IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2009
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.509 of 2005
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Coimbatore Div.II. Erode .. Appellant
Vs
1.S.Sellammal
2.S.Sekar
3.S.Suseela
4.K.Lalitha
5.Perumal
(R5-Given up) .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award and Decreetal Order dated 22.07.2004, made in M.C.O.P.No.861 of 2003, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Erode.
For appellant : Mr.S.V.Vasanthakumar
for Mr.A.Babu
For respondents : Mr.R.Marudhachalamurthy
for RR1 to 4
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/ 2nd respondent, against the Award and Decreetal Order dated 22.07.2004, made in M.C.O.O.P.No.861 of 2003, on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Erode, awarding a compensation of Rs.5,30,000/- with 9% interest per annum, from the date of filing the petition to till the date of deposit of compensation.
2.Aggrieved by the above award, the appellant/ 2nd respondent, The Managing Director, The Tamil Nadu State Transport Corporation Ltd., Coimbatore Div.II, Erode, has preferred the above appeal.
3.The short facts of the case are as follows:
On 05.03.2003, at about 17.00 hrs, when the deceased S.Chenniappan @ Ponnusamy drove his TVS-50, bearing registration No.%N33 P1459 in a very careful manner on the extreme left side of the Erode to Perundurai main road, from east to west, the first respondent, the driver of the Tamil Nadu State Transport Corporation bus bearing registration No.TN 33 N1472, drove the bus in a rash and negligent manner, without adhering to the road traffic rules and without flowing the horn and hit behind the TVS-50. Due to the accident, the said Chenniappan @ Ponnusamy was thrown away from his TVS-50 and the bus ran over his head. He succumbed to the multiple injuries on the sport itself. The accident happened only due to the rash and negligent driving of the first respondent.
4.The deceased was having more than 10 acres of agricultural lands and he was cultivating the same with Sugarcane and Groundnut. Further, he had a Cattle Farm in his lands, with 20 Hybrid Cows and he used to sell about 100 ltrs. of milk every day. Through these sources, the deceased was earning a sum of Rs.10,000/- per month. The deceased was only aged about 55 years at the time of the accident. He was hale and healthy at the time of the accident. The deceased is the only breadwinner of his family. All the petitioners depend on the income of the deceased. Under the said circumstances, the petitioner’s are claiming a sum of Rs.10,00,000/- as compensation.
5. The Erode South Police have registered a case against the first respondent in Crime No.125/2003, under Sections 279 and 304 (A) I.P.C and the same is pending investigation.
6. The first respondent, the driver of the said bus and the second respondent, the owner of the said bus are jointly and severally liable to pay the compensation of Rs.10,00,000/- to the petitioner’s with interest from the date of petition to till the date of realisation and costs, under Section 166 of the Motor Vehicles Act. The first petitioner is the wife of the deceased, second petitioner is the son of the deceased and the third and fourth petitioners are the daughters of the deceased.
7. The second respondent, in his Counter has resisted the claim stating that on 05.03.2003 at about 17.00 hrs, when the driver of the second respondent was driving the TSTC bus bearing registration No.TN33 N1472 in a normal and diligent manner and following the motor rules, on Erode to Perundurai Main Road, the deceased drove his TVS-50, in a rash and negligent manner in order to overtake the bus and went in the wrongside and hit at the back portion and left wheel of the bus. As such, the accident happened only because of the negligence of the deceased and there is no fault on the driver ie. the first respondent herein. Further, the income of the deceased and the legal heirship of the petitioners were not admitted. Further, the failure to add the Insurance Company of the TVS-50 as necessary party in the claim renders, is not maintainable. Further, the award claimed is excessive and hence, the second respondent has prayed for dismissal of the claim petition.
8.To prove the case of the petitioners, the petitioners have examined PW1 and PW2 on their side and marked Exs.A1 to A8 while the first respondent has examined himself as RW1 and no document was marked on their side.
9.The Motor Accident Claims Tribunal framed three issues for consideration namely:
(i)Whether the accident happened due to the
rash and negligent driving of the bus bearing
registration No.TN33 N1472 by the first
respondent?
(ii) Whether the petitioners are entitled to any
compensation? If so, to what amount?
(iii) To what relief?
10. To prove the negligence of the first respondent, the petitioners have examined PW2, Ganesan, who has stated in his proof of affidavit that on 05.03.2003, at about 4.45 p.m., when he was sitting at his cash-counter of his Bharani Mess, situated at Palayapalayam in Perundurai to Erode Road, the deceased Chenniappan was coming in his TVS-50 from east to west. At that time, the bus bearing registration No.TN33 N1472 was also coming from the same direction and was driven by its driver in a rash and negligent manner and dashed against the TVS 50 from behind and due to this, the deceased fell down and the rear wheel of the bus ran over the head of the deceased, whereupon,he died at the spot itself. The first petitioner, who has examined herself as PW1, has also produced Ex.A1-FIR; Ex.A2-Observation Mahazar; Ex.A3-Rough Sketch; Ex.A4-post mortem Certificate; Ex.A5-Motor Vehicle Inspector’s Report pertaining to the TVS-50 bearing registration No.TN33 P1459 and EX.A7-Charge Sheet. The perusal of Ex.A1 would got to show that with regard to the accident that happened at about 5 p.m. a complaint was lodged at about 5.45 p.m. And on that basis a case in Crime No.125 of 2003 was registered against the first respondent for the offence under Sections 279 and 304A IPC as is evident through an examination of EX.A1, Charge Sheet.
11.The first respondent has examined himself as RW1 and in his evidence has adduced that on 05.03.2003, at about 5 p.m. When he was driving the bus from east to west, when he was nearing Palayapalayam Pirivu, he suddenly heard a noise fromthe rear leftside and saw the deceased lying on the road. The evidence of the PW2 is to the effect that the deceased was going in front, the bus has dashed against the rear side of the TVS-50 of the deceased. RW1, in his evidence has not stated that the deceased had suddenly come from a bye-lane and entered into the road and because of that he dashed against the rear leftside of the bus. The perusal of Ex.A3, Rough Sketch also would go to snow that there is no bye-lane or cross street near the place of the accident. As such, the contentions of the respondent that the deceased suddenly dashed against the rear left side of the bus could not be true. The perusal of Ex.A4, post-mortem Certificate would go to show that the skull of the deceased was fractured at several places, which got to corroborate the evidence of pw2 that the rear wheel of the bus ran over the head of the deceased. If the first respondent had been vigilant, he could have avoided the accident and the manner in which the rear left wheel of the bus ran over the head of the deceased would go to show the rashness of the first respondent in driving the bus. As such, the Tribunal came to the conclusion that the accident happened only due to the rash and negligent driving of the bus bearing registration No.TN33 N1472 and held that the second respondent Transport Corporation, the owner of the bus involved in the accident is liable to pay compensation to the petitioners.
12.It has been stated by the petitioners that the deceased was aged about 55 years at the time of the accident. But, no age proof certificate has been filed. As such, after the scrutiny of Ex.A4-post mortem Certificate, the Tribunal concluded that the age of the deceased was 55 years. The case of the petitioners is that the deceased was owning 10 Acres of land and that he was also having a Cattle Farm and was doing milk vending business and he was earning a sum of Rs.10,000/- per month. To prove this fact, the petitioners have examined pw2, Ganesan, who has stated in his proof of affidavit, that he was running a Mess in the name and style of ‘Bharani Mess’ at palayapalam and the deceased was having a Dairy Farm and doing milk vending business and the deceased was supplying 50 litres of milk, both in the morning and evening to his mess, apart from selling the milk to others also. Further, the pw2 has also stated that the deceased was earning more than Rs.10,000/- per month. The first petitioner, who examined herself as pw1 has also produced Ex.A8 Certificate issued by the Village Administrative Officer to the effect that the deceased was owning 1.46 Hectares of land in R.S.No.91-1A at Surampatti village and he was doing personal cultivation. But, the petitioners were not able to give any documents to fix the monthly income of the deceased. But, on the perusal of evidence PW2 and Ex.A8, it has been seen that the deceased was actively engaged in cultivation and in milk vending business. Considering the age of the deceased and the milk vending business had been done by the deceased, the Tribunal fixed the monthly income of the deceased as Rs.6,000/-. On deducting 1/3rd share from this for personal expenses, the Tribunal took the actual monthly contribution to his family as Rs.4,000/- and the annual monthly contribution to the family as Rs.48,000/-. Adopting a mutliplier of 11, as per the second schedule under Section 163(A) of Motor Vehicle Act as relevant to the age of the deceased, the Tribunal held that the petitioners are entitled to receive a compensation of Rs.5,28,000/- and accordingly granted this award. Further for funeral expenses of the deceased, an award of Rs.2,000/- was granted. In total, an award of Rs.5,30,000/- was granted to the petitioners and this award has been apportioned equally amongst the petitioners ie. Each of the petitioners were given an award of Rs.1,32,500/-.
13.The second respondent/State Transport Corporation was directed to deposit this amount with interest at the rate of 9% per annum from the date of petition to till date of payment, into the credit of the M.C.O.P.No.861 of 2003, on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Erode, within a period of two months. Further, the Tribunal permitted the petitioners to receive the respective shares of interest towards their award amount with proportionate costs immediately after deposit and the respective share of award amount was directed to be deposited in Indian Overseas Bank, District Court Extension Counter, Erode, for a period of three years and the petitioners were entitled to receive the accrued interest periodically, directly from the Bank. The petitioners were directed to pay the balance court fees within a period of 15 days from the date of its Order. Advocate fees was fixed at Rs.12,300/-.
14.The learned counsel appearing for the appellant/The Managing Director, Tamilnadu State Transport Corporation Ltd., Coimbatore, has argued that the Tribunal failed to consider the evidence of RW1, the driver of the appellant Corporation and the Tribunal ought to have dismissed the entire claim petition on the basis of available evidence on record. The Tribunal ought to have fixed entire or atleast contributory negligence on the part of the deceased. It was also contended that the Tribunal had erred in relying upon the evidence of pw1, the claimant in respect of the age, occupation and monthly income of the deceased. Further, no documents were produced to prove the age, occupation and monthly income of the deceased. As such, the Tribunal had erred in fixing the monthly income of the deceased as Rs.6,000/- and multiplier of 11 years without any basis. Therefore, the award of Rs.5,28,000/- granted as compensation for loss of income is erroneous. As such, the learned counsel appearing for the appellant has prayed for reconsideration of the excessive award granted to the petitioners and has sought to scale down the compensation granted.
15.The learned counsel appearing for the respondent argued that the age of the deceased was 55 years at the time of the accident. Supporting age proof, Ex.P4-post Mortem Certificate was marked. The deceased was involved in agricultural operations and was getting income from cultivation of agricultural fields. Besides, he was also a milk vendor. From both these sources, he was earning more than Rs.10,000/- but, the Tribunal had fixed an income of Rs.6,000/- only as income of the deceased. Regarding the negligence aspect, the respondent’s bus had dashed against the vehicle of the deceased. Hence, FIR was registered against the respondent’s bus driver. The claimants case was well established before the Tribunal. So, the Order passed by the Tribunal is fair and equitable.
16.For the foregoing reasons, facts and circumstances of the case, discussions of the Tribunal arguments advanced by the learned counsels for the respective sides, the Court is of the view that the Tribunal has come to conclusion that the deceased income was Rs.6,000/- based on evidence of claimant and documents given by the Village Administrative Officer regarding his land ownership and not his income. To substantiate the claim that the deceased was earning more than Rs.10,000/- from milk vending business and from cultivating of agricultural field, no crystal clear evidence has been furnished before the Tribunal. So, this Court comes to a conclusion that the income of the deceased, considering that the year of the accident was 2003 and considering the number of the dependent of the deceased, is of the view that the deceased could only have earned income of Rs.5,000/- per month. The multiplier of all adopted by the Tribunal and age of the deceased as 55 years fixed by the Tribunal is appropriate. As such, the claimants are entitled to a compensation of Rs.4,40,000/- only as loss of income (Rs.5,000/- X 12 X 11 X 2/3=Rs.4,40,000/-). For funeral expenses, the Tribunal had awarded a sum of Rs.2,000/- and this Court enhances the award under this head to Rs.3,000/-. The petitioners 2 to 4 are awarded Rs.5,000/- each as compensation by this Court for loss of love and affection. The first petitioner is awarded a sum of Rs.7,000/- for loss of consortium. In total, this Court awards a sum of Rs.4,75,000/- as compensation to the petitioners, together with interest at the rate of 9% per annum from the date of filing the petition to till the date of payment, which is equitable, fair and prudent too, payable by the appellant/State Transport Corporation.
17.The above appeal came before this Court on 15.06.2006, which this Court permitted the claimants to withdraw 50% of the award amount together with proportionate interest and entire costs. As per the conditional Order passed by this Court, the appellant/State Transport Corporation deposited the entire compensation amount into the credit of the M.C.O.P.No.861 of 2003, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Erode.
18.As the accident happened in the year 2003, it is open to the respondents/claimants to withdraw their apportioned award amount with accrued interest lying to the credit of the M.C.O.P.No.861 0f 2003, on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Erode, by filing necessary payment out application, in accordance with law. Likewise, the appellant/Tamil Nadu State Transport Corporation amount lying the credit of the M.C.O.P.No.861 0f 2003, on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Erode, by following Court procedures.
19.In the result, the above Civil Miscellaneous Appeal is partly allowed with the above terms and the award passed by the Motor Accidents Claims Tribunal, Principal District Judge, Erode, in the M.C.O.P.No.861 of 2003 is modified. No costs.
krk
To
1.Motor Vehicles Accident Claims Tribunal,
Principal District Judge, Erode.
2. The Section Officer,
VR Section, High Court,
Madras