IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 08.10.2010 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL No.2041 of 2007 and M.P.No.1 of 2007 The Managing Director Metropolitan Transport Corporation Limited Chennai – 600 0002 ... Appellant/1st Respondent Versus 1.Pachiammal 2.Sangeetha (Minor) 3.Mahalakshmi (Minor) 4.Thayammal 5.Venkatesa Udayar (Minors 2 and 3 are rep. by their mother and next friend the first respondent herein) 6.The Divisional Manager Bajaj Alliance General Insurance Company Limited Chennai ... Respondents/Petitioners 1 to 5 & 2nd Respondent Prayer:- This appeal filed under Section 173 of the M.V.Act 1988 is preferred against the Award and Decree dated 31.08.2006 made in M.C.O.P.No.857 of 2004 on the file of the Motor Accidents Claims Tribunal (District Judge), Thiruvannamalai. For Appellant : Mr. T.M. Venkataraman For R1 to R5 : Mr. S. Kumaradevan J U D G M E N T The above appeal has been filed by the appellant / Metropolitan Transport Corporation, against the award and decree dated 31.08.2006 made in M.C.O.P.No.857 of 2004 on the file of the Motor Accidents Claims Tribunal (District Judge), Thiruvannamalai. 2.The short facts of the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ On 20.09.2004, at around 03.00 p.m., the deceased Jayakrishnan was travelling on his motorcycle on the Irumbuliyur Over-bridge, when at that time the respondent bus coming from Tambaram towards Perungalathur, dashed against the motorcyclist and in the result he had succumbed to his injuries, hence, the legal heirs of the deceased had field this Claim Petition against the respondent for a sum of Rs.40,00,000/- with interest. 3. The respondent had filed a counter statement and denied the accident which had been committed by the driver of the bus. The respondent further denied the age, income and occupation of the deceased. Actually, the accident had occurred due to the rash and negligent riding of the deceased and tried to over take the bus on the wrong side, as such the accident had occurred. The compensation amount is an excessive one. 4. On pleading of both parties, the Tribunal had framed three issues for consideration, viz.,:- “1. Who was responsible for the accident committed in a rash and negligent manner? 2. Who is liable to pay compensation to the claimants? 3. Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation? ” 5. On the side of the claimants, two witnesses were examined and sixteen documents were marked. On the side of the respondent, the driver was examined as R.W.1. The claimants had marked the documents viz., First Information Report, Rough Sketch, Postmortem Certificate, Salary Certificate of the deceased, School Certificate and legal heirs certificate etc. P.W.1, had adduced evidence that she is the wife of the deceased, claimants 2 and 3 are the children of the deceased and claimants 4 and 5 are the parents of the deceased. She further stated that on 20.09.2004, at about 03.00 p.m., her husband while travelling on the Irumbuliyur Over-bridge from Tambaram to Chinglepet, when at that time the respondent bus bearing Registration No.TN-01-N-3475, came at high speed and hit the motorcycle from behind. In the result, the rider had succumbed to his injuries, this was witnessed by P.W.2, who is selling flower near Raniamman temple and which is near to the accident place. P.W.1 further stated that her husband's age was 27 years and he was a Manager of the Chennai Exports Company and was earning a sum of Rs.7,000/- per month. 6. On considering the dependency, salary certificate, school certificate of the deceased, the Tribunal had awarded Rs.5,44,000/- towards loss of income (Rs.4,000/- x 12 x 1/3 x 2 x17 = https://hcservices.ecourts.gov.in/hcservices/ Rs.5,44,000/-) besides the Tribunal had awarded Rs.5,000/- to the first claimant towards loss of consortium and Rs.2,000/- funeral expenses. In total the Tribunal had awarded Rs.5,51,000/- with interest at the rate of 7.5% per annum. Aggrieved by the said award the appellant/Metropolitan Transport Corporation has filed the present appeal. 7. Learned counsel for the appellant argued that the P.W.2 witness was a created one. Actually the motorcyclist had committed the accident in a reckless manner. The Tribunal had erroneously fixed the income as Rs.4,000/- on the basis of the salary certificate. In order to prove the same the employer was not examined. 8. Learned counsel for the claimants argued that the claimants are the widow, two minor children and aged parents. The award amount was determined on the basis of salary certificate issued by the Exports Company, which is a signified and reputed one, therefore, the salary certificate is considered as bona fide. To prove the age of the deceased the School Certificate was marked and to prove the negligence committed by the driver of the bus, First Information Report and Charge Sheet was marked. 9. In view of the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the Tribunal had awarded the compensation on the basis of income, age and the dependency of the deceased which was determined on the basis of Legal Heirs Certificate, School Certificate and Salary Certificate. Further the Tribunal ought to have awarded the compensation on the ground of loss of love and affection to the claimants 2 to 4, this was not granted, therefore, this Court is unable to find any grounds in the order to scale down the compensation. Therefore, the award granted by the Tribunal is confirmed, which is fair and equitable. 10. Therefore, it is open to the claimants to withdraw their apportioned share amount as per the Tribunal order with accrued interest thereon lying in the credit of M.C.O.P.No.857 of 2004, on the file of the Motor Accidents Claims Tribunal, District Judge, Thiruvannamalai, after filing necessary payment out application in accordance with law, subject to withdrawals if any, made already. Further, subject to minor claimants i.e. respondents 2 and 3 become major. 11. In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree dated 31.08.2006, made in M.C.O.P.No.857 of 2004, on the file of the Motor Accidents Claims https://hcservices.ecourts.gov.in/hcservices/ Tribunal, District Court, Tiruvannamalai, is confirmed. There is no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar smn To 1. The Motor Accidents Claims Tribunal District Judge, Thiruvannamalai. 2. The Section Officer, VR Section High Court, Madras 1 cc to Mr.K.S.Narasimhan, Advocate, Sr.No.74531 C.M.A.NO.2041 OF 2007 BKY {CO} TP/19.5.2011. https://hcservices.ecourts.gov.in/hcservices/