BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/08/2008 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL C.M.A.No.60 of 2004 and C.M.P.No.385 of 2004 The Managing Director, Tamilnadu State Transport Corporation, (Kumbakonam-Divn III) Karaikudi. .. Appellant Vs 1.Shanthi 2.Veerappan .. Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decretal order dated 5.9.2001 passed in M.C.O.P.No.151 of 2000, by the Motor Accident Claims Tribunal - Sub Court, Devakottai. !For Appellant ... Mr.M.Prakash ^For Respondents... Mr.VR. Shanmuganathan :JUDGMENT
This Civil Miscellaneous Appeal is projected against the award dated
5.9.2001 passed in M.C.O.P.No.151 of 2000 by the Motor Accidents Claims
Tribunal- Sub Court, Devakottai granting a total compensation of Rs.2,20,500/-
(Rupees two lakhs twenty thousand and five hundred only) to the
respondents/claimants together with interest at 9% per annum from the date of
filing of the petition till date of payment.
The short facts of the claim are as follows:
on 28.03.2000 at about 1.45 p.m. in the afternoon the deceased Jayanthi
came in the van which was proceeding from Devakottai to Karaikudi and she got
down at the Municipal dumping waste place and she cross the road across in order
to proceed to the place where clothes were washed and at that time, the
Government bus bearing Registration No.TN-63-0588 which came from Devakottai to
Karaikudi was driven by its driver in fast speed, negligently dashed against the
said Jayanthi, as a result of which the tire of the bus ran on the head of the
deceased Jayanthi, as a result of which her brain came out and she died on the
spot.
In Crime No.90 of 2000 the Karaikudi Police Station based on a complaint
has registered a case under Section 304(A) of I.P.C. in connection with the
accident and the same is pending on the file of Judicial Magistrate Court,
Karaikudi. The accident took place because of the negligent driving of the bus
by its driver who drove the offending vehicle TN-63-0588, the deceased Jayanthi
was good at studies. She was the eldest daughter to the family. But for the
accidental death, the deceased would have prosecuted her further studies and
could have obtained a good job and helped the family.
The income of the deceased Jayanthi would have been four times higher than
the notional income of Rs.15,000/- as prescribed under the Second Schedule to
Section 163 A of the Motor Vehicles Act. Hence, the deceased Jayanthi’s annual
income should be fixed at a minimum of Rs.60,000/- and accordingly, the
respondents/claimants were entitled to receive the compensation after deducting
one third towards the personal expenses of the deceased Jayanthi if the annual
income of the deceased Jayanthi was taken as Rs.40,000/- then the
respondents/claimants were entitled to claim a compensation of Rs.8,00,000/-.
Towards damage of clothes the respondents/claimants claim Rs.500/-. Towards
hospital and transport expenses the respondents/ claimants claim Rs.800/-. For
expenses incurred towards transportation of deceased Jayanthi the respondents/
claimants claim a sum of Rs.800/-. Towards funeral expenses a claim of
Rs.10,000/- was made. Towards loss of estate a claim of Rs.25,000/- was made. In
all the respondents/claimants claim a restricted compensation of Rs.8,40,000/-
along with interest at 15% per annum from the date of filing of the petition
till date of payment with costs.
The appellant/Transport Corporation took a stand that the deceased child
Jayanthi was standing under the shade of a tree and without observing the
traffic on the road fastly and negligently, without observing the vehicle coming
in the opposite direction she ran on the right side of the road in order to
cross the road and that the compensation claimed was an exaggerated and that the
compensation was not calculated as per law and the the claim petition was not
maintainable in law.
3.Before the Tribunal, on the side of respondents/ claimants witnesses
P.W.1 and P.W.2 were examined and Exs.P.1 to P.7 were marked. On the side of the
appellant/ respondent, R.W.1 was examined and no documents were marked.
4.After contest, the Tribunal on examination of oral and documentary
evidence has awarded a total sum of Rs.2,20,500/- with interest at 9% per annum
from the date of filing of the petition till date of payment as compensation.
5.To prove negligence on the side of respondents/ claimants, Rejendran has
been examined as P.W.2 and he has deposed that on 28.03.2000 at about 1.45 p.m.
in the afternoon near Devakottai Rasta Municipal waste dumping place, the
Government bus bearing Registration No.TN-63-0588 was proceeding from Devakottai
to Karaikudi in high speed and Jayanthi after seeing her father, who was in the
place where the clothes were washed, she was proceeding there and in the waste
dumping place the bus dashed against her as a result of which she suffered head
injury and died on the spot and at the time of happening of occurrence the van
in which Jayanthi travelled was not there and he gave a complaint about the
accident in the police station at about 2.15 in the afternoon and immediately
informed the father of the deceased Jayanthi. In his cross examination P.W.2-
Rajendran has stated that the deceased Jayanthi got down from the van and made
an attempt to cross the road and near the occurrence place he was coming in the
school and no other person as witness the occurrence.
6.In Ex.A.1-Certified copy of FIR the complainant is one Rajendran, who
has been examined as P.W.2 before the Tribunal. A perusal of Ex.A.1-certified
copy of FIR shows that the complainant viz., P.W.2-Rajendran has clearly spoken
about the manner and happening of occurrence in lucid terms. In fact, the
complainant-Rajendran in his complaint specifically has inter alia stated that
Veerappan’s daughter Jayanthi got down from the van and walked across the road
in order to reach the place where clothes were washed and at that time, the
Government bus TN-63-0588 which came from Devakottai to Karaikudi driven by
Lazar, S/o.Micheal of Kallupatti, name ascertained later, drove the bus in high
speed and dashed against the said Jayanthi and as a result of which, the tire of
the bus ran across the head of the Jayanthi and her brain came out and she died
on the spot. In short, the evidence of P.W.2-Rajendran before the Tribunal
coincides with the averments made by him in Ex.A.1-certified copy of FIR. In
Ex.A.1-certified copy of FIR, the name of the accused is mentioned as Lazar, who
has been subsequently examined as witness R.W.1 before the Tribunal by the
appellant Corporation. It is evident from Ex.A.1-certified copy of FIR that the
Karaikudi South Police have registered a criminal case against the driver of the
bus R.W.1-Lazar under Section 304(A) IPC. It is to be noted that P.W.2-Rajendran
in his complaint Ex.A.1-FIR and in his evidence has clearly stated that the
deceased Jayanthi cross the road after getting down from the van to reach the
place of washing clothes.
7.R.W.1-Lazar, bus driver of the offending vehicle TN-63-0588 in his
evidence has stated that he drove the bus which was involved in the accident and
took the bus at 1.00 p.m. in the afternoon at Devakottai and was driving the
said bus through Eravayal and was proceeding to Karaikudi and when the bus after
passing Rasta Railway gate and the arch and came at a place where three roads
were meeting, one Tata 407 van was standing on the left side and when the bus
went passed the van, out of three children from the van one child suddenly cross
the road from left side to right side and at that time, the accident took place
and the accident occurred because of the negligence of the child in crossing the
road suddenly and the accident had not occurred due to his negligence. The
evidence of bus driver, R.W.1-Lazar also points out to the negligence aspect of
the deceased child Jayanthi in crossing the road suddenly after getting down
from the van.
8.Suffice it to state that the evidence of P.W.2-Rajendran and the
evidence of R.W.1-Lazar are on the same footing in regard to the negligence
aspect of the deceased child in crossing the road after getting down from the
van. Hence, the aspect of ‘contributory negligence’ comes into operative play in
the instant case on hand, in the considered opinion of this Court.
9.From Ex.A.2-certified copy of charge sheet filed before the Judicial
Magistrate Court, Karaikudi, it is clear that the driver of the bus, R.W.1-Lazar
has been charge sheeted under Section 304(A) of IPC. Ex.A.3 is the certified
copy of post-mortem certificate in respect of the deceased Jayanthi, wherin the
Doctor has opined that ‘the deceased would appear to have died of crush injury
skull haemorrhage shock before 6 -8 hours’. In Ex.A.4-certified copy of Motor
Vehicles Inspector’s Report, the Motor Vehicles Inspector has opined that ‘this
accident happened not due to any of the mechanical defects of this vehicle’.
Even though the deceased Jayanthi after getting down from the van has suddenly
cross the road so as to reach the place where clothes are washed, it has
transpired from the evidence of P.W.2-Rajendran that the bus driver R.W.1-Lazar
has driven the bus in high speed at the time of accident and therefore, this
Court comes to the inevitable conclusion that the accident has occurred due to
the contributory negligence of the deceased Jayanthi in crossing the road
negligently and suddenly and also due to the negligent driving of the bus by its
driver R.W.1-Lazar and that he is also equally responsible for causing the
accident and the point is answered accordingly.
10.According to the learned counsel for the appellant/respondent Transport
Corporation, the compensation awarded by the Tribunal is highly excessive and
without any basis and that the Tribunal has erred in fixing the multiplier at 15
and further that the Tribunal has erred in determining the annual income of the
deceased Jayanthi at Rs.60,000/- and her annual contribution to her family at
Rs.40,000/-.
11.In regard to the quantum of compensation to be awarded for the death of
Jayanthi it is to be pointed out that P.W.1-Veerappan/second respondent/second
claimant in his evidence has deposed that his deceased eldest daughter Jayanthi
aged 13 at the time of accident she was studying in 5th standard at the Gandhi
Samadharma Padagasalai and that during study period she was an excellent student
and that the deceased daughter Jayanthi apart from her study time, during the
rest of the time she was helpful in his washing job and that his family has been
spoiled because of the death of the said Jayanthi and that his family believed
in the future of the deceased Jayanthi. The respondents/claimants in the claim
petition have claimed in all a sum of Rs.8,40,000/- together with interest at
15% per annum from the date of filing of the petition till date of payment, as
compensation for the death of the deceased Jayanthi. The Tribunal has arrived at
a sum of Rs.3,66,000/- towards the total income of the deceased Jayanthi and
after deducting one third, it has calculated the loss of income at Rs.2,40,000/-
, as seen from para 7 of the award. As a matter of fact, the Tribunal has
adopted a multiplier of 15.
12.It is significant to make a mention that Lord Wright in Davies V.
Powell Duffryn Associated Collieries Limited, (1942) AC 601 has observed as
follows:
“There is no question here of what may be called sentimental damage, bereavement
or pain and suffering. It is a hard matter of pounds, shillings and pence
subject to the element of reasonable future probabilities. The starting point is
the amount of wages which the deceased was earning, the ascertainment of which
to some extent may depend on the regularity of his employment. Then, there is an
estimate of how much was required or expended for his own personal and living
expenses. The balance will give a datum or basic figure which will generally be
turned into a lump sum by taking a certain number of years’ purchase. That sum,
however, has to be taxed down by having due regard to uncertainties, for
instance, that the widow might have again married and thereby ceased to be a
dependant, and other like matters of speculation and doubt.”
Further, he added that “the damages are to be based on the reasonable
expectation of pecuniary benefit or benefit reducible to money value. In
assessing the circumstances which may be legitimately pleaded in the diminution
of the damages must be considered the actual pecuniary loss of each individual
entitled to sue can only be ascertained by balancing, on the one hand, the loss
to him of the future pecuniary benefit, and on the other, any pecuniary
advantage which from whatever source comes to him by reason of the death.”
13.In Kaushnuma Begum V. New India Assurance Company Limited, 2001 ACJ 428
(SC), on Second Schedule to Section 163-A of the Motor Vehicles Act, the Hon’ble
Supreme Court has observed as follows:
“In calculating the amount of compensation in this case we lean ourselves to
adopt the structured formula provided in the Second Schedule to the Motor
Vehicles Act. Though it was formulated for the purpose of section 163-A of the
Motor Vehicles Act, we find it a safer guidance for arriving at the amount of
compensation than any other method so far as the present case is concerned.”
14.Ex.A.5 is the xerox copy of record sheet issued by the Headmaster of
the Gandhi Samadharma Padagasalai, Amaravathipudur wherein the progress of the
pupil Jayanthi has been stated to be good in respect of III and IV standards and
in respect of V standard, it has been stated to be fair. However, the conduct of
the deceased Jayanthi from III to V standards has been stated to be good. In
Ex.A.5 in respect of V standard, the deceased Jayanthi is stated to have left
the school on 28.03.2000 (obviously because of her death arising out of the
accident). Ex.A.7 is the original record sheet of the deceased Jayanthi. Ex.A.6
is the certificate dated 31.07.2001 issued by the school Headmaster wherein it
has been certified that during 1999-2000 period the deceased Jayanthi has been
doing good in her studies at V standard.
15.According to the structured formula 15 multiplier is the appropriate
one as prescribed under the Second Schedule to Section 163-A of the Motor
Vehicles Act, in the considered opinion of this Court. Moreover, as per this
Schedule in the absence of any evidence about the income of the injured or the
deceased can be assessed at Rs.15,000/- per annum. If the amount of Rs.15,000/-
is multiplied by multiplier of 15, it comes to a sum of Rs.2,25,000/-.
16.In the claim petition, towards transport expenses a sum of Rs.800/- is
claimed and this Court awards the said sum of Rs.800/-. Towards transport
expenses (after conducting post-mortem) a sum of Rs.800/- is claimed in the
petition and this Court grants the same. Towards damage of clothes, the
respondents/ claimants have claimed a sum of Rs.500/- in the petition and this
Court grants the same. Therefore, this Court awards a sum of Rs.2,27,100/-
(Rs.2,25,000 + Rs.800 + Rs.800 + Rs.500) as compensation to the
respondents/claimants for the death of their daughter Jayanthi, who was involved
in the accident. Since this Court has held that the deceased Jananthi has also
contributed to the cause of the accident, this Court opines that it is prudent
and appropriate to deduct 15% from and out of the total compensation of
Rs.2,27,100/-, i.e. Rs.34,065/- and accordingly, the respondents/claimants are
entitled only to claim a compensation of Rs.1,93,035/- (Rupees one lakh ninety
three thousand and thirty five only) together with interest at 9% per annum from
the date of filing of the petition till date of payment, payable by the
appellant/ respondent Corporation. Resultantly, the award of a sum of
Rs.2,20,500/- determined by the Tribunal as compensation to the
respondents/claimants is slightly on the higher side.
17.The lawyers fee is fixed at Rs.6861/- by this Court and the same is
directed to be paid by the appellant/respondent Transport Corporation.
18.Earlier in C.M.P.No.385 of 2004 dated 10.09.2004 this Court has passed
the following order:
“Interim stay on condition that the petitioner deposits the entire amount of
compensation with interest and costs to the credit of M.C.O.P.No.151 of 2000 on
the file of Motor Accidents Claims Tribunal (Sub Court), Devakottai within a
period of eight weeks from the date of the receipt of the order, failing which
the interim stay shall stand automatically vacated.”
19.In fine, the Civil Miscellaneous Appeal is allowed and the award dated
05.09.2001 passed in M.C.O.P.No.151 of 2000 by the Motor Accidents Claims
Tribunal – Sub Court, Devakottai is modified. It is open to the
respondents/claimants to receive the amount to which they are entitled to from
the Tribunal by filing appropriate application as per Civil Rules of Practice.
Equally, liberty is given to the appellant/respondent Corporation to receive the
amount to which they are entitled to by filing necessary application as per
Civil Rules of Practice in accordance with law. There shall be no order as to
costs in this appeal, considering the facts and circumstances of the case.
Connected miscellaneous petition is closed.
Sgl
To
The Motor Accident Claims Tribunal,
Sub Judge,
Karaikudi.