IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No. 1791 of 2008 .......... The Managing Director, Tamil Nadu State Transport Corporation Ltd., Mettupalayam Road, Coimbatore. .. Appellant/ 2nd Respondent Vs. 1. Devanai 2. Nagaraj 3. Subbulakshmi 4. S. Balasubramanian .. Respondents/Petitioners 1 to 3/ first respondent Appeal filed under Section 173 of the M.V. Act against the award and decree dated 18.4.2005 made in MCOP No. 29 of 2004 on the file of the Motor Accident Claims Tribunal (Sub Court) Udumalaipettai. For Appellant : Mrs. B. Vijayalakshmi For Respondents : Mr. P. Muthukrishnan for Mr. M. Balakrishnan – R1 to R3 R4 – given up. JUDGMENT The Transport Corporation has filed this appeal challenging the award dated 18.4.2005 made in MCOP No. 29 of 2004 on the file of the Motor Accident Claims Tribunal (Sub Court) Udumalaipettai. 2. At the time of admission on 1.7.2008, notice was ordered to the respondents and they appeared through counsel and on request of both sides, the appeal itself is taken up for final disposal. 3. It is a case of fatal accident. The accident in this case happened on 1.12.2003. The deceased Vellingiri, 65 years old, an agriculturist and also engaged in milk vending was crossing the road when he was hit by the Transport Corporation bus driven in a rash and https://hcservices.ecourts.gov.in/hcservices/ negligent manner. In that accident, the said Vellingiri sustained injuries on his head, leg and all over the body and died. The wife aged 50 years, son aged 27 years and daughter aged 34 years have filed the claim petition claiming a sum of Rs.10,00,000/- as compensation. 4. In support of the claim petition, the wife of the deceased was examined as P.W.1. One Jeyaraj, the eye witness was examined as P.W.2. One Aruchamy was examined as P.W.3. Documents Exs. A1 to A11 were marked. Ex.A1 is the F.I.R. Ex.A2 is the charge sheet. Ex.A3 is the rough sketch. Ex.A4 is the M.V.I. Report. Ex.A5 is the post mortem certificate. Ex.A6 is the Milk Co-operative Society pass book. Ex.A7 is the legalheirship certificate. Ex.A8 is the certificate issued by the president of the milk society. Ex.A9 is the copy of the membership book. Ex.A10 is the patta. Ex.A11 is the Adangal in the name of the deceased. One Balasubramanian, driver of the appellant transport corporation bus was examined as R.W.1. No document was filed on behalf of the appellant/ 2nd respondent before the Tribunal. 5. Based on the oral evidence of P.W.2, who was the eye witness to the accident, F.I.R., charge sheet and sketch, the Tribunal came to the conclusion that the driver of the transport corporation bus was rash and negligent and was responsible for the accident. The Tribunal disbelieved the evidence of R.W.1 as self serving. In the absence of any other material to support the plea of the appellant transport corporation with regard to the negligence on the part of the deceased, the finding of the Tribunal stands confirmed. 6. The only serious contention raised by the learned counsel for the appellant is on the quantum of compensation. The said issue was decided by the Tribunal from paragraph 6 onwards in answer to point No.2. In support of the income of the deceased, the claimants let in oral evidence of P.W.3, who is the president of the co-operative Milk Producers society. P.W.3 stated that the deceased was supplying milk valued at Rs.4,000/- p.m. He however stated that the annual income of the deceased was Rs.40,000/-. The claimants also supported the plea of income by agriculture under Exs.A10 and A11, showing the extent of the land under cultivation. Based on the oral and documentary evidence, the Tribunal fixed the total income of the deceased at Rs.7,500/-p.m. of which Rs.2,400/- was deducted towards his personal expenses and the contribution to the family was taken as Rs.4,800/- p.m. i.e. Rs.57,600/- P.A. Taking note of the age of the deceased, who was 65 years old, the Tribunal adopted multiplier of 5 in terms of the second schedule to the Act and fixed the total pecuniary loss in a sum of Rs.2,88,000/-. In all, the Tribunal granted the following amount as compensation with interest at the rate of 9% p.a. https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs. 2,88,000/- 2 Loss of love and affection Rs. 60,000/- 3 Loss of consortium to the wife Rs. 10,000/- 4 Funeral expenses Rs. 2,000/- Total Rs.3,60,000/- 7. The learned counsel for the appellant contended that the income fixed by the Tribunal is on the higher side and the amount of Rs.60,000/- granted towards loss of love and affection to the two children is excessive. 8. According to the learned counsel for the respondents/ claimants, the deceased was engaged in intensive agriculture in Udumalaipettai known for rich agricultural produce and industrial agriculturist. They also relied on Exs. A10 and A11, to show the extent of land put to use and the nature of cultivation undertaken in the said land. This has been stated by the Tribunal. Unfortunately, the Tribunal failed to discuss the relevant factors and give reasons arriving at the income of the deceased. P.W.3, the so called president of the Co-operative Milk Producers Society stated that the supply of milk was Rs.4,000/- p.m. i.e. Rs.48,000/- p.a. and further stated that the income of the deceased out of milk supply is Rs.40,000/- p.a. This calculation is a fallacy and cannot be accepted. It is apparently wrong. At best, the income from the milk supply can be taken as Rs.2,000/- p.m. i.e. Rs.24,000/- p.a. As far as the income from agriculture is concerned, the deceased is not the sole tiller of the soil and he was supported by his son and his wife. The land still remains after the death of the deceased and therefore, the agricultural income contributed by the deceased an intensive agriculturist can at the best be taken as Rs.4,000/- p.m. Therefore, the total income of the deceased can be taken as Rs.6,000/- p.m. both by way of milk vending and agricultural production and not Rs.7,500/- as decided by the Tribunal. This view will be fortified by the decisions of the Apex Court in State of Haryana and another – vs. - Jasbir Kaur and others reported in 2004-1 Law Weekly where the income of the farmer was taken as Rs.3000/- long ago. The total annual income will be Rs.72,000/- (Rs.6,000/- x 12 = Rs.72,000/-) . After deducting 1/3rd towards personal expenses, the annual contribution to the family will be Rs.48,000/-. The multiplier, as per second schedule to the Act in a case of death of 65 years and above, is 5 and that has been rightly taken by the Tribunal. Therefore, adopting 5 multiplier, the loss of pecuniary benefits to the dependents will be Rs.2,40,000/- (Rs.48,000/- x 5 = Rs.2,40,000/-). The son and daughter are entitled to Rs.15,000/- each towards loss of love and affection. Having lost the support of the https://hcservices.ecourts.gov.in/hcservices/ better half at the age of 50 years, the wife will be entitled to a sum of Rs.20,000/- towards loss of consortium. Further, the claimants are entitled to a sum of Rs.3,000/- towards funeral expenses, Rs.2,000/- towards transport charges and Rs.3,500/- towards loss of estate. Accordingly, the award of the Tribunal stands modified as follows:- Sl.No . Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs. 2,88,000/- Rs.2,40,000/- 2 Loss of love and affection to the children Rs. 60,000/- Rs. 30,000/- 3 Loss of consortium to the wife Rs. 10,000/- Rs. 20,000/- 4 Funeral expenses Rs. 2,000/- Rs. 3,000/- 5 Transport expenses --- Rs. 2,000/- 6 Loss of estate --- Rs. 3,500/- Total Rs.3,60,000/- Rs.2,98,500/- 9. The accident in this case happened in the year 2003 and the award was passed in the year 2005. Therefore, the interest awarded by the Tribunal at 9% stands modified to 7.5% in view of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 10. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs.2,98,500/- from Rs.3,60,000/-. (ii) The interest of 9% stands reduced to 7.5%. (iii) Learned counsel for the appellant stated that as per the interim order of this Court dated 1.7.2008, a sum of Rs.3,00,000/- has been deposited. The claimants are entitled to withdraw the amount as per the order of this Court. (iv) The appellant is entitled to withdraw the excess amount in deposit after settling the claimants. If the amount falls short, eight weeks time is granted to the appellant to deposit the balance amount. (v) There shall be no orders as to costs. https://hcservices.ecourts.gov.in/hcservices/ (vi) Consequently, M.P.No. 1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To The Motor Accident Claims Tribunal, (Sub Court) Udumalaipettai. 1 cc To Mrs.B.Vijayalakshmi, Advocate, SR.69581 1 cc To Mr.M.N.Balakrishnan, Advocate, SR.69523 CMA No. 1791 of 2008 RSM(CO) SRA(06/02/2009) https://hcservices.ecourts.gov.in/hcservices/