IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2482 of 2007 and M.P.No.3 of 2007 and Cross.Objn.No.54 of 2008 The Managing Director Tamil Nadu State Transport Corporation Ltd., Vellore .. Appellant in CMA Respondent in Cross Objection/ Respondent Vs 1.Swarnalatha 2.Ranganayagi 3.Ranganathan 4.Udayakumar 5.Minor.Thyagarajan .. Respondents in C.M.A (R5 rep.by his mother and Cross Objection in guardian R1) Cross Objector /Petitioners Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 and order 41 Rule 22 of C.P.C. against the Award and Decree, dated 29.09.2006, made in M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai. For appellant in CMA : Mr.C.Prabhakaran For Respondent in for M/s.N.Anand Cross Objection For respondents in CMA : Mr.R.Rajarajan for RR1 to R5 For Cross Objection of Cross Objector J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 29.09.2006, made in M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, awarding a compensation of Rs.2,69,000/- with 7.5% interest per annum, from the date of filing the petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Award and Decree, the appellant/respondent, the Managing Director, Tamil Nadu State Transport Corporation, Vellore, has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 22.12.2004, at about 2.30 p.m. when the (deceased)Ariharan riding his Hero Honda Motorcycle bearing registration No.PY01 Z2857, with one Durai as the pillion rider, from Chetpet to Polur and was opposite the house of Chandran at Venmani Village on the Polur – Chetpet road, the respondent's bus bearing registration No.TN23 N1161, coming in the opposite direction ie. from Polur to Chetpet and driven by its driver at a high speed and in a rash and negligent manner dashed against the motorcycle and caused the accident. The (deceased) Ariharan died on the spot. The accident happened due to the rash and negligent driving by the driver of the respondent's bus. The pillion rider, Durai also sustained severe injuries and was admitted in the Polur Government Hospital. 4.The (deceased) Ariharan was aged about 50 years at the time of the accident. He was employed at Pearless Company and was earning a sum of Rs.10,000/- per month. 5.The petitioners, who are the legal heirs of the deceased have claimed a compensation of Rs.20,00,000/- from the respondent with interest at the rate of 24% per annum and costs under Section 166 of the Motor Vehicles Act. 6.Regarding the said accident, a criminal case has been filed at the Polur Police Station in Crime No.1225/2004, under Sections 279, 337 and 304(A) I.P.C. and is pending under investigation. 7.The respondent, in his Counter has resisted the claim stating that the age, income and occupation of the (deceased) Ariharan are not admitted as true. Further, the respondent has denied the version of the accident as given in the claim. It has been submitted that on 22.12.2004, the respondent's bus bearing registration No.TN23 N1161, route No.241, was driven by its driver in a careful manner and steady speed and adhering to the traffic rules and regulations and when the bus was nearing Venmani Village, the driver on seeing the Hero Honda Motorcycle bearing registration No.PY01 Z2857, ridden by its rider at a high speed and in a rash and negligent manner, coming in the opposite direction, had stopped the bus at the extreme left of the road, but in spite of this, the rider of the Hero Honda Motorcycle had dashed his vehicle against the bus and so courted the accident. As such, the respondent had submitted that he is not responsible for the accident and that it was the negligence of the rider of the motorcycle, which had resulted in the said accident. The respondent has submitted that he is not liable to pay compensation to the petitioners and has prayed for dismissal of the petition with costs. https://hcservices.ecourts.gov.in/hcservices/ 8.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Was the accident caused due to the high speed, rash and negligent driving by the driver of the respondent's bus? (ii) Who is liable to pay compensation to the petitioners? And (iii)Are the petitioners entitled to receive compensation? If so, what is the quantum of compensation, which they are entitled to get? 9.On the petitioners' side two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.P1 to P9. On the respondent's side two witnesses were examined as RW1 and RW2 and one document was marked as Ex.R1. 10.The fourth petitioner in the claim petition, Udayakumar, was examined as PW1. In his evidence, he has stated that he is the son of the (deceased) Ariharan; that on 22.12.2004, the deceased Ariharan was riding his motorcycle, along with Velu as the pillion rider on the Polur – Chetpet Road and at 2.30 p.m. while they were nearing the house of Chandran in the Venmani Village, the respondent's bus, which had come in the opposite direction had dashed against his father, Ariharan; that his father Ariharan had sustained severe injuries in the accident and had died on the spot. The evidence given by the PW1 is in consonance with the evidence of PW2 and the documentary exhibits marked as Ex.P1 to Ex.P3 and Ex.P9, through him. PW2, Durai, is the pillion rider, in his evidence has deposed that while the (deceased) Ariharan and he were travelling on the extreme left side of the road, the respondent's bus, driven at high speed and in a rash and negligent manner had dashed against the motorcycle and that as a result of this accident, the (deceased) Ariharan had died on the spot. He had further deposed that the accident was caused only by the rash and negligent driving by the driver of the respondent's bus. The evidence given by the PW2 is found to be in consonance with the documentary exhibit marked as Ex.P1, the FIR. 11.On the respondent's side, the driver of the said bus was examined as RW1. The RW1, in his evidence has stated that the rider of the Hero Honda Motorcycle had ridden his vehicle at a high speed and in a rash and negligent manner and that on seeing this, he had stopped the bus on the extreme left side of the road. But, no other witnesses were examined and no documents were marked to confirm the evidence given by the RW1. Further, it is seen that a criminal case has been filed by the Police only as against the driver of the bus. 12.The Tribunal opined that if the driver of the bus had not driven the bus at a high speed and in a rash and negligent manner, https://hcservices.ecourts.gov.in/hcservices/ the Police would not have registered a criminal case against him. The RW1 has admitted during the cross-examination that the Investigation Officer of their department had conducted an inquiry in the said accident, but the investigation report has not been filed. The Tribunal were of the opinion that the respondent would have filed the investigation report, if the investigation had revealed that the accident had not been caused by the high speed and the rash and negligent driving of the driver of the respondent's bus. On a scrutiny of evidence of the PW2 and the fact that the evidence of PW2 was in consonance with the contents of Ex.P1, it is crystal clear that the driver of the respondent's bus had driven the bus at a high speed and in a rash and negligent manner and dashed against the motorcycle ridden by the (deceased) Ariharan and caused the accident. As such, the Tribunal held that the accident had been caused due to the high speed and rash and negligent driving of the respondent's bus, by its driver. 13.The PW1, in his evidence had stated that the age of the (deceased) Ariharan, at the time of accident, was about 50 years. He had further deposed that he is the fourth petitioner in the claim; that the first petitioner is his mother and the second and third petitioners are the mother and father of the (deceased) Ariharan and the fifth petitioner is his brother. It has not been refuted by the respondent that the said bus involved in the accident is owned by them and that the said bus had been insured at the time of accident. As, it has been held that the accident had been caused only because of the fact that the respondent's bus had been driven by its driver at a high speed and in a rash and negligent manner, the Tribunal held that the respondent was liable to pay compensation to the petitioners. 14.The PW1, in his evidence had stated that the (deceased) Ariharan was aged about 50 years at the time of the accident. This is an consonance with the contents of Ex.P2, the Post-mortem Report. As such, the Tribunal held that the deceased was aged about 50 years at the time of the accident. It has been stated by the PW1 in his evidence that the (deceased) Ariharan was an agent of Pearless Co., before the accident, and that he was also an agriculturist carrying out agricultural work in his village and that he was also running a provision shop and was earning a sum of Rs.10,000/- per month. But, the Tribunal on considering that the Pearless Company had been closed and holding that the Salary Certificate marked by PW1 in his evidence was not a certified one issued by the Income Tax Department and considering the fact that in the said Salary Certificate issued by the Assistant Tahsildar, no mode of receipt of income had been mentioned were not inclined to hold that the documentary exhibit marked as Ex.P8 was genuine. Further, there was no evidence to show whether the provisional shop run by the deceased, as alleged by the PW1, in his evidence, was in the city or village. The Tribunal, after considering evidence of the PW1 and the documentary exhibits marked through him were of the disposition that the deceased had earned income from agriculture activities and through the provision shop, but that there were no documentary or oral evidence furnished https://hcservices.ecourts.gov.in/hcservices/ to prove the amount of income earned through these sources. As such, the Tribunal fixed the notional income of the (deceased) Ariharan as Rs.3,000/- and assessed the total loss of income to the petitioners as Rs.3,000/- X 2/3 X 12 X 11 = Rs.2,64,000/- and awarded the said amount as compensation to the petitioners under the head of loss of income. The Tribunal further granted an award of Rs.5,000/- to the first petitioner under the head of loss of consortium. In total, the Tribunal awarded a compensation of Rs.2,69,000/- to the petitioners and directed the respondent to deposit the above said award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, into the credit of the M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, within a period of two months from the date of its Order. The Tribunal, further apportioned a sum of Rs.1,00,000/- from out of the award to the first petitioner; Rs.30,000/- each to the second and third petitioner; Rs.54,500/- each to the fourth and fifth petitioners. Further, after deposit of the award, the petitioners were permitted to withdraw 40% of their apportioned share of the award and the balance of their apportioned share of the award was to be invested in a nationalised bank, as fixed deposit, for a period of three years. The Tribunal, further, directed that the accrued interest on the entire award granted together with costs, can be received by the first petitioner, after payment of Court fee due on the award amount by the petitioners. The petitioners were directed to pay the Court fee within 20 days from the date of its Order. The Advocate fees was fixed at Rs.8,380/-. The respondent was directed to pay the cost of Rs.10,457/- to the petitioners. 15.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in holding that the accident had been place only on account of the negligence of the appellant Corporation bus. It has been contended that the Tribunal ought to have appreciated the evidence of the RW1, driver of the bus, who deposed that the accident had occurred only due to the rash and negligent manner of riding of the Hero Honda by the rider and as such should have fixed contributory negligence atleast to some extent on the part of the rider of the Hero Honda. 16.It was also contended that the learned Tribunal had erred in fixing the monthly income of the deceased at Rs.3,000/- especially considering that no material evidence were produced to prove the actual monthly income of the deceased. It has also been contended that the award of Rs.2,64,000/- towards the loss of income by applying multiplier of 11 for the age of 50 years is untenable and it has been contended that the quantum of compensation assessed at Rs.2,69,000/- by the Tribunal is excessive and liable to be set aside. 17.The learned counsel appearing for the respondents has filed Cross Objection No.54 of 2008 and urged this Court to grant an additional compensation of Rs.5,00,000/-. In supporting of this cross objection, a revenue record issued by the Deputy Tahsildar, https://hcservices.ecourts.gov.in/hcservices/ Villupuram has been filed, wherein it has been stated that the deceased had owned about 5 Acres of land as a joint owner. Further, the Deputy Tahsildar issued an Income Certificate stating that the income of the deceased was Rs.1,63,240/- for the financial year 01.04.2003 to 31.03.2004. the learned counsel appearing for the respondents/cross objectors had further submitted that the Tribunal's award is on the lower side and that the award under the head of the loss of love and affection has not been considered. The award granted towards funeral expenses and consortium are also on the lower side. Further, the learned counsel had submitted that the loss of income had not been correctly assessed by the Tribunal. As the dependants are 5 in number and as they are depending on the deceased's income, who was the breadwinner of the family, the deductions for personal expenses of the deceased should have been taken as ¼ instead of 1/3 as was assessed by the Tribunal. 18.Considering the facts and circumstances of the case, arguments advanced by the learned counsel appearing for the appellant and arguments advanced by the learned counsel appearing for the respondents/cross objectors and scrutiny of findings of the Tribunal, this Court is of the view that Ex.P6, marked through the cross objectors, is the land Patta, an extent of 5 Acres. Ex.P8 is the Income Certificate issued by the Revenue Authority, wherein it has been certified that the deceased's income was Rs.1,63,240/- for the financial year 2003-2004. As the claimants are 5 in number and as 21 of them is a minor and 2 of them are very old persons, the mode of assessment of the Tribunal in awarding compensation is incorrect. So, on the basis of the dependancy and based on the income proof furnished as per Exs.P6 and P8, this Court decides to fix the notional income of the deceased as Rs.4,000/- per month. Taking personal expenses as ¼ of his income, this Court holds the loss of income incurred by the petitioners as Rs.3,000/- X 12 X 11 = Rs.3,96,000/- and awards this amount as compensation to the petitioners under the head of loss of income. For consortium, the Tribunal had awarded a sum of Rs.5,000/-. This Court enhances the award granted under this head to Rs.15,000/-. This Court awards a sum of Rs.10,000/- each as compensation to the claimants 2 to 5, ie. in total Rs.40,000, under the head of loss of love and affection. For funeral expenses, the Court awards a sum of Rs.10,000/-. In total, this Court awards a sum of Rs.4,61,000/- as compensation to the claimants. 19.The Motor Accident Claims Tribunal, District Court, Thiruvannamalai, passed an award of a sum of Rs.2,69,000/-, together with interest at the rate of 7.5% per annum, from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.319 of 2005, dated 29.09.2006. This Court enhances the compensation awarded to the claimants from Rs.2,69,000/- to Rs.4,61,000/-. The apportioned ratio fixed by the Tribunal in the original compensation granted ie. a sum of Rs.2,69,000/- has to be followed: The additional compensation amount granted by this Court ie. a sum of R.1,92,000/- is apportioned as follows: https://hcservices.ecourts.gov.in/hcservices/ 1.The first claimant is apportioned a sum of Rs.40,000/-. 2.The second and third claimants are apportioned a sum of Rs.40,000/- each. 3.The fourth and fifth petitioners are apportioned a sum of Rs.36,000/- each. The additional compensation amount granted by this Court will also carry an interest of 7.5% per annum from the date of filing the petition till the date of payment of compensation. 20.This Court imposed a condition, on 06.10.2007, to the appellant, to deposit the entire award amount together with interest and costs, into the credit of the M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai. Now, this Court directs the appellant to deposit the additional compensation amount ie. a sum of Rs.1,92,000/- with accrued interest, into the credit of the M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, within a period of four weeks from the date of receipt of this Order. 21.As the accident happened in the year 2004, it is open to the claimants to withdraw their entire compensation amount with accrued interest thereon, after such deposit has been made by the appellant, lying in the credit of the M.C.O.P.No.319 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, after filing necessary payment out application, in accordance with law, subject to the deduction of withdrawals, if any. 22.In the result, the above Civil Miscellaneous Appeal is dismissed. The Cross Objection No.54 of 2008 is partly allowed and the Award and Decree, dated 29.09.2006, in M.C.O.P.No.319 of 2005, passed by the Motor Accident Claims Tribunal, District Court, Thiruvannamalai, is modified. Consequently connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1. Motor Vehicles Accident Claims Tribunal, District Court, Thiruvannamalai. 1 cc To Mr.G.Rajan, Advocate, SR.7483 C.M.A.No.2482 of 2007 MS(CO) sra 02/03/2010 https://hcservices.ecourts.gov.in/hcservices/