IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM: THE HON’BLE MR. JUSTICE C.S.KARNAN C.M.A.No.692 of 2006 The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem-7 ... Appellant / Respondent -vs- 1.Manimekalai 2.Banumathi 3.Palaniyammal ...Respondents/Petitioners Prayer: Appeal filed by under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.09.2005, made in M.C.O.P.No.28 of 2002, on the file of the Motor Accident Claims Tribunal, (Sub Court, Attur.) For Appellants : Mr.P.Jagadeeswaran For Respondents : Mr.V.Kumaravelan for RR1 to 3 .... J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent, against the Award and Decree, dated 21.09.2005, made in M.C.O.P.No.28 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Attur, awarding a compensation amount of Rs.2,96,000/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree passed by the Motor Accident Claims Tribunal, Sub Cour), Attur, the appellant/The Managing Director, Tamil Nadu State Transport Corporation Ltd., Salem-7 has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 28.10.2001, at about 10.30 p.m. when the deceased Murugesan was riding his motorcycle on the Salem to Attur main road, on the extreme left side of the road and when the said vehicle was proceeding near Kothambadi pirivu road, a bus bearing registration No.TN27 N1348, coming from the same direction and which was driven by its driver in a rash and negligent manner without following any https://hcservices.ecourts.gov.in/hcservices/ traffic rules and regulations, hit against the motor cycle and caused the accident. 4.Due to the said accident, the deceased Murugesan sustained grievous injuries on the vital parts of his body. Immediately after the said accident, the deceased was taken to the Government Hospital, Attur and admitted as an inpatient, but in spite of best treatment, the deceased Murugesan died in the hospital on 29.10.2001. 5.The accident had happened only due to the rash and negligent driving by the driver of the bus bearing registration No.TN27 N1348. If the bus driver had taken a lit more care, the accident could have been averted easily. 6.In connection with the said accident, the Attur Town Police Station has registered a case against the driver of the in Crime No.1739 of 2001 under Sections 279 and 304(A) of I.P.C. the said case is pending before the Judicial Magistrate No.I, Attur. 7.The deceased was working as a Manager in M/s.Shanmuga Electricals, Nam Giripe, Rasipuram Taluk, Namakkal District and was earning a sum of Rs.4,500/- per month. Due to the demise of the said Murugesan, the petitioners have been put into great hardship. The first petitioner is the wife of the deceased, the second petitioner is the sister of the deceased and the third petitioner is the mother of the deceased. As such, the petitioners have claimed a compensation of Rs.5,00,000/- from the respondent under Section 166 of the Motor Vehicles Act. 8.The respondent, in his counter, has resisted the claim denying the averments in the claim regarding the age, income and occupation of the deceased. It was also submitted that the petitioners should prove that they are the legal heirs of the deceased through documentary evidence. The respondent has also denied the averments in the claim regarding the manner of accident. It has been submitted that the bus was driven slowly and was proceeding on its way to Chennai and that when the bus was nearing Kothampadi bus stop at about 10.30 p.m. on 28.10.2001, the deceased drove the motorcycle in a rash and negligent manner, without following traffic rules and suddenly crossed the road, lost his balance and dashed against the bus and thus met with the accident. As such, it was submitted that the driver of the bus had not been rash and negligent in the driving of the bus. It was also contended that the non-joinder of the owner and insurer of the motorcycle, who are necessary parties in the claim renders the claim not maintainable. It was also submitted that the claim was excessive and has to be dismissed with costs. 9.The Motor Accident Claims Tribunal had framed two issues for consideration namely; (i)Whose carelessness and negligence had caused the accident? https://hcservices.ecourts.gov.in/hcservices/ (ii)Whether the petitioners entitled to get compensation? If so, what is the quantum of compensation they are entitled to get? 10.On the petitioners' side two witnesses were examined as PW1 and PW2 and six documents were marked as Exs.P1 to P6. On the respondent's side one witness was examined as RW1 and no documents were marked. 11.The Tribunal heard the arguments advanced by the learned counsel on either side. On the petitioners' side, the mother of the deceased Murugesan was examined as PW1. PW1, in her evidence adduced that her husband had died 15 years ago and that the deceased Murugesan was her only son and that she had been dependent on the income of her son for her survival. 12.The eye witness of the accident, one Senthil Kumar, was examined as PW2. PW2, in his evidence deposed that on 20.10.2001, while he was standing outside his Lathe Workshop at 10.30 p.m. after completing his work and was in the process of going home, he had seen the deceased Murugesan proceeding in his motorcycle, along with one Rajagopalan as a pillion rider, on the Salem to Attur road; that the respondent's bus coming behind the said motorcycle on the Salem to Attur road, had been driven by its driver at a high speed and in a rash and negligent manner and dashed against the motorcycle; that as a result of this collision, the pillion rider Rajagopalan had died on the spot and that the said Murugesan sustained grievous injuries in his knee, head, arm, leg and all over his body; that he had admitted him at Attur Government Hospital, wherein treatment was given but in spite of this, the deceased had died. He had further deposed that he had given the complaint to the Attur Police regarding the said accident. 13.On the respondent's side, the conductor of the bus was examined as RW1. RW1 in his evidence deposed that he had been the conductor in the respondent's bus bearing registration No.TN27 N1348 on the date of accident; that when the bus was proceeding from Salem towards Chennai and when the bus had proceeded past Kothambadi, the deceased Murugesan, who had driven the motorcycle, along with a pillion rider had suddenly cut across the road from right towards left without adhering to traffic rules and caused the accident. As such, RW1 has deposed that the accident had occurred only due to the negligence of the conductor and that the driver of the bus was not at fault. He had further deposed that at the time of accident he had been seated in the conductor's seat in the front of the bus. 14.PW1, during cross-examination had refuted the allegation that his son did not have a valid driving licence at the time of accident and that the accident had been caused only because his son had turned the motorcycle, from right towards left, without adhering to traffic rules. He had further deposed that even in the FIR registered at the Police Station, it has been stated that the accident had been caused https://hcservices.ecourts.gov.in/hcservices/ only due to the negligence of the driver of the bus; that the Police after investigation and after examining witness had filed a Charge Sheet against the driver of the bus; that a criminal case had been filed in the Judicial Magistrate Court, Attur, wherein, after trial, the driver of the bus had been found guilty and imprisoned for six months. As such the Tribunal, after considering arguments of counsels on both sides, were of the opinion that the accident had been caused by the fault of the driver of the bus. The Tribunal were of the opinion that the driver of the bus had driven the bus at a high speed and in a negligent manner and dashed the bus against the motorcycle, which had been proceeding on the left side of the road, which had been proceeding in front of the bus. The Tribunal, on considering that the FIR marked as Ex.P1 had been registered as against the driver of the bus and also considering the report of the Motor Vehicles Inspector marked as Ex.P3, wherein it was stated that the accident had not taken place due to any mechanical defects in the bus and further considering that the Charge Sheet marked as Ex.P4 had been filed against the driver of the bus, held that the accident had been caused only by the high speed, rash and negligent manner of driving by the driver of the respondent's bus. 15.PW1, in her evidence, had deposed that due to the death of her only son, in the accident, she had incurred a loss of income as she had been dependant on the income of her son for survival. She had further deposed that her husband had also died and that the first petitioner was the wife of her deceased son and the second petitioner was her daughter and that they were all dependants of her deceased son. The Tribunal, on considering that the age of the first petitioner was only 19 and that she had become a widow at such a young age and also considering that the third petitioner was the mother of the deceased held that the first and third petitioners were entitled to get compensation. 16.The Tribunal, on considering that the age of the deceased Murugesan had been stated as 21 in the petition, evidence of PW1 and also in the post-mortem report marked as Ex.P2 held that the age of the deceased at the time of accident was 21 years. The Tribunal on considering the legal heir certificate marked as Ex.P6 and on scrutiny of Ex.P5, the death certificate of the deceased Murugesan held that the petitioners are the legal heirs of the deceased Murugesan and are entitled to get compensation for his death in the said accident. 17.It has been stated in the petition, as well as in the evidence of PW1 that the deceased Murugesan was employed as a Manager in Shanmuga Electricals at Namagiripettai and earning an income of Rs.4,500/- per month. But, no documentary proof had been produced on the petitioners' side to establish this contention. It had also been stated that the deceased was also getting an allowance of Rs.25/- per day, but no documentary proof had been produced to back this contention. As such, the Tribunal held that the notional income of the deceased Murugesan could be taken as only Rs.2,000/- per month https://hcservices.ecourts.gov.in/hcservices/ and his yearly income was computed as Rs.24,000/-. Adopting a multiplier of 17, as was relevant to the deceased's age of 21 as per Schedule 163(A) of the Motor Vehicles Act, the Tribunal assessed the total income, which would have been earned by the deceased as Rs.24,000/- X 17 = Rs.4,08,000/-. Deducting 1/3rd from this for his personal expenses, the Tribunal assessed the loss of income incurred by the petitioners as Rs.2,72,000/- and accordingly awarded this amount, as compensation to the petitioners under the head of loss of income. The Tribunal further awarded a sum of Rs.2,000/- for transport expenses, Rs.10,000/- for loss of love and affection and Rs.10,000/- for loss of consortium to the first petitioner and Rs.2,000/- under the head of funeral expenses. In total, the Tribunal awarded a sum of Rs.2,96,000/- to the petitioners and directed the respondent to deposit the above said award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.28 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Attur, within a period of two months from the dat of its order, together with costs. The Tribunal apportioned Rs.2,25,000/- from and out of the award amount to the first petitioner, Rs.21,000/- to the second petitioner and Rs.50,000/- to the third petitioner. The apportioned share of award together with proportionate interest, was to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioners were permitted to withdraw interest on their apportioned share of deposit, once in three months from the bank. The petitioners were directed to pay Court fee of Rs.2,332.50 on the award amount within 15 days from the date of its Order. The respondent was directed to pay the cost of Rs.13,458/- to the petitioners. The Advocate fees was fixed as Rs.8,920/- and the Junior Advocate Fees was fixed at Rs.2,000/-. 18.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in holding that the driver of the appellant's bus was rash and negligent and was responsible for the accident. It has been contended that the Tribunal erred in granting Rs.2,72,000/- by presuming the age and income of the deceased by applying a multiplier of 17 which is excessive. It was also contended that the award granted under the various other heads were excessive and arbitrary. The learned counsel for the appellant has, therefore, prayed to set aside the award and decree passed by the Tribunal. 19.The learned counsel appearing for the respondents argued that the award and decree passed by the Tribunal is fair and reasonable, as the first claimant is the young widow of the deceased, the second claimant is the sister of the deceased and the third claimant is the mother of the deceased and as all the three claimants were dependants on the income of the deceased. It was also argued that the award of Rs.10,000/- towards loss of love and affection and an award of Rs.10,000/- for loss of consortium to the first petitioner was on the lower side, as the first claimant is a young widow of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 20.After considering the facts and circumstances of the case, scrutiny of findings by the Tribunal, this Court is of the view that the award amount of Rs.2,96,000/- together with interest at the rate of 7.5% per annum granted by the Tribunal is not excessive. Under this circumstances, this Court confirms the said Award and Decree, dated 21.09.2005, in M.C.O.P.No.28 of 2002, passed by the Motor Accident Claims Tribunal, Sub Court, Attur. 21.On 28.02.2006, this Hon'ble Court imposed a condition on the appellant to deposit the entire compensation amount together with accrued interest and costs, into the credit of the M.C.O.P.No.28 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Attur. 22.As the accident had happened in the year 2001, it is open to the claimants to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.28 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Attur, after filing necessary payment out application in accordance with law. 23.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 21.09.2005, in M.C.O.P.No.28 of 2002, passed by the Motor Accident Claims Tribunal, Sub Court, Attur, is confirmed. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ub/krk To 1.The Motor Accident Claims Tribunal, Sub Court, Attur, 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.P.Jagadeeswaran, Advocate, SR.20175 C.M.A.No.692 of 2006 JSV(CO) sra 7/06/2010 https://hcservices.ecourts.gov.in/hcservices/