IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.156 of 2007 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Vellore. ... Appellant/ Respondent vs. 1. Palaniammal 2. Periathai 3. Minor Karthick 4. Minor Sathya Minors Rep. by their Mother & Guardian R1. All are residing at S. Agaram Village, Ayyampalayam Post, Sengam Circle, Tiruvannamalai District. ... Respondents/ Claimants PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988, against the award and decreetal order pased by the Motor Accidents Claims Tribunal, District Court, Tiruvannamalai and made in MACTOP No.862 of 2004 dated 23.01.2006 praying to set aside the same. For Appellant : Mr.A. Babu For Respondent : M/s. M. Malar JUDGMENT The appeal has been preferred by the transport corporation aggrieved by award of Rs.3,31,000/-. Against the same award cross appeal No.48 of 2009 has been preferred by the claimants. Therefore for the sake of convenience, appellant in C.M.A.No.156 namely transport corporation is herein after referred to as "transport corporation" and the appellant in cross objection No.48 of 2009 is referred to as "claimants" hereinafter. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the claimants before the Tribunal was that in the accident occurred on 15.07.2004 in which the deceased rider of TVS 50 along with first claimant and another were hit by the appellants bus resulting in loss of life of the first appellants husband and serious injuries to others. For the death of Nallathambi, husband of first appellant, a claim petition was filed claiming a sum of Rs.10 lakhs which was contested by the corporation stating that the rider of the TVS 50 lost his balance and fell down and sustained injuries and by that time the bus driver applied break and had stopped the vehicle. The relevant portion of paragraph 4 of the counter portion is extracted as follows; "FWf;Fr;rhiiyapypUe;J K:d;W ngUld; o/tp/v!;/50?y; (o/vd;/46 v 1148) te;jth; gpujhd rhiyf;Fs; EiHa[k; nghJ ngUe;J tUtij mwpe;Jk; epd;W tuhky; rl;bld;W Fwf;F rhiyapypUe;J ,lJg[wpkpUe;J tyJg[wkhf flf;f Kad;wth; rkepiy jtwp ngUe;jpy; nkhJtijg;nghy; tUtij fz;l ngUe;J Xl;Ldh; gpnuf; moj;J ngUe;ij epWj;Jtpl;lhh;/ rhiy tpjpfis kPwp Fwf;Fr;rhiyapypUe;J gpuhjhd rhiyapy; flf;f Kad;W rkepiy jtwp rhiyapy; tpGe;J K:tUk; j';fSf;F jhnd fhak; Vw;gLj;jpf;bfhz;lhh;/ ,jpy; ngUe;J Xl;Lehpd; jtnwJk; ,y;iy/ o/tp/v!;/50 Xl;o te;jthpd; jtnw MFk;/ 3. On consideration of pleadings and evidence the Tribunal came to the conclusion that the accident occurred because of rash and negligent driving of the appellant corporation bus and awarded a sum of Rs.3,31,000/- along with interest 7.5%. Therefore, against the said award only corporation preferred the main appeal and the claimants preferred the cross appeal. 4. A perusal of the pleadings and evidence and the award would reveal that the accident occurred when the appellant bus hit the TVS 50. In the counter statement in paragraph 4 it has been pleaded that when the TVS 50 tried to cross from left side of the road to right side, and on seeing the bus, the deceased lost the balance and fell down on the right and sustained injuries and the corporation bus driver applied break and stopped the bus. The corporation wanted to prove by pleadings that there was no collusion between the vehicles and the bus did not hit the TVS 50 as the bus driver had applied breaks and stopped the vehicle. The driver of the corporation who drove the vehicle at that time was examined as RW1 deposed as follows; "o/tp/v!;/50y; ,lJ g[wj;jpypUe;J. tyJg[wkhf jpObud;W rhiyia flf;f Kaw;rp bra;jhh;/ gpd;dhy; te;j. Vd;Dila ngUe;ij mthh; ftdpf;ftpy;iy/ mth; 3 egh;fSld; o/tp/v!;/50y; te;jjhy;. rk epiy jtwp. ngUe;jpd;. ,lJ https://hcservices.ecourts.gov.in/hcservices/ g[w Xuj;jpy; nkhjp tpgj;ij Vw;gLj;jpf; bfhz;lhh;/ ,e;j tpgj;jpw;F. ,we;j ey;yjk;gpapd; ftdf;Fiwt[ jhd; fhuzk; MFk;/ " 5. What was pleaded in the counter statement was that there was no collusion between the vehicles whereas, RW1 driver himself admitted that the deceased hit the bus on the left side and sustained injuries. The appellant is not sure about the case and the stand taken in the pleadings and evidence are inconsistent whereas the claimants' evidence is in conformity with the Ex.P1 FIR, which is extracted as follows; "fh";rp jp/kiy nehf;fp te;j TN.23.N.0768 vd;w T7 lt[d; g!;i! mjd; oiuth; mjpntfkhft[k;. m$hf;fpuijahft[k; Xl;o te;J TVS 50apy; brd;w K:th; kPJk; nkhjptpl;lhh;/ " 6. First claimant who was examined as PW.1 deposed as follows; "15/07/2004 md;W. khiy Rkhh; 4 kzpf;F jp/kiy fh";rp rhiyapy; ehd; fh";rp gf;fk; ,Ue;J jp/kiy nehf;fp. vd; fzth; Xl;o te;j o/tp/v!;/50y; ehd; gpd;dhy; cl;fhh;e;J gazk; bra;njd;/ mg;nghJ. v';fSf;F gpd;g[wk; ,Ue;J muR ngUe;J xd;W ntfkhft[k; m$hf;fpuijahft[k; te;J vd; fzth; Xl;or; brd;w o/tp/v!;/50 kPJ nkhjp tpgj;J vw;gl;lJ/ " 7. E.xP1, FIR, claim petition, and PW.1 evidence are consistent and proved that the accident occurred because of the rash and negligent driving of the bus. Ex.P3 post-mortem report reads as follows; "Injuries:- An abrasion 10x8cm. Seen over back of right side chest. - An abrasion 5x4cm. Seen over back of right fore arm. - An abrasion 8x2cm. Seen over front of upper part of right thigh. - An abrasion 4x3cm. Seen over back of left shoulder. - An abrasion 2x1cm. Seen over back of left hand. - Swelling, deformity upper 3rd left leg. - On dissection the underlying both bones found fractured with surrounding contusion. - A sutured wound 3cm. Long seen over right side occipital region of scalp. - On removal of sutures the edges are irregular and contused 3x5x5cm. - On dissection of Thorax: contusion seen over 4th and 5th intercostal muscles in the posterior axillary line. - Abdomen-Contusion 15x5x0.5cm. Seen over the right side mesentry. - Right kidney found extensively contused." https://hcservices.ecourts.gov.in/hcservices/ 8. These injuries would certainly show that they would not have been caused by mere hitting of the deceased against the bus. The serious injuries that caused the death, were result of the dashing of the bus with speed on the deceased. Therefore RW.1's evidences is liable to be rejected which was rightly done by the Tribunal. Moreover the Tribunal took into consideration, the filing of FIR Ex.P1 against the corporation driver. Based on cogent evidence the Tribunal rightly found that the accident occurred because of rash and negligent driving of the corporation bus and it is discussed in paragraph 5 and 6 of the award. The Tribunal rejected the plea of the corporation that because of lack of contradiction between the pleadings and evidence of the corportion. Apart from that even though three persons travelled in the 2 wheeler, it cannot be said that the accident should have occurred because of traveling of three persons and that balance was lost by the rider and caused the accident. Whereas as stated above, RW.1's evidence is contrary to the pleading in the counter statement of the corporation. Therefore traveling of the three persons in the 2 wheeler would not make that the 2 wheeler was responsible for the accident whereas the available evidence pointed towards negligence on the part of the transport corporation bus. Therefore this Court confirms the findings given by the Tribunal with regard to negligence. 9. The deceased was aged about 29 years according to the claimants, whereas, as rejected in Ex.P3 post-mortem certificate it was 30 years. Therefore the Tribunal rightly took 18 as the multiplier, however for the age between 30-35, the correct multiplier as per II Schedule appended to Section 163 of Motor Vehicles Act, is 17. Therefore based on Ex.P3, this Court reduces the multiplier from 18 to 17. 10. As far as the income is concerned, the deceased was a coolie who was involved in crushing of stones. Though Rs.200/-, was claimed as daily wages, the Tribunal took only Rs.75/- as daily wages and calculated Rs.2,250/- as monthly income. Even though there was oral evidence in proof of daily wages of Rs.200/-, in the cross-examination, PW.1's evidence about daily wages was not at all challenged. However taking into consideration of the absence of definite concrete proof, this Court determines Rs.3,000/- as monthly contribution to the claimants family and after deduction of 1/ 3rd towards expenses. This is based the decision of the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Kalpana (Smt) and Others reported in 2007 3 SCC 538 where it has been held in the absence of definite proof with regard to the monthly income, Rs.3000/- was taken as monthly contribution to the family. Moreover, the accident occurred only in 2004, therefore, Rs.3000/- is taken as monthly contributions as per the judgment referred to https://hcservices.ecourts.gov.in/hcservices/ above. Therefore the loss of income would be 3000x12x17= Rs.6,12,000/-. 11. The first appellant was aged about 22 years at the time of accident, Loosing husband during the life time of wife itself is a great loss and that too loosing her life companion at the age of 22 is very unfortunate and therefore this Court grants a sum of Rs.20,000/- for loss of consortium. No award was awarded for loss of love and affection for the minors namely the 3rd and 4th claimant who are 3 and 6 years old. Considering the fact that the childrens lost their father and losing their fathers love and affection, guidance in their childhood, each is granted a sum of Rs.20,000/- towards love and affection. The second claimant namely the mother of the deceased is granted a sum of Rs.10,000/- for love and affection. No amount was granted towards transportation and therefore a sum of Rs.2,000/- is awarded in this regard. 12. The award of Rs.3,31,000/- is enhanced to Rs.6,86,000/- in the appeal filed by the Transport Corporation in the following manner: 1. Towards loss of income =Rs.6,12,000/- 2. Loss of consortium for first claimant =Rs. 20,000/- 3. Loss of love and affection to the 3rd and 4th claimants in toto =Rs. 40,000/- 4. Loss of love and affection to the second claimant =Rs. 10,000/- 5. Funeral Expenses =Rs. 2,000/- 6. Transportation =Rs. 2,000/- --------------- Total =Rs.6,86,000/- =============== 13. The Tribunal awarded 7.5% interest and the same is confirmed by this Court. The first claimant/wife and the 3rd and 4th claimants/childrens are entitled to each Rs.2,00,000/- and the second claimant/mother of the deceased is entitled to receive Rs.86,000/-. The amounts awarded in favour of the minor childrens are directed to be deposited in a Nationalised Bank in fixed deposits and they are allowed to draw interest. Accordingly, the appeal is disposed in the above terms. No order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. prm https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal District Court, Tiruvannamalai Copy to The Section Officer VR Section, High Court, Madras 1 cc to Ms.M. Malar, Advocate, SR. 7287 1 cc to Mr.A. Babu, Advocate, SR. 7405 C.M.A.No.156 of 2007 PKB (CO) kk 9/3 https://hcservices.ecourts.gov.in/hcservices/