IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.47 of 2005 and C.M.P.No.245 of 2005 The Managing Director Tamil Nadu State Transport Corporation Dharmapuri .. Appellant Vs 1.Lalitha 2.Minor.Sivakamasundari 3.Minor.Sivaramakrishnan 4.Alamelu 5.M.Kumar 6.The Oriental Insurance Co., Ltd., Vellore-4 .. Respondents (RR2 & 3 rep.by their mother and natural guardian R1) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.09.2004, made in M.C.O.P.No.3 of 2002, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai. For appellant : Mr.V.Ramesh For respondents : Mr.R.Karthikeyan for RR1 to 4 Disd.-R5 Mr.S.Manohar for R6 J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/first respondent against the Award and Decree, dated 21.09.2004, made in M.C.O.P.No.3 of 2002, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai, awarding a compensation of Rs.6,88,600/- together 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/first respondent, The Tamil Nadu State Transport Corporation, Dharmapuri, has filed the above appeal praying to set aside the said award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 01.08.2001, at about 2.15 p.m. while the deceased Sundararajan and others were returning from Chengam to Tiruvannamalai in the Auto bearing registration No.TN25 B5564, near Vinnayanur Village, the bus bearing registration No.TN29 N0837, belonging to the appellant herein, driven in a rash and negligent manner, hit against the Auto. Due to which, the deceased and two others received multiple fatal injuries all over the body and that the deceased died at the spot itself. The first respondent is the wife of the deceased, second and third respondents are the daughters of the deceased and the fourth petitioner is the mother of the deceased. The deceased was employed as a Driver under the Tamil Nadu State Government and that he earns not less than Rs.6,500/- per month. The deceased contributes his entire income to the family. The said accident was solely due to the rash and negligent driving of the drivers of the bus and auto. Since, the bus is owned by the appellant/first respondent and the auto is owned by fifth respondent/second respondent and insured with the third respondent/sixth respondent, they are jointly and severally liable to pay the compensation to the petitioners for the death of deceased. Regarding the said accident, the Sub-Inspector of Police, Sathanur Dam Police Station, registered a criminal case in Crime No.220/2001, under Sections 279, 337, 338 and 304(A) I.P.C. As such, the petitioners have claimed a compensation of Rs.3,50,000/- with interest from the date of filing the petition till the date of payment of compensation and costs from the respondents.
4.The first respondent/the Tamil Nadu State Transport Corporation Ltd., in his Counter has resisted the claim petition, which reads as follows:
“The averments contained in Para 1 to 23 of the petitioners are all false. It is utter false and reckless to state that the deceased involved in the accident on 01.08.2001 at about 2.15 p.m. while he was travelling in auto bearing registration No.TN25 B5564 near Vinnavanur Village, Chengam Taluk, due to the rash and negligent driving of the driver of the respondent’s bus bearing registration No.TN29 N0837.
The respondent denies the age, income and occupation of the deceased Sundararajan and puts the petitioners to the said particulars by way of documentary evidence.
The particulars of claim mentioned in Para 21A of the petition are not correct and they are made without any basis whatsoever.
The averment that all the family members were solely dependent upon the income of the deceased, the deceased was employed as driver under Tamil Nadu State Government and that he earns not less than Rs.6,500/- per month and contributed his entire income to the family are all false.
It is submitted that the accident took place solely due to the rash and negligent driving of the auto driver himself.
The averments contained in Para 23 of the petition are all false. The manner of accident as alleged by the petitioners is not correct the true facts are:
That on 01.08.2001, at about 2.15 p.m. when the driver of the respondent’s bus bearing registration No.TN29 N0837 was driving the same with the care and caution following the traffic rules, near Vinnavannur Village, The deceased Sekar, who was driving his auto bearing registration No.TN25 B5564 on the opposite side from Chengam with three passengers in his auto in a rash and negligent manner consuming full of alcohol over took the town bus which was proceeding in front of him and dashed against the respondent’s vehicle suddenly, the respondent’s driver on seeing the rash driving of the auto driver stopped his bus by suddenly applying the brakes. Anyhow since the deceased auto driver was fully intoxicated and drive his auto in a rash and negligent manner violating the traffic rules by driving the auto by suddenly taking the wrong side of his road dashed against the respondent’ bus and caused the accident. The deceased Sekar is solely responsible for the said accident and the respondent’s driver is not responsible in any manner for the said accident. Hence, this respondent is not liable to pay any compensation. Anyhow, this respondent submits that the amount of compensation claimed is highly excessive and the petition is liable to be dismissed.
This respondent submits that the auto involved in the accident belongs to the second respondent and the same has been insured with the third respondent and as if at all any compensation is payable to the petitioners they have to claim it from the second and third respondents.”
5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who is responsible for the accident?
(ii) Whether the petitioners are entitled for compensation, If so to what amount and from whom?
6.On the petitioners’ side, four witnesses were examined as P1 to P4 and eight documents were marked as Exs.P1 to P8 namely Ex.P1-attested Xerox copy of the FIR, Ex.P2-attested copy of the Motor Vehicle Inspector’s Report, Ex.P3-attested copy of the Post Mortem Certificate, Ex.P4-Salary Certificate of the deceased Sundararajan, Exs.P5 and P6-attested copies of the Post-mortem Certificates, Ex.P7-attested copy of the rough plan and Ex.P8-attested copy of the Motor Vehicle Inspector’s Report. On the respondents side, one Mohan was examined as RW1 and two documents were marked as Exs.B1 and B2-photographs with negatives.
7.The learned Motor Accident Claims Tribunal, after considering the evidence of PW1, perusing the FIR and also the PW4’s eye witness, had come to the conclusion that the drivers of both vehicles are responsible for the accident that the accident is as a result of composite negligence of the drivers of both vehicles and the percentage of contribution that is the ration of negligence 75:25.
8.Regarding the quantum of compensation, PW1 had adduced evidence that her husband Sundararajan was aged about 38 years and was employed as a driver in health department on a monthly income of Rs.5,680/-. According to Ex.P3 copy of the Post-mortem Certificate, the age of the deceased Sundararajan is 40 years and as seen from Ex.P4, the Salary Certificate issued by the Senior Civil Surgeon/Medical Officer, attached to Government Hospital, Chengam, the last drawn salary of the deceased Sundararajan, driver is Rs.5,680/- per month inclusive of the usual deductions to General Provident Fund, Family Benefit Fund etc., So the annual income of the deceased Sudararajan comes to Rs.68,160/-. Though the age of retirement is 58 and there is a possibility for Sundararajan to live upto that age, considering uncertainties in human life, the multiplier as provided under the second scheme to Section 163A of the Motor Vehicles Act is to be applied. The multiplier for the age between 40 and 45 is 15 as per the above schedule. If the said multiplier is applied, the total amount of compensation comes to Rs.10,22,400/- out of this amount 1/3 is to be deducted towards the maintenance expenses of the deceased had been alive. That amount comes to Rs.3,40,800/-. So the balance amount is Rs.6,81,600/-. Towards the loss of consortium and towards funeral expenses a sum of Rs.5,000/- and Rs.2,000/- is to be awarded. So, the petitioners are entitled to Rs.6,88,600/-. The first petitioner is the widow saddled with the burden of maintaining and bringing up the minor children. Second and third petitioners are the minor children of the deceased and the fourth petitioners is the aged mother of the deceased. Thus, the condition of the first petitioner is very pathetic. So, out of the compensation amount, the first petitioner is entitled for Rs.2,88,600/- and the second and third petitioners are each entitled to Rs.1,75,000/- and the fourth petitioner is entitled for a sum of Rs.50,000/-and the respondents are directed to to deposit the amount into Court within two months. Excess court fees if any is ordered to be refunded. Accordingly, the M.C.O.P.No.3 of 2002 was ordered.
9.Aggrieved by the said award and decree the appellant/Tamil Nadu State Transport Corporation Ltd., contended in their appeal that the liability fixed by the Tribunal as 75:25 is not sustainable in the eyes of the law. The Tribunal failed to consider the evidence of the RW1. The FIR was marked through the claimant and not by the author of the issuing authority. The age of the decree and his monthly income have not been correct and absolute. Hence, he prays to set aside the award and decree passed by the Tribunal.
10.The learned counsel appearing for the claimants/respondents 1, 2, 3 and, 4 argued that the compensation awarded by the Tribunal is fair and equitable, after considering the age, income and dependency of the deceased. The claimant claimed compensation from the Corporation bus as well as the third respondent/the Oriental Insurance Co., Further, the learned counsel argued that as per Exs.P7 and B1, both the respondents namely Transport Corporation and the Insurance Company are jointly liable to pay the compensation. Accordingly, the Tribunal attributed the liability as 75:25 respectively and awarded the compensation.
11.The learned counsel appearing for the sixth respondent/Insurance Company vehemently argued that the Transport Corporation bus being a heavy vehicle, lost its control and the driver failed to apply the brake and avert the accident. Further, the learned counsel pointed out that the liability fixed by the Tribunal is correct. The learned counsel further submits that as per the learned Tribunal findings 25% of the compensation award amount with interest has already been paid into the credit of the M.C.O.P.No.3 of 2002, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai.
12.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side, the award and decree passed by the learned Tribunal and from Ex.B1, Photograph with negative and Ex.P7, rough plan, the tyre mark of the appellant Transport Corporation bus is almost near the kerb of the road and the auto met on a collusion after passing the meridian line (middle road), this is confirmed through photograph marked as Ex.B1. Consequently, this Court decides on the basis of the two exhibits as mentioned above. Therefore, this Court decides to attribute the negligence on a 60:40 basis. Regarding the quantum of compensation, it is considered fair and equitable.
13.The learned Tribunal awarded the compensation to the claimants a sum of Rs.6,88,600/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Now, this Court modifies the liability as 60:40 to the appellant/State Transport Corporation and sixth respondent/the Oriental Insurance Company Ltd., respectively. Therefore, this Court hereby directs the sixth respondent/the Oriental Insurance Company Ltd., to pay another 15% award amount with interest from the date of filing the claim petition till the date of payment of compensation, within a period of six weeks from the date of receipt of a copy of this order.
14.This Court imposed a condition, on the appellant/Tamil Nadu State Transport Corporation on 17.01.2005, to deposit the entire compensation amount ie.75% with interest, into the credit of the M.C.O.P.No.3 of 2002, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai. If the appellant has complied with this Court Order, the appellant is at liberty to withdraw the excess compensation award ie.15% with accrued interest thereon, after observing necessary formalities of the Court below.
15.As the accident happened in the year 2001, it is open to the claimants/respondents 1 to 4 to withdraw their apportioned share amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.3 of 2002, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, after filing necessary payment out application, in accordance with law, subject to withdrawals if any and further subject to the claimants 2 and 3 attaining majority.
16.In the result, the Civil Miscellaneous Appeal is partly allowed and the award and decree, dated 21.09.2004, passed by the Motor Accident Claims Tribunal, District Court, Tiruvannamalai, in M.C.O.P.No.3 of 2002, is modified. Consequently, connected civil miscellaneous petition is closed. No costs.
28.09.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
District Court, Tiruvannamalai.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.47 of 2005
28.09.2010