1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2010 CORAM: THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD)No.308 of 2008 The General Manager, Tamil Nadu State Transport Corporation, Kumbakonam, Karaikudi. .. Appellant/Respondent Vs. 1.Gandhiyammal 2.Shanthi 3.Sundaram 4.Palani 5.Karuppi .. Respondents/Petitioners Appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in MCOP No.203 of 2005 dated 07.08.2007 on the file of the Motor Accidents Claims Tribunal, Additional District Court / Fast Track Court, Ramanathapuram. For Appellant : Mr.M.Prakash For Respondents : No appearance JUDGMENT This Civil Miscellaneous Appeal is directed against the judgment and decree passed in MCOP No.203 of 2005 dated 07.08.2007 on the file of the Motor Accidents Claims Tribunal, Additional District Court / Fast Track Court, Ramanathapuram. 2. The brief facts arising out of this appeal are as under:- On 09.04.2005 at about 7.00 p.m., the deceased Subramanian along with two others, were waiting at the bus stop opposite to Krishna Theatre on the Paramakudi-Rameswaram National Highway. At that time a bus bearing Registration No.TN-63-N-0438 belonging to the appellant / Transport Corporation, which was plying from Paramakudi to K.Valasaipuram stopped at the said bus stop. When the deceased was entering into the footsteps present in the front side of the bus, the driver took the bus suddenly in a rash and negligent manner, as a result of which the deceased fell from the bus and the left rear wheel ran on his chest and the head resulting in his instantaneous death. The respondents are the legal heirs of the deceased. They claimed a compensation of Rs.6,00,000/- before the Tribunal. 3. Before the Tribunal, P.W.1, P.W.2 and R.W.1 were examined and Ex.A1 to A9 were marked. On consideration of the evidence on record, the https://hcservices.ecourts.gov.in/hcservices/ 2 Tribunal awarded a compensation of Rs.6,00,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:- Rupees Loss of dependency 5,53,800/- Funeral expenses 2,000/- Loss of consortium 20,000/- Loss of happiness, love and affection 20,000/- Loss of expectation of life 10,000/- Mental agony and shock 5,000/- ---------------- Total... 6,10,800/- ================ (Reduced to Rs.6,00,000/- as per the claim.) Challenging the award of the Tribunal, the present appeal has been filed by the Transport Corporation. 4. At the outset, the learned counsel for the appellant / Transport Corporation did not dispute the finding of the Tribunal that the accident had occurred only due to the rash and negligent driving of the driver of the bus belonging to the appellant / Transport Corporation, but he is disputing the quantum of compensation awarded by the Tribunal. Hence the finding of the Tribunal that the accident had occurred only due to the rash and negligent driving of the driver of the bus belonging to the appellant / Transport Corporation, is confirmed. 5. Now, the question that needs to be answered is, what is the just compensation to the claimants? 6. The deceased was working in the Tamil Nadu Water Supply and Drainage Board and his date of birth is 07.09.1955. The accident took place on 09.04.2005. Therefore the deceased was aged 49 years at the time of accident. Ex.A7 is the pay slip for the month of January 2005. The total salary was Rs.5,804/- per month and the take home salary was Rs.3,544/- per month. Therefore, the Tribunal fixed the monthly earning of the deceased at Rs.3,550/- and calculated the annual earning as Rs.42,600/- and after adopting 13 multiplier, arrived at Rs.5,53,800/- towards loss of dependency. 7. Counsel for the appellant relied on a decision of this Court in the case of K.Perumal & Another v. Tmt.Kamalabai, reported in 2004(2) TN MAC (DB) and stressed that the loss of dependency can be divided into pre- retirement period and post-retirement period. 8. In 2004(2) TN MAC (DB), this Court has pointed out that multiplier has to be calculated in respect of period available before retirement and the period after retirement. In the present case, the victim was 49 years old at the time of death due to accident. It is evident from Ex.A7-Pay https://hcservices.ecourts.gov.in/hcservices/ 3 Slip issued by the employer that the take home salary of the deceased was Rs.3,544/- for which the Tribunal had fixed the monthly earning at Rs.3,550/-, which I feel does not require any interference, but the correct multiplier that should be applied is 9. This is with regard to pre-retirement period. In this case, it would be appropriate to deduct 1/5th of the amount towards personal expenses of the deceased. If 1/5th of the amount is deducted towards personal expenses of the deceased, from Rs.3,550/-, the monthly earning works out to Rs.2,840/- and the annual earning works out to Rs.34,080/- (Rs.2,840/- x 12). The proper multiplier that should be adopted is 9. If 9 multiplier is adopted, the loss of dependency before retirement works out to Rs.3,06,720/-. This is the amount available for the legal heirs of the deceased before retirement. 9. With regard to post retirement period, having tested the present case in the light of the judgment of this Court reported in 2004(2) TN MAC (DB), for the remaining period of service, the proper multiplier that should be adopted is 5. With regard to determination of monthly earning for the post-retirement period, pension has to be taken into consideration. In this case, it would be appropriate to fix a sum of Rs.2,900/- towards monthly contribution. Accordingly, the annual contribution works out to Rs.34,800/-. If the proper multiplier of 5 is applied, the loss of dependency after retirement works out to Rs.1,74,000/- 10. Thus, for the pre-retirement period the loss of dependency is Rs.3,06,720/- and for the post retirement period, the loss of dependency is Rs.1,74,000/-. Thus the total amount in respect of loss of dependency works out to Rs.4,80,720/-. 11. The amounts awarded by the Tribunal towards loss of consortium at Rs.20,000/- and loss of happiness, love and affection at Rs.20,000/- are reasonable and hence they are confirmed. The amount awarded towards other heads are set aside. The details of the modified compensation are as under:- Rupees Loss of dependency 4,80,720/- Loss of consortium 20,000/- Loss of happiness, love and affection 20,000/- ---------------- Total... 5,20,720/- ================ The interest rate fixed by the Tribunal at 7.5% p.a. from the date of petition is confirmed. 12. In the result, the claimants are entitled to the modified compensation of Rs.5,20,720/- with interest at 7.5% p.a. from the date of petition. https://hcservices.ecourts.gov.in/hcservices/ 4 13. The Civil Miscellaneous Appeal is partly allowed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar(C.S) To The Motor Accidents Claims Tribunal, Additional District Judge Fast Track Judge, Ramanathapuram. CMA(MD)No.308 of 2008 11.03.2010 KM RJ/26.3.2010 4p/2c https://hcservices.ecourts.gov.in/hcservices/