BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1569 of 2004 and C.M.A.(MD)No.387 of 2005 C.M.A.(MD)No.1569 of 2004 1. Murugeswari 2. Kaleeswaran 3. Minor Kalaiselvi 4. Petchiammal ... Appellants / Petitioners (2nd appellant declared as major by order dated 29.06.09) Vs The Managing Director, Tamil Nadu State Transport Corporation, (Madurai Division -5) Limited, Block-9, Collector's complex, Virudhunagar ... Respondent/Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the order and decree made in M.C.O.P.No.16 of 2003, dated 12.02.2004, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar District at Srivilliputtur. !For Appellants ... Mr.M.Thirunavukkarasu ^For Respondent ... Mr.M.Prakash C.M.A.(MD)No.387 of 2005 The Managing Director, Tamil Nadu State Transport Corporation, 6/377, Madurai Road, Aatchiyar valagam, Virudhunagar-626 002. ... Appellant/Respondent Vs 1. Murugeswari 2. Kaleeswaran 3. Minor Kalaiselvi 4. Petchiammal ... Respondents / Petitioners (2nd appellant declared as major by order dated 29.06.09) Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and award made in M.C.O.P.No.16 of 2003, dated 12.02.2004, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar District at Srivilliputtur. !For Appellants ... Mr.M.Prakash ^For Respondents ... Mr.M.Thirunavukkarasu * * * * * :COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed against the judgment and award made in M.C.O.P.No.16 of 2003, dated 12.02.2004, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar District at Srivilliputtur. 2. The appellants in C.M.A.(MD)NO.1569 of 2004 are claimants in M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar District at Srivilliputtur. They claimed compensation of Rs.5,00,000/- as compensation for the death of the husband of the first appellant. The appellants 2 and 3 are the children born to the first appellant through the deceased. The fourth appellant is the mother of the deceased. The Tribunal awarded Rs.3,10,000/- as compensation. The appeal is filed by the claimants seeking enhancement of compensation from Rs.3,10,000/- to Rs.5,00,000/- 3. The appellant in C.M.A.(MD)No.387 of 2005 is the Transport Corporation questioning the award passed by the Motor Accident Claims Tribunal in M.C.O.P.NO.16 of 2003, on the ground that the deceased alone was rash and negligent in driving the two wheeler and that the driver of the bus was not responsible for the accident. 4. On 13.12.2001, when Mr.M.Selvaraj was proceeding in a two wheeler from South to North in Rajapalayam-Srivilliputhur main road, the bus belonging to the Transport Corporation hit him behind the two wheeler and Mr.M.Selvaraj died due to the accident. He was aged about 40 years at the time of the accident. 5. Before the Tribunal, three witnesses were examined on the side of the claimants. The first witness was the first claimant, the second witness was an eye-witness and the third witness was the owner of the grocery shop, where the deceased was employed. The documents Exs.P.1 to P.14 were marked. On the side of the respondent Transport Corporation, the conductor of the bus was examined and no document was marked. The Tribunal passed the award holding that the driver of the Transport Corporation was rash and negligent in driving the bus and caused the accident and death. 6. Heard Mr.M.Prakash, learned Counsel for Transport Corporation and Mr.M.Thirunavakkarasu, learned Counsel for claimants. 7. The Transport Corporation questions the award that the Tribunal committed error in holding that the driver of the Transport Corporation was responsible for the accident. According to him, the bus proceeded on the main road i.e. Rajapalayam-Srivilliputhur main road. While so, the two wheeler came in a side road behind a lorry and entered in the main road without noticing the bus and that therefore the rider of the two wheeler was responsible for the accident. The learned Counsel relies on the deposition of R.W.1, the conductor of the bus. 8. On the other hand, the learned Counsel for the claimants submits that the Tribunal rendered a categorical finding based on the evidence both documentary and oral that the driver of the bus was rash and negligent in driving the bus. The Tribunal relied on the deposition of eye-witness P.W.2 and also the fact that the driver of the bus was prosecuted for causing the accident. It is also submitted that the driver was not examined and the conductor admitted that the driver was dismissed for this accident and also for some other misconduct. 9. I have considered the submissions on either side and perused the documents. 10. As rightly contended by the learned Counsel for the claimants, the Tribunal gave its reasons for its finding that the driver of the bus was responsible for the accident. The Tribunal rightly disbelieved the evidence of the conductor. Admittedly, the driver of the bus was not examined. Moreover, the driver was dismissed from Transport Corporation for causing the accident. P.W.2 was an eye-witness and he deposed categorically that the driver of the bus was rash and negligent in driving the bus and hit behind the two wheeler and caused the accident. Ex.P.1 was the First Information Report lodged against the driver of the bus and E.P.4 was the charge sheet against the driver before the Criminal Court. Taking into account the entirety of the evidence on record, the Tribunal correctly came to the conclusion that the driver of the bus was responsible for the accident. 11. I do not find any infirmity in the finding of the Tribunal that the driver of bus was rash and negligent in driving the bus. 12. The next question that has to be considered is as to whether the claimants are entitled to enhanced compensation. 13. The Tribunal awarded a sum of Rs.3,10,000/- under the following heads: (i) for loss of income Rs.2,88,000 (ii) for love and affection Rs. 20,000 (iii) for funeral expenses Rs. 2,000 -----------
Total Rs.3,10,000
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14. The learned Counsel for the claimants strenuously contends that the
Tribunal was not justified in taking Rs.2,250/- as monthly earnings of the
deceased. According to him, even a coolie would earn Rs.100/- per day. When
the Tribunal took into account the future prospects of the deceased, the
Tribunal was not correct in taking Rs.2,250/- alone, including future prospects.
15. The learned Counsel further submits that as per the decision of the
Hon’ble Apex Court in Sarala Varma case reported in 2009(1) TNMAC 1, that 50% of
the salary should be taken towards future prospects. He relied on many
decisions in support of his submissions that Rs.3,000/- should be taken as
monthly earnings when the monthly earnings was not established by sufficient
materials.
16. On the other hand, the learned Counsel for the Transport Corporation
submits that there is no infirmity in the award of the Tribunal in fixing
Rs.2,250/- as monthly earnings. It is stated that the Tribunal considered in
detail about the monthly earnings and that therefore, there is no reason to
interfere with the award.
17. The owner of the shop was examined as P.W.3. He deposed that the
deceased was paid Rs.1,915/- as monthly wages at the time of his death. Ex.P.14
was produced to establish the same. Apart from this monthly salary, P.W.3 also
stated that the deceased was paid Rs.30/- per day as daily batta and he was paid
bonus at the rate of two months wages per year. This was disbelieved by the
Tribunal on the ground that no document was produced. P.W.3 also deposed that
the deceased was looking after his land and for that he was paid ten bags of
rice per year. This was also disbelieved by the Tribunal on the ground that no
document was produced to show that he was given ten bags of rice per year for
looking after his lands.
18. I am of the view that there is some force in the submissions made by
the learned Counsel for the claimants. The learned Counsel for the claimants
submits that in grocery shops, registers are not be maintained for payment of
daily batta and for payment of bonus. When P.W.3 himself deposed before the
Tribunal, the Tribunal should have considered the same. In arriving the monthly
earnings of a deceased person, the Tribunal has to involve in guess work,
particularly when the deceased persons were employed in unorganised sector.
P.W.3 deposed that the grocery shop was in existence from 1958 and that the
deceased was in employment from 1977. Taking into account these facts, the
Tribunal thought of taking into account the future prospects. If it is so, the
Tribunal should have taken 50% of the last drawn salary towards future prospects
as held by the Honourable Apex Court in Sarala Varma case referred to above. If
it is done, then the monthly earnings could be taken as Rs.3,000/- for the
purpose of computation of compensation.
19. Even otherwise as rightly contended by the learned Counsel for the
claimants that the Honourable Apex Court held in New India Assurance Company
Limited Vs. Kalpana reported in 2007 (1) CTC 523 and in National Insurance
Company Ltd. v. Khimlibai reported in 2009 (5) CTC 187 that where the monthly
earnings could not be established by proper evidence, Rs.3,000/- could be taken
as monthly earnings. In those cases, the accident arose much prior to 2001,
while in this case, the accident arose in the year 2001. Therefore, either by
giving future prospects at 50% of the last drawn wages or otherwise, Rs.3,000/-
could be taken for the purpose of computation of compensation, as rightly
contended by the learned Counsel for the claimants.
20. I am therefore inclined to take Rs.3,000/- as monthly earnings of the
deceased for the purpose of computation of compensation. In my considered view,
the Tribunal was not correct in fixing Rs.2,250/- as monthly earnings of the
deceased.
21. Further, as rightly contended by the learned Counsel for the
claimants, the Tribunal was not correct in deducting 1/3rd towards the personal
expenses as there were four dependants. The Tribunal should have deducted only
1/4th towards the personal expenses and Rs.2,250/- could be taken for the
purpose of computation of loss of income.
22. When “16” was taken as multiplier by the Tribunal, the learned Counsel
for the Transport Corporation submits that the proper multiplier could be “15”
as per the decision of Sarala Varma Case, referred to above. Hence, “15” is
taken as multiplier and the loss of dependency is worked out at Rs.2,250 x 12 x
15=Rs.4,05,000/-. As far as the other heads awarded by the Tribunal are
concerned, there is no dispute.
23. Hence, the award is modified by this Court as follows:
(i) for loss of income Rs.4,05,000
(ii) for love and affection Rs. 20,000
(iii) for funeral expenses Rs. 2,000
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Total Rs.4,27,000
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24. The Transport Corporation is directed to deposit the enhanced
compensation of Rs.1,17,000/-(Rs.4,27,000 – Rs.3,10,000) within a period of six
weeks from the date of receipt of a copy of this order along with interest at 9%
from the date of application to the credit of M.C.O.P.No.16 of 2003, on the file
of the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar
District at Srivilliputtur. The enhanced compensation could be apportioned
among the claimants in the same ratio as done by the Tribunal. The claimants are
permitted to withdraw the same.
25. Accordingly, these Civil Miscellaneous Appeals are disposed of. No
costs.
Ssl / r n s
To
The Motor Accident Claims Tribunal,
The Motor Accident Claims Tribunal,
Principal District Judge, Virudhunagar District
at Srivilliputtur.