(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to set aside the Award dated September 1, 2021 passed in M.C.O.P.No.1417 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem.

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to allow the Civil Miscellaneous Appeal and modify the Award dated September 1, 2021 passed in M.C.O.P.No.1417 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem by enhancing the compensation awarded thereby.)

Common Judgment:

R. Sakthivel, J.

1. Feeling aggrieved by the Award dated September 1, 2021 passed by 'the Motor Accident Claims Tribunal cum Special District Court, Salem' ['Tribunal' for short] in M.C.O.P.No.1417 of 2016, the second respondent therein namely – Shriram General Insurance Company Limited, has preferred C.M.A. No.1251 of 2022 seeking to set aside the same, while the petitioners therein have preferred C.M.A. No.1370 of 2023 seeking enhancement of compensation.

2. As these Civil Miscellaneous Appeals arise out of one and the same Award, they will be governed by this Common Judgment.

3. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Petition.

PETITIONERS' CASE

4. The deceased - Jayaraman passed away in an accident that occurred on February 27, 2016 at about 02.30 p.m. The petitioners 1 to 4 are his wife, two children and mother respectively.

                   4.1. On the fateful day, the deceased -Jayaraman was travelling on Salem – Chennai National Highway along with his friends in an Ford Eco- Sport Car bearing Registration No.TN-10-AT-3903. As the car tyre got punctured, they parked the car opposite Pavender Polytechnic at Manivizhunthan on the road's earthen shoulder and got an Auto Driver namely Mr.Manivannan to help them by changing the spare wheel. The Auto Driver had parked his Autorickshaw in front of the car. Both the car and the Autorickshaw were parked with indicators and parking lights turned on. Warning Triangle was also properly used. All the traffic rules and regulations were followed.

                   4.2. At that time, an Eicher Lorry bearing Registration No.TN-37- AT-6220, driven in a rash and negligent manner, suddenly hit against the deceased - Jayaraman, Auto Driver - Manivannan and deceased Jayaraman's friend - Anandakumar and also hit against the right side of the Car and the Autorickshaw. In the accident, deceased - Jayaraman sustained grievous injuries and passed away on the way to the hospital, the Auto Driver passed away on the spot and the said Jayaraman's friend - Anandakumar sustained grievous injuries.

                   4.3. At the time of accident, the deceased - Jayaraman was 39 years old, engaged in the business of purchasing cotton fabrics and processing & reselling them, under the name of M/s.Vijayalakshmi Tex and thereby earned Rs.1,50,000/- per month.

                   4.4. First respondent is the owner of the said offending Eicher Lorry and the second respondent is the insurer of the said vehicle. According to the petitioners, the accident occurred solely due to the rash and negligent driving of the driver of the Eicher Lorry and therefore, both the respondents are jointly and severally liable to compensate the petitioners. Accordingly, the petitioners filed the present Claim Petition seeking a compensation of Rs.3,00,00,000/- (Rupees Three Crores only).

FIRST RESPONDENT'S CASE:

5. The first respondent filed a counter statement contending that the driver of the Eicher lorry bearing Registration No. TN-37-AT-6220 was driving the vehicle slowly and cautiously on the left side of the road, strictly adhering to traffic rules. The said Car and Auto Rickshaw were parked in the middle of the road without any warning signal, parking lights or indicators. In an attempt to avert the accident, the driver of the Eicher Lorry applied sudden brakes, however, despite his best efforts, the accident occurred solely due to the carelessness and negligence of the deceased - Jayaraman and the deceased Auto Driver - Manivannan. They had contributed to the occurrence of the accident and therefore, are guilty of contributory negligence. The first respondent's Lorry was duly insured with the second respondent and the insurance policy was in force on the date of the accident. The driver of the lorry possessed a valid and effective driving license at the relevant point of time. Hence, the second respondent is liable to indemnify the first respondent, if any liability is fastened. The first respondent further contended that the owners and insurers of the car and the auto are necessary parties to the proceedings and that the Original Petition is bad for non-joinder of necessary parties. On the above grounds, the first respondent prayed for dismissal of the Original Petition.

SECOND RESPONDENT’S CASE:

6. The second respondent filed a counter statement contending that the deceased - Jayaraman had no knowledge of the traffic rules relating to parking of vehicles on the road and there is no warning signal or indication placed near the car at the spot of occurrence. There was no fault on the part of the driver of the first respondent’s vehicle and that the deceased - Jayaraman himself was a tort-feasor. Hence, the petitioners are not entitled to any compensation. Compensation claimed under various heads are excessive and exorbitant. On the above grounds, the second respondent prayed for dismissal of the Original Petition.

TRIBUNAL

7. At trial, on the side of the petitioners, the first petitioner - Vijayalakshmi who is the wife of the deceased - Jayaraman was examined as P.W.1 and one Anandakumar, an eyewitness / injured in the accident was examined as P.W.2. and Ex-P.1 to Ex-P.25 were marked. On the side of the respondents, neither any witness was examined nor any document was marked. A copy of Aadhaar Card of P.W.2 was marked as Ex-X.1.

8. The Tribunal, upon consideration of the oral and the documentary evidence available on record, observed that the place of occurrence is a four-way National Highway Road. Even while assuming that the car was parked in the middle of the road, the Eicher Lorry had sufficient space and carriageway to pass through the place of accident without any difficulty. Admittedly, the accident occurred at about 2.30 p.m., in the day light, and therefore, even in the absence of any warning signal, the driver of the first respondent’s vehicle could have clearly noticed the parked vehicles from a considerable distance. The Tribunal further observed that the deceased - Jayaraman would not have parked the car in the middle of a National Highway carrying heavy vehicular traffic. Accordingly, the Tribunal came to the conclusion that the accident occurred solely due to the rash and negligent driving of the driver of the Eicher lorry belonging to the first respondent. Eicher lorry involved in the accident was duly insured with the second respondent–Insurance Company at the material point of time. Consequently, the Tribunal held that the respondents are jointly and severally liable to pay compensation to the petitioners and awarded a sum of Rs.1,45,85,570/- (Rupees One Crore Forty-Five Lakhs Eighty-Five Thousand Five Hundred and Seventy only) as compensation to the petitioners.

9. Challenging the Award, the second respondent / Insurance Company has preferred C.M.A. No.1251 of 2022 and seeking enhancement of the compensation, the petitioners have preferred C.M.A. No.1370 of 2023.

ARGUMENTS:

10. Mr.S.Dhakshnamoorthy, learned Counsel appearing for the appellant in C.M.A. No.1251 of 2022 and second respondent in C.M.A. .No.1370 of 2023 would submit that the Tribunal did not properly appreciate Ex-P.19 to Ex-P.25 which are Income Tax Returns of the deceased - Jayaraman. He would invite attention of this Court to Ex-P.25, the Income Tax Returns for the Assessment Year 2016-2017 (Financial Year 2015-2016) submitted on September 17, 2016, after the demise of the deceased - Jayaraman, and submit that a bare perusal of Ex-P.25 along with Ex-P.22 to Ex-P.24 would show that the deceased - Jayaraman's income has been boosted in Ex-P.25 only for the purpose of getting higher compensation in the Motor Accident Claim. The Tribunal erred in not taking the said aspect into consideration. In sum and substance, the learned Counsel would submit that the income stated in Ex-P.25 cannot be taken into account. The Tribunal has taken Ex-P.19 and Ex-P.25 - Income Tax Returns and averaged the income stated therein to conclude that the deceased earned a sum of Rs.14,44,057/- per annum. The approach of the Tribunal in assessing the deceased's income is not in consonance with law. Further, the Tribunal did not deduct income tax prevailing at the relevant assessment year. He further would submit that the deceased - Jayaraman was a businessman. Hence, the Tribunal rightly did not apply any future prospects. Accordingly, he would pray to allow the Civil Miscellaneous Appeal in C.M.A. No.1251 of 2022, dismiss C.M.A. No.1370 of 2023 and set aside the Award.

11. In response to the above submission, Mr.C.Kulanthaivel, learned Counsel appearing for the appellants in C.M.A. No.1370 of 2023 and Respondents 1 to 4 in C.M.A. .No.1251 of 2022 would submit that the Tribunal ought to have taken the income stated in Ex-P.25 - Income Tax Return which is the last earned income of the deceased - Jayaraman. There is no reason to reject Ex-P.25 which was filed through a qualified Auditor. He further would submit that the Tribunal failed to add future prospects as per the dictum laid down in the Judgment of Hon'ble Supreme Court in National Insurance Company Limited -vs- Pranay Sethi reported in (2017) 16 SCC 680. Further, the deceased - Jayaraman passed away leaving four persons behind him, as his dependents. The Tribunal ought to have deducted 1/4 of his income as his personal living expenses instead of 1/3, as per Sarla Verma -vs- Delhi Transport Corporation, reported in (2009) 6 SCC 121. Accordingly, he would pray to allow C.M.A. No.1370 of 2023, dismiss the C.M.A. .No.1251 of 2022, and thereby, enhance the Award amount by modifying the Award dated September 1, 2021 passed in M.C.O.P.No.1417 of 2016.

DISCUSSION:

12. This Court has considered the submissions made on either side and perused the materials available on record.

13. The evidence of P.W.2, who is an injured witness in the accident, coupled with Ex-P.1 - F.I.R. and Ex-P.3 - Final Report, is sufficient to come to the conclusion that the accident occurred solely due to the rash and negligence of the driver of the first respondent's Eicher Lorry. The Tribunal has rightly held so. Moreover, the learned Counsel appearing for the insurance company submitted that challenge in these Civil Miscellaneous Appeals is restricted to the quantum of compensation alone. Since the insurance company accepted its liability to pay compensation, there is no need for this Court to delve into aspect of negligence and liability.

14. Coming to quantum of compensation, the contentions raised are only with regard to computation of income, personal deduction and future prospects. The points that arise for consideration in these appeals are as follows:

                   (i) Whether the Tribunal is right in computing annual income by taking the average of the income stated in Ex-P.19 and Ex-P.25, which are the Annual Income Tax Return Acknowledgments for the Assessment Years 2013- 2014 (Financial Year 2012-2013) and 2016-2017 (Financial Year 2015-2016) respectively ?

                   (ii) Whether Ex-P.25 which is the Annual Income Tax Return Acknowledgment for the Assessment Year 2016-2017 (Financial Year 2015-2016) submitted on September 17, 2016, that is to say after the demise of deceased - Jayaraman, can be taken into account as such for determining his income ?

                   (iii) Whether future prospects is to be added to the income of the deceased - Jayaraman given that he is engaged in a business ?

                   (iv) Whether the Tribunal is right in deducting 1/3 as personal deduction ?

                   (v) Whether the Award passed by the Tribunal is to be interferred with ?

Point Nos.(i) and (ii)

15. As regards the income of the deceased - Jayaraman, he was running a textile business in the name and style of M/s.Vijayalakshmi Tex as its Sole Proprietor. Ex-P.18 - Registration Certificate issued by the Government of Tamil Nadu under the Tamil Nadu Value Added Tax Act, 2006, would prove the same. He is an Income Tax Assessee and his Permanent Account Number (PAN) Card is marked as Ex-P.15. Ex-P.15 shows that his date of birth is June 2, 1976, which means the deceased - Jayaraman was aged 39 years at the time of accident. Further, the petitioners filed Ex-P.19 to Ex-P.25 which are Income Tax Return Acknowledgements for the Assessment years 2013-2014 to 2016-2017. What could be discerned from Ex-P.19 to Ex-P.25 is that deceased - Jayaraman had two sources of income. One is rental income from a house property owned by him in Chennai and another is the aforementioned business. It could be further discerned that the said house property was purchased on housing loan and that the deceased - Jayaraman was paying interest for the same.

16. The relevant details contained in Ex-P.19 to Ex-P.25 can be summarised as tabulated hereunder: