IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1798 of 2007 and M.P.No.1 of 2007 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore Division-II, Chennimalai Road, Erode .. Appellant/ Respondent Vs 1.Palanisamy 2.Govindammal .. Respondents / Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 22.01.2007, made in M.A.C.T.O.P.No.591 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.5), Coimbatore sitting at Tiruppur. For appellant : Mr.C.Prabhakaran for M/s.N.Anand For respondent : Mr.S.S.Swaminathan 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 dated 22.01.2007, made in M.A.C.T.O.P.No.591 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.5), Coimbatore, sitting at Tiruppur, awarding a compensation of Rs.5,09,000/- with 7.5% interest from the date of the petition to till the date of payment of the compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the above said award, the appellant/Tamilnadu State Transport Corporation Ltd., Coimbatore Division-II, Erode, has preferred the above appeal to set aside the order. 3.The short facts of the case are as follows: On 13.06.2005, at about 21.45 hours, when the deceased was riding the two wheeler bearing registration No.TN39 X3277, the bus bearing registration No.TN 33 N1676, driven in a rash and negligent manner by its driver, dashed against the deceased, who died in the said collusion. The Post-mortem of the deceased was conducted at Government Hospital, Palladam. As the accident was caused due to the rash driving of the driver, in the course of the employment under the respondent, the respondent is liable to compensate the petitioner. The deceased was a hale and healthy man of 30 years old, doing agricultural work and was also the owner of a Tractor and was earning a sum of Rs.10,000/- per month. The petitioners have spent a sum of Rs.10,000/- for funeral expenses and a sum of Rs.10,000/- for transporting the body of deceased to native place. As such, the petitioners, who are the legal heirs of the deceased, have claimed a compensation of a sum of Rs.12,00,000/- with interest and costs. 4.The respondent/Tamil Nadu State Transport Corporation in its Counter has resisted the claim denying the age, occupation, income of the deceased as also the legal heirship and dependency of the petitioners. Further, the accident, manner of the accident, nature of the injuries and loss of earnings of the deceased were not admitted. It was submitted that on 13.06.2005, the bus bearing registration No.TN 33 N1676 was proceeding from Tiruppur to Madurai. The driver of the bus was proceeding slowly, cautiously and was also following the rules of the road. At about 9.40 p.m. when the bus was nearing Avinashipalayam Sungam, a pedestrian tried to cross the road and suddenly came into the road. At that time, a two wheeler bearing registration No.TN39 X3277 was coming in the opposite direction in a rash and negligent manner at a high speed. The driver on seeing the pedestrian and the two wheeler coming in the middle of the road, blew the horn and applied brake and swerved the bus to the rightside of the road. The driver of the bus did his best to avert the accident. In spite of this, the deceased driver of the two wheeler with pillion rider, dashed then vehicle against the stopped the bus and fell down and so caused his own death. Further, the petitioners have not impleaded the owner and insurer of the two wheeler bearing registration No.TN39 X3277 to arrive at a comprehensive decision. Further, the claim of the petitioners is excessive; therefore, the respondent has prayed to set aside the claim. 5.The Motor Accident Claims Tribunal framed two issues for the consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i) Who is responsible for the accident to be caused? (ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation? 6.On the petitioners' side, six witnesses were examined and 22 documents were marked. On the respondent's side one witness was examined as RW1 and no documents were marked. 7.The petitioner in M.A.C.T.O.P.No.590 of 2005 was examined as P.W1 and he had marked a document ie.Ex.P1, the First Information Report. It has been mentioned in the report that the accident occurred on 13.06.2005, at 21.45 hours; that the complaint had been lodged by one Deivasigamani, the brother-in-law of Kanakaraj, who was travelling in another motorcycle and who had died in the above accident; that based on this complaint, a criminal case was registered by the Avinasipalayam Police as Crime No.215/2005, against the driver of the bus bearing registration No.TN33 N1676. Further, another document was marked by PW1 as Ex.P2, the Motor Vehicle Inspector's Report of the said bus. It has been stated in this report that the accident has not been caused due to any mechanical defects in the bus. Further, the driver of the bus was examined as RW1. The RW1, in his evidence has adduced that he was driving the bus carefully on the leftside of the road; that a pedestrian without noticing the bus was crossing the road, in front of the bus; that he had swerved the bus to the right side of the road and stopped it; in spite of this, a two wheeler, which was coming from the opposite direction, ridden rashly and negligently by its rider had dashed against the bus and both the riders had fallen down; that the pedestrian, who had crossed the road also dashed himself against the stationery bus and died. 8.The Tribunal on a scrutiny of the evidence adduced by RW1 held that as the driver of the bus, RW1 had admitted in his evidence that he had driven the bus to the rightside of the road, it is very obvious that the two wheeler, which had dashed against the bus, was ridden in the correct direction and as such held that the accident had occurred only because the bus had dashed against the two wheeler. Further, the pedestrian, who crossed the road, was also hit by the bus and died. 9.If the pedestrian, who had crossed the road, had dashed himself against the stationery bus, he would not have died. But, the Tribunal, considering that the said pedestrian had died in the accident, concluded that he had been hit by the moving the bus. On cross-examination of the RW1, it had been admitted by him that he had not filed any complaint with the Police and that even in the FIR, the complaint has been registered as against him. Further, no https://hcservices.ecourts.gov.in/hcservices/ witness was examined and no documentary evidence was produced on the respondents side to establish that the driver of the bus had not been rash and negligent in driving of the bus. As such, the Tribunal held that the accident was caused only by the rash and negligent driving by RW1 ie.the driver of the bus, bearing registration No.TN 33 N1676. 10.The first petitioner, Palanisamy, was examined as PW2. The PW2, in his evidence had reconfirmed the statements made by him in his claim and also marked Ex.P8 as the Post-mortem Certificate of his deceased son. In this, it had been stated that the age of the deceased Kanakaraj is 30 years old. The Death Certificate of the deceased son was marked as Ex.P9. Further, Ex.P10, the legal heir certificate was marked to establish that the petitioners are parents of the deceased. To prove that the deceased had availed a loan to buy a Tractor and that he had paid the said loan in instalments, a copy of the statement of accounts relating to the said loan was marked as Ex.P11. The petitioner has claimed that his deceased son was earning a sum of Rs.10,000/- per month by doing agricultural work using Tractor and he has again re-confirmed this in his sworn affidavit. But, the petitioners have not given a statement of income and expenses of the decease to prove that the deceased was earning a sum of Rs.10,000/- per month and the petitioners have also not clearly stated the type of agricultural activities taken by the deceased and how much he earned by using his Tractor. As such, the Tribunal concluded that the salary of the deceased could be taken as Rs.4,000/- per month and fixed his annual salary as Rs.48,000/-. Deducting 1/3rd share of this for personal expenses, the Tribunal decided that the yearly income of the deceased as Rs.32,000/-. The Tribunal adopting a multiplier of 18 as was applicable to the age of the deceased, which was 30 and also considering a multiplier of 11 as was relevant to the age of the mother of the deceased, adopted the average of these two multipliers ie.18 + 11 / 2 = 14.5 to compute the loss of income to the petitioners. The Tribunal then multiplying the Rs.32,000/- by 14.5, assessed that the loss of income suffered by the petitioners was Rs.4,64,000/- and awarded the same to the petitioners. Further, the Tribunal awarded a sum of Rs.20,000/- each to the petitioners for loss of love and affection; and Rs.5,000/- for funeral expenses and in total awarded a sum of Rs.5,09,000/- as compensation to the petitioners and directed the respondent to deposit the above said award with interest at the rate of 7.5% from the date of filing the petition to till the date of payment of compensation. Further, an amount of Rs.1,00,000/- awarded to each of the petitioners was directed to be deposited in a Nationalised Bank for three yeas and permitted the petitioners to withdraw interest from such deposit once in three months. The Tribunal permitted the petitioners to withdraw the balance amount of Rs.3,09,000/- equally among themselves, immediately after such deposits were made by the respondent into the credit of https://hcservices.ecourts.gov.in/hcservices/ M.A.C.T.O.P.No.591 of 2005, passed by the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur. The Advocate fees was fixed as Rs.12,090/-. The petitioners were directed to pay the Court fees within a period of ten days from the date of its Order. 11.The learned counsel appearing for the appellant in their appeal has argued that the Tribunal has erred in assessment of the occupation and the income of the deceased. Further, the learned Tribunal had erred in concluding that the accident took place only due to the carelessness and negligence of the appellant bus driver. The learned Tribunal failed to appreciate the fact that the appellant was forced to turn the bus to the right side in order to avoid a pedestrian, who came in front of the bus, but the deceased was riding the two wheeler in a rash and negligent manner. Further, no Police Officer was examined to prove the negligence on the part of the appellant's driver and conductor and also the Tribunal had erred in not considering the evidence of RW1, the driver of the bus. Further, it was contended that the learned Tribunal failed to consider the age of the deceased, while applying the multiplier and ought to have adopted lesser years of multiplier as per rulings of the Apex Court. The learned Tribunal had erred in awarding a compensation of Rs.4,64,000/- towards the loss of income, Rs.40,000/- for loss of love and affection, Rs.5,000/- towards the funeral expenses. As such, the award of Rs.5,09,000/- as total compensation with 7.5% interest from the date of filing the petition is excessive and has to be scaled down. 12.The learned counsel appearing for the respondents submitted that the Tribunal adopted the multiplier on the basis of the deceased age and the age of the mother of the deceased and worked out the average of these two multipliers and arrived at the multiplier of 14.5. This multiplier method has been adopted by the Motor Accident Claims Tribunal following the Judgement reported by the High Court in MLJ Page 360. The compensation was then calculated and the compensation of Rs.4,64,000/- was given under the head of loss of income. The compensation given is fair and reasonable. 13.For the foregoing reasons and on the consideration of the facts and circumstances of the case, the Court is of the opinion that the deceased was involved in agricultural operations and also owned a Tractor. The same was considered by the Tribunal and the Tribunal had rightly come to a conclusion that the income of the deceased could be taken as Rs.4,000/- per month. This accident happened in the year 2005 and so the fixation of the income of the deceased as Rs.4,000/- per month by the Tribunal is reasonable. There is no dispute on the age of the deceased. As such, the Tribunal had adopted the average multiplier method and arrived at the compensation of Rs.5,09,000/- including the grant of funeral https://hcservices.ecourts.gov.in/hcservices/ expenses of Rs.5,000/- and a sum of Rs.40,000/- for the loss of love and affection to the petitioners. In this case expectancy of life had not been considered by the Tribunal. The Tribunal had also arrived at the fixation of 14.5 as multiplier based on the Judgement reported in MLJ Page 360. As such, the award passed by the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur, in M.A.C.T.O.P.No.591 of 2005, a sum of Rs.5,09,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment is equitable and fair and payable by the appellant/Tamil Nadu State Transport Corporation. Hence, this Court does not want to interfere with the findings of the Motor Accident Claims Tribunal on this Court. 14.Therefore, the Court directs the appellant/Tamil Nadu State Transport Corporation to deposit the entire compensation amount ie. a sum of Rs.5,09,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition to till the date of payment of the compensation, into the credit of M.A.C.T.O.P.No.591 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur, within a period of six weeks from the date of receipt of a copy of this Order, if, this compensation amount has not been deposited. 15.If, the appellant had already been deposited a part of this award amount, the balance of the award amount should be deposited with interest as per the above mentioned conditions. 16.It is open to the respondents/claimants to receive the entire compensation amount, lying into the credit of M.A.C.T.O.P.No.591 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.5), Coimbatore sitting at Tiruppur, by filing necessary payment out application in accordance with law. 17.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Accident Claims Tribunal in M.A.C.T.O.P.No.591 of 2005, on the file of Additional District Judge (Fast Track Court No.V), Coimbatore at Tiruppur is confirmed. Consequently connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Motor Accidents Claims Tribunal-cum- Additional District Court (Fast Track Court No.5), Coimbatore sitting at Tiruppur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.S.S. Swaminathan, Advocate, Sr. 65283 1 cc to Mr.N. Anand, Advocate, SR. 65590 C.M.A.No.1798 of 2007 PVR (CO) kk 8/1 https://hcservices.ecourts.gov.in/hcservices/