IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 MACA.No. 299 of 2004(C) ----------------------- OP.1894/1995 of M.A.C.T., PALAKKAD .................... APPELLANT(S): APPELLANT/2ND RESPONDENT: --------------------------------------- THE MANAGING PARTNER, TAMIL NADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISION NO.I) LTD., 37, METUPALAYAM ROAD, COIMBATORE. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE RESPONDENT(S): PETITIONERS/1ST RESPONDENTS: ------------------------------------------- 1. CHINNACHAMY, S/O. KALAYYAN, NEDUMPARA, SARAMBY, VANNAMADA P.O., CHITTUR TALUK. 2. KUMAR (MINOR), AGED 10 YEARS, REP. BY HIS FATHER CHINNACHAMY OF -DO- -DO-. 3. NATARAJAN (DRIVER), 8TH WARD, AYYASETTI STREET, MALAYANDIPATTANAM, POLLACHI, COIMBATORE. ADV. SRI.A.R.GANGADAS FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.299 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the second respondent in O.P.(MV)No.1894/1995 on the file of Motor Accidents Claims Tribunal, Palakkad challenges the judgment and award of the Tribunal dated July 31, 2003 awarding a compensation of Rs. 1,74,500/- to the claimants on account of the death of one Mayilal in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Mayilal was aged 30 at the time of accident and used to earn Rs. 3,000/- per month as a coolie worker, according to the claimants. Claimants are the husband and minor son of the deceased. On July 3, 1995 at about 8.30 a.m., deceased was about to board the bus bearing Reg.No.TN-37/N 0267 from the bus stop near Gopalapuram Sales tax check post. First respondent who was driving the bus at that time suddenly took the bus forward without obtaining MACA.No.299/2004 2 any signal from the conductor. Deceased fell down and rear wheel of the bus ran over her head. She succumbed to the injuries sustained on the spot. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants, who are the legal heirs and dependents of the deceased. Claimants claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2 filed a joint written statement admitting the accident, but contending that there was no negligence on the part of the second respondent. They contended that the deceased jumped down from the moving bus and sustained injuries. 4. Pws 1 and 2 were examined and Exts.A1 to A5 were marked on the side of the claimants before the Tribunal. On the side of the respondents, RW1 was examined and Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence on the part of the second respondent and awarded a compensation of Rs. 1,74,500/-. First respondent, the owner of the bus, the Managing Director of Tamil Nadu State Transport MACA.No.299/2004 3 Corporation Ltd., Coimbatore, has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/second respondent and the counsel for the claimant. 6. The accident is not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent can be sustained ? 2. Whether the compensation awarded by the Tribunal is excessive ? Point No.1 7. Case of the claimants is that while deceased Mayilal was about to board the bus, first respondent took the bus forward and she fell down and the rear wheel of the bus ran over her head causing her death. On the other hand, the case of the respondents was that deceased jumped out of the moving bus and that therefore there was no negligence on the part of the first respondent. In an attempt to prove the case of the respondents, RW1, the conductor of the bus was MACA.No.299/2004 4 examined before the Tribunal. But he testified that he has not witnessed the incident. First respondent, the driver has not chosen to come forward and swear regarding the incident. On the other hand, police case is charged against the first respondent on the allegation that while the deceased was about to board the bus, first respondent took the bus forward and caused the incident, which is evidenced by Ext.A1, copy of the FIR and Ext.A5, copy of the charge sheet in the criminal case. 8. Counsel for the appellant argued that first respondent was acquitted in the criminal case as revealed from Ext.B1, the judgment of the Judicial First Class Magistrate, Chittur in the criminal case and that it has to presumed that there was no negligence on the part of the first respondent. We are unable to agree. The respondents have failed to prove that the accident occurred when the deceased jumped out of the moving bus as alleged by them. On the other hand, Exts.A1 and A5 clearly show that the accident occurred as alleged by the claimants. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence of the first respondent. MACA.No.299/2004 5 Point No.2 9. The next question is whether the compensation awarded by the Tribunal is excessive. The Tribunal awarded a total compensation of Rs. 1,74,500/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 1,60,000/- Funeral expenses - Rs. 2,000/- Loss of estate - Rs. 2,500/- Pain and suffering - Rs. 5,000/- Loss of consortium - Rs. 5,000/- 10. Deceased was a coolie aged 30 and the claimants are her husband and minor son. The Tribunal took the monthly income of the deceased as Rs.1,250/- and after deducting 1/3 for her personal expenses, took Rs. 833/- as her monthly contribution to her family and adopted a multiplier of 16 and awarded a compensation of Rs.1,60,000/- for the loss of dependency, which appears to be reasonable. Taking into consideration the entire facts and circumstances of case, we feel that the compensation awarded by the Tribunal is just and MACA.No.299/2004 6 reasonable and not excessive. That being so, we find no merit in this appeal and the same is hereby dismissed. Parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.299/2004 7