IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.10.2008 CORAM: THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH C.M.A.No.187 of 2004 Tamil Nadu State Transport Corporation (Salem Division-I) Limited, rep. by its Managing Director, No.12, Rama Krishna Road, Salem -636 007. ... Appellant/2nd Respondent Vs. 1.Pappathi 2.Vadivelan 3.Radha (Minor) 4.Karthikeyan (Minor) 5.Manikandan (Minor) Minor Respondents 3 to 5 are rep. by their mother , the 1st respondent. 6.Chellammal 7.K.Chandran ... Respondents/Petitioner 1 to 6/1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1998 against the judgment and decree dated 31.03.2000 in M.C.O.P.No. 55 of 1999 on the file of the Motor Accident Claims Tribunal (Sub Judge), Namakkal. For Appellant : Mr.P.Jagadeeswaran For Respondent : No Appearance J U D G M E N T This appeal is filed at the instance of the State Transport Corporation against the award dated 31.03.2000 made in M.C.O.P.No.55 of 1999 on the file of the Motor Accident Claims Tribunal-cum-Sub Judge, Namakkal granting an award of compensation of Rs.3,39,200/- as against the claim of Rs.5,00,000/- https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the parties before the tribunal in brief is as follows:- (a) On 28.09.1998 at about 11.45 a.m. the deceased Mahalingam was walking along Namakkal-Paramathi Main Road and when he was proceeding just opposite to Patti Chellappa Hotel, a bus bearing Regn. No. TN 27 0533 belonging to the second respondent, driven by its driver in a rash and negligent manner hit against the deceased Mahalingam as a result of which, the deceased succumbed to injuries on the spot. The deceased was an agricultural coolie and was earning a sum of Rs.4500/- per month. He was hale and healthy at the time of the accident. The 1st petitioner is his wife, the claimants 2 to 5 are children and the 6th claimant is his mother. They are all dependents of the deceased Mahalingam. The accident was due to rash and negligence driving of the driver of the bus of the State Transport Corporation. Hence, the petition claiming a compensation of Rs.5,00,000/- with interest. (b) The State Transport Corporation filed their counter resisting the claim and contending that the driver of the Transport Corporation on 28.09.2008 actually took trip to Namakkal from Madurai and at the place of accident, when driver of the bus paved way to the lorry which was coming opposite by keeping the bus on its left side, a passenger who came for the lorry, suddenly ran across the road from right to left and the driver of the bus was not in any way responsible. The age of the deceased, his avocation, income are subject to strict proof. In any event, the claimants could claim compensation only under "No Fault Liability" clause and the compensation claimed in the petition are excessive. 3. The Tribunal after having considered the oral and documentary evidence available on record, had passed an award of Rs.3,39,200/- directing the respondent State Transport Corporation to pay the same to the petitioners within two months with interest at 12% p.a. Questioning the findings of the tribunal as to the negligence and quantum of compensation, the State Transport Corporation preferred the appeal. The claimants who are the respondents herein did not prefer any appeal or cross objection for enhancement of compensation and in fact despite notice, they did not chose to enter their appearance either in person or through their counsel. 5. I have heard Mr.P.Jagadeeswaran, learned counsel appearing for the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel appearing for the appellant Transport Corporation would submit that the tribunal had failed to appreciate the evidence of P.W.2 and erroneously held that the driver of the bus of the transport corporation alone was responsible for the accident and thereby fastened the entire liability upon the Transport Corporation. In so far as the quantum of compensation is concerned, the learned counsel for the appellant transport corporation would submit that multiplier 16 adopted by the tribunal, in view of the deceased was being 40 years was not in accordance with law. Further, without any basis and materials, the tribunal had on its own fixed the monthly salary of the deceased at Rs.2400/- per month. Therefore, the award of the tribunal, which is on the higher side is required to be modified suitably. 8. I have given anxious consideration to the arguments advanced by the learned counsel for the appellant Transport Corporation. On a close and careful scrutiny of both oral and the documentary evidence adduced on either side, it could be seen that the conductor of the appellant Transport Corporation was alone examined before the tribunal. The driver of the bus was not produced before the tribunal and examined in order to explain the manner in which the accident took place. Non examination of the best witness on the part of the appellant Transport Corporation before the tribunal would prompt the Court to draw an adverse inference. The tribunal after having considered the available oral and documentary evidence, held that since the front wheel of the bus had found hit against the pedestrian, the driver of the bus alone was responsible for the accident and had he driven the bus cautiously, he could have averted the accident. I do not find any infirmity on the findings of the tribunal regarding negligence fastened on the part of the driver of the bus. 9. In so far as the quantum of compensation is concerned, again a close and careful reading of the available records coupled with the impugned award, it could be seen that the deceased was the husband of the first claimant, father of the claimants 2 to 5 and the son of the 6th claimant. Of them claimants 3 to 5 were minors at the time of the accident. According to the claimants, the deceased was aged 40 years at the time of the accident. The tribunal had also taken the age of the deceased as 40 years on the basis of Ex.P.2 Post-mortem Certificate. The appellant Transport Corporation did not dispute the age of the deceased. The dispute is only with regard to income of the deceased and the multiplier adopted by the tribunal. The deceased was a coolie and he was maintaining his family consisting of wife, four children and his mother, through the earnings from cooly works. The https://hcservices.ecourts.gov.in/hcservices/ tribunal after having considered the circumstances held that the deceased in any event, would have earned Rs.2400/- per month and had taken multiplier 16 as per Schedule II to Section 163-A of M.V.Act to arrive at a compensation for the loss of dependency. Considering the dependency and the sustenance of all the claimants through the earnings of the deceased, I am of the view that the deceased would have earned not less than Rs.4,000/- at the time of his death, whereas the tribunal had taken only Rs.2400/- per month. Therefore, I am of the view that the monthly income of Rs.2,400/- assessed by the tribunal and the multiplier 16 adopted by the tribunal in order to arrive at just and reasonable compensation of a sum of Rs.3,07,200/- towards loss of dependency cannot be said to be wrong. Therefore, the award of a sum of Rs.3,07,200/- towards loss of dependency; a sum of Rs.1000/- for the loss of consortium in respect of the first claimant; a sum of Rs.5000/- to the claimants 2 to 5 towards loss of love and affection; and a sum of Rs.5000/- towards loss of love and affection to the 6th claimant, who is the mother of the deceased; and a sum of Rs.2000/- towards funeral expenses as passed by the tribunal seems to be just and reasonable and therefore, the total compensation compensation computed by the tribunal is found to be just and reasonable and the same does not require any interference in this appeal. 10. The head-wise details of compensation to which the petitioner is entitled are furnished here below:- Head under which compensation awarded Compensation awarded by the Tribunal Rs. Compensation awarded by this Court Rs. Loss of dependency 307200 307200 Loss of consortium 10000 10000 Loss of Love and affection for Claimants 2 to 5 20000 20000 Loss of Love and affection for the 6th claimant 5000 5000 Funeral Expenses 2000 2000 Total 339200 339200 https://hcservices.ecourts.gov.in/hcservices/ 11. Accordingly, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the tribunal stand confirmed. Considering the facts and circumstances, both the parties shall bear their respective costs in this appeal. kmk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Prl. Sub Judge, Motor Accident Tribunal, Namakkal. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. P. Jagadeeswaran, Advocate SR No.60397 RSI(CO) SR/17.12.2008 C.M.A.No.187 of 2004 https://hcservices.ecourts.gov.in/hcservices/