BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/02/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN C.M.A.No.222 of 1998 The Managing Director, Thiruvalluvar Transport Corporation, Madras - 600 002. ... Appellant Vs 1.Sammanasu Mary 2.Antonisami ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree dated 26.09.1997 and made in M.C.O.P.No.1034 of 1994 on the file of the Motor Accidents Claims Tribunal - ( I Additional Sub Judge, III Additional Sub Court-In-Charge) Trichy. !For Appellant ... Mr.D.Sivaraman for M/s.Rajinish Pathiyil ^For Respondents ... Mr.A.Saravanan :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.1034
of 1994 on the file of the Motor Accident Claims Tribunal -(I Additional Sub
Judge, III Additional Sub Court-In-Charge) Trichy. The State Transport
Corporation is the appellant herein.
The short facts of the case are as follows:
2. On 24.01.1994, the deceased Lawrence, was going on his bicycle from
south to north on the Trichy – Madras Trunk Road with a bag load of margo seeds.
The bus bearing Registration No.TN-01-N-0871, belonging to the respondent was
driven by its driver in a rash and negligent manner from south to north and
dashed against the cycle, in which the said Lawrence was riding, from behind.
Due to the impact, Lawrence was thrown out from his bicycle and sustained
grievous injuries all over his body. Immediately, the said Lawrence was taken
to Poorna Nursing Home, Trichy, but he breathed his last on 30.01.1994, without
responding to the treatment. At the time of the accident, Lawrence was aged
about 19 years and was working as a Manager in a Poultry Firm at Siruganoor and
was earning Rs.2,000/- per mensum. The claimants are the parents of the
deceased, who were depending on the said Lawrence. They have filed the claim
petition demanding Rs.2,00,000/- towards compensation. The respondent in his
counter has stated that the accident had not taken place due to the rash and
negligent driving of the driver of the bus bearing Registration No.TN-01-N-0871.
The said Lawrence was riding on his bicycle in front of the bus at Siruganoor
border with the big gunny bag at the carrier and at the time, when the bus over
took him, the cyclist, Lawrence could not balance the cycle with a load and fell
down on the road on the right side. In that process, he contacted on the right
side of the body of the bus, sustaining injuries. The compensation claimed is
exorbitant.
3. Before the learned Tribunal, P.W.1 to P.W.3 were examined and Exs.P.1
to P.8 were marked on the side of the claimants. R.W.1 was examined and no
documentary evidence was let in on the side of the respondent.
4. On the basis of the available evidence let in before the learned
Tribunal, the learned Tribunal has passed an award of Rs.1,86,000/- towards
compensation with 12% interest and proportionate costs.
5. Aggrieved by the award of compensation in M.C.O.P.No.1034 of 1994, the
Tamil Nadu state Transport Corporation has preferred this appeal.
6. Now, the point for determination in this appeal is whether the award
passed in M.C.O.P.No.1034 of 1994 on the file of Motor Accident Claims Tribunal
– ( I Additional Sub Judge, III Additional Sub Court-In-Charge) Trichy, is
liable to be set aside for the reasons stated in the Memorandum of appeal?
The Point:
7. The victim was aged only 19 years as per Ex.P.2, post-mortem
certificate. Even though, the appellant would contend in the counter filed
before the learned Tribunal that only due to the contributory negligence of the
cyclist, the deceased Lawrence, the accident had occurred. The driver of the
bus bearing Registration No.TN-01-N-0871 was examined before the learned
Tribunal as R.W.1. In the cross-examination, he would admit that in the
Judicial Magistrate Court, Lalgudi, he was convicted for the rash and negligent
act and in the appeal also, the fine was reduced from Rs.1,000/- to Rs.500/-.
So, from the evidence of R.W.1, it is clear that the accident had occurred only
due to the rash and negligent driving of the driver of the said bus. If the
accident would not have occurred due to the rash and negligent driving of the
said bus, bearing Registration No.TN-01-0871, he would have preferred a
complaint with the police, soon after the accident. But, a perusal of Ex.A.1,
copy of the First Information Report, would go to show that the First
Information Report was preferred by Victor Lawrence, who had seen the occurrence
and was also examined as P.W.2 in the claim petition. He has categorically
stated in his evidence that the bus was driven by the driver in a hectic speed
at the place of accident and dashed against the cyclist Lawrence, who was riding
on his bicycle on the left hand side of the road. So, the contention of the
appellant that only due to the contributory negligence of the deceased Lawrence,
the accident had occurred, is not sustainable.
8. The claimants, who are the unfortunate parents of the deceased
Lawrence, have claimed a compensation of Rs.2,00,000/- towards loss of income.
The learned Tribunal has awarded Rs.1,56,000/- towards loss of income. To show
the monthly income of the deceased, the claimants have produced Ex.A.8, pay
certificate, issued by the employer of the deceased. The employer of the
deceased was examined on the side of the claimant as P.W.3, who would depose
that he is having a Poultry at Siruganoor and Lawrence was working as a manager
of the Poultry and was earning Rs.2,000/- towards his monthly income. But,
without any reason, the learned Tribunal has discarded the evidence of P.W.3 and
applied the multiplier 13 and fixed the loss of income as Rs.1,56,000/-. If we
take the monthly income of the deceased Lawrence as Rs.2,000/- per mensum, on
the basis of Ex.P.8, pay certificate, after deducting 1/3 towards his personal
expenses, the claimants would have received at least Rs.1,334/- from the
deceased Lawrence. The learned Counsel appearing for the appellant would
contend that the multiplier to be used for such type of cases, in which a
bachelor of 19 years died in an accident, leaving his aged mother, at the age of
48, is 10 and not 13. For this proposition of law, the learned Counsel for the
appellant relied on the decision in Municipal Corporation of Greater Bombay Vs.
Laxman Iyer and another reported in 2004 ACJ 53.
9. The facts of the above case are that a bachelor aged 18 was run over by
a vehicle bearing Registration No.MMK-6623. The parents of the deceased had
preferred the claim petition. The High Court of Bombay had fixed the quantum of
compensation as Rs.5,60,000/-, applying the multiplier formula of 15 and after
deducting the 25% from the lump sum of award ultimately, the award of
compensation was fixed by the High Court of Bombay as Rs.4,01,250/-. The
claimants were given 15% interest for the said award amount. The State
Transport Corporation, Greater Bombay preferred an appeal before the Supreme
Court and the Apex Court has deducted the award of compensation and fixed as
Rs.3,00,000/-. The relevant observation of the said dictum is as follows:
” Keeping in view the observations made by this Court in various cases,
several other factors need to be taken note of. The deceased was unmarried.
The contribution to the parents who had their separate earnings being employed
and educated have relevance. The possibility of reduction in contribution once
a person gets married is a reality. The compensation is relatable to be loss of
contribution or the pecuniary benefits. The multiplier adopted by the Tribunal
and confirmed by the High Court is certainly on the higher side. Considering
the age of the claimants it can never exceed 10 even by the most liberal
standards. Worked out on that basis amount comes to Rs.3,60,000/- at the
monthly expected income fixed by the Tribunal and confirmed by the High Court.
Looking into the nature of the contributory negligence of the deceased after
making an appropriate deduction which can reasonably be fixed at 25 per cent,
the compensation amount payable by the corporation can be fixed at
Rs.3,00,000/- including the amount awarded by the Tribunal and confirmed by the
High Court for loss of expectation of life. Interest at the rate as awarded by
the High Court is maintained from the date of application for compensation.”
10. So, under the head, loss of income, the claimants would have received
Rs.1,60,080/- [Rs.1,334 X 12 X 10 = Rs.1,60,080/-] and the same is awarded as
compensation. The claimants have lost their son at the prime age of his youth.
Because of this accident, the claimants have lost the affectionate son at the
age of 19 years. So, for loss of love and affection, I award Rs.10,000/-
towards compensation. Towards funeral expenses, Rs.5,000/- will be a reasonable
award of compensation. For taking the injured from the place of occurrence to
the Poorna Nursing Home at Trichy, by engaging a taxi, the claimants would have
incurred an expense of Rs.1,000 towards taxi hire charges. So, I award
Rs.1,000/- under the head, transport to hospital. In the accident, the cloth
and the bicycle of the deceased would have got damaged, so on that score, I
award Rs.1,500/-. The claimants have produced Ex.A.5, discharge summary. Soon
after the accident, the deceased was admitted in Poorna Nursing Home at Trichy
and was in the hosptial as an inpatient for nearly six days i.e., from
24.01.1994 to 30.01.1994. The claimants have produced Ex.A.6, medical bills to
show that they have incurred an expense of Rs.18,754.29 towards the purchase of
medicines and other medical expenses. So, I award Rs.18,754.29 towards
compensation under the head medical expenses. So, the total compensation to
which the claimants are entitled to comes to Rs.1,96,334.29, rounded to
Rs.1,96,334/- [Rs.1,60,080/- + Rs.10,000/- + Rs.5,000/- + Rs.1,000/- +
Rs.1,500/- + Rs.18,754.29 = Rs.1,96,334.29 @ Rs.1,96,334/-].
11. Hence, I hold on the point that the award passed in M.C.O.P.No.1034 of
1994 on the file of Motor Accident Claims Tribunal – III Additional Sub Judge,
Trichy, need not be set aside for the reasons stated in the Memorandum of
appeal. The point is answered accordingly.
12. In the result, the appeal is dismissed. But, the said award is
modified (under Order 41 Rule 33 C.P.C) and the claimants are entitled to get
Rs.1,96,334/- towards compensation with 12% interest from the date of filing of
petition till the date of realisation with proportionate costs. Time for
deposit of the balance of the award amount is two months. The claimants are
liable to pay court fee for the enhanced award amount. On such deposit of the
enhanced award amount, the claimants are entitled to withdraw Rs.1,50,000/-.
The balance of the award amount with accrued interest, shall be deposited in any
one of the
nationalised bank for three years in a fixed deposit. The claimants are
entitled to withdraw the accrued interest once in three months from the above
said deposit amount. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
( I Additional Sub Judge,
III Additional Sub Court-In-Charge),
Trichy.