IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 23.02.2011 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI AND THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.M.A. NO.369 OF 2011 The Branch Manager Iffco Tokio General Insurance Co. Ltd., Old No.196, New No.28 II Floor, North Usman Road Near Kodambakkam Bridge T.Nagar, Chennai – 600 017. .. Appellant versus 1.Durga 2.Minor Sandreshwar 3.Andal (Rep by Mother and next friend 1st Respondent) 4.D.Selvanathan .. Respondents (4th Respondent exparte in the lower Court and hence notice may be dispensed with) Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.147 of 2008, dated 12.01.2010 on the file of Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.I, Tindivanam. For Appellant : Mr.N.Vijayaraghavan For Respondents : Mr.A.K.Kumarasamy * * * * * This Appeal has been filed by the appellant challenging the judgment and decree in M.C.O.P.No.147 of 2008 dated 12.01.2010 on the file of Motor Accident Claims Tribunal, Tindivanam, whereby the appellant was directed to pay a sum of Rs.25,60,000/- with costs. 2.A Claim Petition has been filed in S.C.M.C.O.P.No.74 of 2006 which has been renumbered as M.C.O.P.No.147 of 2008 on the file https://hcservices.ecourts.gov.in/hcservices/ of Motor Accident Claims Tribunal, Fast Track Court No.I, Tindivanam for a sum of Rs.1,00,00,000/- by the respondents 1 to 3 being the claimants and the legal representatives of the deceased, Mani. The first respondent is the wife of the deceased, aged about 29 years and the second respondent is the minor child. The third respondent is the mother of the deceased. It is the case of the respondents 1 to 3 that on 20.01.2006 at about 11.20 hours, the deceased was riding his Motorcycle and at that time the driver of the Mini Van bearing Registration No.P.Y.01.Z.8636 drove in a rash and negligent manner causing multiple injuries on the deceased. The deceased died in the Hospital on 22.01.2006. It is the further case of the respondents 1 to 3 that the deceased was running a business in 'San Energy Systems' earning a monthly income of Rs.60,000/-. He was a sole breadwinner of the family. Therefore under those circumstances, the claim was made against the appellant being the insurer of the vehicle belonging to the first respondent as well as the fourth respondent being the owner of the said vehicle. 3.Before the Court below, the fourth respondent was set exparte. The Tribunal has taken the income of the deceased as Rs.18,000/- and after deducting one third for personal expenses taken the income of the deceased as Rs.12,000/- adopting Multiplier 17. The Tribunal was pleased to award a compensation of Rs.25,60,000/- payable by the appellant, challenging the same the appellant has come forward to file this Appeal. 4.Mr.N.Vijayaraghavan, learned counsel appearing for the appellant submitted that the Tribunal has committed an error in applying the Multiplier of 17. The learned counsel has mainly contended on the question of quantum alone. The learned counsel further submitted that the Tribunal has committed an error in not making any deduction towards the income tax payable on the income of the deceased. It is the further submission of the learned counsel that the driver of the vehicle did not have a valid driving licence. Therefore, the learned counsel submitted that the Appeal will have to be allowed. 5.Per contra, the learned counsel appearing for the respondents 1 to 3 submitted that nobody has been examined on the part of the appellant to prove that the driver of the vehicle which caused the accident did not have any valid licence. The contention regarding no valid licence has not been raised before the Tribunal either in the counter affidavit or during arguments. It is for the appellant to prove the said contention. The Reference Court has passed the award based upon the material evidence available on record both oral and documentary. Three witnesses have been examined on the side of the respondents 1 to 3 and after considering the same, the Tribunal has passed the award. Taking into consideration of the age of the deceased at about 34 years at the time of the accident, the Multiplier of 17 was correctly adopted. The Tribunal has also https://hcservices.ecourts.gov.in/hcservices/ deducted 1/3rd of the income of the deceased towards his personal expenses. Hence, the learned counsel submitted that the Appeal will have to be dismissed. 6.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for respondents 1 to 3. 7.It is not in dispute in this Appeal that the question regarding non-possession of a valid licence has not been raised by the appellant before the Tribunal. It is only for the first time in this Appeal such a contention has been raised. Admittedly, the owner of the vehicle has set exparte. Therefore, it cannot be contended that the claimants will have to prove that the driver of the vehicle which caused accident did not have a valid licence at that relevant point of time. In this connection, it is useful to refer to a recent judgment of the Honourable Apex Court in MANAM SARASWATHI SAMPOORNA KALAVATHI vs. A.P. SRTC [(2010) 5 SCC 785) wherein it has been held as follows: "15. The High Court further observed in the impugned judgment that the possibility of the deceased, while driving the scooter at a high speed, falling down and sustaining head injury cannot be ruled out. This finding is totally contrary to the record of this case. PW 2 has categorically stated in his evidence that the deceased was driving slowly and cautiously on the left side of the road and the driver of the bus was driving the bus in a rash and negligent manner without blowing horn. 16. The High Court further observed that significantly the driving licence of the deceased was not produced. So the possibility of the deceased not possessing a driving licence, and his falling down due to lack of experience and sustaining the head injury cannot be ruled out. There is no basis, logic and rationality in arriving at this conclusion. 17. The High Court was totally unjustified in weaving out a new case which is not borne out from the evidence on record. Similarly, the High Court erroneously observed that the possibility of Respondents 1 to 5 (appellants herein) influencing the police and getting an FIR registered with time and date of their choice cannot be ruled out and the possibility of PW 2 not being with the deceased at the time of accident and his implicating a bus belonging to https://hcservices.ecourts.gov.in/hcservices/ the appellant (Respondent 1 herein) as having caused the accident also cannot be ruled out, because if really PW 2 was thrown away into the bushes due to the impact, as stated by him, he would have sustained at least some scratches and would have been referred to government hospital. The entire analysis of evidence by the High Court is erroneous and faulty. There was no basis for the High Court to come to the conclusion that the possibility of the respondents (appellants herein), influencing the police and getting the FIR registered with time and date of their choice cannot be ruled out." 8.Therefore, when the appellant has not raised such a plea before the Tribunal, it is not open to raise for the first time before this Court. The Appeal has been filed by the appellant under Section 173 of the Motor Vehicles Act, 1988. This Appeal is filed challenging the award passed by the Tribunal as erroneous. When a plea has not been raised and the Tribunal has not been called upon to decide the same then the award of the Tribunal cannot be challenged on such a plea. Hence, when there is no occasion for the Tribunal to consider a plea then the consequential non-consideration cannot make a award as erroneous. Therefore, the contention of the learned counsel for the appellant regarding the non-possession of the valid licence cannot be permitted to be raised for the first time before this Court. 9.The appellant did not seriously challenge the liability regarding the negligence caused by the driver of the vehicle injured by it. However, it is seen that as contended by the learned counsel for the appellant, the Tribunal has committed an error in not making deduction towards the income tax payable. Considering the age of the first respondent who was 29 years old and she being a widow coupled with the fact that the second respondent was a young child of 3 years and the third respondent was 65 years at the time of filing the application, we deem it fit that 10% deduction would appropriate towards income-tax. However, we find that the Multiplier of 17 adopted by the Tribunal is just and reasonable considering the age of the deceased who was 34 years at the time of the accident. 10.Therefore, the income of the deceased as fixed by the Tribunal at Rs.18,000/- is taken into consideration and Multiplier of 17 is adopted. We also deduct 10% towards income tax payable by taking note of the condition and age of the claimants as it is seen from the evidence that as they are the dependants of the deceased. The Tribunal has awarded a sum of Rs.25,000/- towards Loss of Consortium, Rs.50,000/- towards love and affection, Rs.22,000/- Medical expenses and Rs.15,000/- towards Transport Charges which are also confirmed. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, the income of the deceased after deduction of 1/3rd towards his personal expenses is fixed at Rs.22,03,200/-. We also add a sum of Rs.25,000/- towards Loss of Consortium, Rs.50,000/- towards love and affection, Rs.22,000/- for Medical expenses and Rs.15,000/- towards Transport Charges. In total, the compensation payable by the appellant is quantified to Rs.23,15,200/-. The said amount is ordered to be apportioned among the respondents 1 and 3 in the same ratio as ordered by the Tribunal with interest at the rate of 7.5% per annum from the date of filing of the Petition till the date of realisation. Respondents 1 and 3 viz., wife and mother of the deceased respectively are permitted to withdraw the entire compensation amount payable to them along with accrued interest. The amount awarded to the minor namely, the second respondent is directed to be deposited in a Fixed Deposit Scheme in any Nationalised Bank renewable once in three years till he attains majority. The cost awarded by the Tribunal is also confirmed. The 1st respondent is permitted to withdraw accrued interest on the deposit of the minor directly from the Bank periodically once in three months. 12.In the result, the Appeal is partly allowed to the extent that the award passed by the Motor Accident Claims Tribunal, Tindivanam in M.C.O.P.No.147 of 2008 is modified for a sum of Rs.23,15,200/- with interest at the rate of 7.5% per annum. However, there is no order as to costs. sd/- Assistant Registrar True Copy/- Sub Assistant Registrar sri https://hcservices.ecourts.gov.in/hcservices/ To The Additional District Court, Fast Track Court No.I, Motor Accident Claims Tribunal, Tindivanam +1 CC to Mr. N. Vijayaraghavan Advocate Sr no 13439 +1 CC to Mr. A.K.Kumaraswamy Advocate Sr no 13004 C.M.A. NO.369 OF 2011 JRG- CO KV - 05/05/2011 https://hcservices.ecourts.gov.in/hcservices/