IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.10.2008 CORAM: THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH C.M.A.No.2975 of 2003 The Managing Director, Tamil Nadu State Transport Corporation (Villupuram Division I) Limited, Villupuram. (Cause Title accepted vide order dated 28.1.03 made in CMP.15067/03) ... Appellant/Respondent Vs. 1.Annapoorani 2.Kandasamy ... Respondents/Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1998 against the judgment and decree dated 13.01.2003 made in M.C.O.P.No.1213 of 1997 on the file of Motor Accident Claims Tribunal (Principal Sub Judge) Tindivanam. For Appellant : Mr.G.Muniratnam For Respondents : Mr.R.Babu for M/s.R.Muralidharan J U D G M E N T This appeal is filed at the instance of the Transport Corporation against the award passed by the Motor Accident Claims Tribunal cum Principal Sub Judge, Tindivanam. 2. The case of the parties before the tribunal in brief is as follows:- (a) The deceased was aged 55 at the time of the accident and he was a carpenter by profession and was earning a sum of Rs.1500/- p.m. ON 22.03.1997 when he was standing on the extreme left of the road at Mailam Bus Stand at about 11.30 a.m. the bus bearing Regn.No.TN 32 N 0029 belonging to the appellant corporation and driven by its driver in a rash and negligent manner hit against the deceased which resulted in his death. Hence, the petitioners who are wife and son of the deceased filed this petition against the Transport Corporation claiming a sum of Rs.5,00,000/- as compensation with interest. https://hcservices.ecourts.gov.in/hcservices/ (b) The Appellant Transport Corporation filed their counter resisting the claim and contending that the driver of the bus of the appellant corporation was no way responsible for the accident. The driver of the bus drove the bus slowly and steadily and stopped the bus at the bus stand. On the date of accident, due to Mailam Car Festival a crowd of people attempted to board the bus and in that rush one of the passenger fell down and sustained fatal injuries. The driver of the appellant corporation was not at fault and the it is for the deceased who carelessly acted in the crowd. In any event, the total claim made in the petition is excessive and exorbitant. The petition is liable to be dismissed. 3. The Tribunal after having considered the oral and documentary evidence available on record had passed an award of Rs.1,60,000/- with interest at 9% p.a. as against the claim of Rs.5,00,000/- 4. This appeal is preferred by the Transport Corporation assailing the finding as to negligence as well quantum of compensation. The claimants who are respondents herein did not prefer any appeal or cross objection for enhancement of compensation. 5. The learned counsel appearing for the appellant Transport Corporation would submit that the tribunal had failed to consider the evidence of R.W.1 conductor and erred in coming to the conclusion that the driver of the bus alone was responsible for the cause of accident. The tribunal ought to have rejected the evidence of the interested witness viz., P.W.2. 6. He would further submit that the trial Court had further erred in coming to the conclusion that the deceased was earning a sum of Rs.2,500/- p.m. especially when the petitioners themselves claimed that the deceased was getting a sum of Rs.1500/- per month and P.W.1 had let in evidence to that extent only. Further, the tribunal was wrong in adopting 8 as multiplier as the deceased was aged above 60 years at the time of accident. 7. The learned counsel appearing for the respondents would on the other hand submit that as far as the negligence is concerned, the tribunal rightly held that the driver of the bus alone responsible for the accident. The conductor of the bus alone was examined as R.W.1. The driver of the bus was not produced before the Tribunal to speak about the manner in which the accident took place in order to disprove the claim of the petitioners. Therefore, an adverse inference could be drawn against the Transport Corporation. The tribunal after having considered the facts and circumstances rightly held that the driver of the bus alone was responsible for the accident. 8. He would further submit that even though the petitioners pleaded that the deceased was earning a sum of Rs.1500/- p.m. the tribunal had come to an independent conclusion had fixed the monthly salary taking https://hcservices.ecourts.gov.in/hcservices/ into account of the fact that the deceased was a carpenter by profession and had rightly adopted 8 multiplier as the deceased was aged between 55 and 60 years and therefore, the award of the tribunal does not require any interference. 9. This Court has given anxious consideration to the arguments advanced on either side. On a careful perusal of the available oral and documentary evidence and also the award passed by the tribunal, it would go to show that the transport Corporation failed to examine the driver of the bus who was on the wheel at the time of the accident and the only witness who is to speak about the manner in which the accident took place is driver and the failure on the part of the Transport Corporation to examine the driver of the bus itself would prompt the Court to draw an adverse inference against the appellant. The best evidence that could be produced by the appellant is its driver who was on the wheels at the time of the accident. Therefore, this Court finds no infirmity in fixing the responsibility upon the driver of the bus for causing the accident. 10. As far as the quantum of compensation is concerned, this Court sees that the deceased was said to be aged about 55 at the time of accident. As per Schedule II to Section 163(A) of M.V. Act, the suitable multiplier for the age group between 55 to 66 years is 8 and therefore, nothing wrong in adopting the multiplier 8 by the trial Court. As far as dependency is concerned, the petitioners themselves claimed that the deceased was getting a sum of Rs.1,500/- p.m. from his carpentry profession whereas, the tribunal had on its own reached to a conclusion that the deceased would have in all probability earned a sum of Rs.2,500/- by doing carpentry work which is ex facie wrong and unsupported by any material. Even if it is considered that the petitioners failed to prove the income of the deceased and in the absence of proof as to the income, the notional income of Rs.15,000/- should be taken. If it is adopted, the total dependency with the use of the multiplier with 8, would be Rs.1,20,000/-. Thus the petitioners are entitled to a sum of Rs.1,20,000/- towards loss of dependency due to the death of deceased. The first petitioner is the wife of the deceased and she is entitled to another sum of Rs.10,000/- for loss of consortium. Similarly, the second claimant being the son of the deceased, is entitled to a sum of Rs.5,000/- towards loss of love and affection. Further, the petitioners are entitled to a sum of Rs.5,000/- towards funeral expenses. The petitioners thus altogether entitled to a total compensation of a sum of Rs.1,40,000/- only whereas the tribunal awarded a sum of Rs.1,60,000/- as compensation. Thus the award of the tribunal requires modification to the extent indicated above. Therefore, it has become necessary for this Court to modify the award passed by the tribunal suitably reducing the compensation from Rs.1,60,000/- to Rs.1,40,000/-. The head-wise details of compensation to which the petitioner is entitled are furnished here below:- https://hcservices.ecourts.gov.in/hcservices/ Head under which compensation awarded Compensation awarded by the Tribunal Rs. Compensation awarded by this Court Rs. Loss of dependency 160000 -- Loss of dependency -- 120000 Loss of consortium -- 10000 Loss of Love and affection -- 5000 Funeral Expenses -- 5000 Total 160000 140000 11. Accordingly, the compensation awarded by the tribunal is reduced from Rs.1,60,000/- to Rs.1,40,000/- and out of the compensation the 1st respondent is entitled to Rs.1,10,000/- and the 2nd respondent is entitled to Rs.30,000/- with proportionate interest and in other respects the award passed by the tribunal shall stand maintained. It is represented by the learned counsel appearing for the appellant that the entire compensation has been deposited with interest before the tribunal and the petitioners were permitted by this Court to withdraw the 50% of the same. The petitioners are entitled to receive their respective remaining share with proportionate interest and the amount deposited by the appellant Transport Corporation in excess to the award passed in this appeal is ordered to be refunded with proportionate interest. The order of the tribunal in other respects shall stand maintained. This Civil Miscellaneous Appeal is partly allowed to the extent indicated above. Considering the facts and circumstances of the case, the respective parties are directed to bear their respective cost in this appeal. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk To 1.The Principal Sub Judge,(Motor Accident Claims Tribunal),Tindivanam. 2.The Section Officer, V.R.Section, High Court, Madras. + 1 cc to Mr.G.Muniratnam,Advocate,SR.No.59435 + 1 cc to Mr.R.Muralidharan,Advocate, SR.59376 C.M.A.No.2975 of 2003 BV(CO) EM/21.1.09 https://hcservices.ecourts.gov.in/hcservices/