tax return filed for the periodfrom 01.04.1999 to 31.03.2000, reveals that the annual income atRs.1,34,700/-. According to this income tax return, the monthlyincome would be Rs.11,225/-. But, the Tribunal has taken theincome at Rs.7,500/- because of the admission made by thePetitioners that the business establishment run by the deceasedremains intact. This reasoning cannot be accepted in toto, becausethe investment made towards capital may remain intact because ofthe availability of the machineries and equipments. But, theexpansion of business activities depend upon the ability, capacityand personality of the individuals, which differ from person toperson. It cannot be contended that any other person would workwith equal efficiency and with equal integrity as that of thedeceased herself and, therefore, it is proper to take the monthlyincome of the deceased at least at Rs.10,000/-. Then, the annualincome would be Rs.1,20,000/- and after deducting 1/3rd towardspersonal expenses i.e., Rs.40,000/-, the loss of dependency wouldbe Rs.80,000/- per annum. Adopting multiplier of '17', total lossof dependency would be Rs.13,60,000/- (Rs.80,000 x 17). Awarding asum of Rs.10,000/- towards loss of Love and affection to each ofthe Petitioners and awarding a sum of Rs.10,000/- towards funeralexpenses, the quantum of compensation payable would beRs.14,00,000/-. 14. The Tribunal has awarded compensation to the mother ofthe deceased and the son and not to the father. As the deceasedwas a married daughter and the contribution of the deceased towardsthe parents would have been minimal after the marriage, theTribunal has chosen to apportion the compensation and has awarded asum of Rs.90,000/- to the mother. But, it cannot be contended thatwhen the deceased was contributing to the mother she was notcontributing to the father. Moreover, the pain and sufferings,loss of love and affection is equal for both. This fact ought tohave been taken into consideration while awarding the quantum ofcompensation. Therefore, the dismissal of the petition as againstthe father is set aside. The total quantum of compensation awarded https://hcservices.ecourts.gov.in/hcservices/ in C.M.A.No.3345 of 2008 is apportioned between the threePetitioners in the ratio of Rs.12,00,000/- to the minor son,Rs.1,00,000/- to the mother and Rs.1,00,000/- to the father. 15. So far as the claim for compensation in respect of deathof Balasubramaniam is concerned, it is the contention of thelearned counsel for the Appellants that the deceased, who was agedonly 37 years was at the threshold of his profession and he was aperson with promising future, and but for this accident, thedeceased would have grown phenomenally in his profession and alsothat the minor would not have become an orphan. 16. The contention of the learned counsel for the Appellantsis that the monthly income of the deceased ought to have been takenat Rs.35,000/- and the Tribunal was not right in taking the monthlyincome at Rs.25,000/- only. It is also contended that the Tribunalshould have taken future prospects of the deceased in accordancewith the ratio laid down by the Hon'ble Apex Court in Sarla Vermaand Others Vs. Delhi Transport Corporation and Another reported in(2009) 6 SCC 121. The learned counsel for the Appellants haspointed out that the income tax returns which were filed underExs.A9 to A14, reveal that the annual income of the deceased hasbeen shown at Rs.4,23,750/-. Considering the inchoate admissionrather uninformed admission made by the father of the deceased thatthe business left by the deceased are under running condition theTribunal has given a finding that there is no loss on account ofthe business. This contention cannot be totally accepted, becauseestablishing the business and running it successfully involvesclever, strategic and resourceful administration and withdedication and hard work and, therefore, even if the capital isavailable, the profit would be less. Taking the steady increasein the annual income, it is clear that the Tribunal should havetaken the monthly income at a higher slab. If future/anticipatedhigher income is also taken into account, then there will be aneed to deduct some amount towards payment of tax also. Therefore,future income is not taken into account. Taking the modestestimate of Rs.30,000/- as monthly income, the annual income wouldbe Rs.3,60,000/-. Deducting 1/3rd towards personal expenses andadopting the multiplier of '16' the loss of dependency would beRs.38,40,000/-. The Tribunal has awarded the amount under theother heads viz., Rs.15,000/- towards mental shock and stress andRs.5,000/- towards funeral expenses and amount awarded under thoseheads are maintained. Deducting 20% towards contributory negligenceon the loss of dependency, the loss of dependency would beRs.30,92,000/-. Therefore, total compensation comes toRs.30,92,000/-. 17. The interest awarded by the Tribunal at the rate of 7.5%is confirmed and the enhanced amount will carry interest at therate of 6% per annum. The details of the amounts awarded by thisCourt in both the appeals are furnished here-under:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadsC.M.A.No.3345/2008C.M.A.No.3346/20081Loss of Dependency136000038400002 Mental Agony and Stress150003 Funeral expenses1000050004Loss of Love andaffection to eachRs.10,000/-30000---Total14000003860000Less: Contributorynegligence 20% on theLoss of Dependency---768000Grand Total14000003092000 18. The Appellant-Insurance Company has also filed the appealchallenging the common judgment passed in M.A.C.T.O.P.Nos.861 and862 of 2002, which is not yet numbered and, therefore, not taken onfile. As the plea raised by the claimants has been decided, theappeal by the Insurance Company which is pending numbering isunnecessary. Therefore, the appeal petition of the InsuranceCompany in SR. stage is closed.19. In the result, both the appeals are partly allowedenhancing the amount of compensation from Rs.8,40,000/- toRs.14,00,000/- in C.M.A.No.3345 of 2008 and Rs.25,95,000/- toRs.30,92,000/- in C.M.A.No.3346 of 2008. The Insurance Companyshall deposit the entire award amount in both the appeals alongwith proportionate interest, less the amount already deposited, ifany, within a period of two months from the date of receipt of acopy of this judgment. On such deposit being made, the claimantsin both the appeals are permitted to withdraw the same, less theamount already withdrawn if any. First claimant-Minor Hari Arabindhas attained majority and he shall file necessary applicationbefore the Tribunal for getting himself declared as major. Thereshall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.smn https://hcservices.ecourts.gov.in/hcservices/ To1.The Motor Accident Claims Tribunal (First Additional District Judge), Erode2.The Section Officer V.R. Section, High Court, Madras2 ccs to Mr.M.B. Gopalan, Advocate, Sr. 19868 & 198692 ccs to M/s.C.&K Law firm, SR. No.19460 & 19461C.M.A.Nos.3345 and 3346 of 2008 &C.M.A.SR.Nos.93684 and 93687 of 2007KSJ (CO)kk 19/7