IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2010 Coram: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A. No. 2695 of 2004 Kasturi .. Appellant vs. Tamil Nadu State Transport Corporation Rep. By its Managing Director Kumbakonam Kaspa Kumbakonam Taluk .. Respondent Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, praying to modify the order made in MACTOP No. 95/2002 on the file of the Motor Accident Claims Tribunal and Principal Sub-Court, Nagapattinam, dated 11.07.2003 and enhance the compensation. ------- For Appellant : Mr. N. Anand Venkatesh For Respondent : No Appearance ------- J U D G M E N T
The appeal has been preferred by the aggrieved claimant against the quantum of compensation granted by the Tribunal.
2. The case of the appellant is that on 20.10.1998 when she tried to get into the bus belonging to the respondent-corporation, the driver of the bus even before the conductor could whistle started the bus resulting in claimant’s fall from the bus. In the said accident her left foot was crushed leading to amputation leg above the ankle. Further case of the claimant is that she was an agriculture coolie and she was grazing cattle and doing milk business and was earning about Rs.300/- per day. Hence, Rs. 6,00,000/- (Rupees Six lakhs only) was claimed. The said claim petition was contested by the respondent-corporation contending that the appellant tried to board the moving bus through front entrance and in the process she lost grip and fell down on her own accord and hence there was no negligence on the part of the driver and conductor of the corporation.
3. After appreciation of pleadings and evidence of the record, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the respondent-corporation and fixed the disability at 50% and awarded a sum of Rs.1,75,000/- (Rupees One lakh seventy five thousand only) towards compensation as against the claim of Rs. 6,00,000/-. Aggrieved by the award, the claimant preferred the present appeal.
4. Mr. N. Anand Venkatesh, the learned counsel for the appellant submitted as far the finding regarding negligence is concerned, it is based on evidence and the appellant is aggrieved only with regard to the quantum of compensation awarded by the Tribunal. He submitted that the claimant worked as agriculture coolie and also doing milk business by having cattle. For those avocations, there cannot be any documentary evidence and therefore, the Tribunal should have fixed the monthly income of the claimant at Rs.3,000/-. However, the Tribunal only went by notional income as per Second Schedule of the Motor Vehicles Act, 1988 at Rs.15,000/-. He relied upon the decision of this Court, United India Insurance Company Limited v. M. Paulpandi and others reported in (2009) 7 MLJ 1048. In that case, the housewife died in the accident. Relying upon the Judgment of the Hon’ble Supreme Court in Lata Wadhwa v. State of Bihar reported in AIR 2001 Supreme Court 3218, this Court confirmed fixing the monthly income of housewife at Rs.3,000/-. Hence, he pleaded for fixation of Rs.3,000/- as monthly income.
5. The learned counsel found fault with finding given by the Tribunal in Paragraph-8 of the award that there was no proof with regard to the income of the claimant. The counsel relied upon Judgment passed by Single Judge of this Court in Pandian Roadways Corporation Ltd. v. Sankarammal and others reported in 1998 ACJ 1171 in which it was held that it cannot be expected that the claimant should establish the income of the deceased only by way of documentary evidence and if any insistence is made for the production of the documentary evidence, it would lead to procuring the receipts from third parties. Therefore, the learned counsel submitted for the works done by the claimant, there cannot be any documentary evidence. Finally, the learned counsel submitted as per the Judgment of this Court and also the Supreme Court, the monthly income should be fixed at Rs.3,000/- and sought for enhancement of the compensation.
6. There is no appearance on behalf of the respondent. On verification, no one entered appearance on behalf of the respondent- corporation inspite of service of notice. Moreover, the learned counsel for the appellant submitted right from the beginning, no one appeared on behalf of the respondent and that when the matter was listed before Lok Adalat, no one appeared. In view of that, this Court passes this order based on the records available. The Trial Court records were also called for and the same are considered. It is not in dispute that the claimant’s left leg got crushed in the accident and her leg was amputated above the ankle. Even the Tribunal in paragraph-6 of the award observed that it perused, the photograph of the claimant which proved the amputation of left foot of the claimant. Moreover, the claimant herself was examined as Ex.P1 and the Tribunal had called her to verify the same physically. Apart from that the Accident Register Ex.P2 proved that left foot of the claimant was crushed. Ex.P5 is the opinion given by the radiologist during discharge. Ex.P6 is the medical certificate issued by the Government District Headquarters Hospital wherein it is stated that the claimant’s left foot was amputated above the ankle and the physical impairment was given as 85%. The Tribunal relied upon the oral evidence of the claimant and the Exibits referred to above, to Come to the conclusion that during the accident only, the claimant sustained injury. Even though the Ex.P6 fixed the disability at 85%, the Tribunal fixed the disability at 50% as the Ex.P6 was not marked through the author of the document. Hence, the approach of the Tribunal in fixing the disability at 50% based on the photograph and also evidence and physical verification cannot be interfered and the same is fixed as 50%.
7. So far as the income is concerned, the claim of the appellant in the claim petition also in the evidence was Rs.300/- per day. However, in the cross-examination the claimant herself accepted her daily income as Rs.100/-. Based on the inconsistent evidence and also considering the fact that the ration card obtained by the claimant was red in colour which is often given to the persons of lower income group, took notional income at Rs.15,000/- per annum as per Second Schedule of the Motor Vehicles Act. The Second Schedule was introduced in the year 1994. The accident occurred on 20.10.1998 and four years passed after the amendment. By that time, the earning capacity, purchase power, inflation, cost of living etc. went up. In view of that Rs.15,000/- fixed as annual income by the Tribunal cannot be sustained.
8. As rightly pointed out by the counsel for the appellant that the appellant is a housewife doing three avocations and she has to look after her two children. Considering the role of the mother, the Hon’ble Supreme Court in Lata Wadhwa’s case held that even on a modest estimation, the services of the housewife, it should be estimated at Rs.3,000/- per month and Rs.36,000/- per annum. The said Judgment was followed by this Court in M. Paulpaundi case reported in 2009 (7) MLJ 1048. Hence, this Court follows the Judgment of the Supreme Court and this Court as referred to above and determines as Rs.3,000/- per month. Apart from that the Court cannot expect documentary evidence for the avocations done by the claimant. She was grazing the cattle and doing milk business and also working as agriculture coolie. Most of our fellow citizens are doing this kind of avocations and no body can expect documentary evidence in this regard. It is seen that there is no cross-examination with regard to the avocation of the claimant and no contra evidence was adduced on behalf of the respondent-corporation. In such a situation, this Court follows the dictum laid down by the Hon’ble Supreme Court and fixes the monthly income at Rs.3,000/-.
9. As far as the claimant’s age is concerned, the Tribunal relied upon the statement given by the claimant before the medical officer as 36 and rightly fixed the age as 36. As per the Second Schedule of the Motor Vehicles Act, the multiplier applicable to 36 is 16. Applying that, the loss of income would be Rs.3,000 X 12 X 16 X 50/100=2,88,000. A sum of Rs.25,000/- was awarded by the Tribunal towards pain and sufferings, loss of income during treatment, extra nourishment and medical expenses. A sum of Rs.30,000/- was awarded towards difficulty in leading life and look after her children and the said amount Rs.30,000/- is deleted, in view of the amount awarded as stated above.
10. Hence, the award of the Tribunal is enhanced from Rs.1,75,000/- to Rs. 3,13,000/-. The loss of income Rs.2,88,000/-. The Tribunal awarded 9% towards interest and the same is confirmed. The appellant is entitled to get the compensation awarded by this Court, after paying balance court fee.
11. The appeal is partly allowed as stated above and there will be no order as to costs.
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To
1.The Sub-Court
Nagapattinam.
2.Tamil Nadu State Transport Corporation
Rep. By its Managing Director
Kumbakonam Kaspa
Kumbakonam Taluk