IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.11.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2743 of 2009 and M.P.No.1 of 2009 The Managing Director Tamilnadu State Transport Corporation Ltd Villupuram Division-III Kanchipuram Formerly known as M.G.R.Transport Ltd., Kanchipuram .. Appellant/Respondent Vs 1.Sumathi 2.Priya(Minor) 3.Palayathan 4.Murugammal (2nd respondent is minor rep.by her mother Sumathi guardian and next friend and Cause title accepted vide Order of this Court dated 11.04.2008, made in M.P.1 of 2008 in C.M.A.SR.No.100725/2007) 5.S.Padmanabhan .. Respondents/Petitioners (R-5 Given up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award and Decreetal Order, dated 02.03.2007, made in M.C.O.P.No.188 of 2002, on the file of the Motor Accident Tribunal, Additional Claims District Judge, Fast Tract Court No.II, Chennai. For appellant : Mr.V.Ramesh For respondents : Mr.N.M.Elumalai 1 to 4 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 Decreetal Order, dated 02.03.2007, made in M.C.O.P.No.188 of 2002, on the file of the Motor Accident Tribunal, Additional District Judge, Fast Tract Court No.II, Chennai, awarding a compensation of Rs.4,00,000/- to the respondents/petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Order, the respondent/Tamil Nadu State Transport Corporation Ltd., Villupuram Division-III, has filed the above appeal. 3.The short facts of case are as follows: On 20.10.2001, at about 20.30 hours, while the deceased was travelling from Tiruthani to Arunkulam in a Bajaj M-80 Motorbike bearing registration No.TN 20 C3744 and nearing Narayanamangalam Kandigai, the second respondent's vehicle/Transport Corporation Bus bearing registration No.TN 21 N0341, coming from Chennai to Tirutani and driven in a rash and negligent manner by its driver, dashed against the motorcycle. In the result, the deceased sustained head injuries and multiple grievous injuries and died. The accident occurred only due to the rash and negligent driving of the driver of the second respondent vehicle. The second respondent, being the owner of the vehicle and the first respondent, the driver of the vehicle are jointly and severally liable to pay the compensation to the petitioners with interest and costs. The Sub-Inspector of Police, Arakkonam Taluk Police Station registered a criminal complaint of the said accident in Crime No.636/2001. 4.As such, the petitioners, who are the legal heirs of the deceased had claimed a compensation of Rs.5,00,000/- with interest and costs. 5.The second respondent/The Tamilnadu State Transport Corporation in his counter has resisted the claim stating that on 20.10.2001, their bus Route No.97N, bearing registration No.TN21 N3041 was on its trip from Chennai to Tiruttani. The driver started its trip from Chennai at 19.30 hours. At about 22.15 hours, while the bus was proceeding along Madras to Tiruttani High Road, near Narayanamangalam Kandigai, a Bajaj M-80 Motorcycle bearing registration No.TN 20 C3744, was coming from the opposite direction and driven by its rider in a rash and negligent manner on the wrong side of the road. On seeing this, the driver of the bus applied brake and stopped the bus on the extreme left of the road. Even then, the deceased had dashed against the front left side of the bus, fell down and sustained fatal injuries. Due to this, the front left head lamp and left side bumper of the bus were damaged. As such, the accident had occurred only due to the rash and negligent riding of the motorcyle. Further, the police complaint had been given by the Local Panchayat Union President, who had not witnessed the accident. Based on this complaint, a Police case has been registered against the respondent's driver and so this respondent had sent an Objection Letter to the Inspector of Police, Arakkonam Taluk Police Station, for dropping the criminal case filed against the bus-driver. Further, it is evident from MVI report and photos that the accident occurred only due to the negligent riding of the two wheeler. This respondent further submits that the age, occupation and income of the deceased are not admitted. Further, the amount claimed in the claim https://hcservices.ecourts.gov.in/hcservices/ petition is highly excessive. Further, the petitioners have to prove by documentary evidence that they are legal heirs of the deceased. As such, the respondent has prayed for dismissal of claim petition. 6.On taking into consideration, the facts set forth in the petition and the counter filed by the second respondent, the point that arise for determination are as follows: (i)Whether the accident occurred due to the rash and negligent driving of the first respondent? (ii)Whether the accident had taken place due to the rash and negligent act of the deceased? (iii)What is the quantum of the compensation which the petitioners are entitled to? 7.The first petitioner, Sumathi, wife of the deceased was examined as PW1 and Karimullah, an eye witness of the accident was examined as PW3. During the course of their examination, Ex.P1 to P7 were filed on the side of the petitioners. S.Padmanabhan, the driver of the bus was examined as RW1 on the side of the respondents. No documentary evidence were let in by the side of the second respondent. 8.The PW3 has stated in his evidence that on 20.10.2001, at 9.30 p.m. he was travelling in the Tamil Nadu State Transport Corporation Bus, route No.97, bearing registration No.TN 21 N0341, from Thiruvallur to Thiruthani; that when the bus was coming at the junction of Arunkulam Road and Thiruthani Road, a Bajaj M-80 was coming in the opposite direction; that the bus dashed against the Bajaj M-80; that the bus was stopped, he and passengers alighted from the bus and saw the injured persons; that he came to know that the injured was Velayudham; that message was sent through the Cotton Mill watchman to the relations of the injured; that the Panchayat Board President also came to the place of occurrence; that Velayutham was taken to the Government Hospital, Tiruthani, but was declared dead. Further, the PW3 has stated that the driver of the Tamil Nadu State Transport Corporation Bus is responsible for the accident. 9.The PW1, in her evidence had stated that the deceased Velayutham is her husband; that she is the first petitioner; that the second petitioner is her daughter; that the third petitioner is her father-in-law and the fourth petitioner is her monther-in-law; that on 20.10.2001, at 10 p.m., her husband had met with the said accident and admitted in the Government Hospital, Thiruttani and that he had died. The PW1 has marked Ex.P1, the certified copy of the FIR; Ex.P2, Post-mortem Certificate of the deceased; Ex.P3, Motor Vehicle Inspector's report; Ex.P4, the Charge Sheet filed against the first respondent; Ex.P5, Pay Slip of her husband and Ex.P6, Legalheir Certificate and Ex.P7 Post-mortem Certificate and has further stated that the time of the accident, her husband was working as weaver in the Cotton Mill and that he was earning Rs.4,215/- per month and that https://hcservices.ecourts.gov.in/hcservices/ she has claimed a sum of Rs.5,00,000/- as compensation. 10.The cross-examination of the learned counsel for the second respondent has not shattered the credibility and veracity of evidence of PW3. Nothing has been elicited in the cross-examination of PW3 that he is speaking falsehood. The evidence of PW3 is clear, cogent and natural. His evidence does not suffer from any infirmity and there is no reason to discard his evidence. As such, the Tribunal accepted his evidence in the case. 11.RW1 has stated in his evidence that he is working as a driver of the Tamil Nadu State Transport Corporation at Thiruthani Depot, that on 20.10.2001, he was working as driver in the bus route No.97, bearing registration No.TN 21 N0341; that the bus was on its trip from Chennai to Thiruthani; that when the bus was proceeding towards Thirutani near Narayanamangalam Kandigai, a Bajaj M80 Motorcycle was coming from the opposite direction in a zig zag manner; that immediately he stopped the bus; that the Bajaj M80 rider dashed against the leftside of the bus, that the criminal case was filed against him and that he was acquitted. The certified copy of the FIR is filed as Ex.P1. It has been mentioned in Ex.P1 that on 20.10.2001 at 11.30 p.m. the deceased Velayudham was riding his Bajaj M80, bearing registration No.TN 20 C 3744 at the junction of Narayanamangalam Kandigai and Thiruthani Road, that at that time a Tamilnadu State Transport Corporation Bus bearing registration No.TN 21 N0341 dashed against the said Bajaj M80; that as a result of which Velayudham sustained severe head injury and died at the spot itself, that the deadbody was brought to the Government Hospital, Thiruthani through an Auto; that at the time of the accident, the deceased Velayutham was working in the Cotton Mill. It is seen from Ex.P1 that the accident had taken place on 20.10.2001 at 12 p.m. The documentary evidence of Ex.P1 and oral evidence of PW3 are against the version of RW1. Hence, the documentary evidence of Ex.P1 and the oral evidence of PW3 override the oral evidence of RW1. Therefore, the oral evidence of RW1 is not acceptable in this case. The certified copies of Motor Vehicle Inspector's Report and the Charge Sheet are filed against the first respondent and have been marked as Ex.P3 and Ex.P4. They show that the first respondent was responsible for the accident. Therefore, on taking into consideration the evidence of PW3 and Ex.P1, Ex.P3 and Ex.P4, the Tribunal held that the accident was caused by the rash and negligent driving of the first respondent. Further, the second respondent, as owner of the bus was held vicariously liable to pay compensation for the wrongful act of the first respondent. 12.The PW1 has stated in her evidence that her husband died due to the accident on 20.10.2001 at 10.30 P.M. that at the time of the accident, her husband was a Weaver in the Cotton Mill; that thereby he was earning Rs.4,215/- per month and that she has claimed Rs.5,00,000/- as compensation. The Salary Certificate of the deceased Velayutham is filed as Ex.P5. They show that the deceased was drawing Rs.3,688/- per month. Out of the said amount, he would https://hcservices.ecourts.gov.in/hcservices/ have spent 1/3rd share for his personal expenses ie. Rs.1,229/-. The balance of Rs.2,459/- would have been contributed by him to his family. Thus, the Tribunal decided that the annual income contributed to his family would be Rs.29,508/-. The certified copy of the Post-Mortem Certificate of the deceased Velayutham is filed as Ex.P2. It reveals that the deceased Velayutham was aged about 27 years at the time of accident. So, the Tribunal, on considering the deceased age as 27 years adopted a multiplier of 18 as per second schedule of Section 163(A) of Motor Vehicles Act. As such, the loss of income to the petitioners were fixed as Rs.5,31,144 (Rs.29,508 X 18). As the petitioners had restricted their claim to Rs.4,00,000/-, the Tribunal held that the petitioners are entitled to receive Rs.4,00,000/- as compensation. Further, from Ex.P6, the Legalheir Certificate of the deceased, it was established that all the petitioners were legalheirs of the deceased and as such concluded that the petitioners are entitled to receive the above award. 13.The Tribunal, therefore, directed the second respondent to pay the above award to the petitioners with interest at the rate of 7.5% per annum from the date of petition to till the date of the realisation, within a period of two months of its Order. Further, all the petitioners were entitled to get a sum of Rs.1,00,000/- each as compensation with costs and interest proportionately. After the amount is deposited, the second petitioner's (Minor) share shall be invested in a Nationalised Bank till the Minor petitioner attained major. The 1st, 3rd and 4th petitioners' share shall be invested in a Nationalised Bank for a period of not less than three years. After the amount is invested, the 1st, 3rd and 4th petitioners are entitled to receive the accrued interest thereon once in three months directly from the Bank. The second petitioner's guardian is entitled to receive the accrued interest on behalf of the second petitioner, once in three months directly from the Bank. The Advocate fees was fixed at Rs.11,000/-. 14.The learned counsel appearing for the appellant has argued in his appeal that no Police Officer was examined to prove negligence on the part of the driver of the appellant Corporation. The Tribunal failed to consider the evidence of RW1, the driver of the appellant Corporation bus and should have dismissed the entire claim petition on the basis of the available evidence on record. The Tribunal also erred in relying upon evidence of PW3, the alleged interested eye witness in respect of manner of accident. 15.The Tribunal has also erred in awarding a sum of Rs.4,00,000/- as total compensation and fixed 7.5% interest and this is on the higher side. As such, the learned counsel for the appellant has prayed for setting aside the order of the Tribunal. 16.The learned counsel appearing for the respondent argued that the Motor Accident Claims Tribunal has come to a conclusion regarding the income of the deceased after scrutiny of the Salary Certificate and then had fixed the annual income of the deceased as Rs.29,508/-. https://hcservices.ecourts.gov.in/hcservices/ After deducting the 1/3rd share from the total amount, they had concluded that the deceased could have contributed the above income. Further, the Tribunal has arrived at the conclusion that the age of the deceased was 27 years after examination of Post-Mortem Certificate. Then the Tribunal has adopted a multiplier of 18, on the basis of the age of the deceased, and award a sum of Rs.5,31,144/-. However, the petitioners have restricted their claim to Rs.4,00,000/-. Hence, the Tribunal awarded a sum of Rs.4,00,000/- to the respondents/claimants with 7.5% interest. The said amount has been equally apportioned to each of the claimants. 17.This Court after going through the grounds of the appeal and arguments of the learned counsel appearing eithersides, is of the opinion that the award as calculated by the Tribunal as Rs.5,31,144/- is correct, based on the available evidence and materials on recort and the same is confirmed. Further, the Tribunal has not considered, granting of compensation under the heads of loss of consortium, funeral expenses and loss of love and affection. Normally in fatal cases, it is very necessary to consider the claims for loss of consortium, loss of love and affection and funeral expenses. In the Tribunal's award, the compensation under these heads were conspicuously absent. This amounts to Lacunae in the said Judgement. Hence, this Court by granting award under the above heads, has filled the vaccum in the award granted. Hence, this Court wants to set right the defect and accordingly the Court grants compensation as follows: (i) Loss of Income - Rs.5,31,144/- (ii)The first petitioner, the widow of the deceased is awarded a sum of Rs.25,000/- towards contribution, the 2nd petitioner, the minor daughter of the deceased is awarded a sum of Rs.25,000/- for loss of love and affection and third and fourth petitioners, the father and mother of the deceased are awarded a sum of Rs.5,000/- each. (iii)For funeral expenses, this Court grants a sum of Rs.5,000/- In total, the respondents/claimants are entitled to receive a sum of Rs.5,96,144/- as compensation. Already, the Tribunal had awarded a sum of Rs.4,00,000/- as compensation to the claimants and apportioned Rs.1,00,000/- to each of them. 18.The additional award amount of Rs.1,96,144/- granted by this Court is apportioned as follows: (i).The first claimant is awarded a sum of Rs.35,000/-, (ii).The second claimant is awarded a sum of Rs.1,26,144/-, https://hcservices.ecourts.gov.in/hcservices/ (iii).The third claimant is awarded a sum of Rs.15,000/- and (iv).The fourth claimant is awarded a sum of Rs.20,000/- 19.As such, the first claimant is awarded a sum of Rs.1,35,000/-; the second claimant is awarded a sum of Rs.2,26,144/-; the third claimant is awarded a sum of Rs.1,15,000/- and the fourth claimant is awarded a sum of Rs.1,20,000/-. 20.The said enhanced compensation award of Rs.5,96,144/- granted by this Court (from Rs.4,00,000/- as granted by the Tribunal) will carry 7.5% interest from the date of filing the application till the date of payment, which is equitable, fair and prudent too, and payable by the appellant/Tamil Nadu State Transport Corporation Ltd., 21.This Court directs the appellant/Corporation to pay the above said compensation amount together with interest within a period of six weeks from the date of receipt of a copy of this Order, into the credit of M.C.O.P.No.188 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Tract Court No.II, Chennai. If the appellant/Tamil Nadu State Transport Corporation had already deposited any amount into the credit of M.C.O.P.No.188 of 2002, they should deposit the balance amount as pertinent to this award. The respondents/claimants are directed to pay the excess Court fee for the enhanced amount of Rs.1,96,144/- granted by this Court. 22.It is open to the first respondent/first claimant, third respondent/third claimant, fourth respondent/fourth claimant to receive the balance amount, after such deposit has been made, by filing necessary payment out application in accordance with law. The second respondent/second claimant's (Minor) share amount should be deposited as a fixed deposit in a Nationalised Bank, till she becomes major. Till such time, the first claimant ie.natural mother of the second claimant is permitted to withdraw the accrued interest on the deposit, once in three months. 23.In the result, the award granted by the Tribunal has been enhanced in the above terms and consequently the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Accident Claims Tribunal, Additional District Judge, Fast Tract Court No.II, Chennai, is modified. Consequently, connected miscellaneous petition is also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1.The Motor Accident Tribunal, Additional District Judge, Fast Tract Court No.II, Chennai. 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.N.M.Elumalai, Advocate, SR.64443 C.M.A.No.2743 of 2009 BVN(CO) sra 30.12.2009 https://hcservices.ecourts.gov.in/hcservices/