IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1846 of 2006 and M.P.No.1 of 2006 and Cross.Objn.No.20 of 2008 The Managing Director Tamil Nadu State Transport Corporation Ltd., Coimbatore Division I, Coimbatore .. Appellant in C.M.A.No.1846 of 2006 and 1st respondent in Cross.Objn.No.20 of 2008 Vs 1.Kalamani 2.Minor.Chithra 3.Minor.Prabhu 4.Nachammal 5.Ramana Gounder @ Ramasamy (Minors rep.by their guardian and mother R1), .. 1st to 5th Respondents in C.M.A.No.1846 of 2006 and Cross objectors in Cross.Objn.No.20 of 2008 6.Santha Pandi (R-6 Given up) .. 6th Respondent in C.M.A.No.1846 of 2006 and 2nd respondent in Cross.Objn.No.20 of 2008 PRAYER (in C.M.A.No.1846 of 2006): Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 18.01.2005, made in M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track court, No.II, Gobichettipalayam. PRAYER (in Cross.Objection No.20 of 2008): Cross Objection filed under Order 41 rule 22 of the Code of Civil Procedure, against the Award and Decree, dated 18.01.2005, made in M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court, No.II, Gopichettipalayam. For appellant : Mr.A.Babu in C.M.A.No.1846 of 2006 and R1 in Cross.Objn.No.20 of 2008 https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.MA.P.Thangavel for R1 to R5 in C.M.A.No.1846 of 2006 R6 – Given-up and Cross Objectors in Cross.Objn.No.20 of 2008 C O M M O N J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 18.01.2005, made in M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional, District Judge, Fast Track Court No.II, Gopichettipalayam awarding a compensation of Rs.5,79,000/- together with interest at the rate of 7% per annum from the date of filing the claim petition till the date of payment of the compensation. 2.Both appeal and cross objection arising out of the same Judgment, they are taken up together and disposed of by a common Judgment. 3.The short facts of the case are as follows: On 05.05.2002, at about 03.30 p.m. the deceased Rathinasamy was riding a TVS50 motorcycle bearing registration No.TN33 A2769, from Kandampalayam to Unjapalayam on the Unjapalayam to Avanashi road with almost care and caution adhering the traffic rules and regulations. When he was nearing Nallikaduprive on the said road the first respondent being the driver of the bus bearing registration No.TN37 N0611 drove the same in a rash and negligent manner and at a high speed and suddenly hit the moped. Due to which, the petitioner was thrown away on the road with motorcycle. As a result, he sustained severe injuries on head, leg and all over the body. Subsequently, he died on the way to the hospital. Regarding the said accident, the Avanashi Police had registered a case in Crime No.2337 of 002, under Sections 279 and 304(A) I.P.C. against the first respondent. The deceased was a hale and healthy and aged about 28 years at the time of the accident. He was the owner of power loom and performing agriculture and earning a sum of Rs.8,000/- per month. The first petitioner is the widow of the deceased. The second and third petitioners are the minor children of the deceased and the fourth and fifth petitioners are the parents of the deceased. The accident had happened only due to the rash and negligent driving of the driver of the second respondent Corporation bus. As such, the petitioners claimed a compensation of Rs.10,00,000/- before the Tribunal. 4.The second respondent, in their Counter, had resisted the claim petition, which reads as follows: "The petitioners are put to strict proof of their age calling residence and their relationship with the deceased Rathinasamy. They must also strictly prove the age, calling and income of the deceased Rathinasamy at the time of his death. They must further prove strictly that https://hcservices.ecourts.gov.in/hcservices/ the alleged accident occurred on 05.05.2002, at about 03.30 p.m.solely due to the rash and negligent driving of the bus by the first respondent and that they are entitled to claim such compensation against the respondents. It is absolutely false to state that on 05.05.2002 at about 03.30 p.m. the deceased Rathinasamy was riding a TVS50 bearing registration No.TN33A 2769 from Kandampalayam to Unjapalayam on the Unjapalayam to Avanashi road with at most cars and caution adhering the traffic rules and regulations. It is equally false to state that when he was nearing Nallikadu Pirivu on the said road the first respondent being the driver of the bus No.TN37 N0611 drove the same in a rash and negligent manner and in a high speed and suddenly hit the moped and due to sudden hit the petitioner with moped was thrown away on the road and sustained severe injuries on head, leg and all over the body and the said Rathinasamy died on the way to the Hospital. It is absolutely false and baseless to state that the first respondent is solely responsible for causing the accident. In fact the first respondent was driving his bus in his 3.15 trip from Avanashi to perumanallur very carefully and prudently observing the traffic rules and regulations promptly. The bus was coming from west to east at a moderate speed. There was a slight curve just before the place of accident. There were thorny bushes on in the fence situated to the south of the road. It was a single narrow road. Hence, the first respondent slowed down the speed of the bus and negotiated the curve by blowing horn to give caution to the road users. But the deceased Rathinasamy was driving the TVS50 very rashly and negligently with high speed unmindful of the bus coming in the opposite direction. On having seen the reckless driving of the deceased Rathinasmy, the first respondent applied sudden brake swerved his bus to the extreme left side of the mud road and stopped the same on the brink of the trench about 5 feet depth. In spite of the best efforts of the first respondent to any accident, the deceased Rathinasamy came rashly with high speed and dashed against the bus on the front right side fallen down and sustained injuries. There were about 45 passengers in the bus. Had the first respondent driven the bus any further it would have fallen in the trench causing severe injuries to the passengers and loss of lives. There was sufficient space on the right side of the bus to pass freely for the https://hcservices.ecourts.gov.in/hcservices/ deceased Rathinasamy. The first respondent was in no way responsible for the said accident. The accident occurred solely due to the rash negligent and reckless speed of the deceased. Hence, the petitioners are not entitled to claim any compensation against the respondents. There were no buses in that route at that time. No other vehicles were also available to take the injured to the hospital to save his life. Hence the first respondent and the conductor of the bus took the injured Rathinasamy to the Perumanallur Hospital in the same bus. As per the advice of the Doctor, the injured was taken to the Thiruppur Hospital. But, unfortunately he died on the way. The first respondent thereafter reported to the Avanashi Police about the accident. But they did not register the case immediately. They detained the first respondent at the Police Station itself and subsequently foisted a false case against him at the instigation of the relatives of the deceased. The first respondent is contesting the Criminal case foisted against him. He has got fair chances of acquittal. As stated above, since the first respondent was not at fault and the deceased alone was solely responsible for the said accident, no compensation can be claimed against the first respondent. Consequently, this respondent also cannot be held liable to pay any compensation vicariously. At any rate, the compensation claimed under various heads are also too high exorbitant and unsustainable. The petitioners are not entitled to claim any compensation for loss of earning capacity. This respondent understands that the deceased had no valid driving license for two wheeler vehicles at the time of accident. The deceased was aged more than 35 years at the time of the accident. He was not owner of any power loom. The age of the deceased was minimised and the income exaggerated just for the purpose of the petition." The second respondent prayed accordingly. 5.The learned Motor Accident Claims Tribunal had framed two issues for the consideration namely: (i) At whose negligence the accident had happened? (ii) Whether the petitioners are entitled to get https://hcservices.ecourts.gov.in/hcservices/ compensation? If so, what is the quantum of compensation? 6.On the petitioners' side, the first claimant was examined as PW1, one A.Veluchamy was examined as PW2, one V.Elangovan was examined as PW3 and one Easwaran was examined as PW4 and thirteen documents were marked as Exs.P1 to P13 namely Ex.P1-First Information Report, Ex.P2-Post Mortem Report, Ex.P3-Rough Sketch, Ex.P4-Motor Vehicle Inspector's Report, Ex.P5-Charge Sheet, Ex.P6-Death Certificate, Ex.P7-Legal Heir Certificate, Ex.P8-Bill for purchasing power loom machine, Ex.P9-E.B.Receipt, Exs.P10 and 11-Copies of Patta pass book, Ex.sP12 and 13-Salary Certificates. On the respondents' side the first respondent was examined as RW1 and no documents were marked. 7.The PW1, the first claimant, had adduced evidence stating that on 05.05.2002, at about 03.30 p.m. her husband Rathinasamy was riding a TVS50 motorcycle bearing registration No.TN33 A2769, from Kandampalayam to Unjapalayam on the Unjapalayam to Avanashi road with almost care and caution adhering the traffic rules and regulations. When he was nearing Nallikaduprivu on the said road the first respondent being the driver of the bus bearing registration No.TN37 N0611 drove the same in a rash and negligent manner and in a high speed and suddenly hit the moped. Due to which, the petitioner was thrown away on the road with motorcycle. As a result, he sustained severe injuries on head, leg and all over the body. Subsequently, he died on the way to the hospital. Regarding the said accident, the Avanashi Police had registered a case in Crime No.2337 of 002, under Sections 279 and 304(A) I.P.C. against the first respondent. Further, she had adduced evidence stating that her husband's age was 28 years and he was earning a sum of Rs.8,000/- per month through the power loom and agricultural operations. Her husband also received orders from the mills for weaving of the cloth, as such, he was earning a sum of Rs.15,000/- per month. She had also marked Exs.P10 and P11-Patta Pass book and Exs.P12 and P13-Salary Certificates. 8.PW2, one A.Veluchamy, eye witness of the accident, was examined as PW2, he had adduced evidence stating that he is a Government School Teacher. The second respondent Corporation bus over took him and dashed against the motorcyclist, who was rushed to the hospital in the same bus. 9.RW1, the first respondent and the driver of the bus, had adduced evidence in his cross examination stating that he was penalised before the Criminal Court. 10.After considering the evidence of PW1, PW2, PW3 and PW4 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the second respondent's vehicle, ie.the first respondent, therefore the second respondent/State Transport Corporation Ltd., is liable to pay compensation and awarded the compensation as follows: https://hcservices.ecourts.gov.in/hcservices/ i. Rs.5,15,000/- under the head of loss of income, adopting multiplier method (Rs.4,500/- X 12 X 18), ii.Rs.25,000/- under the head of loss of estate, iii. Rs.10,000/- under the head of loss of consortium to the first claimant, iv.Rs.25,000/- under the head of loss of love and affection to the claimants ie.each a sum of Rs.5,000/-, v. Rs.3,000/- under the head of funeral expenses, vi.Rs.1,000/- under the head of transport expenses, In total, the Tribunal awarded a sum of Rs.5,79,000/- as compensation to the petitioner, together with interest at the rate of 7% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the second respondent to deposit the compensation amount of Rs.5,79,000/- together with interest at the rate of 7% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of two months from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period of three years. Further, the Tribunal apportioned a sum of Rs.1,99,000/- to the first claimant, Rs.1,50,000/- each to the second and third claimants, Rs.50,000/- to the fourth claimant and Rs.30,000/- to the fifth claimant. Further, the Tribunal directed that the minors' share amount to be continued in the bank deposit till they attain adulthood. Accordingly ordered. 11.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 12.The learned counsel appearing for the appellant/Tamil Nadu State Transport Corporation Ltd., argued that there is no crystal clear document evidence in order to prove the income of the deceased. Further, there is no adequate evidence to prove that the power loom was not operated after the death of the husband of the first claimant. Therefore, the Tribunal awarded the compensation on the above two heads are not pertinent. Further, the learned counsel argued that the Tribunal awarded a sum of Rs.25,000/- under the head of loss of love and affection to the claimants, the first claimant is not entitled to receive the compensation under the head. These are all discrepancies in the said award. Hence, the learned counsel prays before this Court to scale down the compensation amount awarded by the Tribunal. 13.The learned counsel for the respondents 1 to 5/ claimants argued that it is an admitted fact on the strength of Ex.P8-Power Loom Machines purchased receipt and Ex.P9-Electricity Receipt. https://hcservices.ecourts.gov.in/hcservices/ Further, the learned counsel argued that the deceased was involved in agricultural operations, in order to prove the same, Exs.P10 and P11 Patta Pass Books were marked. These are all crystal clear evidence that the deceased was earning through power loom and agricultural operations. The second and third claimants aged about 1 year and 5 years and they were awarded a sum of Rs.5,000/- each under the head of loss of love and affection, which is on the lower side. The learned counsel further argued that the dependants 5 in number, the deceased's age being 28 years and his earnings was Rs.15,000/- per month, this aspect had not been considered by the Tribunal and awarded the compensation, which is inadequqate. Therefore, he prays before this Court to dismiss the appeal filed by the appellant. 14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the Tribunal adopted a multiplier method and awarded compensation of Rs.5,15,000/- (Rs.4,500/- X 12 X 18) under the head of loss of income. In this head, the Tribunal committed a mathematical error, actually it comes to Rs.6,48,000/-, the same taken into consideration. The Tribunal awarded a sum of Rs.25,000/- under the head of loss of estate, this Court enhances it to Rs.50,000/- since after the death of the husband of the first claimant, power loom and agricultural operations were affected. The Tribunal awarded a sum of Rs.25,000/- under the head of loss of love and affection to the claimants ie.each a sum of Rs.5,000/-, this Court modifies the same as the second and third claimants are being awarded a sum of Rs.15,000/- each and the fourth and fifth claimants are being awarded a sum of Rs.10,000/- each. The Tribunal awarded a sum of Rs.3,000/- under the head of funeral expenses, this Court enhances it to Rs.10,000/-. The Tribunal awarded a sum of Rs.1,000/- under the head of transport expenses, this Court enhances it to Rs.4,000/-. Further, the Tribunal awarded a sum of Rs.10,000/- under the head of loss of consortium to the first claimant, this Court enhances it to Rs.15,000/-. In total, this Court awards a compensation of Rs.7,77,000/- together with interest at the rate of 7% per annum, from the date of filing the claim petition, till the date of payment of compensation. After deducting the original award amount of Rs.5,79,000/-, this Court awards an additional award amount of Rs.1,98,000/- with interest at the rate of 7% per annum from the date of filing the claim petition till the date of payment of compensation. 15.On 12.07.2006, this Court directed the appellant/second respondent to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.II, Gopichettipalayam. 16. Now, this Court directs the appellant/second respondent to deposit the entire compensation amount with accrued interest thereon, into the credit of the M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast TRack Court No.II, gopichettipalayam, as observed above by this Court, https://hcservices.ecourts.gov.in/hcservices/ within a period of six weeks from the date of receipt of a copy of this order. 17.After such deposit being made, it is open to the claimants/respondents 1 to 5 to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.72 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.II, Gopichettipalayam by making proper payment out application, subject to the deduction of withdrawals, if any and subject to the minors attaining adulthood, in accordance with law. 18.In the result, this Civil Miscellaneous Appeal is dismissed and Cross Objection No.20 of 2008 is partly allowed and the Award and Decree, dated 18.01.2005, made in M.C.O.P.No.72 of 2004, passed by the Motor Accident Claims Tribunal, Additional District Judge fast track, court No.II, Gopichettipalayam is modified. Consequently, connected civil miscellaneous petition is closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.II, Gopichettipalayam. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.A. Babu, Advocate Sr.73500 + 1 cc to Mr.Ma.P. Thangavel, Advocate Sr.73898 C.M.A.No.1846 of 2006 and Cross.Objn.No.20 of 2008 BVN(CO) Eu 1.3.11 https://hcservices.ecourts.gov.in/hcservices/