IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2911 of 2009
and
M.P.No.1 of 2009
The Managing Director
Tamilnadu State Transport
Corporation Ltd.,
Vellore .. Appellant
Vs
1.Poongavanam
2.Deepa
3.Minor.Rupa
4.Minor.Sofa
5.Prabakaran .. Respondents
(R3 & R4 are rep.by their mother
and next friend Poongavanam)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 29.12.2008, made in M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar.
For appellant : Mr.C.Prabhakaran
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 29.12.2008, made in M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar, awarding a compensation of Rs.2,94,000/- 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., Vellore, has filed the above appeal praying for scaling down of the award passed by the Tribunal.
3.The short facts of the case are as follows:
On 10.12.2003, at about 6.00 p.m. the respondent’s bus bearing registration No.TN23 N1282, which was on its route from Wallajah to Vellore was stopped near the Nataraj Naicker Tea Stall opposite to the Arcot Bus Stand and passengers were alighted from the bus. When the first petitioner’s husband Vinayagam was in the process of getting inside of the bus through the front entrance steps, the bus was started at a high speed and in a rash and negligent manner by its driver. Due to this, the first petitioner’s husband fell down and the rear wheel of the bus ran over his head and crushed it. The first petitioner’s husband died on the spot. As the accident had happened due to the rash and negligent driving of the bus by its driver, the petitioners have claimed a compensation of Rs.10,00,000/- from respondent, the owner of the said bus involved in the accident, under Section 166 of the Motor Vehicles Act. The first petitioner is the wife of the deceased Vinayagam, the second, third and fourth petitioners are the daughters of the deceased Vinayagam and the fifth petitioner is the son of the deceased Vinayagam. The third and fourth petitioners are the minors and are represented by their mother and guardian ie. the first petitioner herein.
4.Regarding the said accident, the Arcot Town Police Station has registered a criminal case in Crime No.1091/2003, under Sections 279 and 304(A) of I.P.C.
5.The respondent, in his Counter has resisted the claim denying the manner of the accident as alleged in the claim, the age, occupation and income of the deceased. It has been submitted that at the time of accident, another bus titled as ‘Kalaimagal’ had been parked ahead of the respondent’s bus and the driver of the respondent’s bus on seeing the vacant space behind the ‘Kalaimagal’ bus had moved the bus slowly. Only on hearing the shouts of the passengers in the bus, the driver of the bus came to know that a person had been trapped under the rear wheel of the bus. As such, it was submitted that the negligence of the deceased was the cause for the accident and that the respondent could not be held liable to pay compensation to the petitioners. Further, it was submitted that the claim was excessive and has to be dismissed with costs.
6.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who was responsible for the accident?
(ii) Are the respondents liable to pay compensation to the petitioners? If so, what is the quantum of compensation to be paid?
7.On the petitioners’ side, two witnesses were examined as PW1 and PW2 and twelve documents were marked as Exs.P1 to P12. On the respondent’s side, one witness was examined as RW1 and no documents were marked.
8.The PW1, in her evidence has deposed that on 10.12.2003, at about 6.00 p.m. the State Transport Corporation bus bearing registration No.TN23 N1282, which was on its way from Wallajah to Vellore was stopped near Natraj Naicker Tea Stall and that some passengers alighted and others got up inside the bus. She had further deposed that when her husband was getting up the front entrance to board the bus, the bus driver had started the bus suddenly and hence her husband had lost his balance and fell down and the rear wheel of the bus ran over his head, crushing it and hence her husband had died on the spot. It has been stated in the counter given by the respondent that the petitioner’s husband attempted to board a moving bus, and tried to board it through the front entrance of the bus and hence he had slipped and fallen down and hence the accident was due to the negligence of the petitioner’s husband. To prove this contention, the respondent examined the driver of the said bus as RW1. In his evidence he has stated that on the date of the accident, he had driven the said bus and that while the bus was near the Arcot bus stand, he had seen a vacant space behind the another bus parked ahead and so he had moved his bus slowly towards that spot to par the bus and that while doing so, he had heard the shouts of the other passengers and stopped the bus and only after getting down from the bus, he had seen a person had been caught under the rear wheel of the bus and had died. He had further deposed that he had given a complaint to the Police.
9.During Cross-examination, the PW1,has stated that she was not the eye witness of the accident. One Shanmugam, the eye witness of the accident was examined as PW2. The PW2 has deposed in his evidence that he had boarded the said bus in order to go to his Village and that other passengers were also boarding the said bus behind him and the bus was started. When he had questioned the conductor as to why the bus was started when the passengers were still in the process of boarding it, the conductor had blown his whistle and then the bus had been stopped. When he had alighted from the bus,he had identified the person, who had been crushed underneath the rear wheel of the bus and hence he had gone to the house of the deceased person to give the news about the death of the (deceased) person. On cross-examination, he had stated that the Police had not examined him and that no summons had been issued to him by the Court and that he had come to give evidence as a witness on the request made by Poongavanam, the petitioner PW1 herein. The Tribunal was of the opinion that if the PW2 had really been acquainted with the deceased Vinayagam, he would not have visited the house of Poongavanam without making any effort to admit the deceased Vinayagam in a hospital. Further, the PW2 has not gone to the Police station also to register a complaint. On a scrutiny of Ex.P1, the FIR, it is seen that a person named as Kuppan had given the complaint, at the Police Station. The Tribunal was of the view that if PW2 had really been present at the site of the accident, it would have been possible for him to have seen that the brain of the deceased had been crushed and scattered in the said accident. As such, the Tribunal was not inclined to accept the deposition of the PW2 that he had gone to inform the petitioner PW2 immediately after he had seen the deceased Vinayagam lying in the throes of struggle in the midst of death. As such, the Tribunal accepted the contention of the respondent that PW2 was an interested witness.
10.The RW1 has deposed in his evidence that he had given the complaint regarding the said accident at the Police Station. But, it is seen from the FIR marked as Ex.P1 that the criminal case has been registered based on the complaint given by Kuppan. Further, no documentary evidence has been filed by the respondent to show that a complaint was given by RW1. As such, the evidence of the RW1 stating that he had given the complaint was not accepted by the Tribunal. It is seen that the FIR has been registered based on the complaint given by the broker of the ‘Kalaimagal’ bus. It has been stated by him in the FIR that he had seen some passengers alighting and some other boarding the respondent’s bus and that the respondent’s bus driver had started the bus suddenly at that time; that a person, who had been standing on the front entrance steps of the bus to board the bus had lost his grip and so had fallen down; that the left rear wheel of the bus had run over the head of that person and crushed his head; that his brain had been smashed and scattered around the accident site and that he had died on the spot. As such, the Tribunal was of the opinion that if the driver of the bus had started the bus, after all the passengers had boarded it, the accident would not have occurred. From a scrutiny of Ex.P3, the Motor Vehicle Inspector’s Report, it is seen that the Inspector has certified that there were no damages in any part of the bus and that the accident had not been caused due to mechanical defects or machine fault in the said bus. The Tribunal also scrutinised Ex.P5, the Final Report filed by the Police regarding the accident; Ex.P6, the Post-mortem Report; Ex.P7, the evidence given by Kuppan; Ex.P8, the evidence given by Janakiraman; Ex.P9, the evidence of Gandhi; Ex.P10, the evidence of Venkatesan; Ex.P11, the evidence of Dr.Usha Nandini and Ex.P12, the evidence of Investigating Officer Kuppan. After scrutiny of the above said document, the Tribunal was of the view that the accident happened due to the negligence of the bus driver and hence rejected the contention of the respondent’s side; that the accident was caused only because the deceased Vinayagam had tried to board in a moving bus.
11.The Tribunal, considering that the accident had been caused by the negligence of the bus driver held that the respondent is liable to pay compensation to the petitioners.
12.From scrutiny of Ex.P4, the Legal Heir Certificate marked by the petitioners, it is seen that the petitioners are the legal heirs of the deceased. Though the petitioners had stated that the deceased Vinayagam was aged about 50 years, at the time of the accident, no evidence has been furnished to prove this. From a scrutiny of Ex.P2, the Post-mortem Report, it is seen that the age of the deceased has been given as 50 years. As such, the Tribunal held that the deceased Vinayagam was aged about 58 years at the time of the accident. In the evidence given by the petitioners’ side, it has been deposed that the deceased Vinayagam was a Gold Smith and was earning an income of Rs.250/- per day and that he was earning a sum of Rs.10,000/- per month, but as no proof was furnished in support of this claim, the the Tribunal on seeing that the deceased had been doing the work of a Carpenter, held that he could have earned a sum of Rs.200/- per day. The Tribunal, considering that he could have worked for 20 days in a month held his monthly income as Rs.4,000/-; and his yearly income as Rs.48,000/-. Deducting 1/3rd share from this for his personal expenses, the Tribunal held that the annual loss of income to the petitioners as Rs.32,000/-. As the age of the deceased Vinayagam was about 58 years, at the time of accident, the Tribunal adopting a multiplier of 8, assessed the loss of future income to the petitioners as Rs.32,000/- X 8 = Rs.2,56,000/-.
13.The Tribunal, on considering that the age of the deceased Vinayagam was about 58 years and that of his son Prabhakaran, the fifth petitioner in the claim, was 30 years, held that the age of the wife of the deceased Vinayagam could not be 35 years as mentioned in the claim. In spite of this fault, the Tribunal awarded a compensation of Rs.10,000/- to the first petitioner, under the head of loss of consortium; a sum of Rs.20,000/- to the petitioners under the head of loss of love and affection; a sum of Rs.5,000/- for funeral expenses and a sum of Rs.3,000/- towards transport expenses incurred by the petitioners for bringing the deceased.
14.In total, the Tribunal awarded a compensation of Rs.2,94,000/- to the petitioners together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation and directed the respondent to deposit the above said award with interest and costs, into the credit of the M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar, within a period of two months, from the date of its Order. The Tribunal further apportioned Rs.94,000/- to the first petitioner and Rs.50,000/- each to the 2nd to 5th petitioners. The first, second and fifth petitioners were permitted to withdraw 50% of the apportioned share of of award with proportionate interest and costs and the balance of the apportioned share of the 1st, 2nd and 5th petitioners were to be invested in a nationalised bank, as fixed deposit, for a period of two years. The petitioners were directed to pay the Court fees of Rs.2,312.50/- due on the award amount, within one month from the date of its Order. The apportioned share of award of the third and fourth minor petitioners were to be invested in a nationalised bank until such time they attain the age of a major and the first petitioner, being the natural guardian and mother of the 3rd and 4th minor petitioners, was permitted to receive the interest on the minor 3rd and 4th petitioners’ share, once in three months. The Advocate fees was fixed at Rs.8,880/- and the respondents were directed to pay the cost of Rs.11,205/- to the petitioners.
15.The learned counsel appearing for the appellant has argued in his appeal that the learned Tribunal has erred in relying upon the evidence of the PW1, in respect of age, income and occupation of the deceased, PW2 in respect of manner of accident. It has been contended that the learned Tribunal failed to note that the accident took place only when the appellant Corporation driver drove the bus in moderate speed and at that time the deceased had tried to get into the bus and had fallen down from the moving bus. Further, the appellant’s counsel had pointed out that the learned Tribunal erred in fixing the monthly income of the deceased as Rs.4,000/- per month, without any documentary proof. It was also pointed out that the multiplier adopted by the Tribunal was erroneous and that a lower multiplier should have been adopted to assess loss of income, as per the rulings of the apex Court. The learned counsel appearing for the appellant has contended that the interest at the rate of 7.5% taken was also erroneous. As such, it was contended that the award granted by the Tribunal under various heads was done without any basis and hence the award should be scaled down.
16.Considering the facts and circumstances of the case and arguments advanced by the learned counsel appearing for the appellant, the Court is of the view that the Tribunal has come to a correct conclusion as regards the issues of negligence and liability. But, on the issue of liability, the Tribunal’s award of compensation of Rs.2,94,000/- is found to be on the lower side due to the following factors. Considering that there are 5 claimants in this case, the deduction towards personal expenses of deceased is taken as 1/4th instead of 1/3 fixed by the Tribunal. On this basis, the loss of income to the petitioners is assessed as Rs.36,000/- X 8 = Rs.2,88,000/-; for love and affection, the Tribunal had awarded a sum of Rs.10,000/- to the first claimant and this award is confirmed by this Court; for loss of love and affection, the Tribunal had granted a sum of Rs.20,000/- to the 2nd to 5th claimants. This Court enhances the award granted under this head to Rs.40,000/-; the Tribunal awarded a sum of Rs.5,000/- for funeral expenses. This Court enhances the award granted under this head to Rs.10,000/-. The Tribunal awarded a sum of Rs.3,000/- for transport expenses for bringing the dead body and this Court confirms the award granted under this head.
17.In total, this Court grants an award of Rs.3,51,000/- as compensation to the petitioners, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. Already, the Tribunal had awarded a sum of Rs.2,94,000/- to the petitioners, together with interest at the rate of 7.5% per annum, in M.A.C.T.O.P.No.22 of 2004, dated 29.12.2008. Now, this Court has granted an additional compensation of Rs.57,000/- to the claimants. This additional compensation amount will also an interest of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, into the credit of the M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar.
18.Therefore, this Court directs the appellant/State Transport Corporation to deposit a total compensation of Rs.3,51,000/- with accrued interest calculated at the rate of 7.5% per annum from the date of filing the petition till the date of payment, into the credit of the M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar, within a period of four weeks from the date of receipt of this Order, subject to the deduction of earlier payment, if any.
19.The first claimant’s apportioned is Rs.1,11,000/- with proportionate accrued interest and the 2nd to 5th claimants are apportioned Rs.60,000/- each with proportionate accrued interest.
20.As the accident happened in the year 2003, it is open to the claimants to withdraw their apportioned share of award with proportionate interest, lying in the credit of the M.A.C.T.O.P.No.22 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar, after filing the necessary payment out application, in accordance with law, subject to minors 3 and 4 attaining the age of a major.
21.In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, dated 29.12.2008, in M.A.C.T.O.P.No.22 of 2004, passed by the file of the Motor Accident Claims Tribunal, Sub Judge, Cheyyar, is enhanced from Rs.2,94,000/- to Rs.3,51,000/- together with interest at the rate of 7.5% per annum, from the date of filing the petition, till the date of payment of compensation. Consequently, connected Miscellaneous Petition is closed. No costs.
08.02.2010
Index: Yes/No
Internet: Yes/No
krk
C.S.KARNAN, J.
krk
To
1.Motor Vehicles Accident Claims Tribunal,
Sub Judge, Cheyyar.
2. The Section Officer,
VR Section, High Court, Madras.
Pre-deliver Order in
C.M.A.No.2911 of 2009
08.02.2010