IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2475 of 2007 and M.P.Nos.1 of 2007 & 1 of 2009 1.Principal Adiyaman College of Engineering Dr.M.G.R.Nagar, Hosur 2.The Chairperson Agri Dr.M.G.R.Nagar, Hosur 3.Branch Manager National Insurance Co., Ltd., Hosur .. Appellants Vs 1.Sampangiramaiah 2.Nagamma 3.Bhakiyalakshmi .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 04.04.2006, made in M.C.O.P.No.1209 of 2004, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate-I, Dharmapuri at Krishnagiri. For appellants : Mr.S.Arun Kumar For respondents : Mr.M.Sriram J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the Award and Decree, dated 04.04.2006, made in M.C.O.P.No.1209 of 2004, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate-I, Dharmapuri at Krishnagiri, awarding a compensation of Rs.6,24,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellants/respondents namely, the Principal, Adiyaman College of Engineering, Hosur, the first respondent before the Lower Court; the Chairperson Agri, M.G.R.Nagar, Hosur, the second respondent before the Lower Court and the Branch Manager, National Insurance Company Ltd., Hosur, the third respondent before the Lower Court have filed the above appeal praying to set aside the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 24.09.2003, at about 8.30 a.m. Narayanasamy was proceeding in the TVS Victor motorcycle bearing registration No.TN29 L 2989, from Hosur to his College and after seeing that the main entrance was closed, he entered the temporary entrance gate on the western side of the main gate. One Ashok Kumar was travelling as a pillion rider on the said vehicle. When the said vehicle was coming near the front temporary entrance of the Adhiyaman College of Engineering, at M.G.R.Nagar, Hosur, the driver of the college bus bearing registration No.TN29 A8899 belonging to the first and second respondents drover the said bus in a rash and reckless and negligent manner, came in the left side of Hosur to Krishnagiri road and suddenly turned to the right side road ie.Krishnagiri to Hosur road and dashed against the TVS Victor Motorcycle forcibly. Due to the impact, both the pillion rider and the rider of the motorcycle sustained grievous injuries. Immediately after the accident, the said Narayanasamy and the pillion rider were taken to Government Hospital, Hosur, but were pronounced dead by the duty Doctor, who examined them on arrival. The post mortem of the deceased Narayanasamy was conducted in the said Government Hospital, at Hosur. 4.The Hosur Hudco Police have registered a case against the driver of the said college bus under sections 279 and 304(a) of I.P.C. in Crime No.358/2003. 5.The deceased was a hale and healthy and very active in his studies and also worked as an Assistant under LIC Development Officer. He was aged about 22 years at the time of accident and was studying in B.B.A.Course, III Year in the M.G.R.College at Hosur and was ranked 1st in the said course. He had undergone training in Computer Application and secured 78% of marks. In his part time employment under the LIC Development Officer, he was earning not less than Rs.2,500/- per month and was contributing the said earnings for the maintenance and welfare of the family. 6.The first petitioner is the father; the second petitioner is the mother and the both of them have lost their lovable son and supporter in their old age. The third petitioner is the unmarried sister of the deceased. She had lost the support of her only brother. If, the deceased been alive, he would have got a good job, after completing his course, earned more and supported the petitioners in a time manner. 7.As the accident was caused by the negligence of the driver of the said college bus, the first and second respondents, who were the owners of the said bus and the third respondent as its insurer are vicariously liable to pay compensation to the petitioners. The petitioners have claimed a compensation of Rs.15,00,000/- from the respondents together with interest at the rate of 12% per annum from the date of petition till the date of realisation of the award with costs under Section 166 of the Motor Vehicles Act. https://hcservices.ecourts.gov.in/hcservices/ 8.The first respondent, in his counter, which was also approved by the second respondent, has resisted the claim stating that while it was true that the deceased Narayanasamy was a third year student in the M.G.R.College at Hosur, the claim in the petition that he was working as a part time employee was not true. Though, the accident was admitted and it was also admitted that the said bus was insured with the third respondent, the dependency of the petitioners on the deceased Narayanasamy was not admitted. The first respondent has also denied the manner of the accident as alleged in the claim petition. It was submitted that the deceased Narayanasamy, while riding his motorcycle with Ashok Kumar as the pillion rider, drove the vehicle at high speed and in a rash and negligent manner, tried to overtake the bus and in process had dashed his vehicle against the bus. As such, it was submitted that the accident was caused because the deceased Narayanasamy did not adhere to the rules and regulations of traffic rules. Though, criminal case filed by the Hosur Hudco Police against the driver of the bus was admitted, it was submitted that the first respondent was not liable to pay compensation to the petitioner. It was also submitted that the claim was excessive and has to be dismissed. 9.The third respondent, in his counter has resisted the claim stating that the said bus involved in the accident had not been insured with them during the period of accident. The third respondent has also denied the manner of the accident as alleged in the claim. It was stated that the driver of the said bus drove the vehicle at moderate speed and in a careful manner; the accident was caused by the rash and negligent riding of the motorcycle by the (deceased) person; that the (deceased) rider of the motorcycle had dashed his vehicle on the front side of the bus and caused the accident. It was submitted that as the (deceased) rider of the motorcycle had caused the accident, the owner and insurer of the said motorcycle are necessary parties for the proper adjudication of the case. As the said parties were not included as necessary parties, the claim petition is not maintainable. The third respondent has also not admitted the age, educational qualification, occupation and income of the (deceased) Narayanasamy. It was also submitted that the claim was excessive and has to be dismissed. 10.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the driver of the bus belonging to the first and second respondents responsible for the accident? (ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are eligible to get? https://hcservices.ecourts.gov.in/hcservices/ 11.On the petitioners' side two witnesses were examined as PW1 and PW2 and five documents were marked as Ex.P1 to P5. On the respondents' side one witnesses were examined and no documents were marked. 12.It is evident that the accident took place on 24.09.2003, at 8.30 a.m. on the Hosur-Krishnagiri National Highway and near the entrance of the Adhiyaman Engineering College. The deceased Narayanasamy, the rider of the motorcycle bearing registration No.TN29 L2989 along with one Ashok Kumar as the pillion rider, was travelling in the said vehicle and it has been claimed that when they were approaching the place where the accident took place, the driver of the college bus bearing registration No.TN29 A8899 had driven the bus at a high speed and in a rash and negligent manner had dashed the bus against the motor cycle and that as a result of the accident the (deceased) Narayanasamy and Ashok Kumar were taken to Hosur Government Hospital. But had succumbed to their injuries even while they were being taken to the hospital. Hence, it has been claimed by the petitioners that the accident took place only due to the rash and negligent act of the bus driver. The respondents have not refuted that the accident took place, but the respondents have denied the version of the accident alleged in the claim. They have submitted that the driver of the respondent's bus had driven the bus slowly and carefully, adhering to the traffic rules and regulations and that it was the deceased Narayanasamy, who had driven his two wheeler at a high speed and in a rash and negligent manner; that he had tried to overtake the bus and this had resulted in the accident. 13.Ex.P1 is the copy of the FIR. The criminal complaint registered at the Police Station of the said accident was given by Selvaraj on the date of the accident itself. From a scrutiny of Ex.P1, it is seen that the said Selvaraj was the Principal of the M.G.R.Arts and Science College and that the deceased Narayanasamy and Ashok Kumar were students doing their third year B.B.A.Degree Course in the M.G.R.Arts and Science College. Further it has been stated that the deceased Narayanasamy and Ashok Kumar, while coming to the college from Hosur, at 8.30 a.m. on 24.09.2003 in their TVS Victor Motorcycle bearing registration No.TN29 L 2989, had dashed their vehicle against the front of the college bus bearing registration No.TN29 A8899, which had come on the right side of the road after being turned from the left side of the road, by its driver near the entrance of Adhiyaman Engineering College. It is seen that in the impact, the (deceased) Narayanasamy and Ashok Kumar had sustained severe injuries and the said Selvaraj had admitted them in the Hosur Government Hospital but in spite of treatment, the said Narayanasamy had died. 14.the eye witness of the accident, Suresh, was examined as PW1. The PW1 in his evidence has submitted that he was studying in M.G.R.College and that on 24.09.2003, at 8.30 a.m. he was standing near the temporary gate at the entrance to the college; that he had https://hcservices.ecourts.gov.in/hcservices/ seen the (deceased) Narayanasamy, who was studying in the same College coming in his TVS Victor Motorcycle and that the (deceased) Narayanasamy was trying to get his vehicle into the front entrance of the College, and was driving his motorcycle slowly and carefully and adhering to all traffic rules and regulations; that at that time the driver of the Adhiyaman College bus bearing registration No.TN29 A8899, who was driving the bus from Hosur to Krishnagiri, on the left side of the road, without controlling the speed of the bus, had suddenly and negligently turned the bus towards the right side of the road and had dashed the bus against the said motorcycle; that in the result the (deceased) Narayanasamy and the pillion rider Ashok Kumar had sustained severe injuries and had died even while they were being taken to the hospital. As such, the PW1 has deposed in his evidence that the accident had been caused only by the rash and negligent driving by the driver of the bus. Even on cross-examination, the PW2 has stuck to the version of the accident as he has portrayed in his evidence. 15.On the respondents' side, the driver of the bus, Karthikeyan, was examined as RW1. The RW1, in his evidence has deposed that at the time of accident, the bus was being driven from west towards east, in a careful manner and at moderate speed and that while he had put on the indicator in the bus, showing that the bus was being turned towards the right side, when he had approached the front entrance of the college, but the deceased (Narayanasamy) had ridden his motor cycle at a high speed and negligent manner and dashed his motorcycle against the front right side of the bus and so had sustained injuries. But, the RW1, during cross-examination has admitted that a criminal case has been filed against him by the Police citing his negligence as the cause for the accident. 16.The Tribunal, on careful scrutiny of the evidence given by the petitioners and the other documentary evidence in support thereof as well as the evidence given by the RW1, were of the view that the accident had been caused due to the high speed and rash and negligent manner of driving of the college bus by its driver, when it was being turned towards the right side of the road and that because of his negligence, he had dashed the bus against the deceased (Narayanasamy) and the pillion rider, Ashok Kumar, travelling in the said motorcycle. Further, as the accident had happened near the temporary entrance gate of the college and not near the main entrance gate, the Tribunal were disinclined to believe the evidence of RW1, as he had not even stated correctly the place where the accident had occurred. Further, the Tribunal also considered the fact that a criminal case has been filed only as against the driver of the bus ie.RW1. The Tribunal were of the opinion that the evidence of RW1 was not strong enough to prove on effective foil to that of the evidence given by the eyewitness of the accident, PW2. As such, the Tribunal, on consideration of the circumstances of the case and the oral and documentary evidence let in by the petitioners held that the accident had been caused only by the fault of the driver of the bus. https://hcservices.ecourts.gov.in/hcservices/ 17.It has been submitted by the petitioners that at the time of accident, the said college bus belonging to the first and second respondents had been insured with the third respondent/Insurance Company. Ex.P3 is the copy of the Insurance Policy. On a scrutiny of the Ex.P3, it is seen that the said college bus belonging to the first and second respondents had been covered by a policy of insurance with the third respondent and that the policy was effective from 17.11.2002 upto 16.11.2003. On the basis of the fact that the said college bus had been insured with the third respondent during the time of the accident, the Tribunal held that the third respondent is liable to pay to the compensation to the petitioners. It has been claimed by the petitioners that the deceased Narayanasamy was aged about 22 years at the time of accident. On a scrutiny of Ex.P2, Post-mortem Report, it is seen that the age of the deceased had been mentioned as 23 years and hence the Tribunal held that the age of the deceased was 23 years at the time of the accident. 18.It has been submitted by the petitioners that the deceased Narayanasamy was doing his third year of B.B.A.Degree Course and that he had also obtained Diploma in Computer Science. The respondents had not refuted this claim. Ex.P4 is the Transfer Certificate of the deceased. Ex.P5 is the Computer Science Diplomo Certificate of the deceased. On scrutiny of Ex.P4, it is seen that the deceased Narayanasamy had joined the B.B.A.Degree Course at M.G.R.Arts and Science College on 12.07.2001 and that due to his death on 23.09.2003, he was unable to continue his studies. As such, the Tribunal held that he was a third year student in the B.B.A.Course, during the time of accident. 19.It has been submitted by the petitioners that the deceased Narayanasamy was doing his third year of B.B.A.Degree Course and that he had also obtained a Diplomo in Computer Science. The respondents had not refuted this claim. Ex.P4 is the Transfer Certificate of the deceased. Ex.P5 is the Computer Science Diplomo Certificate of the deceased. On scrutiny of the Ex.P4, it is seen that the deceased Narayanasamy had joined the B.B.A.Degree Course at M.G.R.Arts and Science College on 12.07.2001 and that due to his death on 23.09.2003, he was unable to continue his studies. As such, the Tribunal held that he was a third year student in the B.B.A.Course during the time of accident. 20.Though the petitioners had claimed that as the (deceased) Narayanasamy had obtained a Diplomo in Computer Science, he was able to get a part time job, during his leisure hours, and he was earning Rs.2,500/- per month, they had not filed any documentary evidence to back this claim. The PW1, the first petitioner, in his evidence has stated that if his son had completed his B.B.A.Degree Course, he could have got employment and that he would have earned at least Rs.7,000/- per month. He had further stated that his (deceased) son would then have conducted the marriage of the third petitioner. https://hcservices.ecourts.gov.in/hcservices/ 21.It cannot be denied that due to the sudden death of their son in the accident, the security for the future life of the first and second petitioners have been affected and that it had caused them mental agony. The third petitioner has also been deprived of the love and affection of her brother due to his sudden demise. As such, the Tribunal, on considering that the deceased had obtained a Diplomo in Computer Course and that he would have got a good job if he had finished his B.B.A.Degree Course, held that the deceased could have earned a sum of Rs.4,500/- per month had he been alive. Deducting 1/3rd share from this, for his personal expenses, the (deceased) could have contributed a sum of Rs.3,000/- per month to the petitioners. Further, the Tribunal held that had the deceased been alive, he would have contributed this income to the petitioners for the next 17 years of his life. As such, the Tribunal adopting a multiplier of 17 and taking Rs.3,000/- as the contribution of income by the deceased to the petitioners every month, held that the loss of income sustained by the petitioners was Rs.3,000/- X 12 X 17 = Rs.6,12,000/-. Accordingly, the Tribunal awarded a sum of Rs.6,12,000/- as compensation to the petitioners under the head of loss of income. The Tribunal, further granted an award of Rs.2,000/- under the head of funeral expenses and a sum of Rs.10,000/- under the head of loss of love and affection and security. In total, the Tribunal awarded a compensation of Rs.6,24,000/- with interest at the rate of 9% per annum from the date of the petition till the date of payment with costs to the petitioners and directed the third respondent to deposit the above said award with accrued interest and costs into the M.C.O.P.No.1209 of 2004, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate-I, Dharmapuri at Krishnagiri, within a period of two months from the date of its Order. The Tribunal apportioned the award amount to be shared equally amongst the first, second and third petitioners and also permitted the first, second and third petitioners to withdraw 50% of their apportioned share of award with proportionate interest, immediately after the award was deposited by the third respondent. The balance of 50% of the apportioned share of the award of the first, second and third petitioners were to be deposited in a nationalised bank as fixed deposit, for a period of three years and the first, second and third petitioners were permitted to receive interest on such deposit once in three months. The Advocate fees was fixed at Rs.13,240/-. 22.The learned counsel appearing for the appellants has contented in his appeal that the Tribunal has erred in assuming a sum of Rs.4,500/- per month as the income of the deceased per month in spite of the fact that the deceased was a student and a non-earning member. Further, it was submitted that the Tribunal had erred in applying 17 years multiplier without following the Judgements reported in 1996 ACJ 831; 2002 LW 581; 2004(1) LW 15 and 2006(3) SCC 242 and not considering the age of the parents and had also failed to note that the first, second and third respondents are not dependants on the deceased. It was also contended that the Tribunal had erred in assuming a sum of Rs.3,000/- as contribution without taking into https://hcservices.ecourts.gov.in/hcservices/ consideration the individual earning capacity of the first, second and third respondents. As such, the learned counsel appearing for the appellant has contended that the reasons assigned by the Tribunal in support of the award are untenable and hence the award passed by the Tribunal has to be set aside. The learned counsel appearing for the appellant has cited a case law made in (2009) 6 Supreme Court Cases 121, Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, the relevant head notes of which are as under: "A. Motor Vehicles Act, 1988 – Ss. 166 and 168 – Fatal in accident – Objective approach in assessing compensation – "Just compensation" – What is, and basic requirements for arriving at – Requirement of maintaining uniformity and consistency in determining compensation among decisions of Tribunals/courts – Directions given to Tribunals/courts in respect of procedure/steps to be followed to arrive at said uniformity and consistency. - Held, assessment of compensation, though involves certain hypothetical consideration, should nevertheless be objective – Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions – Hence, expressing grave concern over lack of uniformity and consistency among the decisions of Tribunals, held, when the factors/inputs as well as the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation – To arrive at uniformity and consistency in determination of compensation in cases of death, Tribunals directed to follow the well-settled steps as indicated herein – Tort Law – Obligations Law – Compensation/Damages – Jurisprudence – Conceptual jurisprudence – "Justice" and Justness" – Origination of – Fatal Accidents Act, 1855, S. 1-A B. Motor Vehicles Act, 1988 – Ss. 166 and 168 – Fatal accident – Assessment of compensation – Facts required to be established by claimants in relation thereto – Issues to be determined by Tribunal to arrive at loss of dependency – Restated – Evidence Act, 1872 – Ss. 101 to 103 – Fatal Accidents Act, 1855, S. 1-A C. Motor Vehicles Act, 1988 – Ss. 166 and 168 – Fatal accident Heads (and amounts under such heads) under which compensation may be granted – Other than the detailed calculation required to calculate the loss of dependancy, held, certain lump sums may be awarded under heads of (i) loss of estate, (ii) loss of consortium, and (iii)funeral expenses, cost of transportation of the body (if incurred) https://hcservices.ecourts.gov.in/hcservices/ and cost of any medical treatment of the deceased before death (if incurred) – However, further held, no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased – Fatal Accidents Act, 1855 – S. 1-A – Tort Law." 23.The learned counsel appearing for the respondent argued that the Tribunal had awarded a sum of Rs.2,000/- for funeral expenses and a sum of Rs.10,000/- for the loss of love and affection to the third claimants, and that this is on the lower side. The learned counsel further argued that 50% of the income of the deceased cannot be deducted from the income of the deceased because the deceased was a part time employee and also a student and moreover he was particularly supportive to his family members. As such, 50% of income of the deceased could not be deducted for personal expenses of the deceased as was pointed out in the case law cited by the appellants counsel. At any event, the award of Rs.6,24,000/- granted by the Tribunal is on the lower side, considering that the deceased was a brilliant student doing his graduate course. 24.Considering the facts and circumstances