1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.11.2011 CORAM: THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.413 of 2011 and Cross Objection(MD)No.33 of 2011 and M.P.(MD)No.1 of 2011 National Insurance Co. Ltd., Divisional Office, Post Box No.40, Bank Road, Kannur-670 001. Kerala State : Appellant/Respondent-2 Vs. 1.Ramayee : 1st Respondent/Petitioner 2.TM.Jafarudheen : 2nd Respondent/Respondent-1 Prayer: Appeal is filed under Section 173 of the Motor Vehicles Act 1988, to set aside the judgment and decree, dated 30.07.2009 and made in MCOP No.178 of 2006 on the file of the Motor Accident Claims Tribunal (District Court), Karur. Cross Appeal (MD)No.33 of 2011: M.Ramayee : Cross objector vs. 1.National Insurance Co. Ltd., Divisional Office, Post Box No.40, Bank Road, Kannur-670 001, Kerala State 2.TM.Jafarudheen : Respondents Prayer in Cross Objection (MD)No.33 of 2011: Cross objection is filed under Order 41 Rule 22 C.P.C, against the judgment and decree, dated 30.07.2009 and made in MCOP No.178 of 2006 on the file of the Motor Accident Claims Tribunal (District Court), Karur. For Appellant/ 1st Respondent : Mr.S.Srinivasa Raghavan For 1st Respondent/ Cross Objector : Mr.T.Selvakumaran For 2nd Respondent : Ms.Punitha Selvakumaran (No Appearance) https://hcservices.ecourts.gov.in/hcservices/ 2 COMMON JUDGMENT This Civil Miscellaneous Appeal is directed against the award, dated 30.07.2009 and made in MCOP No.178 of 2006 on the file of the learned Motor Accident Claims Tribunal (District Court), Karur. 2.The respondent Insurance Company is the appellant herein. The claimant is the first respondent and the first respondent, who is the owner of the vehicle, in the claim petition is the 2nd respondent herein. 3.The first respondent/claimant is the mother of the deceased Ramanathan. That on 5.2.2006 at about 10.00 p.m. on the slope of Karur to Salem Bye-Pass road at Karur Railway Over Bridge, a Premier Road Star vehicle bearing registration No.KL-09-S-4556, belonging to the first respondent had hit violently on the rear side of the Yamaha Motor Cycle bearing Registration No.TN47-L-7661, when it was ridden by the deceased from north to south. As a result of which, he had sustained multiple grievous injuries over his head and all over his body. Soon-after the occurrence, he was removed to Amaravathi Hospital, Karur and from-where he was referred to K.M.C.H, Coimbatore. But he had succumbed to injuries on the way to hospital. At the time of accident, the deceased was aged about 28 years and he was working as a 'Grade-III Librarian' at the Branch Library, Inam Karur and thereby, he was getting a sum of Rs.6,578/- per month. Hence, the first respondent/claimant, being the mother of the deceased, has filed a claim petition in MCOP No.178 of 2006 on the file of the learned Motor Accident Claims Tribunal (District Court), Karur, claiming a sum of Rs.12,00,000/-. 4.The 2nd respondent herein, who is the owner of the vehicle, had contested the claim petition saying that his vehicle never involved in the accident and some other unidentified vehicle would have hit against the motor cycle driven by the deceased Ramanathan and on account of the accident, the Yamaha Motor Cycle driven by the deceased Ramanathan would have fallen down on the middle of the road, which would not have been visible to the eyes of the driver due to illuminating lights of the on coming vehicles. 5.He has further submitted that his vehicle had hit only against the motor cycle, which was found lying on the middle of the road and not against the deceased Ramanathan. 6.The appellant Insurance Company had also contested the claim petition, disputing the negligence on the part of the driver of the first respondent's Premier Road Star vehicle bearing Registration No.KL-09-S-4556. Apart from this, the appellant Insurance Company had also contested the claim with regard to quantum. 7.In order to substantiate their respective claims, the parties to the claim proceedings were made to face the trial. The first respondent/claimant had examined herself as PW1. One S.Balasubramanim, who is the Complainant to the police as well as the https://hcservices.ecourts.gov.in/hcservices/ 3 eye witness to the occurrence has been examined as PW2. Besides them, one Johnson Manuvel, who is the Superintendent of District Library, Karur, has also been examined as PW3. During the course of their examination, Exs.P1 to P18 were marked. 8.On the other hand, one Mr.Rajendran, the Executive Officer of the appellant Insurance Company had examined himself as RW1. Besides him, one Sebastian, Investigator of the appellant Insurance Company has been examined as RW2. During the course of their examination, Exs.R1 & R2 were marked. 9.On appraising the evidences, both oral and documentary, the learned Motor Accident Claims Tribunal had proceeded to pass an award of Rs.5,20,000/- directing the appellant Insurance Company to deposit this amount, within three months along with interest at the rate of 7.5% p.a. from the date of claim petition till the date of deposit. Challenging the award, the Insurance Company stands before this court with this appeal. 10.Similarly, the 1st respondent herein who is claimant, challenging the award has preferred the cross appeal seeking the relief of enhancement of compensation. 11.Heard Mr.S.Srinivasa Raghavan, the learned counsel appearing for the appellant Insurance Company and Mr.T.Selvakumaran, the learned counsel appearing for the 1st respondent/claimant. The 2nd respondent, who is the owner of the vehicle, has not chosen to appear and as such, he remained absent. 12.Mr.S.Srinivasa Raghavan, the learned counsel appearing for the appellant Insurance Company has based his arguments only on two grounds:- (1)Negligence; and (2)Quantum 13.Negligence: It is manifested from the counter filed by the 2nd respondent/owner of the vehicle, in which, he has taken a stand that the two wheeler of the deceased could have been hit by some other unidentified vehicle and as a result of which, the two wheeler could have fallen on the middle of the road, when his vehicle was proceeding near the slope of the Railway Over-Bridge. On account of illuminating lights from the on coming vehicles, it was not visible to the eyes of the driver of his vehicle and hence, the Premier Road Star vehicle bearing Registration No.KL-09-S-4556 had hit only against the motor cycle, which was found fallen on the middle of the road and not against the deceased Ramamathan. This contention has not been substantiated by the 2nd respondent/the owner of the vehicle and in the absence of proof to that effect, it could not be heard to say that some other unidentified vehicle could have hit against the two wheeler of the deceased Ramanathan. Hence, this contention is over- ruled. The learned Tribunal has also not accepted the contention raised by the 2nd respondent/owner of the vehicle. https://hcservices.ecourts.gov.in/hcservices/ 4 14.The appellant Insurance Company has also taken the same stand before this court which cannot be accepted. 15.Two witnesses were examined on the side of the appellant Insurance Company and thereby, the appellant Insurance Company was trying to fasten the negligence on the part of the deceased himself. 16.RW1 is one Rajasekaran, who is working as an Executive Officer in the Zonal Office of the appellant Insurance Company. He has fairly admitted that the 2nd respondent's vehicle bearing Registration No.KL-09-S-4556 was insured with the appellant Insurance Company for the period commencing from 2.12.2005 to 1.12.2006. 17.He has also deposed that RW2, Sabastian was appointed as an Investigator on behalf of the Insurance Company to investigate about the manner of accident. 18.He would further submit that R.W.2 had investigated about the manner of the accident and submitted a report under Ex.R1, in which, he had stated that the Premier Road Star vehicle bearing registration No.KL-09-S-4556 was not involved in the accident and that when the deceased Ramanathan was riding his Yamaha motor cycle, some other unidentified vehicle had hit against the motor cycle and as a result of which he had sustained injuries and subsequently, succumbed to injuries, but the 2nd respondent's driver, one C.Sri Pradeep belonging to Palakkad, Kerala State, had never caused the alleged accident. 19.RW2, Sebastain, who was appointed as an Investigator has also deposed the same fact before this court. 20.This court has carefully perused the testimonies of RW1 and RW2 as well as Ex.R1, the Investigation Report. In this connection, this court finds that the evidences adduced by RW1 and RW2 cannot be accepted. 21.This court would like to place it on record that the Investigator, who is appointed by the Insurance Company to investigate the manner of accident, is not a competent person to give evidence with regard to negligence of the driver, who had actually caused the accident. The proper person, who is having competency to speak about the accident is the person, who happens to be an eye witness to the occurrence or if the victim is an injured person, he can speak about the negligence. But the Investigator, without analysing the real fact, cannot speak about the negligence. 22.On coming to the instant case on hand, P.W.2 is the eye witness. On perusal of his evidence, he has given a vivid account about the manner of accident. As per his evidence, that on 5.3.2006 at about 10 p.m. he was proceeding in his two-wheeler along with his friend Sivakolunthu as pillion rider from south to north and in front of them, at a distance of 50 feet, the deceased Ramanathan was proceeding in his Yamaha Motor Cycle bearing Registration No.TN-47-L- 6661. While so, on the slope of Karur Railway Over-Bridge, the https://hcservices.ecourts.gov.in/hcservices/ 5 vehicle called as 'Premier Road Star' bearing Registration No.KL-09- S-4556 had proceeded fast after overtaking his vehicle and subsequently, hit against the rear side of the motor cycle ridden by the deceased Ramanathan. On account of this, the deceased had sustained severe injuries and fallen on the road without concious. Immediately, he along with his friend had arranged an ambulance and taken the deceased Ramanathan to Amaravathi Hospital, Karur and thereafter, he was referred to K.M.C.H, Coimbatore, for further treatment. He himself has admitted that he had lodged the complainant, Ex.P1. According to P.W.2, the accident was taken place only on account of rashness and negligence on the part of the driver of the Premier Road Star Vehicle bearing Registration No.KL-09-S-4566. 23.It is quite relevant to note here that the appellant Insurance Company has miserably failed to put, the driver of the offending vehicle, into the box in order to establish its contention. Even, the 2nd respondent, who is the owner of the vehicle has also miserably failed to substantiate his stand by summoning his driver to disprove the claim of the claimant. 24.With regard to negligence, the driver, who is on the steering wheel must take reasonable care to avoid acts or omissions, which can reasonably foresee would be likely to injure pedestrian or the persons driving in the two wheeler or some other vehicles. 25.In general, the negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs would do, or doing something, which a prudent and reasonable man would not do. 26.In Blyth vs. Birmingham Water works Co., (1856) 11 Ex 781 : Bridges v. Directors, etc. of N.L. Ry., (1873-74) LR 7 HL 213, it has been held that actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom, the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. 27.According to WINFIELD, negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. [Heaven v. Pender, (1883) 11 QBD 503: Swan v. North British Australasian Co., (1862) 7 H & N 603]. 28.The general principle of foreseeability and proximity applicable in solving cases presenting the existence or otherwise of a new duty situation was laid down by LORD ATKIN in the celebrated case of Donoghue v. Stevenson [1932 AC 562: 147 LT 281: 48 TLR 494 (HL), in the following words:- “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be, persons who are so https://hcservices.ecourts.gov.in/hcservices/ 6 closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which one can reasonable foresee would be likely to injure another. This is the principle of foreseeability.” 29.With regard to burden of proof, in Hammack v. White, 1862) 11 CBNS 588: LJCP 129: Manzoni v. Douglas, (1880) 6 QBD 145, it is held that “as a rule, the onus of proving negligence is on the plaintiff. He must show that he was injured by an act or omission for which the defendant is in law responsible.” 30.It is also held that “there must be proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff.” 31.In Dekhari Tea Co Ltd., v. Assam Bengal Ry. Co. Ltd., (1919) ILR 47 Cal 6, it is held that “where the plaintiff has adduced evidence sufficient to call upon the defendant to reply and the defendant thereupon, being under the burden of laying the material facts before the Court, has refrained from doing so, the onus of proving negligence is discharged by the plaintiff.” 32.Apart from this, this court has also would like to place reliance upon the decision in Vidya Devi v M.P. State Road Transport Corporation, [1974 ACJ 374 (MP (376)]. In this case, it is held that “ordinarily, a person who drives a vehicle on highway has a duty to take reasonable and proper precaution in the use of the vehicle. The driver must exercise not only care but also skill. He must observe the ordinary rules of the road. He should not drive at an excessive speed. What is an excessive speed will depend upon the surrounding circumstances of the case.” 33.On coming to the instant case on hand, PW2 who is the eye witness for the occurrence, has clearly spoken to about the manner of accident. According to him, the vehicle, which was overtaking his vehicle and proceeding further in a hectic speed had dashed against the rear side of the motor cycle, ridden by the deceased Ramanathan. This accident was taken place at the distance of 50 feet in front of P.W.2, when he was proceeding behind the deceased Ramanathan. Therefore, this court has attached much weight to the evidence of P.W.2 and discarded the evidence of R.W.1 and R.W.2. The practice of adducing evidence through the Investigator of the Insurance Company, who is not at all able to give correct account of the negligence, is highly deplorable and to be deprecated. 34.Quantum:-At the time of occurrence, it is established that the deceased Ramanathan was working as Grade-III Librarian of Branch Library, Inam Karur, and was getting a sum of Rs.6,578/- per month towards his salary. After deduction, his net pay was Rs.4,228/-, as evident from Ex.P14, the salary certificate issued by the District Library Officer, Karur. https://hcservices.ecourts.gov.in/hcservices/ 7 35.Before Sarla Verma's case, nothing was schemed out to ascertain the future prospects, but after Sarla Verma's case, the courts were guided to scheme out the future prospects of the deceased, who happens to die, while he was in permanent employment. 36.In the present case on hand, the deceased was getting a sum of Rs.6,578/- towards his monthly salary. It was argued by Mr.T.Selvakumaran, the learned counsel appearing for the 1st respondent, the pay revision effected under 6th Pay Commission can be taken into consideration for the future prospectus. But Mr.S.Srinivasa Raghavan, the learned counsel appearing for the appellant Insurance Company has submitted that the Pay Revision could not be taken into account for compensation. He has also submitted that the gross salary, which was drawn by the deceased, at the time of his death, must be the basis to calculate his future prospectus. 37.As observed in Sarla Verma's case, since the deceased was aged about 28 years at the time of accident, 50% could be given deduction towards personal and living expenses, in order to calculate the future prospects. Since he was in the age group of below 40 years, 50% of the actual salary can be added for his gross salary. Generally, the actual income of the deceased, less income tax, should be the starting point for calculating the compensation. The monthly income of the deceased at Rs.6,578/- is not subject to either professional tax or income tax and therefore, it can be taken as a whole for arriving at the quantum. 38.Accordingly, the monthly income of the deceased as per Ex.14 is Rs.6578/-. 50% of the salary towards future prospectus comes to Rs.3289/-. In total, the monthly income of the deceased is determined at Rs.9,867/-. 39.On the basis of this calculation, the annual dependency would be Rs.1,18,404/-. Since, the age of the mother of the deceased was 49 at the time of accident, as per Sarla Verma's case, '13' is the appropriate multiplier. 40.On application of this multiplier, it comes to Rs.15,39,252/-. After giving deduction of 50%, the remainder 50% comes to Rs.7,69,626/-. In total, the first respondent, who is the cross objector is entitled to get a sum of Rs.8,14,626/- in the following manner:- S.No. Heads Amount[Rs.] 01. Annual dependency of the deceased Rs.7,69,626-00 02. Towards of loss of love and affection Rs. 20,000-00 03. Medical Expenses Rs. 20,000-00 04. Funeral Expenses Rs. 5,000-00 In Total Rs.8,14,626-00 https://hcservices.ecourts.gov.in/hcservices/ 8 41.In the result, the Civil Miscellaneous Appeal is dismissed and accordingly, the cross objection is allowed. The appellant Insurance Company is directed to deposit this amount viz., Rs.8,14,626/- within two months from the date of receipt of a copy of this order along with the accrued interest and costs at the rate of 7.5% p.a. from the date of claim petition before the learned Tribunal, less the amount, if any deposited already. On such deposit being made, the first respondent/claimant is entitled to withdraw the 50% of the amount directly from the learned Tribunal, without filing any formal application with proportionate interest and costs. The remaining balance shall be invested in a fixed deposit scheme in any of the nationalised Banks for the period of three years. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar(AS) /True Copy/ Sub Assistant Registrar To The Principal District Judge, Karur. CMA(MD)No.413 of 2011 and Cross Objection No.33/11 25.11.2011 er NSV 24.7.12/8P/2C https://hcservices.ecourts.gov.in/hcservices/