BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17/03/2006
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
C.M.A.(MD)No.1166 of 1998
Ms. Tamilnadu State Transport Corporation
Ltd.,Madurai-Division-(1) rep. By
its Managing Director
Bye Pass Road, Madurai-625 010
C.T.accepted vide order dated 11.8.1998 in
C.M.P.No.9749 of 1998(DR) ... Appellant
Vs
1. Soosaiammal
2 Rajaguru
R2 declared as Major and R1
discharged from guardianship
vide order dated1.12.199 in C.M.P.NO. 5122/99
(BABKJ)
3. Minor Paulraj
4. Minor Ramalakshmi
Minors 3 and 4 rep. By their mother and
Natural Guardian the 1st respondent
herein) ... Respondents
Prayer
Appeal filed under Section 173 (1) of Motor Vehicles Act against the
Judgment and decree dated 27.11.1997 made in MCOP No. 159/1997 on the file
of the Motor Accidents Claims Tribunal( Additional Subordinate Judge)
Srivilliputhur.
!For Appellant ... Mr. D.Sivaraman
^For respondents ... Mr. A.Sivaji
:JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.
159 of 1997 on the file of the Motor Accidents Claims Tribunal( Additional
Subordinate Judge), Srivilliputhur. The State Transport Corporation is the
appellant herein.
2. The short facts of the case relevant for the purpose of deciding this
appeal are as follows:
On 2.4.1995 at about 2.40p.m., the deceased Ramar was proceeding to his village
from Srivilliputhur in his bicyle along the extreme left side of the road, the
bus bearing Registration No. TN-59-N-0476 belonging to the respondent was driven
by its driver in a rash and negligent manner from behind, dashed against the
cycle in which the said Ramar was riding and caused grievous injuries all over
his body, resulting in his death, while he was taken to hospital. The accident
had occurred only due to the rash and negligent driving of the driver of the bus
bearing Registration No.TN-59-N-0476. The deceased was having a grocery shop and
was earning Rs.3,000/- per mensum. Hence, the legal representatives of the
deceased have filed the claim petition claiming a sum of Rs.5,00,000/- towards
compensation.
3. The respondent in his counter has stated that the accident had not
occurred due to the rash and negligent driving of the driver of the bus bearing
Registration NO.TN-59-N-0476, but only due to the negligent act of the deceased
Ramar, the accident had occurred.
4. Before the Tribunal, PWs 1 and 2 were examined and Exs P1 to P7 were
marked on the side of the claimants. R.W.1 was examined and no document was
exhibited on the side of the respondent.
5. The learned Tribunal, after going through the oral and documentary
evidence, has come to a conclusion that the accident had occurred only due to
the rash and negligent driving of the driver of the bus bearing Registration
No.TN-59-N-0476 and after following the unit method had awarded a sum of
Rs.1,54,440/- towards compensation. Aggrieved by the award of compensation, the
State Transport Corporation has preferred this appeal.
6. Now the point for determination in this appeal is whether the award of
compensation passed in M.C.O.P.No.159 of 1997 on the file of the Motor Accidents
Claims Tribunal( Additional Subordinate Judge) Srivilliputhur dated 27.11.1997
is liable to be set aside for the reasons stated in the memorandum of appeal in
C.M.A.No.1166 of 1998?
7. The Point :
Heard the learned counsel for the appellant who would fairly concede that
the Tribunal had taken the monthly income of the deceased as Rs.1,500/- , on the
presumption that the deceased would have earned Rs.1,500/- from the grocery
shop, in the absence of any income certificate from the Tahsildar. A perusal of
the award will go to show that at paragraph 7, while assessing the income of the
deceased, the learned Tribunal has taken into consideration Ex P5 to Ex P7 and
had come to a conclusion that the deceased was running a grocery shop and that
his monthly income would be not less than Rs.1,500/-, after deducting 1/3rd
amount of Rs.500/- towards his personal expenses and another sum of Rs.342/- by
following the unit method, had come to a conclusion that the net monthly income
of the deceased as Rs.858/- and the age of the deceased was fixed by the learned
Tribunal on the basis of the admission in the claim petition as 42 against the
age stated in Ex P3 postmortem certificate as 38 and the learned Tribunal has
fixed the monthly income of the deceased as Rs.1,500/-. But after following the
unit method has come to a conclusion that the annual income of the deceased as
Rs.10,296/- and after adopting multiplier 15 has arrived at the compensation of
Rs.1,54,440/-. Learned counsel appearing for the appellant relied on the
decision reported in National Insurance Company Ltd., -v-Rani and others
(2004(4) Law Weekly 151) and contended that the power under Order 41 Rule 33
C.P.C.can be exercised only in the rarest of rare cases. I am of the opinion
that this case is one of rarest of rare case wherein the power under Order 41
Rule 33 CPC clubbed with the power conferred under Section 151 CPC is to be
applied. In this case, the learned Tribunal had adopted Unit method and also
multiplier method. Learned counsel for the appellant has not raised any
objection in the grounds of appeal for the monthly income arrived at by the
learned Tribunal as Rs.1,500/- for the deceased for adopting the unit method.
So for adopting the multiplier method, there is nothing wrong for taking into
consideration the monthly income as Rs.1,500/- in the absence of any
documentary evidence like income certificate. Once we take the monthly income
of the deceased as Rs.1,500/-, we have to adopt the multiplier method, after
deducting 1/3 of the amount towards the personal expenses of the deceased. Even
in the case relied on by the learned counsel appearing for the appellant at
paragraph 23, the Bench of this Court have formulated how the annual loss of
income should be arrived at by following the multiplier method. They have in
clear terms, stated that from the monthly income of the deceased 1/3 is to be
deducted and for the remainder the relevant multiplier is to be adopted for
calculating the annual loss of income. So, if the said principle is applied to
this case, and the annual loss of income of the deceased should be taken as
Rs.12,000/- and since the age of the deceased was 42, the relevant multiplier
to be adopted is 15, and the loss of income will come to Rs.1,80,000/-(1000 x 12
x 15= Rs.1,80,000). The claimants have claimed a sum of Rs.300/- towards
compensation under the head”damage to cloth , which I allow the same as
reasonable. Under the head “funeral expenses” the claimants have claimed a sum
of Rs.5,000/- but reasonable compensation to be awarded under the head “funeral
expenses” will be Rs.2,000/-. The first claimant is the widow and the 2nd
claimant, minor claimants 3 and 4 are the children of the deceased. So under
the head ” loss of consortium “, I award a sum of Rs.5,000/- to the first
claimant, and under the head ” loss of love and affection” I award another sum
of Rs.5,000/- to the claimants. So the total compensation comes to Rs.
1,92,300/-
(Rs.1,80,000 + Rs.300 + Rs.2,000 + Rs.5,000+ Rs.5,000). Hence I hold on the
point that the award passed in M.C.O.P.No.159 of 1997 on the file of the Motor
Accidents Claims Tribunal (Additional Subordinate Judge) Srivilliputhur is to be
enhanced and fixed as Rs.1,92,300/-. The point is answered accordingly.
8. The learned counsel for the appellant relied on a decision reported in
Kokila and another-vs-A.C.Rayan and another(2004(1)TNMAC 172) (DB) and
contended that for the enhanced compensation amount, a Division Bench of this
Court had given 9% interest only for the accident which took place in the year
1992. So following the said ruling, the claimant will be entitled to only 9%
interest for the enhanced award amount from the date of petition till the date
of realisation.
9. In the result, this appeal is dismissed, but the award of compensation
passed in M.C.O.P.No.159 of 1997 on the file of the Motor Accidents Claims
Tribunal(Additional Subordinate Judge) Srivilliputhur is enhanced and fixed as
Rs.1,92,300/-(Rupees One Lakh ninety two thousand and three hundred only) with
9% interest with proportionate costs. Out of the award amount, the first
claimant and the second claimant are entitled to Rs.46,150/-each with accrued
proportionate interest and proportionate costs and the minor claimants 3 and 4
are entitled to Rs.50,000/- each with accrued proportionante interest and
proportionate cost. The first claimant and the second claimant are entitled to
withdraw a sum of Rs.30,000/- each from the award amount at the first instance.
The balance of the award amount is to be deposited in any one of the
Nationalised Bank in Fixed Deposit for a period of three years. The first
claimant and the second claimant are permitted to withdraw the accrued interest
once in three months from the Fixed Deposit amount. The minor claimants 3 and 4
are entitled to equal share in the award amount of Rs.50,000/- towards their
share and their shares in the award of compensation are to be deposited in any
one of the Nationalised Bank in Fixed Deposit , till they attain majority. The
first claimant who is the guardian of the minor claimants 3 and 4 is permitted
to withdraw accured interest once in three months from the Fixed Deposit of the
minors for the welfare of the minors direct. The appellant is directed to
deposit the difference of the award amount within a period of six weeks from
this date. The claimants are directed to pay the court fee for the enhanced
award amount within six weeks. No costs.
sg
To
The Motor Accidents Claims Tribunal(Addl. Subordinate Judge)
Srivilliputhur.