BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/07/2010 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.215 of 2008 & M.P(MD)No.3 of 2008 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division, Pudukottai. ..Respondent/Appellant Vs 1.Tamilarasi 2.Palanisamy @ Selvam 3.Radha @ Pitchaiammal 4.Arayee ..Petitioners/Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree dated 21-09-2006 passed in M.C.O.P.No.102 of 2004 on the file of Motor Vehicles Accident Claims Tribunal-cum-Sub Judge, Pudukottai. !For Appellant ...Mr.P.Thilakkumar ^For Respondents ...Mr.B.Jameel Arasu for R2 to R3 * * * * * :JUDGMENT
The above Civil Miscellaneous Appeal has been filed by the appellant the
State Transport Corporation Limited, against the award and decree made in
MCOP.No.102 of 2004 dated 21.09.2006 on the file of the Motor Accident Claims
Tribunal-cum-Sub Judge, Pudukottai, for awarding compensation of Rs.2,93,940/-
(Rupees Two Lakhs Ninety Three Thousand Nine Hundred and Forty only) together
with 7.5% interest per annum from the date of filing of the claim petition till
the date of compensation.
2.The brief facts of the case are as follows:
On 29.12.2003, the deceased after finishing his work, came along with his
friend one Palanivelu on their cycle at about 7.30 p.m on the road and when they
were nearing Kudimian reservoir garden, at that time, the respondent bus bearing
Registration No.TN-555-N-0276 came at high speed in a rash and negligent manner
and dashed against the deceased Kannaiah. Immediately, the deceased was taken
to the Government Hospital, wherein he died. The claimants further narrated in
the claim petition that at the time of accident, the deceased was aged about 45
years and his occupation was Mason and as such, he was earning about Rs.3,000/-
per month. The said accident case was registered in the Annavasal Police
Station in Crime No.293 of 2003 for the alleged offence under Sections
279,337,304(A) IPC against the driver of the respondent Corporation bus.
3.The first claimant is the wife of the deceased, the second claimant is
the son of the deceased, the third claimant is the daughter of the deceased and
the fourth claimant is the mother of the deceased. The claimants had further
stated that the deceased is the only bread winner of the family and the
claimants were depending upon the income of the deceased. As such, the
claimants claimed Rs.7,00,000/-(Rupees Seven Lakhs only) as compensation with
15% interest against the respondent Transport Corporation.
4.The respondent Corporation has filed a counter statement and resisted
the claim of the compensation. The respondent has stated in the counter
statement that the deceased and his friend one Palanivelu both came on the
middle of the road and the deceased rode his cycle at high speed in a rash and
negligent manner and dashed against the bus and hence, the accident had
happened.
5.The learned Counsel for the respondent further stated that due to
negligence of the deceased, the said accident had happened and as such
contributory negligence is involved in this case. Further, the respondent
denied the age, occupation and income of the deceased. The respondent also
stated that the claim amount is excessive. As such, the respondent prayed
before the Tribunal to dismiss the claim petition.
6.After considering the claim petition and counter statement of the
respondent, the learned Motor Accident Claims Tribunal-cum-Sub Judge,
Pudukottai, framed the issues namely:
a)Whether the respondent’s bus driver is responsible for the accident or
the deceased was the cause for the accident?
b)Whether the claimants are entitled to claim compensation? If so, what
is the quantum of compensation?
7.On the side of the claimants PW.1 widow of the deceased was examined and
the PW.2 Kudiminathan was examined. On the side of the claimants, there are six
documents marked as Ex.P1 to P6 namely:
Ex.P1 – First Information Report(FIR)
Ex.P2 – Motor Vehicle Report
Ex.P3 – Post-Mortem Certificate
Ex.P4 – Handicapped Identity Card
Ex.P5 – Family Ration Card
Ex.P6 – Legal Heir Certificate
8.On the side of the respondents, one Padmanathan was examined as RW.1.
No documentary evidence was marked on the side of the respondents.
9.After considering the evidence of the claimants and documentary evidence
and also considering the respondent’s evidence, the learned Motor Accident
Claims Tribunal has come to conclusion that the accident had happened due to the
rash and negligent driving of the respondent’s bus driver. As such, the
respondent is liable to pay compensation to the claimants.
10.The learned Motor Accident Claims Tribunal -cum-Sub Judge, Pudukottai,
after considering the legal heir certificate, has come to the conclusion that
all the claimants are the legal heirs of the deceased. PW.1 had adduced the
evidence stating that her husband deceased Kannaiah was working as a Mason,
besides he was also involved in seasonal agricultural operations, hence his
earning of Rs.3,000/- per month. She adduced further evidence that her husband
being aged 45 years at the time of the accident. The learned Sub-Judge after
considering the evidence has come to the conclusion that the deceased’s income
was Rs.2,000/- per month and his age was 45 years.
11.After deducting 1/3rd being the personal expenditure of the deceased,
2/3rd amount was as contribution to the claimants. Hence, the Tribunal awarded
Rs.2,39,940/- under the head of Loss of Income after considering the age and
income of the deceased. Further, the Tribunal awarded Rs.10,000/- under the head
of loss of consortium to the first claimant and Rs.40,000/- to the claimants
under the head of loss of Love and Affection and further awarded Rs.4,000/-
under the head of funeral expenses, in total the learned Sub-Judge awarded
Rs.2,93,940/- together with interest at the rate of 7.5% from the date of claim
petition till the date of compensation.
12.Further, the Tribunal permitted the 4th claimant i.e, mother of the
deceased to withdraw a sum of Rs.40,000/-. The balance amount of compensation of
Rs.2,53,940/- has to be divided by the three others equally. The Tribunal
further directed that the said compensation amount has to be deposited in any
nationalized bank for a period of three years under the fixed deposit scheme.
Accordingly, the Tribunal awarded the compensation.
13.Having not been satisfied the award and decree of the Motor Accident
Claims Tribunal, Pudukottai, in MCOP.No.102 of 2004 dated 21.09.2006, the
appellant filed this appeal.
14.The learned Counsel for the appellant submitted that the Motor Accident
Claims Tribunal, Pudukottai, has come to the conclusion that the deceased income
of Rs.2,000/- is reasonable in the absence of the income proof.
15.The learned Counsel for the claimant further pointed out that the
claimants are four in numbers as such 1/4th amount has to be deducted instead of
1/3rd amount. The learned Counsel for the appellant further pointed out that
the adoption method for calculating the compensation under the head of loss of
income is erroneous. The Tribunal also had not awarded sufficient compensation
under the head of funeral expenses. He further pointed out that the deceased
is only the bread winner of the family and the claimants are depending only on
the deceased’s income. The first claimant is a young widow of the deceased, the
4th claimant is the aged mother of the deceased. In any event the compensation
granted by the Tribunal is on the lower side. Hence, the learned Counsel for
the claimants are seeking for compensation by way of appeal.
16.The learned Counsel for the respondent Corporation argued that in the
absence of income proof, the Motor Accident Claims Tribunal had come to the
conclusion that the deceased’s income was Rs.2,000/- which is proper.
Considering the age of the deceased and dependencies of the deceased, the
Tribunal awarding Rs.2,93,940/- is proper. The Motor Accident Claims Tribunal,
Pudukottai, after considering the evidence of the claimants and the respondents,
the age, occupation and income of the deceased, properly granted the award. He
further pointed out that the Tribunal awarded Rs.10,000/- under the head of
Consortium to the first claimant i.e., widow of the deceased and again awarded
Rs.10,000/- to the first claimant/widow of the deceased under the head of loss
of Love and Affection which is not pertinent in the incident case. As such
Rs.10,000/- is scaled down from the compensation. Hence, the learned Counsel
for the respondent submitted that the Civil Miscellaneous Appeal is not
sustainable under the law.
17.Considering the facts and circumstances of the case and arguments of
the appellant and the respondents, this Court is of the view that the learned
Motor Accident Claims Tribunal, Pudukottai award of compensation Rs.2,93,940/-
together with 7.5% per annum interest, is fair and equitable. There are no
discrepancies in the said award passed by the learned Motor Accident Claims
Tribunal-cum-Sub Judge, Pudukottai.
18.This Court granted an interim stay on 14-02-2008 on condition that the
appellant Transport Corporation will deposit the entire award amount to the
credit of M.C.O.P.No.102 of 2004 on the file of the Motor Accident Claims
Tribunal-cum-Sub-Judge, Pudukottai.
19.As the accident had happened in the year 2004, it is open to the
claimants to withdraw their apportioned share amount with accrued interest
thereon lying in the credit of M.C.O.P.No.102 of 2004 on the file of the Motor
Accident Claims Tribunal-cum-Sub-Judge, Pudukottai, after filing necessary
application in accordance with law subject to had withdrawals if any, made
already.
20.In the result, the Civil Miscellaneous Appeal is dismissed.
Consequently, the award and
decree passed by the Motor Accident Claims Tribunal-cum-Sub-Judge, Pudukottai,
in M.C.O.P.No.102 of 2004
dated 21-09-2006 is confirmed. No costs. Consequently, connected M.P(MD)No.3 of
2008 is closed.
gsr
TO
The Motor Accident Claims Tribunal
-cum- Sub-Judge,
Pudukottai.