IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN C.M.A.No.228 of 2006 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Bharathipuram, Dharmapuri. .. Appellant/Respondent Vs. 1.C.Krishna Reddy 2.Minor K.Varun Krishna 3.Minor Vamsee Krishna .. Respondents/Petitioner (Minor respondents R2 and R3 rep. by R1/father) Appeal under Section 173 of Motor Vehicle Act against the judgment and decree dated 24.03.2005 made in M.C.O.P.No.23 of 2000 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), Dharmapuri at Krishnagiri. For appellant .. Mr.P.Jagadeeswaran For respondents .. Mr.U.Karunakaran JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI, J.) Being aggrieved by the award of compensation and quantum of compensation of Rs.12,12,168/- awarded by the Tribunal to the claimants for the death of Shyamala , the Transport Corporation has come forward with this appeal. 2.The brief facts are that on 22.03.1999 at about 19.10 hours, when the deceased Shyamala was travelling as a pillion rider in the motorcycle of her brother in law, bearing Registration No.TN https://hcservices.ecourts.gov.in/hcservices/ 29 W 7742, on Hosur-Bagalur Road, the bus bearing Registration No.TN 29 N 1084 belonging to the appellant-Transport Corporation, driven by its driver in a rash and negligent manner, tried to overtake the lorry and hit against the motorcycle, due to which, the deceased fell down on the road and the right wheel of the bus ran over her head, resulting in the death of the deceased on the spot. A criminal case was registered in Crime No.327/1999 for the offence under Section 304-A I.P.C. on the file of Hosur Hudco Police Station. The deceased was aged 34 years at the time of accident and she was working as an Operator in ELNET, Hosur and was also one of the Managing Partners of M/s.Balaji Scientific Agro Farms, Hosur. The deceased was earning Rs.4,300/- as salary. She was paid a monthly honorarium of Rs.2,500/- as a Managing Partner of the company and also getting profit of more than Rs.1,00,000/- per year. Alleging that the accident was due to the rash and negligent driving of the bus driver, husband and two minor sons of the deceased have filed claim petition under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs.25,00,000/-. 3.Before the Tribunal, the first claimant/husband of the deceased examined himself as P.W.1 and other witnesses were examined as P.Ws.2 to 5. On the side of the claimants, Exs.P1 to P10 were marked. On the side of the respondents, driver of bus was examined as R.W.1 and no documentary evidence was adduced. 4.Based upon Ex.P10 the profit and loss account of M/s.Balaji Scientific Agro Farms, the Tribunal has taken the income of the deceased from 01.04.1999 to 31.08.1999 as Rs.1,60,982/- (1/3rd of Rs.4,82,948.50). After adopting multiplier 17, the Tribunal has pointed out that the loss of income to the family would be Rs.18,24,463/-. However, taking the loss of income at Rs.11,82,168/-, the Tribunal awarded compensation of Rs.12,12,168/- under the following heads: Loss of dependency .. Rs.11,82,168.00 Loss of love and affection to the first claimant .. Rs. 10,000.00 Loss of estate .. Rs. 10,000.00 Funeral expenses .. Rs. 10,000.00 = = = = = = = = Total Rs.12,12,168.00 = = = = = = = = 5.Learned counsel for the appellant submitted that the Tribunal erred in holding that the driver of the bus was responsible for the accident. Even though in the counter as well as in the grounds of appeal, it is alleged that the rider of yamaha vehicle https://hcservices.ecourts.gov.in/hcservices/ bearing Regn. No.TN 29 W 7742 was rash and negligent in driving the two wheeler, before the Tribunal, no evidence was adduced to substantiate the same. Excepting the interested testimony of R.W.1/driver of the bus, no other evidence was adduced to substantiate the plea of contributory negligence by the rider of the two wheeler bearing Regn. No.TN 29 W 7742. The finding of the Tribunal as to the negligent driving of the bus driver is based upon the evidence of P.W.2, who had driven the motorcycle. A criminal case was also registered against the bus driver. R.W.1 has also stated that departmental proceedings was initiated against him and there was stoppage of increment for one year. In such facts and circumstances of the case, we are of the view that the Tribunal rightly held that the accident was due to the rash and negligent driving of the bus driver and that the appellant-Transport Corporation is liable to pay the compensation to the claimants. 6.Insofar as the quantum of compensation, the deceased was working as Operator in ELNET at Hosur, which is a Government of Tamil Nadu undertaking. As seen from Ex.P5 Salary Certificate, she was getting salary of Rs.4,344.50 per month. Ex.P7 is the experience certificate of the deceased. Since the deceased was working in ELNET and drawing salary of Rs.4,344.50, the Tribunal observed that having regard to the future prospects, monthly income of the deceased could be taken as Rs.8,688/-. We are of the view that as seen from Ex.P5 since the deceased was getting only Rs.4,344.50, the Tribunal was not right in observing that the income could be taken as double the amount of Rs.4,344/- i.e. Rs.8,688/-. At the time of accident, since ELNET was closed, Shyamala did not have any income. For employing the employees of ELNET, Government issued Ex.P8 - G.O.Ms.No.24 Information Technology (NIE) Department dated 18.07.1999, absorbing the services of those employees. 7. In his evidence, P.W.1 Krishna Reddy/first claimant has stated that Shyamala and three others were running M/s.Balaji Scientific Agro Farms, which was registered in December, 1999 and were making profits. Ex.P9 is the statement of accounts of the said partnership firm from 01.11.1998 to 31.03.1999 showing the income as Rs.1,29,960/-. Whereas Ex.P10 is the statement of accounts of the said firm from 01.04.1999 to 31.08.1999, for which period, the income is stated as Rs.4,82,948.50. Based upon Ex.P.10, the Tribunal has taken the profit income payable to the deceased as Rs.1,60,982/- i.e. 1/3rd of Rs.4,82,948.50. 8. The date of accident was 22.3.1999, . Ex.P.10 is the statement of accounts from 1.4.1999 to 31.8.1999, which is for subsequent period. The income shown in Ex.P.10 is four times that of the income as stated in Ex.P.9. It is pertinent to know that both Exs.P.9 and P.10 were not submitted to the authorities concerned. In our considered view, the profit income from the partnership concern as stated in Ex.P.10 is boosted and no reliance can be placed upon https://hcservices.ecourts.gov.in/hcservices/ the same. 9. As pointed out earlier, while the deceased was working in ELNET, as seen from Ex.P.5, she was getting salary of Rs.4,344.50. As held by the Supreme Court in Reshma Kumari and Others Vs. Madan Mohan and another 2009 AIR SCW 6999, while calculating the income of the deceased and compensation, future prospects will have to be taken into account. The deceased was aged 34 years. Even though Shyamala was out of employment from ELNET, the Government has passed Ex.P.8 for absorption of employees of ELNET in other services. Having regard to the age of the deceased and her qualifications, and keeping in view her future prospects, the income of the deceased could be taken as Rs.7,500/- per month. Deducting 1/3rd for personal expenses, the loss of dependency/loss of contribution to the family is calculated at Rs.5,000/- per month. The annual contribution is Rs.60,000/- (Rs.5,000/- x 12). 10. Coming to the choice of the multiplier, the deceased was aged 34 years. The Tribunal has adopted multiplier 17. As per the Second Schedule, the proper multiplier to be adopted is 17. The total loss of dependency to the family is accordingly calculated at Rs.10,20,000/- (Rs.5,000 x 12 x 17). 11. Insofar as the conventional damages, Tribunal has awarded Rs.10,000/- for loss of love and affection to the claimants 1 to 3. The 1st Claimant - husband of the deceased has lost consortium and love and affection of his wife and 2nd and 3rd Claimants have lost love and affection of their mother at their young age. For loss of love and affection, the compensation of Rs.10,000/- awarded by the Tribunal is enhanced to Rs.30,000/- (Rs.10,000/- each). Insofar as the conventional damages, the sum of Rs.10,000/- awarded under each of the heads for loss of estate and funeral expenses are quite reasonable and the same is maintained. 12. The compensation awarded by the Tribunal (I Additional District Judge), Dharmapuri at Krishnagiri in M.C.O.P.No.23 of 2000 on the is reduced as under: Loss of dependency .. Rs.10,20,000.00 (Rs.5,000/- x 12 x 17) Loss of love and affection .. Rs. 30,000.00 (Rs.10,000/- x 3) Loss of estate .. Rs. 10,000.00 Funeral expenses .. Rs. 10,000.00 = = = = = = = = Total .. Rs.10,70,000.00 = = = = = = = = https://hcservices.ecourts.gov.in/hcservices/ The reduced compensation is to be apportioned amongst the claimants on pro-rata basis as ordered by the Tribunal and the rate of interest awarded by the Tribunal at 9% is maintained. 13. In the result, the quantum of compensation awarded by the Tribunal (I Additional District Judge), Dharmapuri at Krishnagiri in M.C.O.P.No.23 of 2000 is reduced to Rs.10,70,000/- payable with interest at the rate of 9% per annum and the Civil Miscellaneous Appeal is partly allowed. No costs. The quantum of compensation is to be apportioned amongst the claimants on pro-rata basis as ordered by the Tribunal. 14. As per the earlier order dated 31.01.2006 in C.M.P.No.746 of 2006 in C.M.A.No.228 of 2006, 80% of the compensation amount awarded along with accrued interest was ordered to be deposited, which is said to have been complied with by the appellant-State Transport Corporation. It was stated before us that the first claimant has withdrawn the amount as per the earlier order dated 31.01.2006. The appellant-Transport Corporation is directed to deposit the balance compensation amount along with accrued interest (if any payable) within a period of eight weeks from the date of receipt of a copy of this judgment. The first claimant is permitted to withdraw the balance compensation amount to him payable along with accrued interest. Claimants 2 and 3, who were then minors, are also permitted to withdraw the entire compensation payable to them on obtaining necessary orders from the Tribunal, declaring them as majors. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar mmi/usk To 1.The Motor Accidents Claims Tribunal, (I Additional District Judge) Dharmapuri at Krishnagiri. + 1 CC to Mr.P.Jagadeeswaran,Advocate,SR.43920 C.M.A.No.228 of 2006 VS(CO) EM/20.7.10 https://hcservices.ecourts.gov.in/hcservices/