IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2010 CORAM THE HONOURABLE MR.JUSTICE. C.S.KARNAN C.M.A.No.1942 of 2006 and M.P.No.1 of 2006 and Cross.Objn.No.11 of 2010 The Managing Director Tamil Nadu State Transport Corporation Ltd., Coimbatore Division II, Erode .. Appellant in C.M.A.No.1942 of 2004 and 1st respondent in Cross.Objn.No.11 of 2010 (2nd Respondent) Vs 1.S.Alamelu 2.Minor.S.Monisha 3.L.Janardhanam 4.J.Alamelu (Minors rep.by their mother and next friend R1), .. 1st to 4th Respondents in C.M.A.No.1942 of 2006 and Cross objectors Cross.Objn.No.11 of 2010 (Petitioners) 5.G.Palanisamy .. 5th respondent in C.M.A.No.1942 of 2004 and (Given up) 2nd respondent in Cross.Objn.No.11 of 2010 (1st Respondent) PRAYER (in C.M.A.No.1942 of 2006): Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode. PRAYER (in Cross.Objection No.11 of 2010): Cross Objection filed under Order 41 rule 22 of the Code of Civil Procedure, against the Award and Decree, dated 30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode. For appellant : Mr.S.V.Vasantha Kumar in C.M.A.No.1942 of 2006 for Mr.A.Balu and R1 in Cross.Objn.No.11 of 2010 For respondents 1 to 4 : Mr.A.K.Kumarasamy for R1 to R4 in C.M.A.No.1942 of 2006 R5 in CMA.1942/06 and and Cross Objectors in R2 in Cross.Objection given up https://hcservices.ecourts.gov.in/hcservices/ Cross.Objn.No.11 of 2010 C O M M O N 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 Decree, dated 30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode, awarding a compensation of Rs.12,37,992/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of the compensation. 2.Both appeal and cross objection arising out of the same Judgment, they are taken up together and disposed of by a common Judgment. 3.The short facts of the case are as follows: On 21.07.2004, at about 04.30 p.m. the deceased Sukumar was riding his motorcycle bearing registration No.TN33 Q4357, while one Gowrishankar was also travelling in the motorcycle as a pillion rider along the left side of NH47 road. When they are nearing KMS Petrol bunk near Chithode, the second respondent's Corporation bearing registration No.TN33 N1271 driven by its driver, the first respondent, in a rash and negligent manner and suddenly dashed against the motorcycle. Due to which the deceased was thrown out and the rear right side wheel of the bus ran over him, thereby he died at the spot itself and the pillion rider Gowrishankar escaped with minor injuries. Regarding the said accident, the Chithode Police Station registered a criminal case against the first respondent in Crime No.316/2004, under Sections 279, 337 and 304(A) I.P.C. At the time of the accident, the deceased was aged about 35 years and was working as a Lecturer at Sri Vasivi College and was getting a salary of Rs.8,772/- per month and also he was working as a Lecturer in Distance Education classes of Bharathiar University, Annamalai University and Tamilnadu Open University and earning a sum of Rs.1,000/- per month. He was also working as part time tutor at Vivekananda Institute and was earning a sum of Rs.7,000/- per annum. He was also earning another sum of Rs.4,000/- per month by taking tutions. As such, his total monthly income was more than Rs.14,352/-. The first petitioner is the wife of the deceased, second petitioner is the minor daughter of the deceased, third petitioner is the father of the deceased and the fourth petitioner is the mother of the deceased. The accident had happened only due to the rash and negligent driving of the driver of the second respondent Corporation bus. As such, the petitioners claimed a compensation of Rs.40,00,000/- before the Tribunal. 4.The second respondent, in their Counter, had resisted the claim petition that the petition is false and not maintainable. This respondent does not admit the accident, as stated in the petition. The first respondent was driving the bus bearing registration No.TN33 N1271 at a moderate speed with care and caution. The deceased who drove the motorcycle bearing registration No.TN33 Q4357 along with https://hcservices.ecourts.gov.in/hcservices/ his friend in a rash and negligent manner dashed against the Corporation bus and sustained injuries. There is no fault on the part of the driver of the second respondent. The age, avocation and income of the deceased are not admitted and it is for the petitioners to prove the same. The petition is bad for non-joinder of necessary parties viz.,the insurer of the motorcycle. The claim of Rs.40,00,000/- is highly excessive and without any basis. As such, this respondent prayed for the dismissal of the petition. 5.The learned Motor Accident Claims Tribunal had framed three issues for the consideration namely: (i) Whether the accident happened due to the rash and negligent driving of the bus TN33 N1271 by the first respondent? (ii) Whether the petitioners are entitled to any compensation? If so to what amount? (iii)To what relief? 6.On the petitioners' side, the first claimant was examined as PW1, one Gowri Shankar, eye witness of the said accident, was examined as PW2, one Somasundaram, who is the employer, was examined as PW3 and fifteen documents were marked as Exs.A1 to A15 namely Ex.A1-Certified xerox copy of FIR in Crime No.316/2004 of Chithode Police Station, Ex.A2-Certified xerox copy of Rough Sketch, Ex.A3- Certified xerox copy of Observation Mahazar, Ex.A4-Certified xerox copy of M.V.I.report in respect of vehicle No.TN33 Q4357, Ex.A5- Certified xerox copy of M.V.I.Report in respect of Vehicle registration No.TN33 N1271, Ex.A6-Certified xerox copy of the Post- mortem Certificate, Ex.A7-Certified xerox copy of Charge Sheet, Ex.A8-Attested xerox copy of Legal Heirship Certificate issued by the Tahsildar, Erode, Ex.A10-Attested xerox copy of faculty of commerce issued by the Bharathiyar University to the deceased, Exs.A11- Attested xerox copy of Ph.D.Registration Communication sent by the Bharathiyar University Coimbatore to the deceased, Ex.A12- Authorisation Letter issued by the Principal Sri Vasavi College, Erode to P.W.3, Ex.A13-Salary Certificate issued by the Principal Sri Vasavi College Erode regarding the salary drawn by the deceased, Ex.A14-Xerox copy of the Salary Register maintained by the Sri Vasavi College, Erode for the deceased and Ex.A15-Certificate issued by the Principal, Sri Vasavi College, Erode. On the respondents' side the first respondent was examined as RW1 and no documents were marked. 7.The case of the petitioners is that on 21.07.2004 at about 04.30 p.m. when the deceased was riding his motorcycle bearing registration No.TN33 Q4357 on NH47 main road near Chithode, the second respondent's Corporation bus bearing registration No.TN33 N1271 was driven by its driver in a rash and negligent manner and dashed against the deceased from behind whereupon the deceased was thrown out and the rear wheel of the bus run over the deceased and due to which the deceased died at the spot itself. To prove the https://hcservices.ecourts.gov.in/hcservices/ same, the petitioners have examined one Gowrishankar as PW2. He was the pillion rider of the motorcycle at the time of the accident. He adduced evidence stating that on 21.07.2004 when the motorcycle bearing registration No.TN33 Q4357 was driven by the deceased he was travelling in the motorcycle as a pillion rider. When the bike was going near K.M.S.Petrol bunk at Chithode at about 04.30 p.m. the bus bearing registration No.TN33 N1271 was coming from behind in a rash and negligent manner and dashed against the motorcycle from behind and because of which PW2 fell on the left side of the road, while the deceased fell on the right side of the road and the rear wheel of the bus run over him and he died at the spot itself. 8.The first petitioner, who examined herself as PW1 also produced Ex.A1-FIR, Ex.A2-rough sketch, Ex.A3-observation mahazar, Exs.A4 and A5-Motor Vehicle Inspector's Report pertaining to the motor cycle and the bus respectively Ex.A6-post mortem certificate and Ex.A7-charge sheet. The perusal of Ex.A1 reveals that with regard to the accident that took place at about 04.30 p.m. on 21.07.2004 a case in Crime No.316/2004 was registered at about 05.15 p.m. on the same day for the offence under Sections 279, 337 and 304 (A) I.P.C. as against the driver of the bus bearing registration No.TN33 N1271. The perusal of Ex.A2 reveals that the accident happened on the right side of the road ie.on the left side. At the place of impact the that portion of the road is about 20 feet and the accident happened roughly about 5 or 6 feet from the eastern side margin of the thar portion. Further, she had adduced evidence stating that her husband's age was 35 years, in order to prove the same she had marked his driving licence. The deceased was a Lecturer at Sri Vasavi College, Erode and his earning was Rs.8,772/- per month, support of this statement she had marked Ex.A13-Salary Certificate. She further stated that her husband also taught in the distance education classes for which he was earning an additional sum of Rs.1,000/-. 9.The first respondent was examined as RW1. He had adduced evidence stating that at about 04.15 p.m. on 21.07.2004 he took the trip from Bhavani and came near Chitode at about 04.30 p.m. when he started the bus from the bus stop near police colony the motor cycle which was coming from behind suddenly over took the bus and at that time since another vehicle was coming from the opposite direction, being unable to control the speed of the motorcycle dashed against the rear right side body of the bus and fell on its wheel. Since at that time there was rain, the motor cyclist attempted to over took the bus and he was not able to control the bike and as such it is the driver of the motor cycle who invited the accident. As such he is no way responsible for the accident. 10.After considering the evidence of PW1, PW2, PW3 and RW1 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the second respondent's corporation bus, ie.the first respondent, therefore the second https://hcservices.ecourts.gov.in/hcservices/ respondent/State Transport Corporation Ltd., is liable to pay compensation and awarded the compensation as follows: i. Rs.11,92,992/- under the head of loss of income, after adopting multiplier method (Rs.70,176/- X 17), ii.Rs.25,000/- under the head of loss of consortium to the first claimant, iii. Rs.10,000/- under the head of loss of love and affection to the second claimant, iv.Rs.10,000/- under the head of funeral expenses In total, the Tribunal awarded a sum of Rs.12,37,992/- as compensation to the petitioner, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. The Tribunal apportioned a sum of Rs.5,26,496/- to the first claimant, Rs.5,11,496/- to the second petitioner, Rs.50,000/- to the third petitioner and Rs.1,50,000/- to the fourth petitioner. Further, the Tribunal directed the second respondent to deposit the compensation amount of Rs.12,37,992/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of two months from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in Punjab National Bank, Main Branch, Erode, for a period of three years. Further, the Tribunal directed that the minor's share amount to be continued in the bank deposit till she attains adulthood. Accordingly ordered. 11.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 12.The learned counsel appearing for the appellant/Tamil Nadu State Transport Corporation Ltd., argued that the Tribunal had awarded the compensation of Rs.11,92,992/- under the head of loss of income is on the higher side, since the Tribunal had erroneously fixed the income and the age of the deceased. The Tribunal also awarded a sum of Rs.25,000/- under the head of loss of consortium to the first claimant is also on higher side. Further, the learned counsel vehemently argued that in the said accident two vehicles were involved, as such compound negligence covered in the instant case, but the Tribunal had fastened the liability entirely upon the driver of the bus, which is not proper in its decision. Hence, the learned counsel prays before this Court to scale down the compensation amount awarded by the Tribunal. 13.The learned counsel for the respondents 1 to 4/ claimants argued that the Tribunal had categorically omitted the income of the deceased a sum ofRs.1,000/-, which he was earning through distance education besides his regular salary. This also is considered a https://hcservices.ecourts.gov.in/hcservices/ standard regular income and admissible according to law. To prove the same, the first claimant marked Ex.A15-Certificate issued by the College Principal/employer. The Tribunal had not properly considered that the first claimant is a young widow and the second claimant is a younger daughter aged about five years. They lost their companionship of the deceased and now feel deserted. This was not taken into proper consideration for awarding compensation under the head of loss of consortium and loss of love and affection. Hence, the learned counsel prays before this Court for additional compensation. 14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the deceased's income and age fixed by the Tribunal on the basis of the salary certificate and driving licence of the deceased, awarded the compensation to the four claimants, a sum of Rs.12,37,992/- together with interest at the rate of 7.5% from the date of filing the claim petition till the date of payment of compensation on various heads, which is fair and equitable. This Court is unwilling to interfere with the findings of the Tribunal on two issues namely liability and quantum. Therefore, this Court concurs with the findings and award by the Tribunal. 15.On 05.07.2006, this Court directed the appellant/second respondent to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode. Now, this Court hereby directs the appellant/second respondent to deposit the balance compensation amount with accrued interest thereon, as per the Tribunal order, into the credit of the M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode, within a period of six weeks from the date of receipt of a copy of this order. 16.After such deposit being made, it is open to the claimants/respondents 1 to 4 to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode, by making proper payment out application, subject to the deduction of withdrawals, if any and subject to the minor attaining adulthood, in accordance with law. 17.In the result, the Civil Miscellaneous Appeal and the Cross Objection No.11 of 2010 are dismissed and the Award and Decree, dated 30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the Motor Accident Claims Tribunal, Principal District Court, Erode is confirmed. Consequently, connected civil miscellaneous petition is closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1.The Motor Accident Claims Tribunal, Principal District Court, Erode. 2. The Section Officer, VR Section, High Court, Madras. +1 C.C.to Mr.A.Babu, Advocate SR.No.76004. +1 C.C.to Mr.A.K.KUMARASAMY, Advocate SR.No.75793. Pre-delivery Order in C.M.A.No.1942 of 2006 and Cross.Objn.No.11 of 2010 NG(CO) DVR (15/12/2010) https://hcservices.ecourts.gov.in/hcservices/