IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.12.2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.3294 of 2005 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore Division-I, No.37, Mettupalayam Road, Coimbatore. ... Appellant/Respondent vs. 1.Valliammal, 2.Mandirachalam. ... Respondents/Petitioners Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 21.12.2004 passed in M.C.O.P.No.907 of 2002 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.V), Tiruppur. For appellant : Ms.S.Geetha For respondents : Mr.Ra.Srividya ----- JUDGMENT
The Tamilnadu Transport Corporation is on appeal challenging the award dated 21.12.2004 passed in M.C.O.P.No.907 of 2002 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.V), Tiruppur.
2. It is a case of fatal accident. The accident in this case happened on 21.6.2002. One Arunachalam, 54 years old agriculturist, was travelling as a passenger in the appellant Transport Corporation Bus. The bus stopped at Venkitapuram bus stop and while the deceased was attempting to get down, the driver of the bus started the vehicle as a result, the said Arunachalam was thrown out, ran over by the vehicle and he died. His wife aged 50 years and son aged 32 years filed a claim for compensation in a sum of Rs.5,00,000/- stating that the deceased Arunachalam was earning a sum of Rs.5,000/- per month at the time of accident.
3. In support of the claim, the wife of the deceased was examined as P.W.1 and one Thiru Devaraj, the eye witness as P.W.2. Exs.P-1 to P-5 were marked, the details of which are as follows:-
Ex.P-1 is the copy of FIR dated 21.6.2002,
Ex.P-2 is the copy of postmortem certificate dated 21.6.2002,
Ex.P-3 is the death certificate of the deceased dated 25.7.2002,
Ex.P-4 is the copy of legal heir certificate dated 9.9.2004 and
Ex.P-5 is the copy of sale deed in favour of Mariya Gounder.
One Mr.Anandaraj, the driver of the appellant transport corporation bus was examined as R.W.1 and one Mr.Velliangiri, Assistant Engineer of Transport Department as R.W.2. On behalf of the appellant transport corporation, the respondent before the Tribunal Ex.R-1 and R-2 were marked, the details of which are as follows:-
Ex.R-1 is the copy of notice issued by the appellant transport
corporation to its driver dated 13.5.2003 and
Ex.R-2 is the enquiry report.
4. On the question of negligence, appellant transport corporation took the stand that the negligence was on the part of the deceased as he tavelled on the foot board. Exs.R-1 and R-2 were relied upon, which does not appear to be relevant to the allegation made against the deceased. It was marked only to show that there was no negligence on the part of the driver of the appellant transport corporation. In any event, the Tribunal came to conclusion that internal enquiry report conducted against the driver of the bus was not marked before the Tribunal. The Tribunal also came to conclusion that the conductor of the bus was not examined. A Division Bench of this Court in Pallavan Transport Corporation Limited, represented by Managing Director, Pallavan Salai, Madras-2 vs. – T.Mallika and 2 others reported in 2005(1) CTC 161, held that the conductor is the best evidence to prove the allegation of foot board travel.
5. Further, in a case where the allegation is one of getting down from a running bus, the conductor alone is the appropriate and competent to speak on this issue. The Tribunal was justified in coming to conclusion that in the absence of specific evidence to show negligence on the part of the deceased, the negligence was on the part of the driver of the bus in starting the vehicle even before the passenger could get down. The conductor and the driver should be careful at the time of passengers getting in and getting down, which was highlighted by a Division Bench of this Court in M.Jaganathan vs. – Pallavan Transport Corporation Ltd., represented by its Managing Director, Pallavan Salai, Madras-2 reported in 1997(1) LW 226, wherein it was held that the conductor and driver should be careful in such circumstances. Therefore, this Court is unable inclined to accept the finding with regard to negligence. There is no material to come to a different conclusion.
6. The considering the oral evidence of P.Ws.1 and 2 and also considering the age of the deceased granted the following amounts as compensation with interest at 9% per annum:-
Sl.No.
Head
Amount granted by the Tribunal
1
Loss of pecuniary benefits to the dependents of the deceased (Rs.4,500/- x 12 x 11 x 2/3)
Rs.3,96,000/-
2
Loss of consortium to the wife of the deceased
Rs. 10,000/-
3
Loss of love and affection to the wife and son of the deceased (Rs.10,000/- each)
Rs. 20,000/-
4
Funeral expenses
Rs. 3,000/-
Total
Rs.4,29,000/-
7. Insofar as the compensation is concerned, the appellant made a plea that the method of calculation on the income of the deceased is not justified. The Tribunal has based the income calculation on the Apex Court’s decision in Smt.Sarla Dixit & another vs. – Balwant Yadav and others 1996 ACJ 581 = 1996-2 L.W. 9 (SC). However, the said decision will apply only in a case where the prospects of the deceased is likely to increase and where the deceased is young in age and has prospects of higher income in future due to efflux of time. Further more the number of dependents also should be substantial.
8. In the present case, the deceased was 54 years old and his son is already a major 32 years old and therefore, the only dependent is his wife. Hence, the method adopted by the Tribunal may not be wholly proper. However, for the purpose of fixing the income of the deceased, the following decisions will apply:-
(a) A Division Bench of this Court in B.Anandhi vs. – Latha reported in 2002 ACJ 233(P.SATHASIVAM,J., as he then was) observed that a coolie would earn Rs.100/- per day. In that case, the accident happened in the year 1995.
(b) The Apex Court in State of Haryana and another vs. – Jasbir Kaur and others reported in 2004-1 Law Weekly, was of the view that an agriculturist would earn Rs.3,000/- per month. In that case, the accident happened in the year 1999.
9. In the above cited cases, the income of the deceased was taken at Rs.3,000/- per month for the year 1995 and 1999 respectively, whereas in the present case, the accident happened in the year 2002. Considering the above and also considering the cost of rise in price and cost of living, the income fixed at Rs.4,500/- per month does not appear to be excessive or unreasonable. More particularly, taking note of the fact that the deceased was agriculturist coolie in the District of Tiruppur which is called Manchester of South India where the cost of living is very high as is the wages. In this regard it will be pertinent to note that the land owner in whose lands the deceased was working has deposed as P.W.2, extolled about the industrious and ability of the deceased in doing agricultural work excellently. There was no reason to disbelieve the said evidence. In such view of the matter, the income fixed by the Tribunal is justified.
10. There is no dispute on multiplier as it is in accordance with the second schedule to Section 163A of the Motor Vehicles Act.
11. The only point that stands in favour of the appellant is that the wife of the deceased has been granted a sum of Rs.10,000/- towards loss of consortium and therefore, she did not entitled to compensation under the head loss of love and affection.
12. The interest at 9% granted by the Tribunal is not justified in view of the Apex Court’s decision in Tamil Nadu State Transport Corporation vs. S.Rajapriya reported in 2005 (3) C.T.C. 373. Accordingly, the interest stands reduce to 7.5% from 9% per annum.
13. The award of the Tribunal stands modified as follows:-
Sl. No.
Head
Amount granted by the Tribunal
Amount granted by this Court
1
Loss of pecuniary benefits to the dependents of the deceased (Rs.4,500/- x 12 x 11 x 2/3)
Rs.3,96,000/-
Rs.3,96,000/-
2
Loss of consortium to the wife of the deceased
Rs. 10,000/-
Rs. 10,000/-
3
Loss of love and affection to the wife and son of the deceased (Rs.10,000/- each)
Rs. 20,000/-
—
3(a)
Loss of love and affection to the son of the deceased
—
Rs. 10,000/-
4
Funeral expenses
Rs. 3,000/-
Rs. 3,000/-
Total
Rs.4,29,000/-
Rs.4,19,000/-
14. In the result, the Civil Miscellaneous Appeal is allowed as follows:-
(i) The award of the Tribunal is reduced to Rs.4,19,000/- from Rs.4,29,000/-.
(ii) The interest granted by the Tribunal at 9% per annum is reduced to 7.5% per annum.
(iii) By order dated 20.10.2005, this Court directed the appellant to deposit 75% of the award amount and permitted the claimants to withdraw 50% of the award amount. Hence, the appellant is granted eight weeks’ time to deposit the balance award amount, if any, as ordered by this Court. On such deposit, the claimants are permitted to withdraw the balance award amount as per apportionment made by the Tribunal.
(iv) There will be no order as to costs.
9.12.2010
Index: Yes
Internet: Yes
ts
To
1.The Additional District Judge,
Fast Track Court No.V,
(Motor Accidents Claims Tribunal)
Tiruppur.
2.The Record Keeper,
V.R. Section,
High Court,
Madras.
R.SUDHAKAR,J.
ts
Judgment in
C.M.A.No.3294 of 2005
9.12.2010