IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2112 of 2007 and M.P.No.3 of 2007 Branch Manager The Oriental Insurance Co., Ltd., Tiruvannamalai .. Appellant/II Respondent Vs 1.Sagunthala 2.M.Senthilkumar .. Respondents/Petitioner & 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 30.01.2006, made in M.C.O.P.No.859 of 2003, on the file of the Motor Vehicles Accident Claims Tribunal, District Judge, Tiruvannamalai. For appellant : Mr.R.Sivakumar For respondents : Mr.R.Rajarajan for M/s.G.Rajan, for R1 No appearance for R2 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 30.01.2006, made in M.C.O.P.No.859 of 2003, on the file of the Motor Vehicles Accident Claims Tribunal, District Court, Tiruvannamalai, awarding a compensation of Rs.5,19,000/- with 7.5% interest per annum from the date of filing the petition till the date of payment of the compensation. 2.Aggrieved by the said Order, the appellant / second respondent, The Oriental Insurance Co., Ltd., has preferred the above appeal praying to set aside the above award and decree passed by the Tribunal. 3.The short facts of the case are as follows: The petitioner's son Sivaramakrishnan was a student in a Arunai Engineering College, Tiruvannamalai. On 05.03.2003, when the petitioner's son was travelling in the bus, belonging to the first respondent, titled 'Om Muruga', and when it was nearing Nirmal Petrol Bunk on the Tiruvannamalai to Tirukkovilur road, the driver of the bus applied sudden brake as a result of which, the petitioner's son https://hcservices.ecourts.gov.in/hcservices/ fell down and sustained head injuries and died on the spot. Regarding the accident, a criminal case has been registered at the Tiruvannamalai Police Station as Crime No.613/2003 under Sections 279 and 304(A) of I.P.C. The accident had occurred only due to the rash and negligent driving of the driver of the first respondent. The said bus has been insured with the second respondent/The Oriental Insurance Co., Ltd., Hence, the respondents are jointly and severally liable to pay compensation to the petitioners. The petitioners have claimed a compensation of Rs.10,00,000/- with interest and cost under Section 166 of the Motor Vehicles Act, 1988. 4.The first respondent remained absent in spite of summons issued to him and was set exparte. 5.The second respondent/The Branch Manager, The Oriental Insurance Co., Ltd., in his Counter has resisted the claim stating that the accident had occurred because the petitioner's son, Sivaramakrishnan was travelling on the foot board of the bus and because he had tried to get down suddenly from the bus. The first respondent's driver is not responsible for the cause of the accident. The petitioners should prove that they are the legal heirs of the deceased and that they were dependent on the income of the deceased. For the above said reasons, the second respondent has prayed for dismissal of the claim. 6.Based on the above pleadings, the Tribunal framed three issues for consideration namely (i) Was the accident caused due to the rash and high speed at which the driver of the bus had driven the bus? (ii) Who is liable to pay compensation to the petitioner? (iii)Is the petitioner entitled to get compensation? If so, what is the quantum of compensation? 7.On the petitioner's side, two witnesses were examined. The petitioner herself was examined as PW1. In the evidence, she has adduced that on 05.05.2003, at 10.30 a.m., the deceased Sivaramakrishnan, after receiving his hall ticket from Arunai Engineering College, was travelling in the front portion of the bus bearing registration No.TN25 C0894 as a standee and gripping the iron support in the inside of the bus. The bus driver was driving the bus in a rash and negligent manner and when he had applied brakes suddenly, the deceased Sivaramakrishnan was thrown out of the bus and fell down and sustained injuries. The injured Sivaramakrishnan was taken to Government Hospital at Tiruvannamalai, wherein, he was given treatment but in spite of this, the injured Sivaramakrishnan died in the Hospital at 10.45 a.m. The evidence given by PW1 is in consonance with the contents of Exs.A1, A2 and A6 and also in consonance with the evidence given by the PW2, who was the eye- witness to the accident. The Tribunal, therefore held that the proof https://hcservices.ecourts.gov.in/hcservices/ of guilt of the first respondent's driver has been established on scrutiny of evidence of PW1 and documentary evidence as per Ex.A1 – FIR, Ex.A2 – copy of Post-mortem Report and Ex.A6 – Death Certificate of the deceased Sivaramakrishnan. 8.One Govindan, who was an eye witness of the accident has been examined as PW2. The PW2, in his evidence has adduced that he was an eye witness of the accident and that the bus 'Om Muruga', bearing registration No.TN25 C0894 was driven at a high speed and that on application of sudden brake by the driver, the deceased Sivaramakrishnan, who was standing inside the bus was thrown out of the bus and was injured. He had stated that the accident was caused only by the rash and negligent driving of the bus. On scrutiny of the evidence of the PW1 and PW2 and examination of Ex.A1 – FIR, it is found that the manner of the accident stated is in consonance with one another and so, the Tribunal held that the accident has been caused only by the rash and negligent driving of the driver of the first respondent. 9.During enquiry, it has not been refuted by the respondents that during the time of the accident, the first respondent's bus had been insured with the second respondent/Insurance Company. As such, the Tribunal held that the second respondent is liable to pay compensation to the mother of the deceased Sivaramakrishnan, ie. the petitioner PW1 herein. 10.The PW1, in her evidence had adduced that at the time of the accident, her son Sivaramakrishnan's age was 18 years. This is found to be correct after examination of A2 and A4, the Post-mortem Certificate and copy of the mark sheet of the deceased Sivaramakrishnan, respectively. As such, the Tribunal took the age of the deceased Sivaramakrishnan as 18 years. The PW1 has stated in her evidence that her deceased son Sivaramakrishnan was studying in the first year of his Engineering Degree Course at Arunai Engineering College, Tiruvannamalai and that he was employed as a Tutor and worked in the evenings at a Private Computer Centre and was earning a sum of Rs.5,000/- per month. The PW1 has also stated that the deceased Sivaramakrishnan was her only son and that she had no other sons or daughters and also has stated that she is a widow. On scrutiny of the Ex.A3, the Legalheir Certificate, it is evident that the petitioner does not have any other children besides the deceased and on examination of Ex.A7 – Death Certificate of the husband of the petitioner, the fact that the petitioner is a widow was evident. On scrutiny of Ex.A4 – Marksheet of the deceased Sivaramakrishnan and Ex.A5 – Receipt given by the College to the deceased Sivaramakrishnan, it is established that the deceased was studying in the Arunai Engineering College. Though, PW1 has stated in her evidence that her deceased son was a part time Tutor in a Computer Firm, no oral or documentary evidence has been furnished in support of this contention. The employer of the deceased Sivaramakrishnan has not been examined as a witness before the Tribunal to establish that the deceased had been employed there and was earning a sum of Rs.5,000/- per month. The Tribunal however, accepted that the deceased Sivaramakrishnan was a first year Engineering Student and https://hcservices.ecourts.gov.in/hcservices/ that the prospects of earning a good income is possible after he completed his Engineering Course also. Taking into consideration the fact that the petitioner has lost her only son and that she is aged 45 years and not capable of earning. The Tribunal was of the view that the income of the deceased Sivaramakrishnan could be taken as Rs.4,000/- per month for assessment of compensation. As such, the yearly income of the deceased was calculated as Rs.48,000/-. Deducting 1/3rd share of this for personal expenses of the deceased, the Tribunal assessed the loss of income incurred by the petitioner as Rs.32,000/- per year. Taking a multiplier of 16, the Tribunal awarded a compensation of Rs.32,000 X 16 = Rs.5,12,000/- to the petitioner for loss of income. The Tribunal granted a sum of Rs.2,000/- for loss of love and affection. In total, the Tribunal awarded a sum of Rs.5,19,000/- as compensation to the petitioner and directed the second respondent to deposit the above said award with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, within a period of two months from the date of its Order. Further, after such deposit has been made, the petitioner was permitted to withdraw 40% of the award and the remaining award amount has to be invested in a Nationalised Bank for a period of three years. The accrued interest on the award and the costs incurred by the petitioner is to be paid to her after she paid the Court fees due on the award amount. The Advocate fees was fixed at Rs.12,190/-. 11.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in fixing that the accident had occurred due to the rash and negligent driving of the driver of the bus bearing registration No.TN25 C0894 belonging to the second respondent herein and insured with the appellant, in spite of the fact that the same has occurred due to the negligence on the part of the deceased alone, who was travelling on the part of the deceased alone, who was travelling on the foot-board of the said bus at the time of the accident. 12.The learned counsel for the appellant pointed out that the Tribunal had failed to note that the deceased was not a earning member at the time of the accident. Further, the learned counsel for the appellant pointed out that the Tribunal had erred in fixing the monthly income of the deceased at Rs.4,000/- and deducted 1/3rd towards personal expenses, multiplier by 16 and awarded a sum of Rs.5,12,000/- towards loss of pecuniary benefits. Further, it has been stated that the Tribunal had failed to note that the first respondent is the mother of the deceased and aged about 45 years. 13.As such, it has been argued that the award of Rs.5,19,000/- granted by the Tribunal is excessive and liable to be set aside. 14.In support of his arguments, the learned counsel for the appellant has cited a legal ruling made in 2009(2) TNMAC 303, High Court of Madras, The Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam Vs. P.K.Mani, Sasikala, Minor.Sindhuja, Minor.Natarajan, the relevant head notes of which are as follows: https://hcservices.ecourts.gov.in/hcservices/ "Compensation – Quantum – Determination – Fatal Accident – Deceased, a 19 years old girl, undergoing Computer Training after completing 12th Standard – Claimants : Father, mother, minor brother & sister of deceased – Claim : Rs.8,00,000 – Income: Tribunal, in view of deceased being a non-earning member, fixed monthly income at Rs.3,000 – Contribution to Family : Deducting 1/3rd towards Personal Expenses, Rs.2,000/- p.m. fixed as contribution to family – Multiplier : Of 15 adopted by Tribunal, not proper : Following decision of Apex Court in Bilkish, correct multiplier held to be 12 and not 15 – Loss of Income : Fixing annual contribution to family at Rs.24,000/- and applying multiplier of 12, Loss of Income worked out at Rs.2,88,000/- as against Rs.3,75,000/- awarded by Tribunal – Loss of Love & Affection : Rs.15,000 awarded by Tribunal being reasonable, confirmed – Funeral Expenses : Rs.5,000, confirmed in Appeal – Total Compensation : Rs.3,08,000 as against Rs.3,95,000 awarded by Tribunal against claim of Rs.8,00,000 – Interest : 9% p.a. awarded by Tribunal not proper : Prevailing rate of interest on 6.6.2004 (date of accident) being 7.5%, rate of interest modified from 9% p.a. to 7.5% - Disbursement : Minor's share to be deposited in Nationalised Bank till minors attain majority : Accrued interest allowed to be withdrawn once in three months." 15.The learned counsel for the respondent has argued that the claimant is a widow, house wife and a non-earning member and that the deceased, who was her son took care of her and he was maintaining the family by way of doing a private job as a Tutor. The learned counsel further pointed out that the deceased was an Engineering Student and had specialised knowledge in Computers and consequently he was employed in a private computer concern. As such, he maintained the family with his income. 16.For the foregoing reasons and considering the facts and circumstances of this case, arguments advanced by the learned counsel on eitherside, perusal of the findings of the Tribunal, this Court is of the view that the deceased was an Engineering Student as per Ex.P5 ie. College Fee Receipt. Further, it was established that the claimant is a widow and a non-earning member as per Ex.P7 – Death Certificate of husband of the claimant. In the circumstances, the deceased was constrained to look after his mother, ie.the claimant herein and so necessarily the deceased would have undertaken part time job to support his mother and would have contributed his earnings to run the family. Considering these circumstances, the Tribunal cannot be faulted in determining that the deceased was a earning member. As such, the Tribunal calculated compensation as per multiplier method, adopted a multiplier of 16 and assessed compensation as Rs.32,000/- X 16 = Rs.5,12,000/-. The Court is of the view that the award under this head is appropriate and confirms the same. The Tribunal had awarded a sum of Rs.2,000/- for love and https://hcservices.ecourts.gov.in/hcservices/ affection to the petitioner, which is on the lower side. Though, the Tribunal has awarded a sum of Rs.5,19,000/- they had accounted for award of Rs.5,14,000/- only under the relevant heads. Rs.5,000/- had been awarded under a non-existent head and the Tribunal has maintained silence regarding the head under which the award of Rs.5,000/- had been granted. This Court awards this under the head of funeral expenses. 17.This Court therefore confirms the award of the Tribunal in spite of the fact that the quantum of compensation awarded for love and affection is on the lower side as the deceased was the only son of the petitioner. As such, the Court confirms the award of the Tribunal. 18.This Court imposed a condition on the appellant/Oriental Insurance Co., Ltd., to deposit a sum of Rs.3,50,000/- together with proportionate interest and entire costs by his order dated 04.09.2007. 19.Now, this Court directs the appellant to deposit the balance compensation with accrued interest of 7.5% per annum from the date of filing the petition till the date of payment, within a period of four weeks from the date of receipt of this Order, into the credit of the M.C.O.P.No.859 of 2003, on the file of the Motor Vehicles Accident Claims Tribunal, District Court, Tiruvannamalai. After such deposit, the claimant is permitted to withdraw the entire compensation amount with accrued interest and costs, by filing necessary application, in accordance with law. 20.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Vehicles Accident Claims Tribunal, District Court, Tiruvannamalai, in M.C.O.P.No.859 of 2003, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar krk To 1. The Motor Vehicles Accident Claims Tribunal, District Judge, Tiruvannamalai. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.R.Sivakumar, Advocate, Sr.No.69592 1 cc to Mr.G.Rajan, Advocate, Sr.No.69755 Order in C.M.A.No.2112 of 2007 GV {CO} TP/7.1.2010. https://hcservices.ecourts.gov.in/hcservices/