IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.3.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.700 of 2009 and M.P.No.1 of 2009 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam. ... Appellant/Respondent vs. 1.Elavarasi, 2.Minor Nivedha, 3.Minor Sathiyapriya, 4.Minor Priyadharshini, 5.Saradhambal. (Minor 2 to 4 respondents are represented by their mother and next friend Elavarasi, the 1st respondent) ...Respondents/Petitioners 1 to 5 Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 13.9.2007 passed in M.C.O.P.No.32 of 2007 on the file of the Motor Accidents Claims Tribunal (District Court), Nagapattinam. For appellant : Mr.N.Anand ----- JUDGMENT Tamil Nadu State Transport Corporation is on appeal challenging the award dated 13.9.2007 passed in M.C.O.P.No.32 of 2007 on the file of the Motor Accidents Claims Tribunal (District Court), Nagapattinam. 2. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 21.1.2005 at 11.00 hours. The deceased Sambamoorthy, said to be aged 40 years, working as a Railway Point Man in Southern https://hcservices.ecourts.gov.in/hcservices/ Railway, was travelling in the bus belonging to the appellant transport corporation. The bus was plying on Thanjavur-Nagai Main Road. When it was near Ambal Auto Garage Railway Gate, due to rash and negligent driving by the driver of the appellant transport corporation bus, the said Sambamoorthy was thrown out of the bus. He sustained grievous injuries and died at Thanjavur Medical College Hospital in spite of treatment. A criminal case was lodged in Crime No.19 of 2005 against the driver of the bus before the Judicial Magistrate No.II, Thanjavur. On the death of Sambamoorthy, the wife aged 36 years, three daughters aged 14, 12 and 8 years respectively and mother aged 60 years filed a claim for compensation in a sum of Rs.15 lakhs, stating that the deceased was earning a sum of Rs.8,434/- per month. 3. In support of the claim, the wife of the deceased was examined as P.W.1. One Viswanathan, another co-passenger was examined as P.W.2. Exs.P-1 to P-6 were marked, the details of which are as follows:- Ex.P-1 is the F.I.R., dated 22.1.2005, Ex.P-2 is the post-mortem certificate dated 7.2.2005, Ex.P-3 is the Motor Vehicle Inspector's Inspection Reports dated 25.1.2005, Ex.P-4 is the returned C.P., dated 21.10.2005, Ex.P-5 is the Southern Railway Salary Slip dated 15.1.2005 and Ex.P-6 is the legal heir certificate dated 23.5.2005. Mr.Jayaprakash, the driver of the appellant transport corporation bus was examined as R.W.1. No document was marked on behalf of the appellant transport corporation, the respondent before the Tribunal. 4. So far as the negligence is concerned, it is the case of the claimants that the driver of the appellant transport corporation bus drove the vehicle in a rash and negligent manner and while attempting to cross the speed broker near the Ambal Auto Garage Railway Gate, in the jolt, the deceased was thrown out of the overcrowded vehicle. P.W.2, the co-passenger and also the eye witness, clearly stated that the bus was driven in a rash and negligent manner and that was the reason for the death of the deceased. R.W.1, the driver of the appellant transport corporation, against whom a criminal case has been filed, deposed that the deceased travelled on the footboard and https://hcservices.ecourts.gov.in/hcservices/ despite warning he continued to travel so and out of his own negligence he fell down from the bus and died. The Tribunal did not accept the evidence of R.W.1, the driver of the appellant transport corporation. According to the Tribunal, R.W.1, the driver of the bus admitted in his cross-examination that more than 80 passengers travelled in the bus when the admitted capacity is only 58+2. This shows the carelessness in which the bus was plied. Further, the criminal case was also registered against the driver of the bus. The Tribunal found that R.W.1 did not place a complaint before the police on this aspect. The Tribunal also came to the conclusion that the driver of the bus having accepted that more than 80 passengers were travelling, should have considered the safety of the passengers and refused to allow anybody to travel on the foot board. It also came to conclusion that there was no material to substantiate the plea that the deceased travelled on the foodboard except the mere statement of the driver. It is pertinent to point out that the conductor of the bus was not examined. The finding of the Tribunal on this issue is justified as the driver is not the person who can speak about the passengers on the footboard. On the contrary it is a conductor who will be the right person to state as to how the accident had happened. In this regard, the decision of the Division Bench of this Court in Pallavan Transport Corporation Ltd., - v. - T.Mallika reported in 2005 (1) CTC 161 can be relied upon. In that case, the Division Bench of this Court came to hold that when the defence of footboard travel was raised by the transport corporation, the court felt that the evidence of the conductor is more appropriate than that of the driver. It is also the same in the present case. Therefore, the finding of rash and negligent driving on the part of the driver of the appellant transport corporation bus as held by the Tribunal stands confirmed. 5. As far as compensation is concerned, the Tribunal taking into consideration Ex.P-5, the salary certificate which showed the income of the deceased as Rs.8434/- per month and also taking into consideration, the future prospects, fixed the income of the deceased at Rs.9,000/- per month, of which 1/3 was deducted and the loss of dependency to the claimants was fixed at Rs.6,000/- per month (i.e.) Rs.72,000/- per annum. Since the deceased was aged about 45 to 50 years, the Tribunal adopted 13 multiplier and fixed the total loss of dependency at Rs.9,36,000/-. In addition to that, the Tribunal granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at 7.5% per annum:- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the dependents Rs.9,36,000/- 2 Loss of consortium to the wife on the death of her husband Rs. 5,000/- 3 Loss of love and affection to the three minor daughters and mother (Rs.2,000/- each) Rs. 8,000/- 4 Funeral expenses Rs. 2,000/- Total Rs.9,51,000/- 6. In appeal, there is no serious dispute with regard to the income fixed by the Tribunal. Learned counsel for the appellant does not raise serious dispute with regard to the income of the deceased as it is admitted that the deceased was working in the Southern Railway and he was aged 45 to 50 years and he had more than a decade of service. The prospects of higher income is always there. A sum of Rs.566/- alone has been added to fix the income at Rs.9,000/- per month as against Rs.8,434/- per month which is a reasonable. In so far as the multiplier is concerned, even as per second schedule to the Motor Vehicles Act, 1988, the proper multiplier for the age group 45 to 50 years is 13. Therefore, the multiplier of 13 adopted by the Tribunal is not excessive. In any event, the Tribunal has granted a very meagre sum of Rs.5,000/- towards loss of consortium to the wife and a paltry sum of Rs.8,000/- towards loss of love and affection to the three minor daughters and aged mother. Even if the compensation under the head pecuniary loss is marginally higher, it can be justified towards compensation for loss of consortium to the wife and loss of love and affection to the four claimants, viz., three minor daughters and aged mother. As a result, the appellant has not made out a case for reduction in quantum of compensation as also the interest granted at 7.5% as the accident in this case happened in the year 2005 and the award is of the year 2007. 7. Finding no merit, the Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks for eight weeks' time to deposit the award amount and is granted and on such deposit, the respondents are permitted to https://hcservices.ecourts.gov.in/hcservices/ withdraw the same as ordered and apportioned by the Tribunal. Consequently, connected miscellaneous petition is closed. ts Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The District Judge, (The Motor Accidents Claims Tribunal), Nagapattinam. + 1 cc to Mr. N. Anand, Advocate SR No.10457 Judgment in C.M.A.No.700 of 2009 CK(CO) SR/17.4.2009 https://hcservices.ecourts.gov.in/hcservices/