{"id":25199,"date":"2008-08-19T00:00:00","date_gmt":"2008-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-shanthi-on-19-august-2008"},"modified":"2015-09-27T17:05:56","modified_gmt":"2015-09-27T11:35:56","slug":"the-managing-director-vs-shanthi-on-19-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-shanthi-on-19-august-2008","title":{"rendered":"The Managing Director vs Shanthi on 19 August, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Managing Director vs Shanthi on 19 August, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 19\/08\/2008\n\nCORAM\nTHE HONOURABLE Mr.JUSTICE M.VENUGOPAL\n\nC.M.A.No.60 of 2004\nand\nC.M.P.No.385 of 2004\n\nThe Managing Director,\nTamilnadu\tState Transport Corporation,\n(Kumbakonam-Divn III)\nKaraikudi.\t\t\t.. Appellant\n\nVs\n\n1.Shanthi\n2.Veerappan\t\t\t.. Respondents\n\t\t\t\t\t\t\t\t\t\t\n\nPrayer\n\nAppeal filed under Section 173 of the Motor Vehicles Act, against the\njudgment and decretal order dated 5.9.2001 passed in M.C.O.P.No.151 of 2000, by\nthe Motor Accident Claims Tribunal - Sub Court, Devakottai.\n\n!For Appellant\t... Mr.M.Prakash\n\n^For Respondents... Mr.VR. Shanmuganathan\t\t\t\t\t\n\n:JUDGMENT\n<\/pre>\n
\tThis Civil Miscellaneous Appeal is projected against the award dated
\n5.9.2001 passed in M.C.O.P.No.151 of 2000 by the Motor Accidents Claims
\nTribunal- Sub Court, Devakottai granting a total compensation of Rs.2,20,500\/-
\n(Rupees two lakhs twenty thousand and five hundred only) to the
\nrespondents\/claimants together with interest at 9% per annum from the date of
\nfiling of the petition till date of payment.\n<\/p>\n
\tThe short facts of the claim are as follows:\n<\/p>\n
\ton 28.03.2000 at about 1.45 p.m. in the afternoon the deceased Jayanthi
\ncame in the van which was proceeding from Devakottai to Karaikudi and she got
\ndown at the Municipal dumping waste place and she cross the road across in order
\nto proceed to the place where clothes were washed and at that time, the
\nGovernment bus bearing Registration No.TN-63-0588 which came from Devakottai to
\nKaraikudi was driven by its driver in fast speed, negligently dashed against the
\nsaid Jayanthi, as a result of which the tire of the bus ran on the head of the
\ndeceased Jayanthi, as a result of which her brain came out and she died on the
\nspot.\n<\/p>\n
\tIn Crime No.90 of 2000 the Karaikudi Police Station based on a complaint
\nhas registered a case under Section 304(A) of I.P.C. in connection with the
\naccident and the same is pending on the file of Judicial Magistrate Court,
\nKaraikudi. The accident took place because of the negligent driving of the bus
\nby its driver who drove the offending vehicle TN-63-0588, the deceased Jayanthi
\nwas good at studies. She was the eldest daughter to the family. But for the
\naccidental death, the deceased would have prosecuted her further studies and
\ncould have obtained a good job and helped the family.\n<\/p>\n
\tThe income of the deceased Jayanthi would have been four times higher than
\nthe notional income of Rs.15,000\/- as prescribed under the Second Schedule to
\nSection 163 A of the Motor Vehicles Act. Hence, the deceased Jayanthi’s annual
\nincome should be fixed at a minimum of Rs.60,000\/- and accordingly, the
\nrespondents\/claimants were entitled to receive the compensation after deducting
\none third towards the personal expenses of the deceased Jayanthi if the annual
\nincome of the deceased Jayanthi was taken as Rs.40,000\/- then the
\nrespondents\/claimants were entitled to claim a compensation of Rs.8,00,000\/-.
\nTowards damage of clothes the respondents\/claimants claim Rs.500\/-. Towards
\nhospital and transport expenses the respondents\/ claimants claim Rs.800\/-. For
\nexpenses incurred towards transportation of deceased Jayanthi the respondents\/
\nclaimants claim a sum of Rs.800\/-. Towards funeral expenses a claim of
\nRs.10,000\/- was made. Towards loss of estate a claim of Rs.25,000\/- was made. In
\nall the respondents\/claimants claim a restricted compensation of Rs.8,40,000\/-
\nalong with interest at 15% per annum from the date of filing of the petition
\ntill date of payment with costs.\n<\/p>\n
\tThe appellant\/Transport Corporation took a stand that the deceased child
\nJayanthi was standing under the shade of a tree and without observing the
\ntraffic on the road fastly and negligently, without observing the vehicle coming
\nin the opposite direction she ran on the right side of the road in order to
\ncross the road and that the compensation claimed was an exaggerated and that the
\ncompensation was not calculated as per law and the the claim petition was not
\nmaintainable in law.\n<\/p>\n
\t3.Before the Tribunal, on the side of respondents\/ claimants witnesses
\nP.W.1 and P.W.2 were examined and Exs.P.1 to P.7 were marked. On the side of the
\nappellant\/ respondent, R.W.1 was examined and no documents were marked.\n<\/p>\n
\t4.After contest, the Tribunal on examination of oral and documentary
\nevidence has awarded a total sum of Rs.2,20,500\/- with interest at 9% per annum
\nfrom the date of filing of the petition till date of payment as compensation.\n<\/p>\n
\t5.To prove negligence on the side of respondents\/ claimants, Rejendran has
\nbeen examined as P.W.2 and he has deposed that on 28.03.2000 at about 1.45 p.m.
\nin the afternoon near Devakottai Rasta Municipal waste dumping place, the
\nGovernment bus bearing Registration No.TN-63-0588 was proceeding from Devakottai
\nto Karaikudi in high speed and Jayanthi after seeing her father, who was in the
\nplace where the clothes were washed, she was proceeding there and in the waste
\ndumping place the bus dashed against her as a result of which she suffered head
\ninjury and died on the spot and at the time of happening of occurrence the van
\nin which Jayanthi travelled was not there and he gave a complaint about the
\naccident in the police station at about 2.15 in the afternoon and immediately
\ninformed the father of the deceased Jayanthi. In his cross examination P.W.2-
\nRajendran has stated that the deceased Jayanthi got down from the van and made
\nan attempt to cross the road and near the occurrence place he was coming in the
\nschool and no other person as witness the occurrence.\n<\/p>\n
\t6.In Ex.A.1-Certified copy of FIR the complainant is one Rajendran, who
\nhas been examined as P.W.2 before the Tribunal. A perusal of Ex.A.1-certified
\ncopy of FIR shows that the complainant viz., P.W.2-Rajendran has clearly spoken
\nabout the manner and happening of occurrence in lucid terms. In fact, the
\ncomplainant-Rajendran in his complaint specifically has inter alia stated that
\nVeerappan’s daughter Jayanthi got down from the van and walked across the road
\nin order to reach the place where clothes were washed and at that time, the
\nGovernment bus TN-63-0588 which came from Devakottai to Karaikudi driven by
\nLazar, S\/o.Micheal of Kallupatti, name ascertained later, drove the bus in high
\nspeed and dashed against the said Jayanthi and as a result of which, the tire of
\nthe bus ran across the head of the Jayanthi and her brain came out and she died
\non the spot. In short, the evidence of P.W.2-Rajendran before the Tribunal
\ncoincides with the averments made by him in Ex.A.1-certified copy of FIR. In
\nEx.A.1-certified copy of FIR, the name of the accused is mentioned as Lazar, who
\nhas been subsequently examined as witness R.W.1 before the Tribunal by the
\nappellant Corporation. It is evident from Ex.A.1-certified copy of FIR that the
\nKaraikudi South Police have registered a criminal case against the driver of the
\nbus R.W.1-Lazar under Section 304(A) IPC. It is to be noted that P.W.2-Rajendran
\nin his complaint Ex.A.1-FIR and in his evidence has clearly stated that the
\ndeceased Jayanthi cross the road after getting down from the van to reach the
\nplace of washing clothes.\n<\/p>\n
\t7.R.W.1-Lazar, bus driver of the offending vehicle TN-63-0588 in his
\nevidence has stated that he drove the bus which was involved in the accident and
\ntook the bus at 1.00 p.m. in the afternoon at Devakottai and was driving the
\nsaid bus through Eravayal and was proceeding to Karaikudi and when the bus after
\npassing Rasta Railway gate and the arch and came at a place where three roads
\nwere meeting, one Tata 407 van was standing on the left side and when the bus
\nwent passed the van, out of three children from the van one child suddenly cross
\nthe road from left side to right side and at that time, the accident took place
\nand the accident occurred because of the negligence of the child in crossing the
\nroad suddenly and the accident had not occurred due to his negligence. The
\nevidence of bus driver, R.W.1-Lazar also points out to the negligence aspect of
\nthe deceased child Jayanthi in crossing the road suddenly after getting down
\nfrom the van.\n<\/p>\n
\t8.Suffice it to state that the evidence of P.W.2-Rajendran and the
\nevidence of R.W.1-Lazar are on the same footing in regard to the negligence
\naspect of the deceased child in crossing the road after getting down from the
\nvan. Hence, the aspect of ‘contributory negligence’ comes into operative play in
\nthe instant case on hand, in the considered opinion of this Court.\n<\/p>\n
\t9.From Ex.A.2-certified copy of charge sheet filed before the Judicial
\nMagistrate Court, Karaikudi, it is clear that the driver of the bus, R.W.1-Lazar
\nhas been charge sheeted under Section 304(A) of IPC. Ex.A.3 is the certified
\ncopy of post-mortem certificate in respect of the deceased Jayanthi, wherin the
\nDoctor has opined that ‘the deceased would appear to have died of crush injury
\nskull haemorrhage shock before 6 -8 hours’. In Ex.A.4-certified copy of Motor
\nVehicles Inspector’s Report, the Motor Vehicles Inspector has opined that ‘this
\naccident happened not due to any of the mechanical defects of this vehicle’.
\nEven though the deceased Jayanthi after getting down from the van has suddenly
\ncross the road so as to reach the place where clothes are washed, it has
\ntranspired from the evidence of P.W.2-Rajendran that the bus driver R.W.1-Lazar
\nhas driven the bus in high speed  at the time of accident and therefore, this
\nCourt comes to the inevitable conclusion that the accident has occurred due to
\nthe contributory negligence of the deceased Jayanthi in crossing the road
\nnegligently and suddenly and also due to the negligent driving of the bus by its
\ndriver R.W.1-Lazar and that he is also equally responsible for causing the
\naccident and the point is answered accordingly.\n<\/p>\n
\t10.According to the learned counsel for the appellant\/respondent Transport
\nCorporation, the compensation awarded by the Tribunal is highly excessive and
\nwithout any basis and that the Tribunal has erred in fixing the multiplier at 15
\nand further that the Tribunal has erred in determining the annual income of the
\ndeceased Jayanthi at Rs.60,000\/- and her annual contribution to her family at
\nRs.40,000\/-.\n<\/p>\n
\t11.In regard to the quantum of compensation to be awarded for the death of
\nJayanthi it is to be pointed out that P.W.1-Veerappan\/second respondent\/second
\nclaimant in his evidence has deposed that his deceased eldest daughter Jayanthi
\naged 13 at the time of accident she was studying in 5th standard at the Gandhi
\nSamadharma Padagasalai and that during study period she was an excellent student
\nand that the deceased daughter Jayanthi apart from her study time, during the
\nrest of the time she was helpful in his washing job and that his family has been
\nspoiled because of the death of the said Jayanthi and that his family believed
\nin the future of the deceased Jayanthi. The respondents\/claimants in the claim
\npetition have claimed in all a sum of Rs.8,40,000\/- together with interest at
\n15% per annum from the date of filing of the petition till date of payment, as
\ncompensation for the death of the deceased Jayanthi. The Tribunal has arrived at
\na sum of Rs.3,66,000\/- towards the total income of the deceased Jayanthi and
\nafter deducting one third, it has calculated the loss of income at Rs.2,40,000\/-
\n, as seen from para 7 of the award. As a matter of fact, the Tribunal has
\nadopted a multiplier of 15.\n<\/p>\n
\t12.It is significant to make a mention that Lord Wright in Davies V.
\nPowell Duffryn Associated Collieries Limited, (1942) AC 601 has observed as
\nfollows:\n<\/p>\n
“There is no question here of what may be called sentimental damage, bereavement
\nor pain and suffering. It is a hard matter of pounds, shillings and pence
\nsubject to the element of reasonable future probabilities. The starting point is
\nthe amount of wages which the deceased was earning, the ascertainment of which
\nto some extent may depend on the regularity of his employment. Then, there is an
\nestimate of how much was required or expended for his own personal and living
\nexpenses. The balance will give a datum or basic figure which will generally be
\nturned into a lump sum by taking a certain number of years’ purchase. That sum,
\nhowever, has to be taxed down by having due regard to uncertainties, for
\ninstance, that the widow might have again married and thereby ceased to be a
\ndependant, and other like matters of speculation and doubt.”\n<\/p>\n
Further, he added that “the damages are to be based on the reasonable
\nexpectation of pecuniary benefit or benefit reducible to money value. In
\nassessing the circumstances which may be legitimately pleaded in the diminution
\nof the damages must be considered the actual pecuniary loss of each individual
\nentitled to sue can only be ascertained by balancing, on the one hand, the loss
\nto him of the future pecuniary benefit, and on the other, any pecuniary
\nadvantage which from whatever source comes to him by reason of the death.”\n<\/p>\n
\t13.In Kaushnuma Begum V. New India Assurance Company Limited,<\/a> 2001 ACJ 428
\n(SC), on Second Schedule to Section 163-A of the Motor Vehicles Act, the Hon’ble
\nSupreme Court has observed as follows:\n<\/p>\n
“In calculating the amount of compensation in this case we lean ourselves to
\nadopt the structured formula provided in the Second Schedule to the Motor
\nVehicles Act. Though it was formulated for the purpose of section 163-A of the
\nMotor Vehicles Act, we find it a safer guidance for arriving at the amount of
\ncompensation than any other method so far as the present case is concerned.”\n<\/p>\n
\t14.Ex.A.5 is the xerox copy of record sheet issued by the Headmaster of
\nthe Gandhi Samadharma Padagasalai, Amaravathipudur wherein the progress of the
\npupil Jayanthi has been stated to be good in respect of III and IV standards and
\nin respect of V standard, it has been stated to be fair. However, the conduct of
\nthe deceased Jayanthi from III to V standards has been stated to be good. In
\nEx.A.5 in respect of V standard, the deceased Jayanthi is stated to have left
\nthe school on 28.03.2000 (obviously because of her death arising out of the
\naccident). Ex.A.7 is the original record sheet of the deceased Jayanthi. Ex.A.6
\nis the certificate dated 31.07.2001 issued by the school Headmaster wherein it
\nhas  been certified that during 1999-2000 period the deceased Jayanthi has been
\ndoing good in her studies at V standard.\n<\/p>\n
\t15.According to the structured formula 15 multiplier is the appropriate
\none as prescribed under the Second Schedule to Section 163-A of the Motor
\nVehicles Act, in the considered opinion of this Court. Moreover, as per this
\nSchedule in the absence of any evidence about the income of the injured or the
\ndeceased can be assessed at Rs.15,000\/- per annum. If the amount of Rs.15,000\/-
\nis multiplied by multiplier of 15, it comes to a sum of Rs.2,25,000\/-.\n<\/p>\n
\t16.In the claim petition, towards transport expenses a sum of Rs.800\/- is
\nclaimed and this Court awards the said sum of Rs.800\/-. Towards transport
\nexpenses (after conducting post-mortem) a sum of Rs.800\/- is claimed in the
\npetition and this Court grants the same. Towards damage of clothes, the
\nrespondents\/ claimants have claimed a sum of Rs.500\/- in the petition and this
\nCourt grants the same. Therefore, this Court awards a sum of Rs.2,27,100\/-
\n(Rs.2,25,000 + Rs.800 + Rs.800 + Rs.500) as compensation to the
\nrespondents\/claimants for the death of their daughter Jayanthi, who was involved
\nin the accident. Since this Court has held that the deceased Jananthi has also
\ncontributed to the cause of the accident, this Court opines that it is prudent
\nand appropriate to deduct 15% from and out of the total compensation of
\nRs.2,27,100\/-, i.e. Rs.34,065\/- and accordingly, the respondents\/claimants are
\nentitled only to claim a compensation of Rs.1,93,035\/- (Rupees one lakh  ninety
\nthree thousand and thirty five only) together with interest at 9% per annum from
\nthe date of filing of the petition till date of payment, payable by the
\nappellant\/ respondent Corporation. Resultantly, the award of a sum of
\nRs.2,20,500\/- determined by the Tribunal as compensation to the
\nrespondents\/claimants is slightly on the higher side.\n<\/p>\n
\t17.The lawyers fee is fixed at Rs.6861\/- by this Court and the same is
\ndirected to be paid by the appellant\/respondent Transport Corporation.\n<\/p>\n
\t18.Earlier in C.M.P.No.385 of 2004 dated 10.09.2004 this Court has passed
\nthe following order:\n<\/p>\n
“Interim stay on condition that the petitioner deposits the entire amount of
\ncompensation with interest and costs to the credit of M.C.O.P.No.151 of 2000 on
\nthe file of Motor Accidents Claims Tribunal (Sub Court), Devakottai within a
\nperiod of eight weeks from the date of the receipt of the order, failing which
\nthe interim stay shall stand automatically vacated.”\n<\/p>\n
\t19.In fine, the Civil Miscellaneous Appeal is allowed and the award dated
\n05.09.2001 passed in M.C.O.P.No.151 of 2000 by the Motor Accidents Claims
\nTribunal – Sub Court, Devakottai is modified. It is open to the
\nrespondents\/claimants to receive the amount to which they are entitled to from
\nthe Tribunal by filing appropriate application as per Civil Rules of Practice.
\nEqually, liberty is given to the appellant\/respondent Corporation to receive the
\namount to which they are entitled to by filing necessary application as per
\nCivil Rules of Practice in accordance with law.  There shall be no order as to
\ncosts in this appeal, considering the facts and circumstances of the case.
\nConnected miscellaneous petition is closed.\n<\/p>\n
Sgl<\/p>\n
To
\nThe Motor Accident Claims Tribunal,
\nSub Judge,
\nKaraikudi.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Managing Director vs Shanthi on 19 August, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-25199","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Managing Director vs Shanthi on 19 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-shanthi-on-19-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Managing Director vs Shanthi on 19 August, 2008 - 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