IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.3595 of 2008 and M.P.No.1 of 2008 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore. ... Appellant/Respondent vs. 1.Balusamy, 2.Minor Ragunathan. (Minor 2nd respondent is represented by his father and guardian Balusamy). ... Respondents/Petitioners Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 29.12.2006 passed in M.C.O.P.No.130 of 2004 on the file of the Motor Accidents Claims Tribunal (Fast Track Court No.IV), Coimbatore sitting at Tiruppur. For appellant : Mr.N.Anand ----- JUDGMENT
State Transport Corporation is on appeal challenging the award dated 29.12.2006 passed in M.C.O.P.No.130 of 2004 on the file of the Motor Accidents Claims Tribunal (Fast Track Court No.IV), Coimbatore sitting at Tiruppur.
2. The only contention raised by the counsel for the appellant is on the quantum of compensation awarded by the Tribunal.
3. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 16.1.2004 at 9.15 a.m. The first respondent/husband Balusamy and his wife the deceased Maheswari alias Easwari were travelling in a motorcycle at 9.15 a.m. When they were travelling in Dharapuram to Tiruppur Highway, the appellant transport corporation bus driven by its driver in a rash and negligent manner, hit the two wheeler. In that accident the pillion rider, the wife of the first respondent was thrown out of the vehicle and she sustained injuries. She was taken to Tiruppur Government Hospital and thereafter taken to Kovai C.M.C. Hospital, however she died. Stating that the deceased, while she was working as a daily wage earner in building construction, was earning Rs.5,000/- per month. The husband aged 40 years and the minor son aged 10 years filed a claim for compensation in a sum of Rs.5 lakhs.
4. In support of the claim, the husband of the deceased was examined as P.W.1. One Mr.Veeramani, the employer, building contractor, was examined as P.W.2. Exs.A-1 to A-5 were marked, the details of which are as follows:-
Ex.A-1 is the copy of F.I.R., dated 16.1.2004,
Ex.A-2 is the copy of Motor Vehicle Inspector’s Inspection Report,
Ex.A-3 is the copy of post-mortem certificate dated 17.1.2004,
Es.A-4 is the death certificate dated 28.1.2004 and
Ex.A-5 is the legal heir certificate dated 16.2.2004
The driver of the appellant transport corporation bus was examined as R.W.1. No document was marked on behalf of the appellant transport corporation, the respondent before the Tribunal.
5. As far as the negligence is concerned, the Tribunal held that the F.I.R. has been lodged as against the driver of the appellant transport corporation bus and he was arrested and released on bail. The Tribunal further held that the appellant transport corporation has not shown any material to show that the driver of the motorcycle, viz., the husband of the deceased was rash and negligent in driving of the bus and was responsible for the accident. In the absence of any acceptable evidence to contravert the oral and documentary evidence filed by the claimants and relied upon by the Tribunal, this court is unable to come to a different conclusion than that of the Tribunal. Accordingly, the finding of negligence on the part of the driver of the appellant transport corporation bus and the liability of the appellant to compensate the claimants stands confirmed.
6. Insofar as the compensation is concerned, the same was dealt with from paragraph 9 of the award onwards in answer to point No.2. According to the claim petition, the age of the deceased was 33 years. She was earning Rs.5,000/- per month at the time of accident. P.W.2 stated that the deceased was paid Rs.150/- per day for employment in construction business. The age of the deceased was fixed as 33 years based on Ex.A-3 post-mortem certificate which is not disputed. The Tribunal fixed the income of the deceased at Rs.3,000/- per month. After deduction of 1/3 towards personal expenses of the deceased, the Tribunal fixed the loss of contribution to the family of the deceased at Rs.2,000/- per month. Based on the second schedule to Motor Vehicles Act, the Tribunal adopted multiplier 17 and fixed the total pecuniary loss to the family of the deceased at Rs.4,08,000/- (Rs.2,000/- x 12 x 17 = Rs.4,08,000/-). In addition, the Tribunal also granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at 7.5%:-
Sl.No.
Head
Amount granted by the Tribunal
1
Loss of pecuniary benefits to the dependents
Rs.4,08,000/-
2 Loss of consortium to the husband on the death of his wife Rs. 5,000/- 3 Loss of love and affection to the minor son on the death of his mother Rs. 10,000/- 4 Funeral expenses Rs. 2,000/- Total Rs.4,25,000/-
7. The only contention raised by the counsel for the appellant is that the multiplier of 17 adopted by the Tribunal is on the higher side and therefore, the compensation has to be reduced.
8. This Court is not inclined to interfere with the award and to reduce the quantum of compensation for the following reasons:-
(i) The accident in this case happened on 16.1.2004. The deceased admittedly was a daily wage earner engaged in construction work. Her employment is supported by the statement of evidence of P.W.2.
(ii) While determining the income, the following two decisions can be taken into consideration:-
(a) A Division Bench of this Court in B.Anandhi vs. – Latha reported in 2002 ACJ 233(P.SATHASIVAM,J., as he then was) observed that a coolie would earn Rs.100/- per day. In that case, the accident happened in the year 1995.
(b) The Apex Court in State of Haryana and another vs. – Jasbir Kaur and others reported in 2004-1 Law Weekly, was of the view that an agriculturist would earn Rs.3,000/- per month. In that case, the accident happened in the year 1999.
In the above cited cases, the income of the deceased was taken at Rs.3,000/- per month for the year 1995 and 1999 respectively, whereas in the present case, the accident happened in the year 2004. In this case, the income of the deceased was taken as Rs.3,000/- per month alone and by adopting 17 multiplier, the compensation has been granted.
(iii) The daily wages of persons like the deceased in this case has to be fixed based on the cost of living, rise in price, etc. In this case, the Tribunal fixed the income of the deceased at Rs.3,000/- per month, whereas the accident in this case happened in the year 2004. Even if 25 days is taken as working days in a month and Rs.150/- per day as income the monthly income of the deceased will be approximately Rs.4,000/-. The compensation if it based on 13 multiplier, will be much more than the amount awarded by the Tribunal in this case.
(iv) Further for loss of love and affection to the minor son and loss of consortium to the husband of the deceased, a meagre amount of Rs.10,000/- and Rs.5,000/- respectively alone has been granted. For funeral expenses, Rs.2,000/- has been granted which is low for the period in accident.
(v) The Tribunal did not grant any amount for transport expenses. It is a case of road accident. According to the claim petition, the deceased was taken to two hospitals after the accident. Therefore, some amount should have been granted for transportation.
(vi) The higher multiplier in this case can be accepted since the income of the deceased was taken is on the lower side and that will justify the quantum of compensation awarded.
(vii) Considering all these aspects, the quantum of the compensation does not require further reduction as also the interest granted by the Tribunal at 7.5% as the accident in this case happened in the year 2004 and the award was passed in the year 2006.
9. Finding no merit, this Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks eight weeks’ time to deposit the award amount and is granted and on such deposit, the respondents/claimants are entitled to withdraw the same as per the order of the Tribunal. Consequently, connected miscellaneous petition is closed.
ts
To
1. IV Fast Track Court Judge,
Fast Track Court No.IV,
(The Motor Accidents Claims Tribunal),
Coimbatore at
Tirupur