IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.3283 of 2008
and
M.P.No.1 of 2008
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Pudukottai,
Kumbakonam Division-IV .. Appellant
Vs
1.Anusuya Devi
2.Minor.S.Chandrasekaran
3.Minor.S.Ramiya
4.C.Shanmugaganiammal
5.C.Chakkarapa .. Respondents
(2nd & 3rd respondents rep. by
their mother and natural
guardian 1st respondent)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 05.04.2004, made in M.C.O.P.No.1625 of 2001, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Chennai.
For appellant : Mrs.B.Vijayalakshmi
For respondents : Mr.K.Sellathurai, for RR1-3
NA-RR4 & 5
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 05.04.2004, made in M.C.O.P.No.1625 of 2001, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Chennai, awarding a compensation of Rs.6,70,000/-, with 9% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/ respondent, The Managing Director, Tamil Nadu State Transport Corporation Ltd., Pudukottai, Kumbakonam Division-IV, has filed the above appeal praying to set aside the said award and decree.
3.The short facts of the case are as follows:
On 04.08.2000, at about 8.45 a.m. the bus bearing registration No.TN63 N0474, coming from Karambakkudi to Thiruvottriyur and driven rashly and negligently by its driver, dashed against the Swaraj Mazda Tourist van bearing registration No.TN01 F3795. In the result, the van was fully damaged and its driver namely Selvam, sustained grievous injuries and he was admitted in the Government Hospital, Pudukkottai. Subsequently, he died in the Hospital on the same day. Hence, the respondent, being the owner of the said transport bus is vicariously and statutorily liable to pay the compensation.
4.The first petitioner is the wife of the deceased; second petitioner is the minor son of the deceased; third petitioner is the minor daughter of the deceased; fourth petitioner is the mother of the deceased and the fifth petitioner is the father of the deceased. The petitioners have claimed a compensation of Rs.10,00,000/- from the respondent under Section 166 of Motor Vehicles Act.
5.Regarding the said accident, a Criminal case has been registered at the Karammakkudi Police Station, Pudukottai District as Crime No.440/2000.
6.The respondent, in his Counter has resisted the claim stating that the age, income and occupation of the deceased have to be proved and the petitioners should also prove that they are the only legal heirs of the deceased. Further, the respondent has denied the manner of the accident as alleged in the claim. It is stated that the driver of the respondent’s bus was driving his vehicle slowly on the proper side of the road and observing the traffic rules and regulations. While so, the van, which was coming from the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, came on the wrong side of the road and dashed against the front right side of the bus, which resulted in the accident. As such, only the van driver is solely responsible for the accident.
7.The claim is also excessive and without any basis. As such, the respondent has prayed for dismissal of the claim petition with costs.
8.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused due to the high speed and rash and negligent driving by the driver of the respondent’s bus?
(ii) What is the quantum of compensation, which the petitioners are entitled to get?
9.On the petitioners side, one Mani, an eye witness to the accident was examined as PW2. The PW2, in his evidence has deposed that on 03.08.2000, he had travelled in the Swaraj Mazda van bearing registration No.TN01 F3795, as a passenger from Chennai to Paramakudi; that he had taken rest at Pudukottai in the early morning for 3 hrs; that after taking rest, he had travelled in the said van on 04.08.2000, and that at 8.30 a.m. the Tamil Nadu State Transport Corporation Bus, driven by its driver at a high speed and in a rash and negligent manner had dashed against the Swaraj Mazda Van. He had further deposed that due to the accident, the driver of the Swaraj Mazda Van sustained severe injuries and he had admitted the driver in the Government Hospital, Pudukottai; that even after treatment, the driver had succumbed to the injuries. The PW2 has stated that he had registered a complaint at the Dharmapuri Police Station, wherein he had stated that the accident was caused only by the rash and negligent driving by the driver of the respondent’s bus bearing registration No.TN63 N0474 and in proof of this, he had marked Ex.P1-FIR and Ex.P2-Rough Sketch.
10.On the respondent’s side, one P.Meganathan, the driver of the bus, has been examined as RW1. The RW1, in his evidence has deposed that he was the driver of the said bus involved in the accident. He has stated that on the date of accident, he had driven the bus from Karumbakkudi and was travelling towards Thiruvottriyur on the extreme left of the road, from east to west and that the road on which the bus was moving was a straight and wide road. He has stated that the said van, which came from west towards east on the same road and driven by its driver at a high speed, had dashed against the front portion of the bus and as such the accident was caused only due to the negligence of the driver of the said van. He has further admitted that he had not lodged a complaint against the driver of the said van, with the Police, regarding the accident. The Tribunal was of the opinion that if the accident had been really caused by the negligence of the van driver, the bus driver would have lodged a complaint against the van driver. But, from the fact that no such complaint has been lodged by the driver of the bus as against the van driver, it is evident that the accident has been caused only by the rash and negligent driving by the driver of the respondent’s bus. So, the Tribunal, on consideration of evidence of PW2 and scrutiny of Exs.P1 and P2, held that the accident was caused due to the high speed, rash and negligent driving by the driver of the respondent’s bus.
11.The first petitioner during examination as PW1 before the Tribunal had stated that at the time of the accident, her husband was the owner of two Mahindra Vans and that it was used as tourist vans. Further, she had stated that her husband was also the van driver and as such he was earning a sum of Rs.5,000/- from letting out the van for hire and was earning an additional Rs.5,000/-, being the driver of the van. As such, the PW1 had claimed a compensation of Rs.10,00,000/-. In support of her evidence, she had marked Ex.P4-Legal Heir Certificate. On scrutiny of Ex.P4, it is evident that the first petitioner is the wife of the deceased; the second petitioner is the minor son of the deceased; the third petitioner is the minor daughter of the deceased; the fourth petitioner is the mother of the deceased and the fifth petitioner is the father of the deceased. So, the Tribunal, after perusal of the evidence given by PW1 and on scrutiny of Ex.P4 held that the petitioners are the legal heirs of the deceased Selvam. Though, no documentary evidence has been furnished by the petitioners to prove that the deceased Selvam had been earning a sum of Rs.5,000/- as a van driver, the Tribunal, on considering the fact that the deceased had been the owner and the driver of the two vans, held that the deceased could have earned at least Rs.3,000/- as a van driver. The Tribunal, after scrutiny of Exs.P6 and P7, the R.C.Books held that the deceased Selvam was the owner of the two vans. Though, no documentary evidence had been furnished by the petitioners to prove that the deceased Selvam had been earning a sum of Rs.5,000/- from letting out the said vans for hire, the Tribunal opined that the deceased could have earned an income of Rs.2,000/- every month by letting his vans for hire. As such, the Tribunal held that the deceased Selvam could have earned an income of Rs.5,000/- per month and accordingly took the income of the deceased Selvam as Rs.5,000/- per month. It has been alleged in the claim petition that the deceased Selvam was aged about 35 years, at the time of the accident. No documentary evidence had been furnished by the petitioners to prove that the age of the deceased was 35 years at the time of the accident. But, the Tribunal, on scrutiny of Ex.P3, the Post-mortem Report of the deceased Selvam, wherein it has been mentioned that the deceased Selvam was aged about 35 years at the time of the accident, took the age of the deceased as 35 years. The Tribunal, adopting a multiplier of 16, as is appropriate for age group of 35-40 years, assessed the total income, which the deceased Selvam would have earned as Rs.9,60,000/- (Rs.5,000/- X 12 X 16). Deducting 1/3rd share from this for his personal expenses, the Tribunal held that the deceased could have contributed a sum of Rs.6,40,000/- to his family. As such, the Tribunal a sum of Rs.6,40,000/- to the petitioners as compensation under the head of loss of income. The Tribunal, further awarded a sum of Rs.20,000/- as compensation to the petitioners under head of loss of expectancy of life. The Tribunal on considering that the age of the first petitioner was only 26 years at the time of the accident awarded a compensation of Rs.10,000/- to the first petitioner under the head of loss of consortium. In total, the Tribunal awarded a compensation of Rs.6,70,000/- to the petitioners and apportioned Rs.3,20,000/- to the first petitioner; Rs.1,00,000/- each to the second and third petitioners and Rs.75,000/- each to the fourth and fifth petitioners and directed the respondents to deposit the said award amount together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. Further, the Tribunal directed that the said award apportioned to the first, fourth and the fifth petitioners had to be deposited in a nationalised bank for a period of three years and the second and the third petitioners apportioned share of award amount had to be deposited in a nationalised bank until such time, when they become majors. The Advocate fees was fixed at Rs.13,700/-.
12.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in holding that the accident took place due to the negligence of the appellant’s driver. It has been submitted that on the date of accident ie.04.08.2000, the appellants driver had driven the vehicle in a proper manner with minimum speed and observing all the traffic rules at the time of the accident and it had only been the van drivers rash and negligent driving, which had resulted in the accident. It has been contended that the negligence of the van driver had not been proved by the respondent herein.
13.As such, it has been contended that an award of Rs.6,70,000/- passed in favour of the claimant, with 9% interest per annum, is highly excessive and unreasonable. Further, the learned counsel for the appellant vehemently argued that there is no income proof for the deceased. Without any basis, the Tribunal has come to a conclusion that the deceased was earning a sum of Rs.5,000/- per month. So, the multiplier method adopted by the Tribunal is erroneous.
14.The learned counsel for the respondent submitted that the fifth claimant, the father of the deceased had expired. So, his claim amount may be equally apportioned to the claimants 1st to 4th. Further, at the time of filing the claim petition, the claimants were 5 in number. As such, the Tribunal has to deduct only 1/4th share of the income of the deceased and assess loss of income to the claimants. The deceased was a driver-cum-owner of the two tourist vans. So, the fixing of income of the deceased as Rs.5,000/- by the Tribunal is on the lower side.
15.For the foregoing reasons, facts and circumstances of the case, arguments advanced by the learned counsel on either side, the Court is of the view that the income of the deceased taken as Rs.5,000/- by the Tribunal is reasonable, considering that the he is the owner of the two tourist vans bearing registration Nos.TN09 V3335 and TN09 T0371, which are Mahendra Vans. As such, the Tribunal’s adoption of multiplier method cannot be held to be at fault. For the income of Rs.5,000/-, multiplier of 16 as relevant to the age 35 fixed by the Tribunal is reasonable and hence, the award of Rs.6,40,000/- granted by the Tribunal under the head of loss of income is reasonable. Further, the Tribunal had awarded Rs.20,000/- for loss of expectation of life, which this Court considers not relevant and instead this Court awards a sum of Rs.5,000/- each under the head of love and affection, to the 2nd, 3rd and 4th claimants, as they are minor children and mother of the deceased. The balance amount of Rs.5,000/- is treated as an award under the head of funeral expenses. The Court confirms the award of Rs.10,000/- granted by the Tribunal to the first petitioner for loss of consortium. As such, the award of Rs.6,70,000/- granted by the Tribunal is found to be reasonable and fair and hence this Court confirms the award passed by the Tribunal.
16.This Court had earlier directed the appellant to deposit a sum of Rs.5,25,000/- with proportionate interest and entire costs, into the credit of the M.C.O.P.No.1625 of 2001, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Chennai.
17.Now, this Court directs the appellant to deposit the balance amount of Rs.1,45,000/- with accrued interest at the rate of 9% per annum from the date of filing the petition till the date of payment, within a period of four weeks from the date of receipt of this Order.
18.It is open to the first claimant to withdraw her apportioned amount, ie. a sum of Rs.3,20,000/- with accrued interest and fourth claimant is permitted to withdraw a sum of Rs.1,00,000/- (inclusive of husband’s share of Rs.25,000/-), with accrued interest thereon. The second and third claimant’s apportioned share amount shall continue to remain as investment in the nationalised bank until they become majors. The fifth claimant’s balance share of Rs.50,000/- has been apportioned to the second and third claimants equally and this share of Rs.50,000/- with accrued interest can be received by the first petitioner on behalf of the second and third claimants/minors by filing necessary application, in accordance with law.
19.In the result, the above Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Fast Track Court No.II, Chennai, in M.C.O.P.No.1625 of 2001, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs.
08.01.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Vehicles Accident Claims Tribunal,
Fast Track Court No.II, Chennai.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-deliver Order in
C.M.A.No.3283 of 2008
08.01.2010