1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.473 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Managing Director, Tamil Nadu State Transport Corporation Ltd., 87, Mettupalayam Road, Coimbatore – 641 043. .. Appellant/Respondent Vs. 1.Ganesh @ Ganapathy Raman 2.Minor Surya (Minor second respondent represented through his father and next guardian viz., first respondent) .. Respondents/Petitioners Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 22.07.2010 passed in M.C.O.P.No.371 of 2008 by the Motor Accidents Claims Tribunal/First Additional District Court, Tirunelveli. For Appellant .. Mr.M.Prakash For Respondents .. Mr.M.P.Senthil JUDGMENT The award dated 22.07.2010 passed in M.C.O.P.No.371 of 2008 by the Motor Accidents Claims Tribunal/First Additional District Court, Tirunelveli is being challenged in the present Civil Miscellaneous Appeal. 2. The respondents herein as petitioners have filed M.C.O.P.No.371 of 2008 on the file of the Motor Accident Claims Tribunal under Sections 140 and 166 of the Motor Vehicles Act, 1988 praying to pass an award of Rs.20,00,000/- by way of compensation, wherein the present appellant has been shown as sole respondent. 3. It is stated in the petition that on 14.02.2008 at about 09.45 p.m, the deceased viz., Archana has driven the motor cycle bearing Registration No.TN-38-AS-3076 from north to south on Coimbatore- Mettupalayam Main Road. At that time, the bus bearing Registration No.TN- N-38-1087, which belongs to the respondent, has been driven from opposite direction with rash and negligent manner and due to that the accident has happened. The deceased has sustained multiple injuries and subsequently passed away. The first petitioner is the husband of the deceased and the second petitioner is their child. Under the said circumstances, the present petition has been filed for getting the relief sought for therein. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the counter filed on the side of the respondent, it is stated that the driver of the respondent has driven the bus alleged to have involved in the accident with slow speed by way of observing traffic rules. The deceased has driven her two wheeler by way of talking on cellphone and she herself invited the accident and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record the Motor Accidents Claims Tribunal has awarded Rs.6,67,000/- by way of compensation. With regard to liability as well as quantum, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. 6. The learned counsel appearing for the appellant/respondent has attacked the award passed by the Motor Accidents Claims Tribunal on the following grounds: (a) Prior to accident, the deceased has spoken on cellphone and due to that she lost her control and she herself invited the accident and therefore the respondent cannot be mulcted with liability. (b) On the side of the petitioners, Ex.P.9, Salary Certificate has been marked and the evidence of P.W.3 is that the deceased has served only few days from the date of her joining and therefore she could not have drawn monthly salary of Rs.4,500/-, but the Motor Accidents Claims Tribunal has erroneously given a finding to the effect that the deceased has drawn monthly salary of Rs.4,500/- and therefore the award passed by the Motor Accidents Claims Tribunal is liable to be modified. 7. With regard to first aspect, on the side of the petitioners acceptable and trustworthy evidence has been let in. Even though a stand has been taken to the effect that at the time of accident, the deceased has spoken on a cellphone and thereby lost her control, which resulted the accident, the driver or conductor of the respondent has not given any police compliant. Therefore the first contention urged on the side of the appellant/respondent cannot be accepted. 8. With regard to second contention, on the side of the petitioners, Ex.P.9 has been marked. Ex.P.9 is a Salary Certificate, wherein it has been clearly mentioned that the deceased has served in a job for a monthly salary of Rs.4,500/-. Even in Ex.P.9, it has been stated that she served only for few days from the date of her joining. Since the deceased has passed away within few days from the date of her joining, the Court cannot reject Ex.P.9. In Ex.P.9, it has been clearly stated that monthly salary of the deceased is Rs.4,500/- and to that effect P.W.3 has given proper evidence and therefore the second contention urged on the side of the appellant/respondent also goes out without merit. 9. The Motor Accidents Claims Tribunal after fixing monthly salary of Rs.4,500/- and after making one-third deduction has fixed monthly income of the deceased at Rs.3,000/- and adopted 17 multiplier. Further the Motor Accidents Claims Tribunal has given Rs.20,000/- towards consortium, Rs.15,000/- towards love and affection, Rs.5,000/- towards funeral expenses and Rs.15,000/- towards mental stress and shock. Considering the fact that https://hcservices.ecourts.gov.in/hcservices/ 3 towards consortium and love and affection, the amounts mentioned supra have been given, this Court is of the view that no amount need be given under the guise of mental stress and shock and therefore the respondents/ petitioners 1 and 2 are entitled to get only Rs.6,52,000/- and to that extent the award in question is liable to be modified. 10. In fine, this Civil Miscellaneous Appeal is allowed in part without costs and the award passed in M.C.O.P.No.371 of 2008 by the Motor Accident Claims Tribunal/First Additional District Court, Tirunelveli is modified as follows: The respondents/petitioners 1 and 2 are entitled to get Rs.6,52,000/- by way of compensation. In other aspect, the award passed by the Motor Accident Claims Tribunal is confirmed. Consequently connected miscellaneous petition is closed. 11. It is represented that the appellant/ respondent has deposited the entire award amount fixed by the Motor Accidents Claims Tribunal. Since the award in question is modified as stated above, the appellant/respondent is at liberty to withdraw the excess amount. SD ASST REGISTRAR ( Writs ) /True Copy/ Sub Asst Registrar smn To The Motor Accident Claims Tribunal/ First Additional District Judge, Tirunelveli. 1CC TO MR. M. PRAKASH, ADVOCATE, SR: 26482: 1CC TO MR. M.P. SENTHIL, ADVOCATE, SR:26524: DM:2011:SEPTEMBER:05:: C.M.A(MD)No.473 of 2011 and M.P(MD)No.1 of 2011 05.08.2011 3P:4C:: https://hcservices.ecourts.gov.in/hcservices/