IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.02.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1981 of 2007
and
M.P.No.2 of 2007
The Managing Director
Tamilnadu State Transport
Corporation Ltd.,
Division-I, Coimbatore .. Appellant
Vs
1.Arumugam
2.Dhanalakshmi .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 29.08.2006, made in M.A.C.T.O.P.No.935 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur.
For appellant : No appearance
For respondents : No appearance
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 29.08.2006, made in M.A.C.T.O.P.No.935 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation of Rs.5,55,000/- together with 7.5% 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., Division-I, Coimbatore, has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 30.05.2004, at about 08.20 hrs, the (deceased) Kumar was travelling on a bike bearing registration No.TN38 Z9784, from west to east, in the Thirumuruganpoondi to Pooluvapatti bye-pass road, Chettipalayam Pirivu, Tiruppur, keeping to the left side of the road. At that time, the bus bearing registration No.TN37 N0607, coming from south to north driven by its driver, in a rash and negligent manner, dashed against the (deceased) Kumar. Due to the accident, the (deceased) Kumar sustained grievious injuries all over his body and he was taken to Sri Kumaran Hospital and Government Hospital, Tiruppur, for treatment. But, in spite of treatment, the (deceased) Kumar succumbed to the injuries and died.
4.The (deceased) Kumar was a rice agent and was earning a sum of Rs.9,000/- per month. He was the only breadwinner of his family. Therefore, the petitioners, who are the parents of the (deceased) Kumar have claimed a compensation of Rs.10,00,000/- from the respondent, who is the owner of the said bus involved in the accident, under Section 166 of the Motor Vehicles Act.
5.Regarding the said accident, a criminal case has been registered as against the driver of the said bus, by the Anupparpalayam Police Station, in Crime No.678/2004, under Sections 279, 337 and 304(a) of I.P.C.
6.The respondent, in his Counter, has resisted the claim denying the averments contained in the claim petition regarding the age, income and occupation of the (deceased) Kumar. Further, it was submitted that the place and time of the accident, manner of the accident, nature of injuries sustained by the (deceased) Kumar has to be proved by the petitioners. It was pointed out that the petitioners have filed another application in M.C.O.P.No.934 of 2004 with the very same averments and as such the present claim petition has to be dismissed. The respondent has also denied the averments contained in the claim regarding the manner of the accident. It has been submitted that on 30.05.2004, the bus bearing registration No.TN37 N0607 was proceeding from Tiruppur to Chettipalayam. At about 08.20 a.m. the driver of the bus drove the bus slowly and cautiously, on the extreme left side of the road, after taking passengers from the APR Bus stop and at about 8.20 a.m. when the bus was nearing the ring road, the motorcyclist came in his motorcycle bearing registration No.TN38 Z9784, from the Thirumuruganpoondi Cut Road with great speed and joined the main road without noticing the oncoming bus. On seeing the motorcycle, the driver of the bus swerved the bus to the left extreme of the road and stopped the bus. In spite of it, the motorcyclist lost his control and dashed against the font left side of the stopped bus and caused the alleged accident. As such, the accident occurred only due to the rash and negligent act of the motorcyclist.
7.It was also submitted that the motorcyclist did not have a valid driving licence, tax papers and insurance, to drive the motorcycle bearing registration No.TN38 Z9784, at the time of te accident. It was also submitted that as the owner and the insurer of the two wheeler bearing registration No.TN38 Z9784 have not been included as necessary parties in the claim case, the petition is bad for non-joinder of necessary parties. It was also submitted that the claim is excessive and has to be dismissed with costs.
8.The Motor Accident Claims Tribunal framed three issues for the consideration namely:
(i) Who was responsible for the accident?
(ii) Were the owner and insurer of the motorcycle bearing registration No.TN38 Z9784, necessary parties for proper adjudication of the case? Should the claim petition be dismissed for non-joinder of necessary parties?
(iii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get?
9.On the petitioners’ side, five witnesses were examined as PW1 to PW5 and eleven documents were marked Exs.P1 to P11. On the respondent’s side one witness was examined as RW1 and no documents were marked.
10.The second petitioner, the father of the (deceased) Kumar, was examined as PW1. The PW1, in his evidence, has confirmed the averments, which has been made in the claim petition and in support of his evidence he has marked Ex.P1, the FIR. On scrutiny of the FIR, it is seen that the accident had occurred at 8.20 a.m. on 30.05.2004 and that at 12.00 a.m. the complaint had been given by one Subramani in the Anupparpalayam Police Station and that based on his complaint, a criminal case has been registered in Crime No.678/2004 as against the driver of the bus bearing registration No.TN37 N0607. It has been stated in the FIR that the (deceased) Kumar and Subramani were in the process of collecting dues for rice sold to parties and that while he was proceeding on the Chettipalayam branch road on the Thirumuruganpoondi-Puluvapatti bye pass road, from west to east at 08.20 a.m. he had seen the (deceased) Kumar, riding on his motorcycle about 10 feet ahead of him, he had seen the respondent’s town bus registration No.TN37 N0607, driven by its driver, at a high speed and in a rash and negligent manner, without sounding of horn, dash against the motorcycle of the (deceased) Kumar, that as a result of the accident, the (deceased) Kumar had sustained severe injuries and that he and the bus driver and some other persons had phoned for an ambulance and admitted the (deceased) Kumar at the intensive care unit of Tiruppur Sri Kumaran Hospital. The said Subramanian, who had lodged the complaint was examined as PW2 before the Tribunal, and the evidence given by him was in consonance with the complaint registered in the FIR. Further, another eyewitness to the accident, namely, Vijayan, has also submitted in his evidence as PW3, that the accident had been caused only by rash and negligent driving of the State Transport Corporation bus. On scrutiny of the Ex.P2, the Motor Vehicle Inspector’s Report on the said bus involved in the accident, it is seen that there were no mechanical defects in the said bus.
11.On the respondent’s, the conductor of the said bus involved in the accident namely Natarajan was examined as RW1. The RW1, in his evidence, has deposed that the (deceased) Kumar came in his motorcycle bearing registration No.TN38 Z9784, at a high speed and in a rash and negligent manner and that without seeing the left and right side of the road, had come out from a side road and suddenly came on to the main road and on seeing the oncoming bus had lost his control and dashed his motorcycle against the bus and fallen down and had further stated that the accident had not been caused due to rashness or negligence on the part of the bus driver. But, the Tribunal was of the opinion that the fact whether the accident had not occurred due to any fault on the part of the driver of the bus could best be established only through examination of the driver of the bus. In the instant case, the respondents had not examined the driver of the bus. The conductor of the bus had further stated in his evidence that he is aware that a criminal case has been filed as against the driver of the bus in the said accident; that the driver of the bus had been suspended, temporarily, from his duty, immediately, after the accident. He has further deposed that a Junior Engineer of their department had come to the accident site, within half an hour from the time of occurrence of the accident, and conducted an inquiry with the driver and conductor of the said bus and also conducted enquiry with the other persons, who were in the vicinity of the place, where the accident had taken place. He had deposed that he is not aware of the report lodged by the Junior Engineer regarding the accident. He had also admitted that he had not given any complaint to the Police and that he had only given the report of his version of accident to his office. The RW1 has further stated that he has not filed the copy of the letter written by him to his office regarding the accident in the instant case. He had also stated that the driver of the bus had been terminated from service after the accident.
12.As such, the Tribunal, on considering that the driver of the said bus involved in the accident had been terminated from service and on considering that the driver of the bus has not been examined by the respondent’s side in the instant case, held that the accident had been caused only due to the rash and negligent driving by the driver of the respondent’s bus.
13.The Tribunal, were of the view that as the cause for the accident was the rash and negligent driving of the driver of the respondent’s bus, it is not necessary for the owner and insurer of the motorcycle bearing registration No.TN38 Z9784 to be added as necessary parties for proper adjudication of the instant case and following the guidelines laid as per the Judgment cited in 2002 ACJ Page 1259, Madhya Pradesh High Court, held that the petition is not bad due to non-joinder of necessary parties.
14.Ex.P3 is the Post-mortem Certificate of the (deceased) Kumar. It has been stated that the age of the (deceased) Kumar was 25 years. His Death Certificate has been marked as Ex.P4 and the Legal Heir Certificate has been marked as Ex.P5. Ex.P6 is the Medical Bills showing amount incurred in medical treatment of the (deceased) Kumar at Kumaran Hospital, Tiruppur. Ex.P7 is the Certificate issued by the Owner of the Chitralaya Rice Mart stating that the (deceased) Kumar was working as a Commission Agent under them and doing the business of selling rice and that he was getting a monthly commission of Rs.4,500/-. Ex.P8 is the Certificate given by the Partner of Annai Velankanni Traders Association.
15.The owner of the Chitralaya Rice Mart, Mr.Jagadeeswaran, was examined as PW4. The PW4 has stated in his evidence that the (deceased) Kumar was working as a Commission Agent under him and was engaged in business of selling rice and was getting a monthly commission of Rs.4,500/- and in support of his evidence has marked Ex.P9, copy of the Registration Certificate issued as per the guidelines laid under the Tamil Nadu Income Tax Act and rules and also marked Ex.P7, the Salary Certificate.
16.One Manikavasagam, an employee of the Annai Velankanni Rice Traders, was examined as PW5. He had marked Ex.P10 to show that he has been authorised by his employer to hive evidence in the instant case and he has also marked Ex.P11, which shows that the said firm has been certified to operate as per the guidelines laid down in the Tamil Nadu Income Tax Act and rules. In his cross-examination, he has stated that the said firm is owned by a single umber and that it is not a co-operative society. He had further stated that he was employed here as an accountant as well as a collector of dues, receivable by the firm. It is seen from Ex.P10 and Ex.P8 that the person who had signed these certificates had signed in the capacity of a partner in Annai Velankanni rice traders. But from the evidence of PW5, it is seen that he had stated that Annai Velankanni rice traders is owned by a single person.
17.The Tribunal, therefore held that the petitioners have established that the deceased Kumar was invovlved in the business of rice trading. But as no documentary evidence has been furnished to prove that the deceased Kumar was earning Rs.9,000/- per month and as no details had been furnished to show the quantum of rice traded in by deceased Kumar and the amount of commission he had got on these types of sale, the Tribunal, on considering that the deceased Kumar was an Active young worker aged 25 years at the time of accident, fixed the notional income of the deceased Kumar as Rs.3,500/- per month. The tribunal, adopting a multiplier of 17 as was relevant to the age of the deceased Kumar and adopting a multiplier of 13 as was relevant to the age of the mother of the deceased Kumar (47 years), averaged the two mulplier’s and adopted a multiplier of 15 to assess the loss of income to the petitioners as per the Judgment in case cited in 2003 (1) MLJ page 360, Chennai High Court. As such, the Tribunal on taking the annual income of the deceased Kumar as Rs.42,000/-, deducted 1/3 of it for his personal expenses i.e Rs.14,000/-, and arrived at a figure of Rs.28,000/- as the annual loss of income to the petitioners. The tribunal adopting a multiplier of 15, assessed the total loss of income to the petitioners as Rs.28,000×15=4,20,000/- and accordingly awarded Rs.4,20,000/- as compensation to the petitioners under the head of Loss of income. The Tribunal further awarded a sum of Rs.15,000/- each to the first and second petitioners, as compensation under the head of Loss of love and affection and Rs.1,00,000/- under the head of medical expenses. The Tribunal further awarded a sum of Rs.5,000/- under the head of funeral expenses. In total, the Tribunal awarded a sum of Rs.5,55,000/- as compensation to the petitioners and directed the respondent to deposit the award with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation into the Credit of M.C.O.P.No.935 of 2004, on the file of the Additional District Court, Fast Track Court-I, Coimbatore at Tiruppur, within one month from the date of its order. Further the Tribunal apportioned the award amount with accrued interest, equally amongst the petitioners, and the petitioners were permitted to withdraw a sum of Rs.77,500/- each along with total proportionate accrued interest and costs. The apportioned balance share of the award amount of the petitioners, i.e., a sum of Rs.2,00,000/- each was to be invested in a nationalised bank for a period of 3 years and the petitioners were permitted to withdraw the interest on their apportioned share of award, once in 3 months directly from the bank. The Advocate fees was fixed at Rs.12,550/-. The petitioners were directed to pay the balance Court fee due on the award amount within 10 days, of its order. The respondent was directed to pay the cost of Rs.17,480/- to the petitioners.
18.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in concluding that the accident took place only on account of the rash and negligent driving of the driver of the appellant Corporation and had also erred in relying upon the evidence of PW2 and PW3, the alleged interested eyewitness in respect of the manner of accident. It was also contended that the tribunal below erred in discarding the evidence of RW1, Conductor of the appellant Corporation in respect of the manner in which the accident took place and the tribunal ought to have dismissed the claim petition against the appellant Corporation on the basis of available evidence on record.
19.It was also contended that the deceased Kumar drove the motor cycle without valid driving Licence in a rash and negligent manner and entered the main road from the side road and dashed against the bus and as such the tribunal ought to fixed entire or at least, contributory negligence on the part of the deceased. It was also contended that the tribunal erred in relying upon the evidence of PW1, the claimant, in respect of age, occupation and monthly income of the deceased and age of claimants.
20.It was also contended that the Tribunal having disbelieved the evidence of PW5 and Ex.P8 erred in fixing the monthly income of deceased of Rs.3,500/-. It was also contended that the Tribunal having found that the age of the claimant was 47 years erred in fixing 15 years multiplier without any basis and ought to have fixed lesser years of multiplier as per rulings of the Apex Court.
21.It has also been contended that the total award of Rs.5,55,000/- granted under various heads was erroneous and excessive and has to be scaled down.
22.After scrutiny of the findings Tribunal-Additional District Court, Coimbatore at Tiruppur and on examination of the appeal grounds raised by the Learned counsel for the appellant, this court is of the view that the tribunal’s award to the claimants has been done in a proper manner after due consideration of all relevant facts excepting the adoption of multiplier the compensation awarded for tribunal expenses.
23.The Tribunal had taken the notional income of the deceased at Rs.3,500/- for assessment of compensation. This Court is of the view that the notional income fixed by the tribunal is reasonable considering that the year of accident was 2004. But, the multiplier adopted by the Tribunal as 15 is not appropriate in the instant case and duly 13 should be fixed as the multiplier, taking into consideration the age of the mother of the deceased (47 years). As such this Court assesses the compensation to the petitioners under the head of loss of income as Rs.28,000×13=Rs.3,64,000/-.
24.On the basis of medical bills, a sum of Rs.1,00,000/- has been awarded by the tribunal and the tribunal had also awarded Rs.15,000/- each to the petitioners under the head of Loss of love and affection. This Court confirms the awarded granted under the said heads as they are found to be reasonable, in the circumstances of the case.
25.The Tribunal had granted Rs.5,000/- for funeral expenses. This Court enhances the award for funeral expenses to Rs.10,000/-. In total this Court awards a sum of Rs.5,04,000/- as compensation to the petitioners together with interest at the rate 7.5% per annum from the date of filing the petition till date of payment of compensation as it is found to be fair and equitable in the circumstances of the case. The Tribunal’s award of a sum of Rs.5,55,000/- granted to the claimants has been scaled down by this Court to Rs.5,04,000/- with interest as mentioned above as it is found to be equitable and fair.
26.On 22.08.2007, this Court imposed a condition on the appellant/State Transport Corporation to deposit a sum of Rs.5,00,000/- to the credit of M.C.O.P.No.935 of 2004 on the file of the motor accident claims Tribunal, Additional District Court, Fast Track Court V, Coimbatore at Tiruppur. Now this Court hereby directs the appellant to deposit the balance compensation amount of Rs.4,000/- together with accrued interest, for the entire compensation amount, from the date of filing the claim petition till date of payment of compensation, into the credit of M.C.O.P.No.935 of 2004, on the file of the motor accident claims Tribunal, within a period of four weeks from the date of receipt of this order.
27.As the accident happened in the year 2004, it is open to the claimant to withdraw the entire compensation amount lying in the Credit of M.C.O.P.No.935 of 2004 on the motor accident claims Tribunal, Additional District Court, Fast Track Court V, Coimbatore at Tiruppur, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any.
28.As such, the above Civil miscellaneous appeal is partly allowed and the award and decree passed by the motor accident claims Tribunal, Additional District Court, Fast Track Court V, Coimbatore at Tiruppur, in M.C.O.P.No.935 of 2004, dated 29.08.2006 is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.
19.02.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
Additional District Court,
Fast Track Court V,
Coimbatore at Tiruppur
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.1981 of 2007
19.02.2010