IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.11.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3520 of 2008 and M.P.No.1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Limited Erode-1 .. Appellant Vs 1.M.Vijayarangan 2.Saraswathi 3.M.Thangaraj 4.Elangovan .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award and Decree, dated 15.04.2008, made in M.C.O.P.No.103 of 2007, on the file of the Motor Vehicles Accident Claims Tribunal and Sub Court, Bhavani. For appellant : Mrs.B.Vijayakumari For respondents : Mr.MA.P.Thangavel J U D G M E N T
The above civil miscellaneous appeal has been filed by the appellant/second claimant against the Award and Decree, dated 15.04.2008, made in M.C.O.P.No.103 of 2007, on the file of the Motor Vehicles Accident Claims Tribunal and Sub Court, Bhavani, awarding a compensation of Rs.3,27,000/- with 6% interest from the date of filing the petition to till the date of payment of the compensation.
2.Aggrieved by the said Order, the 2nd respondent/Tamil Nadu State Transport Corporation Ltd., Erode-1 has filed the above appeal to set aside the award.
3.The short facts of the case are as follows:
On 15,04.2006, at about 3.20 p.m. when the deceased Mrurgesan was riding the Bicycle on the left side of the Bhavani to Mettur main road in order to go to North from South and when he was in front of Keerthi Bakery at Anthiyur Corner, the first respondent coming from the opposite direction, drove the Bus bearing registration No.TN 33 N 1256 in a rash and negligent manner and dashed against the bicycle, as a result of which, the deceased sustained injuries. He was taken to Bhavani Government Hospital, where he was pronounced dead. The post-mortem was done at Bhavani Government Hospital. The first respondent was solely responsible for the accident.
4.The deceased was aged about 55 years at the time of the accident and he was hale and healthy before the accident. The deceased was a Jute bag Tailor and working under one Thirumalai at Bhavani before this accident. He was earning a monthly income of Rs.5,000/- before the accident. The petitioners are depending only on the income of the deceased and have claimed a compensation of Rs.6,00,000/- with interest at 18% under Section 166 of the Motor Vehicles Act, 1988.
5.Since the accident was due to the rash and negligent driving of the first respondent, who was the driver of the bus and working under the second respondent, the owner of the bus, at the time of the accident, both the respondents are jointly and severally liable to pay the compensation to the petitioners.
6.The Bhavani Police authorities have registered a criminal case of the said accident as Crime No.200/2006 under Sections 279 and 304(A) of I.P.C.
7.The second respondent/The Tamil Nadu State Transport Corporation Ltd., Erode, in its counter has resisted the claim denying the manner of the accident as alleged in the petition. It has been stated that on 15.04.2006, the first respondent drove the bus, bearing registration No.TN 33 N 1256 in a moderate speed and in a vary cautious manner from Bhavani to Surampatti Valasu. The first respondent stopped the bus at Anthiyur corner, where some passengers alighted and then restarted the bus. At this time, there was heavy rain with blowing wind and the deceased Murugesan, who was riding the bicycle with umbrella in one hand and his other hand on the cycle, lost control after his umbrella was thrown off by the wind and so he had dashed against the front right side bumper of the bus and fell down. Therefore the deceased, by his negligence and carelessness act had invited the accident. As such, there is no negligence or carelessness on the part of the first respondent and so no liability could be fastened upon the respondents.
8.Further, it was submitted that the petitioners had to prove that they are legal heirs of the deceased to establish their claim. Also, the age, income and occupation of the deceased was not admitted. Further, the FIR, which has been filed by the son of the deceased and subsequently criminal case filed against the first respondent has no bearing on the claim. The first respondent is contesting the police case before the Judicial Magistrate. As such, any compensation awarded only on the basis of the FIR would be erroneous and not in the interest of the Justice. Further, even if the Tribunal decided that the first respondent was also responsible for the accident, the major share of contributory negligence should also be laid on the deceased and based on this, the award should be determined. Further, the claim of Rs.55,000/- for loss of income, Rs.30,000/- for pain and suffering and Rs.20,000/- for transport to hospital are highly excessive and exorbitant. Even otherwise, the claim as such is totally excessive. Even the interest rate of 18% claimed on the compensation in the petition is excessive, when the existing present rate of interest is only 6% and in support of this contention, a case was referred viz.2005 ACJ 1441 (SC), TNSTC vs. Rajapriya. As such, the second respondent has prayed for dismissal of the claim petition with costs.
9.On the petitioners side, the son of the deceased, M.Vijayarangan was examined as PW1 and seven documents were marked as Ex.P1 to P7. On the respondents side, N.Elangovan, Managing Director of Tamil Nadu State transport Corporation Ltd., was examined as RW1. No documents were marked on the respondents side.
10.The Motor Accident Claims Tribunal framed two issues for the consideration namely
(i) Was the accident caused by the negligent and rash driving of the first respondent?
(ii) Are the petitioners entitled to receive the compensation and if so, what is the quantum of the compensation?
11.The first petitioner is the eldest son of the deceased. The second petitioner is the married daughter of the deceased and the third petitioner is the youngest son of the deceased. This was established on scrutiny of the Ex.P7, the Legal Heir Certificate. Ex.P2 is the rough sketch of the accident. Ex.P3 is the accident register. But, it has been mentioned in this that there are no clues to establish that who is guilty. Ex.P4 is the Motor Vehicle Inspector’s Report. On an inspection of this, it is established that the accident was not caused by any mechanical defects of the vehicle and further that there were no damages to vehicle. Ex.P5 is the copy of the final investigation of the accident, it has been found that the accident occurred due to the rashness and highspeed with which the first respondent had driven the bus and that a charge sheet has been filed against the driver of the bus. So, the Tribunal on examination of the Exs.P1 to P5 and on evidence given by the PW1 came to the conclusion that the accident was caused by the rash and high speed with which the first respondent had driven the bus and that due to this accident the deceased had died. As such, the Tribunal held that both the first and second respondents are jointly and severally liable to pay the compensation to the petitioners.
12.The PW1 in his evidence had stated that the age of the deceased at the time of his death was 55 years. Even in the post-mortem report, it has been stated that the age of the deceased was 55 years. PW1, in his evidence as well as in the petition has stated that his father, the deceased, was working as a Jute Bag Tailor and earning a sum of Rs.5,000/- per month. But, no evidence has been furnished to prove this on the petitioners side. But, the Tribunal held that even a Coolie was capable of earning Rs.100/- per day and accordingly determined that the deceased could have earned Rs.3,000/- per month. Deducting 1/3rd share from this for the personal expenses of the deceased, it was held that he could have contributed Rs.2,000/- to his family every month. So, the yearly contribution to his family was taken as Rs.24,000/-. Adopting a multiplier of 11, which was taken on the basis of the deceased age, the Tribunal held that the loss of income to the petitioners would be Rs.24,000 X 11 = Rs.2,64,000/-. For loss of love and affection, the Tribunal awarded Rs.20,000/- each to the 1st and 3rd petitioners and Rs.15,000/- to the second petitioner. For transport expenses Rs.3,000/- was granted and for funeral expenses Rs.5,000/- was granted to the petitioners. In total, the Tribunal awarded a sum of Rs.3,27,000/- as total compensation to the petitioners. The Tribunal, then apportioned Rs.1,30,000/- each to the first and third petitioners and Rs.67,000/- to the second petitioner.
13.Further, the Tribunal directed the respondents to deposit the above award with interest at the rate of 6% from the date of filing the petitioner to till the date of payment of the compensation into the credit of M.C.O.O.P.No.103 of 2007, on the file of the Motor Accident Claims Tribunal and Subordinate Judge, Bhavani, within One month from the date of its Order.
14.Further, the petitioners were allowed to withdraw their apportioned portion of the award after such deposit was made after following necessary Court procedure as laid down in law. It also directed the petitioners to pay the balance Court fee on the award within ten days of its Order. The respondents were directed to pay the Advocate fees of Rs.9,540 by cheque.
15.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal had erroneously fixed the negligence on the appellant driver, who drove the bus carefully and cautiously. Further, the Tribunal failed to consider that the deceased was crossing the rainy road without noticing the oncoming bus. Further, as all the sons and daughter of the deceased are major, there is no loss of dependency and as such, the award of Rs.3,27,000/- granted by the Tribunal is excessive and hence, the learned counsel appearing for the appellant has prayed for setting aside of the order of the Tribunal. Further, the learned counsel appearing for the appellant has strongly raised the point that without age and income proof, the award has been passed and so, this is an erroneous one.
16.The learned counsel appearing for the respondents argued that the Motor Accident Claims Tribunal, after considering the Post-mortem Certificate had come to a conclusion that the age of the deceased was 55 years. Further, the deceased was a Jute bag Tailor and was working under one Thirumalai, who was the employer of the deceased.
17.For the foregoing reasons and on consideration of the facts, circumstances, Order of the Tribunal and arguments advanced by the learned counsel on eitherside, the Court is of the view that there is no error on the negligence point determined by the Tribunal. The Tribunal also had determined the issue on the basis of Ex.P1-F.I.R., Ex.P2 Rough Sketh, Ex.P3 Observation Mahazar, Ex.P4 Motor Vehicle Inspector’s Report and the evidence of the PW1 and then come to a conclusion in favour of the claimants. Regarding the quantum of the compensation, as the accident had happened in the year 2006. In the year, a salary of Rs.100/- per day could have been earned by the deceased and therefore, the fixing of Rs.100/- per day by the Tribunal, as the salary of the deceased, is reasonable. As such, the Tribunal has come to a conclusion, after deducting 1/3rd share for the personal expenses of the deceased and on the basis of the age of the deceased, the Tribunal has adopted a multiplier of 11 and granted compensation of Rs.2,64,000/- For love and affection, to the claimants 1st to 3rd Rs.20,000/- each had been awarded and to the 2nd claimant a sum of Rs.15,000/- was awarded. For transport and funeral expenses, Rs.3,000/- and Rs.5,000/- were awarded as compensation. The awards granted under the above mentioned heads are reasonable and fair. Hence, the Court does not wants to interfere in the findings of the Tribunal and hence the award passed by the Tribunal-Suordinate Court, Bhavani, in M.C.O.P.No.103 of 2007, dated 15.04.2008 is confirmed.
18.This Court has already directed the appellant/Corporation on 19.11.2008 to deposit a sum of Rs.1,50,000/- with proportionate interest and costs. Now, this Court directs the appellant to pay the balance compensation amount with accrued interest at the rate of 6% from the date of filing of the claim petition to till date of payment, within a period of six weeks from the date of receipt of a copy of this Order.
19.It is open to the respondents/claimants to receive the balance amount, after depositing by the appellant/Corporation to the Credit of M.C.O.P.No.103 of 2007, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Judge, Bhavani, by filing necessary payment out application, in accordance with law.
20.In the result, this civil miscellaneous appeal is dismissed and the award passed by the Motor Accident Claims Tribunal, Sub-Ordinate Judge, Bhavani in M.C.O.P.No.103 of 2007, dated 15.04.2008 is confirmed. Consequently, connected civil miscellaneous petition is also closed. No costs.
26.11.2009
Index: Yes/No
Internet: Yes/No
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To
1.Motor Vehicles Accident Claims Tribunal,
Sub Court, Bhavani.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
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Pre-deliver Order in
C.M.A.No.3520 of 2008
26.11.2009