BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/11/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI and THE HONOURABLE MR.JUSTICE T.RAJA Civil Miscellaneous Appeal(MD)No.1069 of 2005 and C.M.P.(MD)No.6752 of 2005 Tamil Nadu State Transport Corporation (Div.2), Periyamilaguparai, District Collector's Office Road, Tiruchirapalli, rep.by its Managing Director. ... Appellant vs. 1.Kalarani 2.Minor Sanjeevakanna 3.Minor Vedavani 4.Abirami 5.Raghavan ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act as against the Award and Decree of the Motor Accident Claims Tribunal/ Subordinate Court, Kulithalai, dated 14.12.2004 made in M.C.O.P.No.48 of 2004. !For appellant ... Mr.M.Prakash ^For respondents... Mr.A.Saravanan :JUDGMENT
(Judgment of the Court was
delivered by R.BANUMATHI, J)
This Appeal arises out of award passed by the Motor Accident Claims
Tribunal/Subordinate Court, Kulithalai, dated 14.12.2004 made in M.C.O.P.No.48
of 2004 in awarding compensation of Rs.18,04,000/- for the death of R.Gokul
Kanna in the road accident on 16.10.2002.
2. On 16.11.2002 at about 1.30p.m., when the deceased was riding Hero
Honda Motor Cycle bearing Reg.No.TN 45E 9868 from South to north in the Trichy
to Chennai bye-pass road at the place near Adaikalaraj Catering College, a bus
bearing Reg.No.TN/45/N/1546, which belongs to the appellant Corporation, was
coming behind him and dashed the two wheeler due to rash and negligent driving
of the bus by its driver. Due to the impact, the deceased sustained multiple
grievous injuries all over the body and he died on his way to the hospital.
Regarding the accident, a criminal case was registered in Crime No.316/2002
under Section 304-A of the IPC. The deceased Gokul Kanna was working as a
Junior Engineer, Grade I, Transform Erection, Tamil Nadu Electricity Board,
Collectorate, Trichy and was getting salary of Rs.15,000/- per month.
3. Alleging that the accident was due to rash and negligent driving of the
bus driver, the claimants – wife and children of the deceased Gokul Kanna filed
a Claim Petition claiming compensation of Rs.35,00,000/-.
4. The appellant corporation resisted the claim petition contending that
the deceased motor cyclist, on hearing horn of the appellant Corporation Bus,
went to his left and gave way for the respondent/bus to overtake him and when
the bus was just five feet behind the deceased motor cyclist, a buffalo, which
was on the western, suddenly turned right and the deceased motor cyclist, in
order to avoid colliding with the buffalo suddenly turned right and hit against
the left side corner of the bus. The driver of the appellant Corporation was in
no way responsible for the accident and the accident was solely due to
contributory negligence on the part of the deceased.
5. Before the Tribunal, the first claimant examined herself as PW.1. As
eye-witness, one K.Palanichamy was examined as PW.2 and one Adhiyaman was
examined as PW.3. Exs.P1 to P14 were marked on the side of the
claimants/respondents. The mother of the deceased Gokul Kanna and the conductor
of the appellant bus was examined as RWs.1 and 2 respectively. Upon
consideration of the oral and documentary evidence, referring to Ex.P.1 FIR, the
Tribunal held that the accident was due to rash and negligent driving of the bus
driver. Insofar as the evidence of RW.2 Conductor, the Tribunal observed that
the Conductor would have been pre-occupied with the issuance of tickets and
therefore, he would not be in a position to depose as to how the accident
occurred and who was responsible for the accident. Pointing out that the driver
of the vehicle was not examined, the Tribunal held that, the accident was due to
rash and negligent driving of the appellant Corporation bus by its driver.
Based upon Ex.P.14 Salary Certificate, the Tribunal has taken the monthly income
of the deceased as Rs.14,042.50. After deducting 1/3rd for personal expenses
i.e. Rs.4,632/-, the balance amount of Rs.9,360/- per month was taken as the
contribution to the family. Thus, the annual loss of income of the deceased was
arrived at Rs.1,12,320/-. Since the deceased was aged 36 years at the time of
the accident, the Tribunal adopted the multiplier 16 and the Tribunal calculated
the Total loss of income as Rs.17,97,120[Rs.1,12,320 X 16]. The Tribunal added
conventional damages i.e. Rs.2,000/- for funeral expenses; Rs.5,000/- for loss
of love and affection. In toto, the Tribunal awarded total compensation of
Rs.18,04,000/- to the claimants 1 to 3 and the parents of the deceased. Out of
the total compensation amount awarded i.e. Rs.18,04,000/-, the first claimant
was entitled to Rs.5,54,000/-, the second and third claimants was entitled to
Rs.4,00,000/- each; and parents of the deceased viz., respondents 4 and 5 herein
were entitled to Rs.2,25,000/- each.
6. Even though the learned counsel for the appellant Corporation raised
contention regarding the finding of the Tribunal as to the negligence of the bus
driver, during the course of the arguments, the negligence of the bus driver was
not under serious challenge. PW.3 has clearly spoken about the accident about
the negligence driving of the bus driver. PW.3 has stated that on the date of
the accident, he was proceeding behind Gokul Kanna and at that time, the
appellant Corporation bus bearing Reg.No.TN/45/N/1546 being driven in a rash and
negligent manner came behind the vehicle of the deceased and hit against Goukl
Kanna due to which, Gokul Kanna was thrown away from the vehicle and sustained
fatal injuries and died on his way to the hospital.
7. As pointed out by the Tribunal, the driver of the bus was not examined.
Even though the appellant Corporation has taken plea that the deceased
contributed to the accident, as pointed out by the Tribunal, the bus driver was
not examined. On the other hand, only the conductor was examined as RW.2. As
rightly pointed out by the Tribunal, the Conductor, who was inside the bus,
must have been issuing the tickets and must have been filling up of trip sheets.
While so, he could not exactly speak as to who was responsible for the accident.
8. Based upon the evidence of PW.3 and Ex.P.1, the Tribunal has rightly
held that the accident was due to rash and negligent driving of the bus driver
and fastened the liability upon the appellant Corporation. As pointed out
earlier, the Criminal Case in Crime No.316/2002 under Section 304-A of the IPC
was registered against the bus driver.
9. The learned counsel for the appellant Corporation contended that the
compensation amount of Rs.18,04,000/- awarded to the claimants and the parents
of the deceased is very much on the higher side. It was further submitted that
the Tribunal erred in taking into account the gross salary of the deceased for
calculating the compensation amount instead of taking the take home salary of
the deceased every month after deductions.
10. The deceased Gokul Kanna was working as a Junior Engineer Grade I,
Transform Erection, TNEB, Collectorate, Trichy. Ex.P.13 is his Service
Register, from which it is seen that his date of birth was 16.5.1966 and at the
time of the accident, he was aged 36 years. Ex.P.14 is the Salary Certificate
of the deceased from which it is seen that he was getting salary of
Rs.14,042.50. Ex.P.3 is the Legal Heirship Certificate showing that the
respondents 1 to 5 herein viz., wife, children and parents of the deceased are
the legal heirs of the deceased Gokul Kanna. The Tribunal has taken the monthly
income of the deceased as Rs.14,042.50. Even though his take home salary was
less, as has been consistently held, for calculating the income, only the gross
salary has to be taken into account.
11. The Tribunal has taken the monthly income of the deceased at
Rs.14,042.50 and deducted 1/3rd for personal expenses Rs.4,632/- and has taken
2/3rd of the monthly income as contribution to the family Rs.9,360/- and
calculated the annual loss and dependency at Rs.1,12,320. At the time of the
accident, since the deceased was aged 36 years, as per the second schedule, the
Tribunal has adopted multiplier 16 and calculated the total loss of dependency
at Rs.17,97,120/-. Insofar as the conventional damages awarded as Rs.2,000/-
for funeral expenses; Rs.5,000/- for loss of love and affection to the claimants
and parents of the deceased are very reasonable. The total compensation awarded
by the Tribunal as Rs.18,04,000/- is just and reasonable compensation and we
find no reason to interfere with the quantum of compensation. Insofar as the
interest, the Tribunal has awarded 9% interest. As per the consistent view
taken by the Supreme Court, the rate of interest is reduced to 7.5%.
12. In the result, the quantum of compensation awarded in M.C.O.P.No.48 of
2004 dated 14.12.2004 by the Motor Accident Claims Tribunal/Subordinate Court,
Kulithalai is confirmed and the rate of interest awarded @ 9% by the Tribunal is
reduced to 7.5% and the Civil Miscellaneous Appeal is partly allowed to that
limited extent. No order as to costs. Connected Miscellaneous Petition is
closed.
13. The appellant Corporation is directed to deposit the entire
compensation amount less the amount already deposited. On such deposit, the
first claimant wife and parents of the deceased, are permitted to withdraw the
entire compensation amount payable to them. Insofar as the compensation
apportioned to the minor claimants, the Tribunal shall continue to invest the
same in a nationalised bank under reinvestment scheme till the minors attain the
majority. The direction of the Tribunal permitting the first claimant/mother
of the minor children to periodically withdraw the interest of the minors’ share
directly from the bank shall hold good.
asvm
To
The Motor Accident Claims Tribunal/
Subordinate Court, Kulithalai.