IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1195 of 2003 and C.M.P.No.7958 of 2003 The Managing Director, Tamil Nadu State Transport Corporation, Vellore. ..Appellant Vs. 1.Kali @ Kaliyammal 2.Minor.Suresh Kumar 3.Minor.G.Sudha 4.Minor.G.Sathishkumar 5.Pappammal 6.S.Babu Singh 7.Ajayan 8.The New India Insurance Co., Ltd., ..Respondents (R2, R3 & R4 rep.by their mother and next friend R1, R6 – Given up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.10.2002, made in M.C.O.P.No.476 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore. For Appellants : Mr.A.Babu For Respondents : Mr.C.Kannadasan, for Mr.T.S.Kannaiyan, for RR1 to 5 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 21.10.2002, made in M.C.O.P.No.476 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, awarding a compensation of Rs.4,75,000/-, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 29.03.1998, at about 12 noon, the first respondent, the driver of Tamil Nadu State Transport Corporation bus bearing registration No.TN23 N0986 drove the said bus from Krishnagiri to Hosur in a rash and negligent manner without observing the traffic rules and regulations and dashed against the lorry, which was coming in the opposite direction, and which was also driven in a rash and negligent manner by its driver, at Sofa Chethiram bridge on the National Highways Road. Due to the sudden impact, the passengers of the bus sustained injuries and the first petitioners husband died at the spot itself. The first petitioner's husband was the conductor of the said bus and he was a hale and healthy at the time of accident. He was aged about 36 years and was a permanent employee working under the second respondent. The first petitioner is the wife, 2nd to 4th petitioners are the children and the fifth petitioner is the mother of the deceased. The deceased was the only bread winner of their family and due to the sudden demise of the first petitioner's husband, all the petitioners have undergone mental agony, loss of income and other losses. 4.The deceased was earning a sum of Rs.5,000/- per month at the time of his death and had another 22 years of service, if he had been alive. Hence, the petitioners have claimed a compensation of Rs.10,00,000/- from the first respondent, the driver of the said bus, the second respondent, the owner of the said bus, the third respondent, the owner of the said lorry and the fourth respondent, the insurer of the said lorry, with interest and costs under Section 166 of Motor Vehicles Act. Regarding the accident, a criminal case has been filed by the S.I. of Police, Soolagiri Police Station, as Crime No.185 of 1998 under Sections 279, 337, 338 and 304(a) of I.P.C. 5.The second respondent, in his Counter has resisted the claim denying the manner of accident as alleged in the claim. It has been stated that when the first respondent was driving the bus, and when it was nearing Somasathiram, he saw a lorry coming in the opposite direction at a high speed and driven by its driver in a rash and negligent manner. On seeing this, the first respondent took the bus to the extreme left of the road, but in spite of this, the driver of the lorry dashed the front of the lorry against the right side of the bus. Due to this accident, the first petitioner's husband had died and as such, the accident had been caused only because of the negligent act of the lorry driver. As such, the second respondent has prayed for dismissal of the petition. https://hcservices.ecourts.gov.in/hcservices/ 6.The fourth respondent, in his Counter has resisted the claim stating that the deceased had not travelled as a Conductor of the said bus. It was also submitted that the accident was not caused due to fault on the driver of the lorry, but that it was caused only due to the rash and negligent driving by the driver of the said bus bearing registration No.TN23 N0986. It has been submitted that the claim is excessive and is liable to be dismissed. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the accident had occurred due to the rash and negligent driving of the first and third respondents? (ii) Whether the petitioners are liable to get compensation? If so, what is the quantum of compensation, which they are entitled to get? 8.On the petitioners' side, the first petitioner was examined as PW1 and 15 documents were marked as Exs.P1 to P15. On the respondents' side, the first respondent was examined as RW1 and no documents were marked. 9.The PW1, in her evidence had adduced that her husband was working as the Conductor of the said bus and he died because of the accident caused due to the rash and negligent driving of the first and third respondents. In support of her evidence, she has marked Ex.A1, the FIR. 10.The RW1, in his evidence has stated that he was working as a driver in the said bus and that he was driving the said bus from Vellore towards Hosur and that at about 12 noon the said lorry came in the opposite direction, driven by its driver in a rash and negligent manner, and had dashed against the bus, and that due to the impact the conductor of the said bus, died and some of the other passengers also had sustained injuries. He has stated that the accident was not caused due to the carelessness on his part. 11.The Tribunal, on scrutiny of evidence of PW1, were of the view that the PW1 was not an eye witness of the accident. The RW1, in his evidence had stated that a criminal case had been filed as against him by the Police regarding the said accident. He had further adduced in his evidence that initially a lorry had crossed the bus and that the second lorry coming behind the first lorry had crossed the front portion of the bus and then dashed against the right side of the bus. He had also stated that due to the impact, the bus rolled over thrice and the passengers sustained injuries. https://hcservices.ecourts.gov.in/hcservices/ Even during cross-examination, the RW1 has stated the same version regarding the manner of the accident and has categorically stated that he is not responsible for the accident. 12.As such, the Tribunal fixed a contributory negligence of 75% on the part of the first and second respondents and 25% on the part of the third and fourth respondents. 13.From a scrutiny of Ex.A2, the Post-mortem Certificate, the Tribunal held that the age of the deceased was 36. From a scrutiny of Ex.A4, the Salary Certificate of the deceased, it was seen that the monthly salary of the deceased was Rs.4,383/-. Therefore, the Tribunal held that the monthly salary of the deceased was Rs.4,000/-. The Tribunal also scrutinised the following documents marked as Ex.A3, the Licence; Ex.A5, the Motor Vehicle Inspector's Report; Ex.A6, the Driving Licence of the first respondent; Ex.A7, the R.C. of the first respondent; Ex.A8, the R.C.of the third respondent; Ex.A9, the Driving Licence of third respondent and Ex.A10, the Family Card of the petitioners. 14.From the evidence of the RW1, it was clear that the lorry had dashed against the bus after crossing the driver's seat. The Tribunal held that the driver of the lorry was also rash and he had also driven the lorry at a high speed and that it was only because of this that the bus had rolled down after impact. The Tribunal, at the same time, held that the driver of the bus was also negligent as otherwise he could have avoided the accident and the damage caused would not have been so excessive. As such, the Tribunal fixed 75% of the contributory negligence for the accident on the first and second respondents and 25% of the contributory negligence for the accident on the third and fourth respondents. On scrutiny of Ex.A9, the Tribunal held that the third respondent is the owner of the lorry and that the vehicle has been insured with the fourth respondent at the time of accident. Further, on scrutiny of Ex.A12, the Legal Heir Certificate of the petitioners, the Tribunal held that the petitioners are the legal heirs of the deceased. 15.For computing the quantum of compensation, the Tribunal taking the income of the deceased as Rs.4,000/- per month and adopting a multiplier of 13, as relevant to the age of the deceased, as per second Schedule of Section 163(A) of Motor Vehicles Act, assessed the future income of the deceased as (Rs.4,000/- X 12 X 13) Rs.7,35,000/-. The Tribunal, on deducting 1/3rd from this for personal expenses of deceased, assessed the loss of income to the petitioners as Rs.4,90,000/- and then granted a compensation of Rs.4,75,000/- to the petitioners and directed the second respondent to pay 75% of the said award ie.Rs.3,56,250/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. It also directed the third and fourth respondents to pay 25% of the said award ie. Rs.1,18,750/- https://hcservices.ecourts.gov.in/hcservices/ together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. Further, the respondents were directed to deposit the award into the credit of the M.C.O.P.No.476 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, within a period of one month, from the date of its Order. The Tribunal apportioned Rs.30,000/- out of the award amount to the fifth petitioner, who is the mother of the deceased and further apportioned the balance of award amount equally amongst the 1st to 4th petitioners. The minor petitioners' apportioned share of award ie. the 2nd, 3rd and 4th petitioners' apportioned share was directed to be invested in a nationalised bank until they attain the age of major. The Advocate fee was fixed as per Court rules and the excess Court fee paid by the petitioners was to be refunded to them. The respondents were directed to pay cost of the petition to the petitioners. 16.The learned counsel for the appellant has contended in his appeal that the driver of the appellant Corporation bus was driving the bus slowly and cautiously and that it was only the driver of the lorry coming in the opposite direction, who had driven the bus in a rash and negligent manner, and had caused the accident. It was further submitted that no eye witness was examined to prove the negligence on the part of the driver of the appellant Corporation and the Tribunal also failed to consider the evidence of the RW1. It has also been submitted that the Tribunal erred in relying upon Ex.A1, the FIR, which was marked through the claimant without examining the author of the document and that no Police Officer was examined to prove the negligence of the appellant's driver. 17.The learned counsel for the appellant has submitted that the Tribunal ought to have dismissed the entire claim petition against the appellant Corporation on the basis of the evidence of the RW1 and that the Tribunal had erred in fixing 75% liability on the part of the appellant Corporation. It was submitted that the Tribunal ought to have fixed more liability or atleast equal liability on the part of the Insurance Company. 18.Further, it was submitted that the Tribunal had erred in relying upon the evidence of PW1, the wife of the deceased in respect of the age, occupation and income of the deceased and as such had erred in fixing the age of the deceased at 36 years without any basis and material evidence on record. It was also submitted that the fixing of salary of the deceased at Rs.4,000/- and as such the compensation of Rs.4,75,000/- calculated taking the said salary of the deceased and the liability of 75% ie.Rs.3,56,250/- imposed on the appellant Corporation was erroneous. As such, the learned counsel for the appellant has prayed for setting aside the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 19.The learned counsel for the appellant vehemently argued that the complainant was not examined. It was further argued that the rate of interest was on the higher side and that a higher negligence component of 75% had been fixed on the part of the driver and owner of the appellant Corporation. 20.The learned counsel for the respondent argued that the deceased was the only bread winner of his family and that all the five claimants were depending upon him. The family consists of the young widow of the deceased, minor children of the deceased and aged mother of the deceased. Due to this accident, the education of the third minor children have been spoiled and the entire family life of the petitioners have been disrupted. The Tribunal's award is also on the lower side. Regarding the fixation of negligence as 75% for the first and second respondents and 25% on the part of the third and fourth respondents, the Tribunal has weighed the evidence carefully before arriving at the conclusion as regards negligence. As such, the Tribunal has not committed any error in passing the award and decree, as it is a well considered one in the circumstances of the case. 21.Considering the facts and circumstances of the case, arguments advanced by the learned counsels on either side, this Court is of the view that the Tribunal fixed the negligence as 75% on the part of the appellant, in the absence of Site Plan/Sketch. Taking this aspect into consideration, the appellant cannot, now, challenge the quantum of fixation of negligence without discussion about the tyre marks of both vehicles of the accident site. 22.Further, the Court is of the view that the deceased was a conductor and his pay slip has been marked as Ex.A4. On scrutiny of Ex.P4, it is evident that the deceased's salary was Rs.4,383/- per month. But the Tribunal, suo moto, has taken the salary of the deceased as Rs.4,000/- without assigning any reason. So, the compensation, regarding loss of income, calculated, taking this as basis is on the lower side. Secondly, the Tribunal had deducted 1/3rd share from the salary of the deceased for assessment of compensation, whereas this Court is of the view that as the claimants are 5 in number, only 1/4th should have been deducted from the income of the deceased to assess compensation. So, on these two aspects, even though the compensation computed by the Tribunal has been on the lower side. This Court considering all aspects of the case is of the view that the award passed by the Tribunal is equitable and fair. Further, the Tribunal has not passed any award in favour of the petitioners under the heads of funeral expenses, consortium and love and affection. As such, the Court is not inclined to interfere in the findings of the Tribunal and the consequent award passed by them. 23.The Tribunal awarded a compensation of Rs.4,75,000/- to the 1st to 5th claimants and the fifth claimant was apportioned a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.30,000/- and the balance award of Rs.4,45,000/- was equally apportioned to the 1st to 4th claimants ie.Rs.1,11,250/- each, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment and hence this Court considers that the award passed by the Tribunal is equitable and fair. 24.This Court imposed a condition on the appellant on 26.06.2003 to deposit the entire compensation amount with cost and interest, into the credit of the M.C.O.P.No.476 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore. Further, the Court permitted the claimants to withdraw a sum of Rs.75,000/- each from and out of the apportioned amount, subject to the condition that the claimants, if they are minors, shall not be permitted to withdraw the said amount. 25.As the accident happened in the year 1998, it is open to the claimants/respondents to withdraw their apportioned share of the compensation amount, lying the credit of the M.C.O.P.No.476 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any, by the claimants. 26.In the result, the above Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Principal District Court, Vellore, in M.C.O.P.No.476 of 1998, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. The Motor Accident Claims Tribunal, Principal District Court, Vellore. 2. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to Mr. E. Kannadasan, Advocate. S.R.No.3445. + 1 c.c. to M/s. A. Babu, Advocate. S.R.No.3320. C.M.A.No.1195 of 2003 SSK (CO) GSK 29.01.2010. https://hcservices.ecourts.gov.in/hcservices/