1.Rajalakshmi Vs. 1.T.A.Ghouse Khan - Court Judgment

Excerpt:
before the madurai bench of madras high court dated:08. 03/2013 coram the honourable mr.justice c.s.karnan c.m.a.(md)no.528 of 2008 & c.m.a.(md)no.1745 of 2008 c.m.a.(md)no.528 o”1. rajalakshmi 2.r.mahalakshmi 4.minor bhuvaneswari d/o.(late) p.l.rajamani (3rd petitioner represented by her mother first petitioner) 1 to 3 petitioners are residing at 1/132, alanthur agraharam, trichy. ... appellants vs. 1.t.a.ghouse khan 2. united india insurance company limited, 74, salai road, trichy ”018. ... respondents prayer civil miscellaneous appeal is filed under section 173 of the motor vehicles act, to set-aside the judgment and decree of the motor accidents claims tribunal, iii additional subordinate judge, trichy in m.c.o.p.no.2015 of 2004, dated 06.03.2007 and enhance the same. !for appellant s... mr.v.bharathidasan ^for respondents ... mr.c.r.janarthan for r-1 - - - c.m.a.(md)no.1745 of 2008 the united india insurance company limited, 74, salai road, trichy ”018. ... appellant vs. 1.1.rajalakshmi 2.r.mahalakshmi 3.minor r.bhuvaneswari d/o.(late) p.l.rajamani (minor third respondent is represented by her mother and next friend r.rajalakshmi. ) 1 to 3 respondents are residing at 1/132, alanthur agraharam, trichy.4. t.a.ghouse khan ... respondents (the fourth respondent set exparte before the tribunal. hence, notice to fourth respondent be dispensed with) prayer civil miscellaneous appeal is filed under section 173 of the motor vehicles act, against the judgment and decree dated 06.03.2007 passed in m.c.o.p.no.2015 of 2004, on the file of the motor accidents claims tribunal, iii additional sub judge, tiruchirapalli. for appellant ... mr.g.prabhu rajadurai for respondents ... mr.v.bharathidasan for r-1 to r-3 - - - :common judgment the appellants / petitioners have preferred appeal in c.m.a.no.528 of 2008, against the judgment and decree passed in m.c.o.p.no.2015 of 2004, on the file of the motor accidents claims tribunal, iii additional sub judge, tiruchirapalli.2. the short facts of the case are as follows:- the petitioners, who are the wife and children of the deceased rajamani have filed the claim in m.c.o.p.no.2015 of 2004, claiming compensation of a sum of rs.20,00,000/- from the respondents for the death of the said rajamani in a motor vehicle accident. it was submitted that on 18.05.2004, when the (deceased) rajamani was riding on his 'bullet' motorcycle bearing registration not tn-45-x-8294, on the thanjavur-trichy main road, from east towards west, on the extreme left of the road, the first respondent's 'bajaj boxer' motorcycle bearing registration not tn-45-r-9373, coming on the same road and driven by its rider at a high speed and in a rash and negligent manner, dashed against the motorcycle ridden by the deceased (rajamani) and caused the accident. as a result, the (deceased) rajamani sustained grievous injuries and was admitted at the b.h.e.l. hospital, trichy, wherein he underwent treatment for 18 days but in spite of treatment, he succumbed to his injuries on 04.06.2004. at the time of accident, the deceased was aged 55 years and was employed as a senior technician in b.h.e.l. and earning a sum of rs.21,805/- per month. hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the 'bajaj boxer' motorcycle bearing registration not tn-45-r-9373.3. the second respondent, in his counter has submitted that the rider of the first respondent's motorcycle rode the motorcycle in a careful and cautious manner and that the accident was caused only due to the negligence of the (deceased) rajamani, who had suddenly turned his vehicle at a high speed and cut across the road. it was submitted that the petitioners should prove the age, income and occupation of the (deceased) rajamani through documentary evidence. it was submitted that the claim was excessive.4. the motor accidents claims tribunal had framed two issues for consideration in the case, viz., "(i) was the accident caused by the rash and negligent riding of the rider of the first respondent's motorcycle bearing registration not tn-45-r-9373? (ii) are the petitioners entitled to get compensation? if so, what is the quantum of compensation, which they are entitled to get?" 5. on the petitioners side, three witnesses were examined and four documents were marked as exs.p1 to p4, viz., ex.p1-copy of f.i.r. dated 02.06.2004, ex.p2-copy of postmortem report, ex.p3-case sheet (series) issued at sea horse hospital, trichy, ex.p4-salary certificate of (deceased) rajamani for the month of april 2004. on the respondent's side, no witness, no documents.6. p.w.2, selvamani, the eyewitness of the accident had adduced evidence that on the date of accident, when he was on his way to his work at 8 a.m., he had seen the (deceased) rajamani proceeding on his motorcycle on the extreme left of the road, and that the first respondent's motorcycle, coming from north to south and ridden by its rider at a high speed and in a rash and negligent manner, dashed against the motorcycle ridden by the (deceased) rajamani. he had deposed that he had given the complaint regarding the accident at the police station as per exhibit marked as p1.7. the tribunal observed that neither the petitioners nor p.w.2 had given any reasons as to why the complaint had been lodged only on 02.06.2004 for an accident that occurred on 18.05.2004. the tribunal were not inclined to accept the statement of p.w.2 in his complaint that he was not aware that he should give a police complaint regarding the accident. further, the tribunal observed that p.w.2 in his cross-examination had admitted that the accident took place at the junction of four roads and that it took place in the middle of the junction. the tribunal further observed that it had not been mentioned in the complaint that the (deceased) rajamani had proceeded in his motorcycle on the extreme left of the road. the tribunal opined that as the accident had occurred at the centre of the junction while four roads meet and as the complaint had been lodged after a delay of 15 days, only because of the reason that the (deceased) rajamani had also been at fault in causing the accident. though p.w.2 had admitted that he is aware of the fact that the complaint regarding an accident should be given immediately at the police station, he had stated in his complaint that he is not aware of that a complaint should be registered at the police station. hence, the tribunal opined that the statements made in the complaint by p.w.2 regarding his ignorance in filing the complaint on time was only to help the petitioners. the tribunal further observed that the concerned hospital, wherein the (deceased) rajamani was treated, had also not intimated to the police regarding the said accident. hence, the tribunal on opining that the delay in filing the complaint had been caused because of the fact that the (deceased) rajamani had also contributed negligence in the occurrence of the accident and on observing that the accident had taken place in the centre of the junction of four roads held that contributory negligence is to be attributed to the riders of both vehicles in the accident and apportioned the contributory negligence amongst the rider of the first respondent's motorcycle and the deceased in the ratio of 75% :25. .8. p.w.1 had adduced evidence that her husband was working as a senior technician in b.h.e.l., trichy and earning a sum of rs.25,000/- per month. p.w.3, mohan, the manager of b.h.e.l, trichy has adduced evidence that the last drawn pay to deceased rajamani was rs.11,629.53/- and in support of his evidence, had marked ex.p4, salary certificate.9. the tribunal, on holding that the gross salary of the deceased could be taken as his monthly income for computation of loss of income held that the monthly income of the deceased was rs.11,500/- per month. on deducting 1/3rd of the income for his personal expenses and on adopting a multiplier of '11', as was relevant to the age of deceased (55 years) as per postmortem report marked as ex.p2, awarded a compensation of a sum of rs.10,12,000/- to the petitioners under the head of 'loss of income' (rs.11,500 x 2/3 x 12 x 11); rs.10,000/- was awarded to the first petitioner under the head of loss of consortium and rs.10,000/- was awarded under the head of loss of love and affection to the petitioners; rs.5,000/- was awarded towards transport and rs.5,000/- was awarded towards funeral expenses. in total, the tribunal awarded a sum of rs.10,42,000/- as compensation to the petitioners. however, the tribunal on considering that contributory negligence attributed to the deceased was 25% held that the petitioners are entitled to receive a compensation of a sum of rs.7,81,500/- only. the tribunal directed the first and second respondents to jointly and severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within two months from the date of its order.10. not being satisfied with the award passed by the tribunal, the petitioners have preferred the appeal in c.m.a.(md)no.528 of 2008 .11. the learned counsel for the appellants / claimants has contended in in his appeal that the tribunal ought not to have taken the gross deductions for calculating the salary instead of gross earnings. it was contended that the tribunal ought to have seen that the gross earning of the deceased was rs.19,218/- and should not have taken the gross deductions which was rs.11,629/- as per ex.p4. it was contended that the tribunal ought to have fixed 25% negligence on the part of the deceased without proper evidence on record. it was contended that the tribunal ought to have seen that the respondents have not examined the driver of the offending vehicle, who is the best person to let in evidence as to whether there was any negligence on the part of the deceased and that the tribunal erred in assessing 25% negligence on the part of the deceased when the f.i.r. was lodged against the rider of the offending vehicle. it was contended that the tribunal ought to have taken into consideration the future prospects of the (deceased) as per the evidence of p.w.3, the manage of b.h.e.l., where the deceased was working. it was contended that the award granted by the tribunal under various heads were meagre and hence, it was prayed to grant an additional compensation of a sum of rs.12,00,000/-.12. aggrieved by the award passed by the tribunal, the second respondent / united india insurance company limited has preferred the appeal in c.m.a.(md)no.1745 of 2008.13. the learned counsel for the appellant / united india insurance company limited has contended in his appeal that the tribunal erred inholding that the deceased had only contributed to the extent of 25% negligence on the accident overlooking the fact that it was the deceased, who was fully responsible for the accident. it was contended that the tribunal after having accepted that the collision took place in the middle of the road and after holding that the deceased should have been more cautious is entering the main road, erred in fixing a lesser percentage of negligence on the part of the deceased. it was contended that the tribunal erred in adopting a multiplier of '11' on the entire gross salary of the deceased, overlooking the fact that the deceased was aged 55 years and left with only three more years of service. it was contended that the tribunal erred in adopting the gross salary of deceased in assessing compensation and that the tribunal ought to have seen that the claimants would be entitled to only the actual loss and the non-consideration of the deduction like tax liability would be erroneous. hence, it was prayed to scale down the compensation awarded by the tribunal.14. on scrutiny of the impugned award of the tribunal and on hearing the submissions made by the highly competent counsels on either side, this court is of the view that (i) the rough sketch has not been marked in order to determine the ratio of contributory negligence of both the riders of the vehicles involved in the accident. (ii) the claimants had not furnished the details regarding statutory deductions in the salary of the deceased, (iii) without knowing the velocity with which the vehicles had been ridden by both riders, this court cannot determine with precision the ratio of contributory negligence. further, one of the riders of the vehicle had also expired and as such, this court cannot interfere in the findings arrived at for determining the ratio of the contributory negligence assessed by the tribunal.15. therefore, as per this court's view listed above as points (i) to (iii), no discrepancy conclusions arrived at regarding liability and quantum of compensation. as such, this court confirms the award passed by the tribunal. as per this court records, it is seen that this court had imposed a condition on the appellant / insurance company to deposit the entire compensation amount with accrued interests and costs on 06.01.2009.16. now, it is open to the all the claimants to withdraw their apportioned share amount, with accrued interest thereon, lying in the credit of m.c.o.p.no.2015 of 2004, on the file of the motor accidents claims tribunal, iii additional sub judge, tiruchirapalli, after filing a memo, along with a copy of this order, subject to deductions of withdrawals, made by the claimants, as per this court's earlier order.17. in the result, the c.m.a.(md)no.528 of 2008, filed by the claimants and c.m.a.(md)no.1745 of 2008, filed by the united india insurance company limited, are dismissed. consequently, the order passed in m.c.o.p.no.2015 of 2004, on the file of the motor accidents claims tribunal, iii additional sub judge, tiruchirapalli, dated 06.03.2007 is confirmed. there is no order as to costs. r n s to the iii additional sub judge, motor accidents claims tribunal, tiruchirapalli.

Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

08. 03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.528 of 2008 & C.M.A.(MD)No.1745 of 2008 C.M.A.(MD)No.528 o”

1. Rajalakshmi 2.R.Mahalakshmi 4.Minor Bhuvaneswari D/o.(Late) P.L.Rajamani (3rd petitioner represented by her mother first petitioner) 1 to 3 petitioners are residing at 1/132, Alanthur Agraharam, Trichy. ... Appellants Vs. 1.T.A.Ghouse Khan 2. United India Insurance Company Limited, 74, Salai Road, Trichy ”

018. ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the judgment and decree of the Motor Accidents Claims Tribunal, III Additional Subordinate Judge, Trichy in M.C.O.P.No.2015 of 2004, dated 06.03.2007 and enhance the same. !For Appellant s... Mr.V.Bharathidasan ^For Respondents ... Mr.C.R.Janarthan for R-1 - - - C.M.A.(MD)No.1745 of 2008 The United India Insurance Company Limited, 74, Salai Road, Trichy ”

018. ... Appellant Vs. 1.1.Rajalakshmi 2.R.Mahalakshmi 3.Minor R.Bhuvaneswari D/o.(Late) P.L.Rajamani (Minor third respondent is represented by her mother and next friend R.Rajalakshmi. ) 1 to 3 respondents are residing at 1/132, Alanthur Agraharam, Trichy.

4. T.A.Ghouse Khan ... Respondents (The fourth respondent set exparte before the Tribunal. Hence, notice to fourth respondent be dispensed with) PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 06.03.2007 passed in M.C.O.P.No.2015 of 2004, on the file of the Motor Accidents Claims Tribunal, III Additional Sub Judge, Tiruchirapalli. For Appellant ... Mr.G.Prabhu Rajadurai For Respondents ... Mr.V.Bharathidasan for R-1 to R-3 - - - :COMMON JUDGMENT The appellants / petitioners have preferred appeal in C.M.A.No.528 of 2008, against the judgment and decree passed in M.C.O.P.No.2015 of 2004, on the file of the Motor Accidents Claims Tribunal, III Additional Sub Judge, Tiruchirapalli.

2. The short facts of the case are as follows:- The petitioners, who are the wife and children of the deceased Rajamani have filed the claim in M.C.O.P.No.2015 of 2004, claiming compensation of a sum of Rs.20,00,000/- from the respondents for the death of the said Rajamani in a motor vehicle accident. It was submitted that on 18.05.2004, when the (deceased) Rajamani was riding on his 'bullet' motorcycle bearing registration not TN-45-X-8294, on the Thanjavur-Trichy Main Road, from east towards west, on the extreme left of the road, the first respondent's 'Bajaj Boxer' motorcycle bearing registration not TN-45-R-9373, coming on the same road and driven by its rider at a high speed and in a rash and negligent manner, dashed against the motorcycle ridden by the deceased (Rajamani) and caused the accident. As a result, the (deceased) Rajamani sustained grievous injuries and was admitted at the B.H.E.L. Hospital, Trichy, wherein he underwent treatment for 18 days but in spite of treatment, he succumbed to his injuries on 04.06.2004. At the time of accident, the deceased was aged 55 years and was employed as a Senior Technician in B.H.E.L. and earning a sum of Rs.21,805/- per month. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the 'Bajaj Boxer' motorcycle bearing registration not TN-45-R-9373.

3. The second respondent, in his counter has submitted that the rider of the first respondent's motorcycle rode the motorcycle in a careful and cautious manner and that the accident was caused only due to the negligence of the (deceased) Rajamani, who had suddenly turned his vehicle at a high speed and cut across the road. It was submitted that the petitioners should prove the age, income and occupation of the (deceased) Rajamani through documentary evidence. It was submitted that the claim was excessive.

4. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent riding of the rider of the first respondent's motorcycle bearing registration not TN-45-R-9373? (ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get?" 5. On the petitioners side, three witnesses were examined and four documents were marked as Exs.P1 to P4, viz., Ex.P1-copy of F.I.R. dated 02.06.2004, Ex.P2-copy of postmortem report, Ex.P3-case sheet (series) issued at Sea Horse Hospital, Trichy, Ex.P4-salary certificate of (deceased) Rajamani for the month of April 2004. On the respondent's side, no witness, no documents.

6. P.W.2, Selvamani, the eyewitness of the accident had adduced evidence that on the date of accident, when he was on his way to his work at 8 a.m., he had seen the (deceased) Rajamani proceeding on his motorcycle on the extreme left of the road, and that the first respondent's motorcycle, coming from north to south and ridden by its rider at a high speed and in a rash and negligent manner, dashed against the motorcycle ridden by the (deceased) Rajamani. He had deposed that he had given the complaint regarding the accident at the police station as per exhibit marked as P1.

7. The Tribunal observed that neither the petitioners nor P.W.2 had given any reasons as to why the complaint had been lodged only on 02.06.2004 for an accident that occurred on 18.05.2004. The Tribunal were not inclined to accept the statement of P.W.2 in his complaint that he was not aware that he should give a police complaint regarding the accident. Further, the Tribunal observed that P.W.2 in his cross-examination had admitted that the accident took place at the junction of four roads and that it took place in the middle of the junction. The Tribunal further observed that it had not been mentioned in the complaint that the (deceased) Rajamani had proceeded in his motorcycle on the extreme left of the road. The Tribunal opined that as the accident had occurred at the centre of the junction while four roads meet and as the complaint had been lodged after a delay of 15 days, only because of the reason that the (deceased) Rajamani had also been at fault in causing the accident. Though P.W.2 had admitted that he is aware of the fact that the complaint regarding an accident should be given immediately at the police station, he had stated in his complaint that he is not aware of that a complaint should be registered at the police station. Hence, the Tribunal opined that the statements made in the complaint by P.W.2 regarding his ignorance in filing the complaint on time was only to help the petitioners. The Tribunal further observed that the concerned hospital, wherein the (deceased) Rajamani was treated, had also not intimated to the police regarding the said accident. Hence, the Tribunal on opining that the delay in filing the complaint had been caused because of the fact that the (deceased) Rajamani had also contributed negligence in the occurrence of the accident and on observing that the accident had taken place in the centre of the junction of four roads held that contributory negligence is to be attributed to the riders of both vehicles in the accident and apportioned the contributory negligence amongst the rider of the first respondent's motorcycle and the deceased in the ratio of 75% :

25. .

8. P.W.1 had adduced evidence that her husband was working as a Senior Technician in B.H.E.L., Trichy and earning a sum of Rs.25,000/- per month. P.W.3, Mohan, the Manager of B.H.E.L, Trichy has adduced evidence that the last drawn pay to deceased Rajamani was Rs.11,629.53/- and in support of his evidence, had marked Ex.P4, salary certificate.

9. The Tribunal, on holding that the gross salary of the deceased could be taken as his monthly income for computation of loss of income held that the monthly income of the deceased was Rs.11,500/- per month. On deducting 1/3rd of the income for his personal expenses and on adopting a multiplier of '11', as was relevant to the age of deceased (55 years) as per postmortem report marked as Ex.P2, awarded a compensation of a sum of Rs.10,12,000/- to the petitioners under the head of 'loss of income' (Rs.11,500 x 2/3 x 12 x 11); Rs.10,000/- was awarded to the first petitioner under the head of loss of consortium and Rs.10,000/- was awarded under the head of loss of love and affection to the petitioners; Rs.5,000/- was awarded towards transport and Rs.5,000/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.10,42,000/- as compensation to the petitioners. However, the Tribunal on considering that contributory negligence attributed to the deceased was 25% held that the petitioners are entitled to receive a compensation of a sum of Rs.7,81,500/- only. The Tribunal directed the first and second respondents to jointly and severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within two months from the date of its order.

10. Not being satisfied with the award passed by the Tribunal, the petitioners have preferred the appeal in C.M.A.(MD)No.528 of 2008 .

11. The learned counsel for the appellants / claimants has contended in in his appeal that the Tribunal ought not to have taken the gross deductions for calculating the salary instead of gross earnings. It was contended that the Tribunal ought to have seen that the gross earning of the deceased was Rs.19,218/- and should not have taken the gross deductions which was Rs.11,629/- as per Ex.P4. It was contended that the Tribunal ought to have fixed 25% negligence on the part of the deceased without proper evidence on record. It was contended that the Tribunal ought to have seen that the respondents have not examined the driver of the offending vehicle, who is the best person to let in evidence as to whether there was any negligence on the part of the deceased and that the Tribunal erred in assessing 25% negligence on the part of the deceased when the F.I.R. was lodged against the rider of the offending vehicle. It was contended that the Tribunal ought to have taken into consideration the future prospects of the (deceased) as per the evidence of P.W.3, the Manage of B.H.E.L., where the deceased was working. It was contended that the award granted by the Tribunal under various heads were meagre and hence, it was prayed to grant an additional compensation of a sum of Rs.12,00,000/-.

12. Aggrieved by the award passed by the Tribunal, the second respondent / United India Insurance Company Limited has preferred the appeal in C.M.A.(MD)No.1745 of 2008.

13. The learned counsel for the appellant / United India Insurance Company Limited has contended in his appeal that the Tribunal erred inholding that the deceased had only contributed to the extent of 25% negligence on the accident overlooking the fact that it was the deceased, who was fully responsible for the accident. It was contended that the Tribunal after having accepted that the collision took place in the middle of the road and after holding that the deceased should have been more cautious is entering the main road, erred in fixing a lesser percentage of negligence on the part of the deceased. It was contended that the Tribunal erred in adopting a multiplier of '11' on the entire gross salary of the deceased, overlooking the fact that the deceased was aged 55 years and left with only three more years of service. It was contended that the Tribunal erred in adopting the gross salary of deceased in assessing compensation and that the Tribunal ought to have seen that the claimants would be entitled to only the actual loss and the non-consideration of the deduction like tax liability would be erroneous. Hence, it was prayed to scale down the compensation awarded by the Tribunal.

14. On scrutiny of the impugned award of the Tribunal and on hearing the submissions made by the highly competent counsels on either side, this Court is of the view that (i) the rough sketch has not been marked in order to determine the ratio of contributory negligence of both the riders of the vehicles involved in the accident. (ii) The claimants had not furnished the details regarding statutory deductions in the salary of the deceased, (iii) Without knowing the velocity with which the vehicles had been ridden by both riders, this Court cannot determine with precision the ratio of contributory negligence. Further, one of the riders of the vehicle had also expired and as such, this Court cannot interfere in the findings arrived at for determining the ratio of the contributory negligence assessed by the Tribunal.

15. Therefore, as per this Court's view listed above as points (i) to (iii), no discrepancy conclusions arrived at regarding liability and quantum of compensation. As such, this Court confirms the award passed by the Tribunal. As per this Court records, it is seen that this Court had imposed a condition on the appellant / Insurance Company to deposit the entire compensation amount with accrued interests and costs on 06.01.2009.

16. Now, it is open to the all the claimants to withdraw their apportioned share amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.2015 of 2004, on the file of the Motor Accidents Claims Tribunal, III Additional Sub Judge, Tiruchirapalli, after filing a Memo, along with a copy of this order, subject to deductions of withdrawals, made by the claimants, as per this Court's earlier order.

17. In the result, the C.M.A.(MD)No.528 of 2008, filed by the claimants and C.M.A.(MD)No.1745 of 2008, filed by the United India Insurance Company Limited, are dismissed. Consequently, the order passed in M.C.O.P.No.2015 of 2004, on the file of the Motor Accidents Claims Tribunal, III Additional Sub Judge, Tiruchirapalli, dated 06.03.2007 is confirmed. There is no order as to costs. r n s To The III Additional Sub Judge, Motor Accidents Claims Tribunal, Tiruchirapalli.