IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.313 of 2007 1.J.Sivakami 2.J.Geetha (Minor) 3.J.Padmanabhan (Minor) 4.J.Pooja (Minor) .. Appellant/ Petitioner (Appellants 2 to 4 rep.by their mother and next friend first appellant) Vs Metropolitan Transport Corporation Ltd., rep.by its Managing Director Pallavan Salai, Chennai-600 002 .. Respondent/ Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.10.2006, made in M.C.O.P.No.768 of 2005, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai. For appellants : Mr.M.Swamikannu For respondent : Mr.A.Babu for Mr.A.Muthuraman J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/claimants against the Award and Decree, dated 12.10.2006, made in M.C.O.P.No.768 of 2005, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, awarding a compensation of Rs.6,34,000/- together with 7.5% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Having not been satisfied with the said Award and Decree, the appellants/claimants have filed the above appeal praying additional compensation of Rs.7,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 24.01.2005, at 19.30 hours the deceased was sitting on the leftern side of the break down lorry bearing registration No.TN04 F5512 in front of the rear view which was parked on the extreme leftern side of the Velacherry-Taramani 100 feet road, opposite to American School, Velacherry and assisting the mechanic, who is lying underneath the lorry on doing repair work. At that time, the MTC bus bearing registration No.TN01 N1656 came from behind from west to east direction in a very high speed, rash and negligent manner came to the extreme leftern/northern side of the road and dashed against the stationary lorry from behind. Due to the impact, the lorry moved forward and the deceased was raped in the left rear wheel of the lorry. In the result, his skull smashed and died on the spot. The accident had occurred only due to the rash and negligent driving of the driver of the respondent's Corporation bus. As such, they claimed a compensation of Rs.23,00,000/- before the Tribunal. 4.The respondent in their Counter had resisted the claim petition, which reads as follows: "The respondent submits that on 24.01.2005 the respondent's Corporation bus route No.21H, registration No.TN01 N1656 was on its trip from Kelambakkam to Parrys. When the bus was going near Taramani, I.R.T., a lorry was stationed on the left side of the road. When the M.T.C.bus driver by-passing the lorry, a Car suddenly came from the opposite direction and to avoid hitting the car, the driver swerved the bus to his left side and on that course the bus grazed the lorry and impact of this the lorry rolled ahead and hit the deceased who was sitting near the wheel of the lorry and the impugned accident happened. The accident was sudden and the driver of the bus never expected the sudden arrival of the car. The deceased also contributed to the accident who was sitting in a precarious manner near the wheel and the lorry was not properly geared and therefore, it rolled and hit the deceased and these are the contributory factor that lead to this unfortunate accident. All other allegations are denied as invented. Without prejudice to the above contentions that it is specifically denied the deceased was employed as driver and he was earning the monthly income of Rs.6,500/- as false and concoted. The respondent does not admit the averments made in paras 3,4,5,6,9, 11a, 12, 19 and 20 of the O.P.and put the petitioner to strict proof thereof. The respondent states that the petitioner cannot claim any amount under Section 140 of Motor Vehicles https://hcservices.ecourts.gov.in/hcservices/ Act unless it is proved that this accident happened only due to the negligence of driver of this respondent and death caused due to the accident injuries and that the claimants are legal heirs/dependants of the deceased. Without prejudice to the contentions, raised supra the quantum of compensation claimed in the O.P.are highly excessive, exorbitant and without any basis. The respondent further submits that consequent to the change of economy, interest on lending rates and also on deposits have been lowered and public sector banks have reduced drastically interest on deposits to the tune of 5.25% per annum on the Guidelines of Reserve Bank of India. Further the Hon'ble Supreme Court in C.M.A.No.6 of 2001, dated 03.01.2001 in Kaushnuma Begum and others Vs. New India Assurance Company Ltd., and others in Civil Appeal No.2765/2005 Tamil Nadu State Transport Corporation Limited Vs. S.Rajapriya and two others, ruled that the rate of interest should be fixed taking note of the prevailing rate of interest in Bank deposits and reduced the interest rates of 9% awarded on the award amounts. Therefore, it is submitted that in the event of any award is passed by this Hon'ble Court, the petitioners are entitled for only 6% interest on the award as ruled by the Supreme Court. Therefore prayed that this Hon'ble Court may be pleased to dismiss the O.P.with costs and thus render justice." 5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the accident was caused solely due to the rash and negligent driving of the driver of the respondent's Corporation bus? (ii) Whether the petitioners are entitled to compensation, If so what is the quantum of compensation? 7.On the petitioners' side, the first claimant herself was examined as PW1, one Sivaraman, Head Constable, was examined as PW2 and one Sukumaran, who is the eye witness of the accident, was examined as PW3 and nine documents were marked as Exs.P1 to P9 namely Ex.P1-Legal Heir Certificate, Ex.P2-Post-mortem report, Ex.P3-Driving licence, Ex.P4-Identity Card, Ex.P5-Death Certificate, Ex.P6-Salary Slip, Ex.P7-First Information Report, https://hcservices.ecourts.gov.in/hcservices/ Exs.P8-Sketch and Ex.P9-Charge Sheet. On the respondents' side, the driver of the bus Egambaram was examined as RW1 and the Motor Vehicle Inspector Chinnakkannu was examined as RW2 and the Motor Vehicle Inspector's Report was marked as Ex.R1. 8.PW1, the first claimant had adduced evidence stating that her husband was a driver. On 24.01.2005 he had driven the lorry bearing registration No.TN04 F5512 from Kelambakkam to Parrys. Since the lorry was under repair, he parked the lorry near I.R.T. Taramani and the mechanic while attending the repair work under the body of the lorry, the deceased was in front side of the lorry and assisting to mechanic. At that point of time, the respondent's Corporation bus driven by its driver at high speed and in a rash and negligent manner and dashed against the stationed lorry. Consequently, the parking lorry wheel ran over the deceased Jayamurthy. In the result, he had succumbed to his grievous injuries and died on the spot itself. Further, she had adduced evidence stating that her husband deceased Jayamurthy was aged about 38 years at the time of the accident, he was a driver in the Corporation lorry and his monthly salary was Rs.6,500/-. She has marked Ex.P3-driving licence. Further, she adduced evidence stating that she is the widow of the deceased, claimants 2 to 4 are the minor children of the deceased. In order to prove the relationship, she had marked legal heir certificate as Ex.P1. Further she had marked Ex.P6-Salary Slip of the deceased. 9.PW3, Sukumaran, who is the eye witness of the accident, had adduced evidence in one voice about the accident. The accident case was registered by the Guindy Police Traffic Investigation, against the driver of the offending bus. In order to prove the case, Ex.P7-First Information Report, Ex.P8-Rough Sketch and Ex.P9-Charge Sheet were marked. 10.After considering the oral evidence of the PW1, PW2 and PW3 and documentary evidence, which were marked by the claimants, 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 respondent's Corporation bus, therefore the respondent/Metropolitan Transport Corporation Ltd., is liable to pay compensation and awarded the compensation as follows: i. Rs.5,76,000/- under the head of loss of income, ii.Rs.3,000/- under the head of funeral expenses, iii. Rs.10,000/- to the first claimant under the head of consortium, https://hcservices.ecourts.gov.in/hcservices/ iv.Rs.45,000/- to the claimants 2 to 4 under the head of loss of love and affection, In total, the Tribunal awarded a sum of Rs.6,34,000/- as compensation to the claimants, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondent to deposit the compensation amount of Rs.6,34,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of eight weeks from the date of its order. Further, the Tribunal apportioned a sum of Rs.1,34,000/- to the first petitioner, Rs.1,50,000/- to the third minor petitioner and Rs.1,75,000/- each to the second and fourth petitioners. In turn, the apportioned share amount of the first claimant to be deposited, for a period of three years and the respective apportioned share amount of 2nd to 4th claimants to be deposited till they attain majority, under a fixed deposit scheme, in a nationalised bank. Accordingly ordered. 11.Having not been satisfied with the said Award and Decree, the appellants/claimants have filed the above appeal praying additional compensation of Rs.7,00,000/-. 12.The learned counsel appearing for the appellants/claimants argued that the the deceased was a good employee, his last pay salary being a sum of Rs.6,204/-. In order to prove the same, a salary certificate was marked as Ex.P6. The deceased age was 38 years at the time of accident. In order to prove the same Ex.P3-driving licence of the deceased was marked. It reveals that the deceased's date of birth was 15.04.1967, this was well established before the Tribunal. But, the Tribunal had come to an erroneous calculation that the deceased's income was Rs.4,397/-. After deducting 1/3 of the personal expenses of the deceased, the contribution to the dependancy is Rs.3,000/-. As such, the Tribunal granted a compensation under the head of loss of income, which is on the lower side. Further, the Tribunal had awarded a sum of Rs.3,000/- under the head of funeral expenses, which is also on lower side. Therefore, he seeks additional compensation. 13.The learned counsel appearing for the respondent argued that the income of the deceased was Rs.4,397/- after deduction as net salary, this was taken up by the Tribunal for awarding the compensation towards loss of income. The Tribunal also awarded compensation towards pertinent heads namely consortium, loss of love and affection and funeral expenses. Therefore, there is no discrepancy in the said award and decree passed by the Tribunal. Hence, he prays to dismiss the appeal. https://hcservices.ecourts.gov.in/hcservices/ 14.After considering the arguments advanced by the learned counsel appearing on either side and award and decree passed by the learned Motor Accident Tribunal, this Court is of the view that there is a discrepancy in the said award regarding the income of the deceased. As such, this Court decided to enhance the compensation as follows: i. Rs.7,68,000/- under the head of loss of income, hence, the income of the deceased ie.gross salary a sum of Rs.6,204/- After deducting personal expenses of the deceased the contribution to the dependants as Rs.4,000/- and adopted the multiplier of 16, ii.The Tribunal awarded a sum of Rs.3,000/- under the head of funeral expenses, this Court enhances the same to Rs.10,000/-, iii. The Tribunal awarded a sum of Rs.10,000/- to the first claimant under the head of consortium, this Court confirms the same as it is pertinent, iv.The Tribunal awarded a sum of Rs.45,000/- to the claimants 2 to 4 under the head of loss of love and affection, this Court confirms the same as it is pertinent, In total, this Court awards a sum of Rs.8,33,000/- as compensation, which is fair and equitable. After deducting the original award amount of Rs.6,34,000/-, this Court awards an additional award amount of Rs.1,99,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. This Court hereby apportioned a sum of Rs.49,000/- to the first claimant and a sum of Rs.50,000/- each to the 2nd, 3rd and 4th claimants herein, with accrued interest as observed about. 15.This Court directs the respondent/Metropolitan Transport Corporation Ltd., to deposit the entire compensation amount with accrued interest thereon and costs, into the credit of the M.C.O.P.No.768 of 2005, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, within a period of six weeks from the date of receipt of a copy of this order. After such deposit being made, it is open to the claimants to withdraw their respective shares with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.768 of 2005, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, by making proper payment out application. https://hcservices.ecourts.gov.in/hcservices/ 16.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 12.10.2006, in M.C.O.P.No.768 of 2005, passed by the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, is modified. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.The II Judge, (The Motor Accident Claims Tribunal) Court of Small Causes, Chennai 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.M. Swamikannu, Advocate, Sr. 70992 C.M.A.No.313 of 2007 KSJ (CO) kk 15/11 https://hcservices.ecourts.gov.in/hcservices/