BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 04/01/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD) No.103 of 2008 Velammal (Died) Kamuthai ... Appellant/2nd Petitioner Vs Tamil Nadu State Transport Corporation (Madurai Division II) Ltd., (formerly known as Rani Mangammal Transport Corporation Ltd.,) represented by its Managing Director, No.141, Railway Feeder Raod, Dindugal. ... Respondent/ Respondent (Cause title accepted vide order dated 18.04.2005 made in C.M.P. (MD) No.3024 of 2005) Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 25.07.2002, passed in M.C.O.P.No.29 of 1993 by the Motor Accident Claims Tribunal (Subordinate Judge), Periyakulam. !For Appellant ... Mr.Khan K.S.M.S. Ibrahim ^For Respondent ... Mr.D.Sivaraman ***** :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 25.07.2002, passed in M.C.O.P.No.29 of 1993 by the Motor Accident
Claims Tribunal (Subordinate Judge), Periyakulam.
2. The appellant is the 2nd petitioner and the respondent is the
respondent before the Tribunal.
3. The brief case of the petitioners in the claim petition is as follows:
The 1st petitioner is the mother and 2nd petitioner is the sister of the
deceased Ponnusamy. On the fateful day, i.e. on 22.03.1992 at about 11.15 A.M.,
the deceased Ponnusamy was sitting on the platform and was waiting for the bus
in order to go to Kamayagoundanpatty. At that time, the respondent transport
corporation bus bearing registration No.TN-57-N-0010 came in a rash and
negligent manner and dashed against him. On account of the rude impact of the
bus, the said Ponnusamy sustained multiple grievous injuries and succumbed to it
on the spot. A criminal case was registered against the driver of the
respondent transport corporation in Crime No.238 of 1992 under Section 304(A)
I.P.C. on the file of the Gudalur Police station. The deceased Ponnusamy was
working as a R.C.C. Fitter and was earning a sum of Rs.1,500/- per month. Due
to his sudden demise, the 1st petitioner has lost his income and love and
affection. So, the 1st petitioner, who is the mother of the deceased has filed
this petition claiming a compensation of Rs.2,00,000/- before the Tribunal.
After the death of the 1st petitioner, the 2nd petitioner was impleaded as the
2nd petitioner/ claimant.
4. The respondent Transport Corporation filed the counter wherein it was
contended that the respondent’s driver is not responsible for the accident; the
petitioners have to prove the age and income of the deceased by producing
documents; the huge claims under various heads in the claim application are
false and fictitious; the petition is bad for non-joinder of necessary parties
and hence, the petition is liable to be dismissed.
5. Before the Tribunal, on the side of the claimants, P.W.1 and P.W.2 were
examined and Exs.P.1 and P.2 were marked and on the side of the respondent R.W.1
was examined. There was no documentary evidence adduced on the side of the
respondent.
6. On consideration of the evidence on both sides, the Tribunal fixed the
compensation at Rs.52,000/- (Rupees Fifty Two Thousand only) with interest at 9%
p.a. from the date of petition till the date of deposit.
7. Challenging the said award passed by the Tribunal, this appeal has been
filed by the 2nd petitioner/claimant.
8. The points for determination in this appeal are:
(i) Whether the driver of the respondent herein drove the vehicle rashly
and negligently?
(ii) What is the just compensation?
9. Point (i) : The brother of the appellant viz., Ponnusamy was killed in
a road accident which occurred on 22.03.1992 at 11.15 A.M. inside the Gudalur
bus stand. The claim petition was filed by the 1st petitioner/mother of the
deceased. After her death, the 2nd petitioner/sister of the deceased was
impleaded as claimant. To prove the case of the claimant, P.W.2-Ayyappan was
examined and he deposed that when the victim was sitting on the left side
platform in the bus stand, he was hit by the respondent corporation bus.
10. It is the stand of the transport corporation that the deceased was in
a drunken mood and fell into the back wheel of the bus. To prove their stand,
R.W.1 was examined. In this case, it is pertinent to note that the complaint
was not preferred by R.W.1. On the other hand complaint was given by some other
person. In the complaint it was stated that the driver of the bus was
responsible for the accident. A careful consideration of the evidence of P.W.2-
Ayyappan and R.W.1-Jeyaraman would show that the accident occurred only due to
the rash and negligence of the driver of the respondent transport corporation.
P.W.2 has categorically stated that he was present in the scene of occurrence,
when the bus dashed against the victim. Ex.P.2 is the postmortem conducted
certificate. Relying on Ex.P.2, learned counsel for the respondent argued that
the postmortem certificate was not filed because the victim was in a drunken
mood. It is the stand of the respondent that the victim was in a drunken mood.
So, it is the duty of the respondent corporation to produce the postmortem
certificate.
11. Further, the evidence of R.W.1 would show that when he applied the
brake without changing the gear, the wheel rotated and the victim fell into the
bus. R.W.1 claimed that he gave a complaint that the petitioner fell into the
bus. He also stated that a xerox copy of the complaint was given to him. But he
has not produced the copy of the complaint. If really the deceased was
responsible for the accident and R.W.1 gave a complaint to the police, nothing
prevented him to produce the complaint by sending summons to the concerned
police station. He has not moved a single leaf to substantiate his claim.
Further during the course of cross examination, he admitted that the victim was
not under the influence of alcohol. So his own evidence would demolish the case
of the respondent that the deceased consumed liquor. There is no evidence on
record to hold that the driver of the lorry was not responsible for the
accident. On the other hand, the eye-witness spoke about the accident. His
evidence is not shattered. So, on careful consideration of the evidence
available on record, I am inclined to hold that the accident was caused only due
to the rash and negligent driving of the driver of the respondent. Accordingly,
this point is decided against the respondent.
12. Point (ii): The petitioner herein is the sister of the victim. Learned
counsel for the respondent relied on the decision of the Hon’ble Apex Court in
Manjuri Bera v. Oriental Insurance Company Limited and anther reported in
2007(1) TN MAC 385(SC) and the decision of this Court in G.Deivasigamani v.
Metropolitan Transport Corporation Limited reported in (2008) 1 MLJ 1107 and
argued that the appellant is not entitled to more than the statutory liability
under Section 140 of Motor Vehicles Act. In the above said decision, the
Hon’ble Supreme Court has pointed out that though the claimant is entitled to
compensation, the quantum of compensation cannot be less than the statutory
liability fell under Section 140 of the Motor Vehicles Act and the statutory
compensation under Section 140 of the said Act constitutes part of Estate of
deceased.
13. In Hafizun Begum v. Md.Ikram Heque and others reported in 2007-4-
LW.793, the Hon’ble Supreme Court found that the right to file a claim
application has to be considered in the background of right to entitlement and
while assessing the quantum, the multiplier system is applied because of
deprivation of dependency, in other words, multiplier is a measure. So, as per
the above ruling, the claimant cannot be forced to accept only the minimum
statutory liability.
14. In this case, even though P.W.1 claimed that the deceased earned
Rs.300/- to 400/- per day, it cannot be true because even in the claim petition
the income of the deceased was shown only as Rs.1,500/- per month. So, the
claimant has exaggerated the income to get more compensation. Further, it is not
established that she is living with his mother. So, she is not depending on the
income of the victim. P.W.1 further deposed that his brother is a Mason. But
in the claim petition it is stated that he was a R.C.C. Fitter. So, she is not
definite about the income of his brother and she has not given correct
particulars about the job and income of his brother. The petitioner is the
legal heir of the deceased, but she is not the dependant of the victim. So, the
compensation can be fixed at Rs.50,000/- (Rupees Fifty Thousand only) towards
the death of the victim.
15. Regarding transport to hospital, the petitioner claimed Rs.500/-. The
victim died on the spot. Then, there is no question of removing the body to
hospital. It is the duty of the police to remove the body to hospital. So, the
question of transport to hospital does not arise. Regarding damages to clothes
and articles though Rs.250/- is claimed, a sum of Rs.150/- (Rupees One Hundred
and Fifty only) can be granted. The claimant has lost her own brother. So, a
sum of Rs.15,000/- (Rupees Fifteen Thousand only) can be awarded towards loss of
love and affection. Though the petitioner has not claimed any compensation for
funeral expenses, the trial Court has granted Rs.2,000/-. So, the said amount
is set aside. So, the compensation fixed by the Tribunal is reassessed as under:
(i) For the death of the
deceased – Rs. 50,000.00
(ii) For loss of love and
affection – Rs. 15,000.00
(iii)For damages to clothes
and articles – Rs. 150.00
—————-
Total – Rs. 65,150.00
—————-
Accordingly, point No.(ii) is decided.
16. In the result, the Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal is enhanced from Rs.52,000/-
(Rupees Fifty Two Thousand only) to Rs.65,150/- (Rupees Sixty Five Thousand One
Hundred and Fifty only). In other respects, the award of the Tribunal is
sustained. No costs.
sj
To:
The Motor Accident Claims Tribunal,
(Subordinate Judge),
Periyakulam.