BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/03/2006 CORAM: THE HON'BLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.Nos.1515 of 1997 C.M.A.Nos.1516 of 1997 Ms.Kattabomman Transport Corporation, represented by its Managing Director, Tuticorin Depot, Tuticorin, V.O.C.District. ... Appellant in both the C.M.As Vs 1.Shaya Pani Belsi 2.Minor Master Kishore Raja 3.Rajakili 4.Savariammal 5.Kala 6.Chandran (6th respondent was declared as major and Guardian was discharged from his
guardianship (Rajakili) vide order dated 21.10.2003 made in C.M.P.No.8970 of
2002 by ASVJ & SRSJ)
7.Nataraj … Respondents in
C.M.A.No.1515 of 1997
1.Arulananth
2.Eruthaya Marry
3.Antony Gruz
4.Michael Ammal
5.Santhana Marry
6.Moniya Prakasam
7.Nataraj … Respondents in
C.M.A.No.1516 of 1997
Prayer in C.M.A.No.1515 of 1997: Appeal filed under Section 173 of Motor
Vehicles Act, against the judgment and decree dated 17.01.1997 and made in
M.C.O.P.No.565 of 1993 on the file of the Motor Accidents Claims Tribunal –
Principal District Judge, Tuticorin.
Prayer in C.M.A.No.1516 of 1997: Appeal filed under Section 173 of Motor
Vehicles Act, against the judgment and decree dated 17.01.1997 and made in
M.C.O.P.No.566 of 1993 on the file of the Motor Accidents Claims Tribunal –
Principal District Judge, Tuticorin.
!For Appellant ... Mr.D.Sivaraman for Ms.Rajinish Pathiyil ^For Respondents ... Mr.A.K.Kumarasamy for R1 and R2 Mr.T.Selvakumaran for R3 to R5 and R6 :COMMON JUDGMENT
C.M.A.No.1515 of 1997 has been preferred against the award passed in
M.C.O.P.No.565 of 1993 on the file of the Motor Accidents Claims Tribunal –
Principal District Judge, Tuticorin.
2. C.M.A.No.1516 of 1997 has been preferred against the award passed in
M.C.O.P.No.566 of 1993 on the file of the Motor Accidents Claims Tribunal –
Principal District Judge, Tuticorin.
The short facts in brief are as follows:
3. On 24.03.1993, one Michael was driving a van bearing Registration
No.TCK-3545 at Tuticorin – Tirunelveli road from east to west along with three
other passengers, when the said van was nearing Maravanmadam, the bus belonging
to the first respondent / appellant bearing Registration No.TCB – 7917 was
driven by its driver in a rash and negligent manner and dashed against the van
bearing Registration No.TCK – 3545. One of the passengers by name Augustian who
was travelling in the said van, died on the spot. The driver of the van
namerly, Michael sustained grievous injuries and he was taken to the Government
Hospital, Tuticorin where he died on 29.03.1993, i.e, five days after the date
of the accident. The wife and minor son of the deceased Michael, have preferred
M.C.O.P.No.565 of 1993 claiming Rs.4,75,000/- towards compensation. The
claimants in M.C.O.P.No.566 of 1993 are the parents of the deceased Jesu
Arockiam, a passenger in the said van which involved in the accident. The
parents of the deceased Jesu Arockiam have claimed Rs.4,50,000/- towards
compensation.
4. The second respondent remained ex-parte. The first respondent in his
counter in both the M.C.O.P.Nos.565 of 1993 and 566 of 1993 contended that the
accident had not occurred due to the rash and negligent driving of the driver of
the bus belonging to the first respondent bearing Registration No.TCB – 7917 and
that only due to the rash and negligent driving of the driver of the van, the
accident had occurred. The owner of the van and the insured of the van are the
necessary parties.
5. Before the learned Tribunal, P.W.1 to P.W.4 were examined and Exs.P.1
to P.11 were marked on the side of the claimants. On the side of the
respondents, the driver of the bus bearing Registration No.TCB – 7917 was
examined as R.W.1 and no exhibits were marked.
6. After going through the oral and documentary evidence, the learned
Tribunal 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.TCB – 7917 and awarded a sum of Rs.3,16,500/- towards compensation to the
claimants in M.C.O.P.No.565 of 1993 and awarded Rs.1,24,500/- towards
compensation to the claimants in M.C.O.P.No.566 of 1993 with 12% interest and
proportionate costs in both the M.C.O.Ps.
7. Aggrieved by the award of compensation in M.C.O.P.No.565 of 1993 and
566 of 1993, the first respondent / State Transport Corporation has preferred
these appeals.
8. Now, the points for determination in these appeals are:
1) Whether the award of compensation in M.C.O.P.No.565 of 1993 is liable
to be reduced for the reasons stated in the Memorandum of appeal in
C.M.A.No.1515 of 1997?
2) Whether the award of compensation in M.C.O.P.No.566 of 1993 is liable
to be reduced for the reasons stated in the Memorandum of appeal in
C.M.A.No.1516 of 1997?
Point No:1
9. The quantum of award alone is challenged in C.M.A.No.1515 of 1997. The
learned Counsel for the appellant would contend that the deceased Michael, the
driver of the van bearing Registration No.TCK- 3545 was aged 25 years at the
time of the accident and according to P.W.1, the first claimant in
M.C.O.P.No.565 of 1993, the deceased Michael was a driver holding valid driving
licence under Ex.P.5 and that the learned Tribunal has fixed the monthly income
of the deceased Michael as Rs.900/- adopting 13 as multiplier has awarded a
compensation of Rs.2,88,000/-. The learned Counsel would contend that the
learned Tribunal ought to have followed the second Schedule to the Section 163
(A) of the Motor Vehicles Act and fixed the loss of income by using multiplier
17, since the deceased was aged 25 at the time of the accident.
10. The learned Counsel for the respondents relying on the decision in New
India Assurance Co., Ltd., Vs. Kiran Singh and others reported in 2004 (4) L.W
16 and contended that for an engineer aged 27 years who died in an accident, the
Apex Court has confirmed the award of compensation of Rs.6,25,000/- wherein
also, the multiplier 43 was adopted by the learned Tribunal which was confirmed
by the High Court. The learned Counsel for the respondent brought to the notice
of this Court that the view taken by the High Court in that case that if the
multiplier is reduced and multiplicand is enhanced, there will not be much
difference in the award of compensation and on that view, the award of
compensation of the learned Tribunal was confirmed. But, in the judgment what
was the difference if the multiplier is reduced, was not stated, but in the case
on hand, if we take the evidence of R.W.2, the wife of the deceased, the monthly
income of the deceased was Rs.2,000/- and if we deduct 1/3 towards his personal
expenses, then the loss of income to the claimants will come to Rs.1,335/- per
mensum and as per Schedule II to the Section 163(A) of the Motor Vehicles Act,
the relevant multiplier to be adopted is 17. If we adopt multiplier 17, then
the loss of income will come to Rs.2,72,340/- [Rs.1,335/- X 12 X 17 =
Rs.2,72,340/-] (Rupees Two lakhs seventy two thousand three hundred and forty)
only.
11. The learned Counsel for the respondents relying on the decision in
Deepal Girishbhai Soni and others Vs.United India Insurance Co. Ltd., reported
in 2004 (4) ACJ 934 and contended that the claimants can either file the claim
petition under Section 166 or under Section 163(A) of the Motor Vehicles Act and
would contend that the Schedule II to Section 163(A) will not be applicable to
the present facts of the case. No doubt in 2004 ACJ 934 (supra), it has been
held by the Apex Court that the choice left to the claimant to prefer the claim
petition under Section 166 or under Section 163 (A) of the Motor Vehicles Act.
In the case on hand, the award was passed only after the amendment under Act
54/99 came into force and that is why, the learned Tribunal adopted the
multiplier as per Schedule II to Section 163(A) of the Motor Vehicles Act. So,
the dictum relied on by the learned Counsel for the respondent will not be
applicable to the present facts of the case.
12. The learned Tribunal has awarded Rs.2,000/- towards transport to the
hospital and Rs.1,000/- towards extra nourishment. The driver of the van
namely, the deceased Michael was in the hospital as an inpatient from 24.03.1993
to 29.03.1993. Ex.P.6 is the post-mortem certificate relating to Michael dated
30.03.1993. The accident had occurred on 24.03.1993. So, the award of
compensation towards transport to hospital and extra nourishment need not be
interfered with in these appeals. The learned Tribunal has awarded Rs.500/-
towards damages to cloth which is also reasonable. The learned Tribunal has
awarded Rs.25,000/- towards loss of love and affection. The learned Counsel for
the appellant has no objection for awarding Rs.15,000/- to the wife of the
deceased towards consortium and Rs.10,000/- towards loss of love and affection.
So, the total amount of compensation will come to Rs.3,00,840/- [Rs.2,72,340/- +
Rs.2,000/- + Rs.1,000/- + Rs.500/- + Rs.15,000/- + 10,000/- = Rs.3,00,840/-]
(Rupees Three lakhs eight hundred and forty) only.
13. Hence, I hold on the point No.1 that the award of compensation in
M.C.O.P.No.565 of 1993 is to be reduced and fixed as Rs.3,00,840/- with 12%
interest and proportionate costs. Point No.1 is answered accordingly.
Point No:2
14. The claimants in M.C.O.P.No.566 of 1993 are the legal heirs of the
deceased Jesu Arockiam who was aged 35 years at the time of the accident. He
was a mechanic and an electrician at the time of the accident. The claimants in
M.C.O.P.No.566 of 1993 are the parents, brothers and sisters of the deceased.
The learned Counsel appearing for the appellant would contend that he has no
objection for the award amount in M.C.O.P.No.566 of 1993, because the learned
Tribunal has assessed the loss of income of the deceased on the basis that the
monthly income of the deceased was only Rs.600/-. During the course of the
argument, the learned Counsel for the appellant represents that he has no
dispute with regard to the amount of compensation awarded by the learned
Tribunal.
15. Hence, I hold on the point No.2 that the award of compensation in
M.C.O.P.No.566 of 1993 need not be set aside for the reasons stated in the
Memorandum of appeal in C.M.A.No.1516 of 1997. Point No.2 is answered
accordingly.
16. In the result, C.M.A.No.1515 of 1997 is partly allowed and the award
of compensation in M.C.O.P.No.565 of 1993 is reduced and fixed as Rs.3,00,840/-
(Rupees Three lakhs eight hundred and forty) only. The claimants are entitled
to 12% interest from the date of petition till the date of realisation with
proportionate costs. The first claimant is entitled to withdraw Rs.1,00,000/-
(Rupees one lakh) only at the first instance from the award amount. The minor
second claimant is entitled to Rs.1,00,000/- (Rupees one lakh) only and the
share of the minor second claimant is to be deposited in any one of the
nationalised banks till the minor attains majority. The first claimant as the
guardian is entitled to withdraw the accrued interest from the fixed deposit of
the minor second claimant once in three months. The balance of the award amount
is to be deposited in any one of the nationalised bank with accrued interest for
three years. The first claimant is entitled to withdraw the accrued interest
once in three months from the said fixed deposit amount. The learned Counsel
appearing for the appellant represents that the entire award amount has already
been deposited and under such circumstances, the appellant is entitled to
withdraw the balance of the award amount with accrued interest and proportionate
costs. C.M.A.No.1516 of 1997 is dismissed, confirming the award passed in
M.C.O.P.No.566 of 1993 on the file of the Motor Accidents Claims Tribunal –
Principal District Judge, Tuticorin.
rsb
To
The Motor Accidents Claims Tribunal –
Principal District Judge,
Tuticorin.