IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Civil Miscellaneous Appeal Nos.2712/2004 and 1395 of 2004 C.M.A.No.2712 of 2004: National Insurance Company Limited, Divisonal Office, Officer's Line, Vellore. ... Appellant./ 3rd Respondent vs. 1.Dr.Geetha Durairaj 2.D.Murali Krishnan 3.Minor D.Vaishnavi 4.S.M.Jainullabutheen 5.R.Ganesan 6.J.Palanisamy Udayar ... Respondents/ Petitioners 1 to 3 / Respondents 1,2, & 4 C.M.A.No.1395 of 2004:- 1.Dr.Geetha Durairaj 2.D.Murali Krishnan 3.D.Vaishnavi ... Appellant./ Petitioners [3rd Appellant declared as major and 1st Appellant discharged from guardianship as per order dated 14.09.2006 in CMP.No.9086/2006] Vs. 1.S.M.Jainulallabutheen 2.R.Ganesan 3.National Insurance Company Limited, Divisional Office, Officer's Line, Vellore. 4.J.Palanisamy Udayar ... Respondents./ Respondents https://hcservices.ecourts.gov.in/hcservices/ Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the otfrt fsyrf 24.11.2003 in MCOP.No.14 of 2002 on the file of Motor Accident Claims Tribunal [Fast Track Court], Vellore. For Appellant in CMA.No.2712/04 : Mr.N.Vijayaraghavan & 3rd Respondents in CMA.No.1395/04 For Respondents 1 & 3 in CMA. No. : Mr.R.Singaravelan 2712/04 and for Appellants in CMA. Mr.V.Parivallal No.1395/04 CMA.No.2712/2004 : R4 – Notice dispensed with. R5 – Given up R2 & R6 – No Appearance. CMA.No.1395/2004 : R1 & R4 – No Appearance. COMMON JUDGMENT R.BANUMATHI,J Feeling aggrieved by the apportionment of negligence and liability in MCOP.No.14/2002 – apportioning 60% negligence to the van driver bearing registration No.PY-01 B 8245 and quantum of compensation, Appellant-Insurance Company has filed CMA No.2712/2004. 2. Feeling dissatisfied with the quantum of compensation as well as apportioning 40% negligence and liability to the deceased- Dr.Durairaj, Claimants have preferred CMA.No.1395/2004. 3. Since, both the Appeals arise out of the same order and point for consideration are one and the same, both the Appeals were taken up together and disposed of by this Common Judgment. For convenience, the parties are referred in the original rank in CMA.No.2712/2004 preferred by the Appellant-National Insurance Company. 4. Brief facts are that on 28.05.1996 while deceased- Dr.Durairaj was returning home from his hospital by 11.30 P.M. in his Fiat car bearing registration No.TNW 6886, the Tempo Goods van bearing registration No.PY-01 B 8245 owned by the 4th Respondent and driven by the 5th Respondent coming in the opposite direction heavily loaded with electrical transformers dashed against the Fiat car of https://hcservices.ecourts.gov.in/hcservices/ the deceased. Due to the impact, deceased sustained multiple injuries. Immediately, Dr.Durairaj was admitted in Government Hospital, Villupuram where he succumbed to the injuries. Regarding the accident, criminal case in Crime No.324/1996 of Villupuram Town Police Station under Secs.279, 337 and 304(A) IPC was registered against the van driver. At the time of accident, deceased was aged 41 years and he was a specialist and a post graduate Doctor running a private hospital at Villupuram in the name of Murali Krishna Hospital. Alleging that the accident was due to rash and negligence driving of the tempo van bearing registration No.PY-01 B 8245, the Claimants who are wife, son and daughter have filed Claim Petition claiming compensation of Rs.75,00,000/-. 5. Resisting the Claim Petition, Appellant-Insurance Company has filed counter contending that the accident was occurred due to rash and negligent driving of the deceased himself and that he contributed to the accident. Appellant-Insurance Company also averred that the Claimants have to prove that they are the legal heirs of the deceased and that the monthly income of the deceased stated in the Claim Petition is on the higher side. 6. 6th Respondent-Palanisamy Udayar, father of the deceased had filed MCOP.No.587/1997 on the file of Sub-Court, Vellore. Later he was impleaded as 4th Respondent in MCOP.No.14/1992 filed by the wife, son and daughter of the deceased. In MCOP. No.14 of 1992, father of the deceased filed counter contending that the entire compensation amount claimed by the Claimants could be disbursed to the Claimants themselves as he is interested only in their welfare. 7. Before the Tribunal, 1st Claimant-Dr.Geetha Durairaj was examined as PW1. One Velumani, who was an eye-witness to the accident was examined as PW2. One Mahendran, who was the Auditor of deceased was examined as PW3. One Panchatsaran, who was then working as Inspector in Income tax Office, Villupuram was examined as PW4. Exs.A1 to A41 were marked. Onbehalf of the Appellant- Insurance Company its Investigator viz., Mukunthan was examined as RW1 and Exs.B1 to B6 were marked. 8. Upon consideration of oral and documentary evidence, Tribunal held that deceased also contributed to the cause of accident along with van driver and fixed the liability of the van driver and the deceased at 60% [van driver] : 40% [deceased] respectively. On the basis of Ex.A41, the annual income of the deceased was fixed at 2,25,720/ [Rs.1,12,860 x 2]. As the deceased was aged 42 years at the time of accident, Tribunal adopted multiplier '15' and calculated the loss of dependency at Rs.33,85,800/-. Deducting 1/3rd towards his personal expenses, Tribunal calculated the loss of dependency at Rs.22,57,200/-. Out https://hcservices.ecourts.gov.in/hcservices/ of the said compensation of Rs.22,57,200/-, 60% of the liability was fixed upon the tempo van and Appellant-Insurance Company i.e. Rs.13,54,320/-. Tribunal has also awarded Rs.5000/- towards funeral expenses, Rs.10,000/- towards loss of love and affection and another Rs.10,000/- towards loss of consortium, totalling into Rs.13,79,320/- payable with interest at the rate of 9% p.a. from the date of filing of Claim Petition. 9. Mr.Vijayaraghavan, learned counsel for Appellant-Insurance Company [CMA.No.2712/2004] has submitted that Tribunal erred in fixing the contributory negligence only to the extent of 40% on the deceased instead of holding that deceased was entirely responsible for the accident. It was submitted that without any basis, Tribunal has taken the annual income of the deceased at Rs.2,25,720/- and the total loss of dependency fixed at Rs.22,57,200/- is very much on the higher side. Learned counsel would further contend that Ex.A41 was subsequent to the accident and there was no credible income tax assessment or any other documentary proof for the employment and earnings of the deceased and the total compensation awarded by the Tribunal is very much on the higher side and is to be reduced. 10. Mr.R.Singaravelan, learned counsel appearing for Respondents-Claimants [CMA.No.1395/2004] submitted that on irrational and unjustifiable ground, Tribunal attributed 40% negligence and liability to the deceased. It was further submitted that even though van driver was not examined to disprove the averments of the Claimants, Tribunal was not right in fixing 40% liability on the deceased. It was further argued that Tribunal erred in ignoring that the van driver has admitted his guilt in the criminal case and paid fine as is seen from Ex.A6. 11. Upon consideration of submissions, evidence and materials on records, the following points arise for consideration:- (1)Whether the accident occurred due to rash and negligent driving of 5th Respondent-van driver? (2)Whether the Tribunal was right in finding that deceased also contributed to the accident and Whether Tribunal was right in fixing 40% negligence/liability upon the deceased himself? (3)Whether the quantum of compensation awarded by the Tribunal is just and reasonable and whether it warrants enhancement? https://hcservices.ecourts.gov.in/hcservices/ 12. Point Nos.1 and 2:- To prove the accident, PW2-Velumani, native of Villupuram who is running printing press in Villupuram was examined. In his evidence, PW2 has stated that on 28.5.1996 at 11.30 P.M., in front of his house while he was talking with his friends, mini van bearing registration No.PY-01 B 8245 driven in a rash and negligent manner came from east to west. At that time, the deceased Dr.Durairaj was driving his Fiat car bearing registration No.TNW 6886 from west to east. In his evidence PW2 has stated that the van which came at very high speed dashed against the car and further went ahead and hit on the cyclist and thereafter came to a halt after hitting a tamarind tree and after the accident the driver of the van got down and left the place. In his evidence, PW2 has further stated that deceased sustained grievous injuries and he took Dr.Durairaj in a transport bus to the Government Hospital, Villupuram where deceased succumbed to the injuries. 13. On the basis of the complaint given by PW2, case in Crime No.324/1996 under Sections 279, 337 and 304(A) IPC was registered against the van driver. Evidence of PW2 is amply strengthened by the contents in Ex.A1-FIR. After completion of investigation charge sheet [Ex.A6] was filed against the van driver in C.C.No.212/98 on the file of J.M.No.I, Villupuram. As seen from Ex.A6-charge sheet, PW2-Velumani has been shown as first prosecution witness. PW2 being the native of Villupuram whose house is situated nearby the place of accident, who set the criminal law in motion is a natural witness to speak about the negligent driving of the van driver, much evidentiary value to be attached to the evidence of PW2. 14. In his evidence, PW2 has stated that after the accident, the van hit against the cyclist and thereafter hit the tamarind tree. While lodging complaint, in the FIR, PW2 has not spoken about the van hitting against the tamarind tree. Observing that there is variance in the version of PW2, Tribunal held that evidence of PW2 as to the negligent driving of van driver cannot be accepted. Tribunal chosen to attribute 40% negligence on the deceased observing that the time of accident was late night and the deceased Doctor after attending his patients might have rushed home and might have been in a sleepy mood after working for the whole day. Tribunal further observed that there is no evidence to hold whether deceased had taken care and caution in driving the car and that had he exercised due care and caution, he could have averted the accident and held that deceased had also contributed to the accident. Observing that the van carried transformer for installation, duty of the van driver was more and on those findings, apportioning the negligence on the van driver at 60% and deceased at 40%. https://hcservices.ecourts.gov.in/hcservices/ 15.PW2, eye witness has categorically spoken about the rash and negligent driving of the van driver. Cogent and convincing evidence is required to discard the evidence of PW2. As regards contributory negligence, burden is upon the person who alleges contributory negligence to prove such a defence and it is not for the Claimants to disprove it. Tribunal erred in saying that Claimants have not adduced evidence to show that deceased had taken care and caution in driving his vehicle. The driver of van which was carrying transformer materials during night time ought to have adopted safe and cautious driving. The van driver was not examined to show the degree of care which he had taken. From the evidence of PW2, it is seen that after dashing against the car, the van hit the cyclist and that thereafter came to a halt after dashing against the tamarind tree. Applying doctrine of res ipsa loquitor, it is clear that it was because of the rash and negligent driving on the part of van driver, the accident had taken place. The hit by the van was so powerful and the van proceeded further hit against the cyclist and thereafter came to a halt after hitting the tamarind tree. The Award of the Tribunal has not referred to these aspects. We are therefore, convincing that there was no question of contributory negligence on the part of deceased. 16. Question of contributory negligence in the case of collision was considered by the Supreme Court, in 2009 (1) Supreme 787 [Usha Rajkhowa and others v. Paramount industries and others]. Referring to other decisions, the Supreme Court held as under:- "10. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others reported in 2002 (6) SCC 455. That was also a case of collusion in between a Car and a truck. It was observed in Para 8:- "The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." https://hcservices.ecourts.gov.in/hcservices/ This Court further relied on an observation of High Court of Australia in Astley v. Austrust limited reported in 1999 (73) ALJR 403 to the following effect:- "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owned by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.' Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Punchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden." 17. Keeping the above principles in mind, in the instant case, we find that there was absolutely no evidence to prove contributory negligence. Neither the van driver was examined nor rough plan prepared in the criminal case was produced by the Appellant- Insurance Company. It is pertinent to note that in the charge sheet filed against the van driver in C.C.No.212/1998, the van driver had admitted the offence and paid fine. The fact that van driver has https://hcservices.ecourts.gov.in/hcservices/ admitted the offence indicates that he had no substantial defence to offer. Strangely, Tribunal has not referred to the admission of the guilt by the van driver. 18. Tribunal proceeded on the erroneous footing presuming that deceased Dr.Durairaj ought to have been in a sleepy mood after day's long work at late night at 11.30 P.M. Question of contributory negligence is not a matter of just assumption or presumption and it has to be established by substantive evidence. After filing necessary application under Section 170 of Motor Vehicles Act, Appellant-Insurance Company must have adduced proper evidence to substantiate the plea of contributory negligence. Appellant- Insurance Company examined RW1, its Investigator and produced Ex.B1- Investigation report. Ex.B1-Investigation report is of no avail to substantiate the plea of contributory negligence. In the absence of any evidence adduced by the Appellant-Insurance Company like producing rough plan and other materials, Tribunal was not justified in holding that deceased also contributed to the accident. 19. In the counter-affidavit, Appellant-Insurance Company has made a feeble attempt that deceased did not have valid driving licence. Ex.A4 is the driving licence of the deceased from which it is seen that he was having valid driving licence to drive the four wheeler. In our considered view, Tribunal was not right in holding that deceased also contributed to the accident and Tribunal erred in fixing contributory negligence at 40% on the deceased. The conclusion of the Tribunal attributing 40% liability on the deceased is liable to be set aside and Point Nos.1 and 2 are answered accordingly. 20. Point No.3:- Deceased was a medical practitioner and running hospital in Villupuram in the name of his son Murali Krishnan as "Murali Krishna Hospital" with 30 beds, Laboratories, Pharmacies and other emergency units. In her evidence, PW1- Dr.Geetha Durairaj has stated that nearly 17 to 20 staff were employed in the hospital. To show the educational qualification of the deceased, Exs.A11 to A15 were produced. It is seen from Exs.A11 to A15, deceased has got his MBBS degree in April 1979 and he has obtained his MD degree from Madurai Kamarajar University in the year 1989 and he has also obtained Ph.D in the year 1996. It is also seen from Exs.A23 to A28, deceased was running hospital of his own at Villupuram. Apart from running the hospital of his own, deceased was also the visiting specialist in various hospitals in Villupuram and earning substantially. Deceased was well qualified in the field of medicine, he was an income tax assessee. Exs.A29, A30 and A33 are the income tax assessment order. Exs.A35, A37 are the copy of income tax return and Exs.A36, A38 and A39 are the copy of assessment order and return of income tax in the name of deceased Dr.Durairaj. Ex.A41 is the income tax return of the deceased up to 31.08.1996 and the return was filed on 28.01.1997. The accident https://hcservices.ecourts.gov.in/hcservices/ occurred on 28.05.1996. Ex.A39 is the income tax return in the name of deceased for the year 1994-1995 and the return was filed on 09.2.1996 where the total income for the assessment year 1994-1995 [01.04.1993 to 31.03.1994] was shown as Rs.64,840/- and total tax of Rs.6,332/- was paid. Ex.A40 is the income tax return in the name of deceased for the assessment year 1995-1996 and the return was filed on 09.02.1996 where the total income for the assessment year 1995- 1996 [01.04.1994 to 31.03.1995] was shown as Rs.84,850/- and total tax of Rs.10,866/- was paid. Ex.A41 is the assessment order and acknowledgment and return of income tax of the deceased for the assessment year 1996-1997 [01.04.1995 to 31.03.1996]. From the Profit and Loss Account for the year ending on 31.03.1996 attached in Ex.A41, it is seen that deceased has shown profit at Rs.1,82,265/- and he had also shown taxable income at Rs.1,12,860/- and paid income tax of Rs.19,858/-. 21. Tribunal has taken the taxable income of Rs.1,12,860/- as the income for the first half of the financial year 1996-1997. By saying so, Tribunal has taken the annual income of the deceased at Rs.2,25,720/-. The approach adopted by the Tribunal in taking Rs.1,12,860/- as the income for the first half of the financial year and calculating the annual income at Rs.2,25,720/- is not the correct approach. 22. Going by the income of the deceased, from Exs.A39, A40 and A41, it is seen that income of the deceased was increasing every year. Based on Ex.A41, income of the deceased is taken at Rs.1,82,265/- rounded off to Rs.1,80,000/-. As spoken by PW1, deceased was maintaining 30 beds hospital with all infrastructure employed more than 17 persons and was also having Pharmacies and other emergency units. Deceased also highly qualified medical practitioner. 1st Petitioner is also a Doctor. Though, she has been running the hospital and having fair/good practice at Vellore, the deceased with the assistance of PW1, he would have earned more. Apart from maintaining the hospital, deceased was also the visiting specialist in various hospitals in Villupuram and was earning substantially good income. Having regard to the high qualification of the deceased and the hospital with well infrastructure which he was running, it would be appropriate to give 50% increase for the future prospects. 23. By giving 50% for future prospects i.e. Rs.90,000/-, the annual income of the deceased is fixed at Rs.2,70,000/- [Rs.1,80,000/- + Rs.90,000/- = Rs.2,70,000/-]. Deducting 1/3rd for personal expenses, the pecuniary loss is calculated at Rs.1,80,000/-. First Claimant is said to be having separate practice. Both in his evidence and Ex.B1-report, RW1 has stated that the investigation revealed that 1st Claimant was having differences with the deceased Dr.Durairaj and due to which she has separate practice. During trial in the Tribunal Appellant-Insurance https://hcservices.ecourts.gov.in/hcservices/ Company has raised objection as to the dependency of Claimants. Excepting the ipsi dixit of RW1, there is no other evidence to show that there was differences between the 1st Claimant and the deceased. In fact, 6th Respondent, father of the deceased filed MCOP.No.587/1997 stating that the entire compensation could be paid to the Claimants as his wishes are only the welfare of the Claimants. 24. Assuming that there were differences between the 1st Claimant and deceased that cannot be the reason to hold that Claimants were not dependent upon the deceased. 2nd and 3rd Claimants being son and daughter of the deceased, at the time of accident they were aged only 14 years and 10 years respectively and evidently for their future, they were dependent on their father. 25. Ex.A11 is the SSLC Book of deceased which shows that Dr.Durairaj was born on 01.12.1954. The accident occurred on 28.05.1996 and at the time of accident, deceased was aged 42 years. As per the second schedule to M.V. Act, the multiplier to be adopted is "15" and the Tribunal also correctly adopted multiplier "15". Applying multiplier "15", the pecuniary loss is calculated at Rs.27,00,000/- (Rs.1,80,000/- x 15 = Rs.27,00,000/-). 26. In so far as conventional damages, Tribunal has awarded Rs.5,000/- towards "funeral expenses", Rs.10,000/- for "loss of consortium" and the same are maintained. Tribunal has also awarded Rs.10,000/- for "loss of love and affection". Claimants 2 and 3 who were aged only 14 and 10 years respectively at the time of accident have lost their father at their young age and therefore, compensation towards "loss of love and affection' is enhanced to Rs.50,000/- [Rs.25,000/- each to Claimants 2 and 3]. 27. In modification, the compensation awarded by the Tribunal is enhanced to Rs.27,65,000/- as under:- Loss of dependency : Rs .27,00,000.00 [Rs.1,80,000 x 15] Funeral expenses : Rs. 5,000.00 Loss of love and affection : Rs. 50,000.00 Loss of consortium : Rs. 10,000.00 ------------------- Total : Rs.27,65,000.00 ------------------- https://hcservices.ecourts.gov.in/hcservices/ Since, we have held that the accident occurred solely due to rash and negligent driving of the van driver, the driver and owner of the van and its insurer [Appellant] are jointly and severally liable to pay the entire compensation. In so far as interest is concerned, Tribunal has awarded 9% p.a. and the same is maintained. The compensation amount of Rs.27,65,000/- is to be apportioned amongst the Claimants as follows:- (i) Rs.7,65,000/- to the 1st Claimant- wife; Rs.10,00,000/- to the 2nd Claimant-son and Rs.10,00,000/- to the 3rd Claimant-daughter. 28. C.M.A.No.1395/2004:- In the result, the compensation of Rs.13,79,320/- awarded by the Tribunal in MCOP.No.14/2002 is enhanced to Rs.27,65,000/- payable with interest at the rate of 9% p.a. from the date of Petition till the date of deposit and the Appeal filed by the Claimants is partly allowed. C.M.A.No.2712/2004:- The negligence and liability at 40% fastened upon the deceased is set aside and the entire compensation amount of Rs.27,65,000/- is ordered to be paid jointly and severally by the driver, owner and insurer and the driver of the van and the appeal filed by the Appellant-Insurance Company is dismissed. By the order dated 07.10.2004, this Court directed the Appellant-Insurance Company to deposit the entire compensation awarded by the Tribunal. It was stated before us out of the entire amount, Claimants 1 to 3 have withdrawn 50% of their share with accrued interest. Claimants