Mary Immanuvel, & Anr. vs Periyasamy, & Ors.

The claimants in M.C.O.P.No.485 of 2008 on the file of the Motor Accidents Claims Tribunal cum Principal Sub Judge, Tenkasi have filed

C.M.A.No.9076 of 2011 seeking enhancement. The United India Insurance Limited has filed cross objection in Cross Obj.No.29 of 2012.

The first claimant is the wife and the second claimant is the daughter of the deceased Dr.Immanuvel. When he was riding a motor cycle on 03

December 2008, the auto bearing registration No.TN 72- B-4650, which was going in front suddenly stopped at Melameignanapuram bus stop.

The motor cyclist made an attempt to turn the vehicle to the right side and dashed from behind. He fell down and one Tata Sumo bearing

registration No.TN 72-QA-1455 coming from the opposite direction directly hit him leading to his death. Both the auto as well as the Tata Sumo

were insured with United India Insurance Company. The deceased was working as Senior Civil Surgeon in Tirunelveli Corporation. He was a

pediatric surgeon and he was aged about 58 years at the time of death. According to the claimants, his Government salary was Rs.34,967/- and

that he earned Rs.60,000/- per month from private practice. He was also stated to be an agriculturist and earned agricultural income. The

claimants made a claim of Rs.1 crore towards compensation with cost.

The Insurance Company filed their counter. The income earned by the deceased as well as fastening of negligence on the auto and Tata sumo

were contested.

The Tribunal noted that if the deceased rider had maintained a safe distance, he would not have dashed against the auto leading to his fall.

Therefore, contributory negligence of 50% was fixed on the deceased. Since the auto as well as Tata sumo were insured with United India

Insurance Company, the said Insurance company was held as liable to pay the compensation to the claimants. As regards the income earned by

the deceased, the Tribunal noted that he was earning a sum of Rs.35,967/- per month. Since he was also in private practice, the monthly income

was fixed at Rs.50,000/-. After deducting 1/3 income towards personal expenses, the monthly income was arrived at Rs.33,334/-. The deceased

was aged 58 years. Therefore, multiplier of 8 was applied. After awarding sums under the heads such as loss of consortium etc., and after

deducting towards the contributory negligence of 50%, a sum of Rs.12,20,024/- was directed to be paid as compensation to the claimants at

7.5% interest per annum with costs. The apportionment was also duly made between the mother and daughter. Aggrieved by the same, the

claimants are on appeal. As already pointed out, the Insurance Company had also filed cross objection.

Heard the learned counsel for the claimants as well as the Insurance company. We have carefully gone through the records.

The learned counsel for the Insurance Company referred to the statutory provisions regarding keeping safe distance while driving on the road.

We sustain the findings regarding contributory negligence made by the Tribunal. The auto admittedly stopped only at the bus stop. Any road user

ought to note that the auto would definitely stop near the bus stop to pickup the passengers waiting there. Since the deceased rider of the motor

vehicle had followed the auto closely from behind, he could not avoid the accident. Therefore, the Tribunal rightly fixed the contributory negligence

at 50% on the deceased.

As regards the monthly income, it is relevant to note here that the income tax returns of the deceased did not reflect the income said to have

been earned by him from his private practice. What was shown in the income tax returns was only a sum of Rs.34,967/- per month earned by him

as a Government Doctor. But, we can certainly come to the conclusion that the deceased would have definitely had private practice and therefore,

the Tribunal was right in arriving at his monthly income at Rs.50,000/-. Since the age of the deceased was 57 years, the multiplier would be 9. The

deduction of 1/3 income towards personal income will have to be made. Rs.1,00,000/- shall be payable for consortium to the wife and

Rs.50,000/- shall be payable to the daughter for love and affection and also a sum of Rs.25,000/- shall be payable for funeral expenses.

In the light of the foregoing discussion, the compensation payable to the claimants works out as under:

In Rs.

Loss of income : Rs.33,334 x 12 x 93600072

Loss of consortium 100000

Love and affection 50000

Funeral expenses 25000

Total 3775072

Deduction 50% for contributory negligence 1887536

Eligible compensation to claimants Rs.1887536

In the result,

the Civil Miscellaneous Appeal (MD) No.907 of 2011 is partly allowed and Cross.Obj. 29 of 2012 is dismissed and the order dated

29.06.2010 passed in MCOP.No.485 of 2008 on the file of the Motor Accidents Claims Tribunal, Principal Sub Judge, Tenkasi is modified as

shown above. No costs. Consequently, connected miscellaneous petition is closed.

2.

(ii) The United Insurance Company appellant is directed to pay the compensation amount, as modified by this Court along with proportionate

interest and costs from the date of petition till the date of realisation, less the amount already deposited, if any, to the credit of MCOP.No.485 of

2008 on the file of the Motor Accidents Claims Tribunal, Principal Sub Judge, Tenkasi, within a period of six weeks from the date of receipt of a

copy of this judgment.

(iii)The compensation amount has to be apportioned in the same ratio as directed by the Tribunal.

(iv)The claimants are permitted to withdraw their share amount that would be deposited by the Insurance Company, less the amount already

withdrawn, if any, with proportionate interest and costs, through RTGS by filing necessary Application before the Tribunal.