IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2938 of 2009 and M.P.No.1 of 2009 The Managing Director State Express Transport Corporation (Tamil Nadu) Ltd., Chennai-600 002 .. Appellant/ Respondent Vs 1.V.Vasu 2.Kala .. Respondents/ Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 04.09.2003, made in M.C.O.P.No.217 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruppattur. For appellant : Mr.P.Jagadeeswaran For respondents : No appearance 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 04.09.2003, made in M.C.O.P.No.217 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruppattur, awarding a compensation of Rs.1,96,960/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/respondent 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: The accident took place on 26.02.2001, at 4.30 p.m. on the Vaniyambadi to Natrampalli National Highwaysroad, near https://hcservices.ecourts.gov.in/hcservices/ Kethandapatti Ceylon Colony, Kallar Bridge, within the jurisdiction of Natrampalli Police Station Limits. 4.One Santhiya, the daughter of the petitioners herein, was proceeding on the extreme left side of the road, after attending school, the respondent's bus bearing registration No.TN01 N6138, proceeding from Chennai to Hosur and driven by its driver at a high speed and in a rash and negligent manner dashed against the said Santhiya. As a result of the impact, the said Santhiya sustained injuries on her head. She was taken to Government Hospital, Vaniyambadi for treatment, but she died on the way to hospital. The accident took place only due to the fault of the driver of the bus. 5.The deceased was hale and healthy at the time of accident. The deceased was studying in second standard in Panchayath Union School, Elarapatti and she was a bright student. The petitioners have lost their only daughter in the said accident. The petitioners have claimed a compensation of Rs.3,00,000/- as compensation from the respondent, being the owner of the said bus involved in the accident, under Section 166 of the Motor Vehicles Act. 6.Regarding the said accident, a criminal case has been registered at the Natrampalli Police Station in Crime No.183 of 2001 as against the driver of the bus under Sections 279 and 304 (A) of I.P.C. 7.The respondent, in his counter, has resisted the claim denying the averments in the claim regarding the manner of accident. It has been stated that the (deceased) Santhiya suddenly came in the way of the bus and that in order to save her, the driver of the bus had swerved the bus to the right hand side of the road, but the bus dashed against the wall on the right hand side of the bridge and the (deceased) Santhiya dashed herself against the left side body of the bus. As such, it has been submitted that the respondent is not liable to pay any compensation to the petitioners. It was also submitted that the petitioners have to prove the averments in their claim that the (deceased) Santhiya had died only due to the injuries caused in the accident, the nature of injuries sustained by her and the medical expenses and transport expenses incurred, through documentary evidence. The respondent has stated that the claim is excessive and has to be dismissed with costs. 8.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Was the accident caused by the negligence of the driver of the respondent's bus? Or was it caused due to any https://hcservices.ecourts.gov.in/hcservices/ contributory negligence on the part of the deceased daughter of the petitioners? (ii) Is the respondent liable to pay compensation? If so, what is the quantum of compensation, which the respondent should pay to the petitioners? 9.In the claim petition, it has been stated that the deceased Santhiya was aged about 7 years and was studying in the second standard, at the time of accident; that on 26.02.2001, at about 4.30 p.m. in the evening, when the deceased Santhiya was proceeding on the Vaniambadi-natrampalli road and when she was nearing Kallar bridge, at Ceylon colony of Kethandapatti, the respondent's bus bearing registration No.TN01 N6138, driven at a high speed and in a rash and negligent manner by its driver, dashed against the (deceased) Santhiya, who was walking on the extreme left of the road; that she died while she was being taken to the hospital for treatment; that she was a bright student and the only daughter of the petitioners and also hale and healthy; that she would have lived long and supported the petitioners in their old age. 10.The respondent, in their counter, has not denied the occurrence of the accident. On the contrary it has been stated that the (deceased) Santhiya had suddenly come across the path of the bus and the driver, in order to save her and the other children around her, had swerved the bus to the right; that in spite of this, the right side of the bus had rammed against the right side wall of the bridge and the (deceased) Santhiya and the other children dashed against the left side of the bus and sustained grievous injuries. A point for consideration at this point is that neither the driver of the bus nor its conductor had been examined on the part of the respondent's side to prove the above contention. The headmistress of the Evarapatti Panchayat Union Middle School has given educational certificate to the (deceased) Santhiya, wherein, it has been mentioned that the (deceased) Santhiya was well behaved and profficent in her studies and sports. Further, the petitioners had marked a transport receipts for a sum of Rs.1,250/- being the hire charges for car used for transport the (deceased) Santhiya to Government Hospital, Vaniambadi and subsequently after her death, to Chinnur Village. The Tribunal on considering that the (deceased) Santhiya died at a very tender age and holding that the petitioners would have undergone mental agony and further holding that the (deceased) Santhiya could have lived for another 50 years, and that she had a good prospects of earning a sizeable income, fixed the notional income of the (deceased) Santhiya as Rs.15,000/- per annum to assess the compensation payable to the https://hcservices.ecourts.gov.in/hcservices/ petitioners. The Tribunal, for coming to the above conclusion had relied on case laws cited in 11(1999) ACC 491 (BB), Karnataka High Court and 1(1999) ACC 172, Madhya Pradesh High Court, wherein it has been laid down that the notional income of a non- earning member could be taken as Rs.15,000/- per year. 11.As such, the Tribunal on holding the income of the (deceased) Santhiya as Rs.15,000/- per year deducted 1/3rd share from it for her personal expenses and assessed the yearly contribution of the (deceased) Santhiya as Rs.10,000/-. Adopting a multiplier of 15 as was relevant to the age of the deceased Santhiya, the Tribunal assessed the total loss of income sustained by the petitioners as Rs.1,50,000/- and awarded this amount as compensation to the petitioners under the head of loss of income. The Tribunal further granted an award of Rs.1,200/- for transport expenses and Rs.10,000/- for funeral expenses. The Tribunal further awarded a sum of Rs.85,000/- to the petitioners under the head of mental agony. In total, the Tribunal assessed a compensation payable to the petitioners as Rs.2,46,200/-. However, the Tribunal on considering that the life expectancy of the (deceased) Santhiya could not be forecast correctly deducted a sum of 10% from the above compensation assessed. The Tribunal, on considering that the petitioners are getting a lumpsum compensation deducted 10% from the compensation assessed by them. In effect, the Tribunal deducted 20% from the assessed compensation of Rs.2,46,200/- and awarded a compensation of Rs.1,96,960/- to the petitioners. The Tribunal further apportioned a sum of Rs.88,623/- from and out of the award amount, to the first petitioner and a sum of Rs.1,08,328/- to the second petitioner. 12.The Tribunal holding that the accident had been caused by the driver of the respondent's bus, held the respondent liable to pay the compensation to the petitioners. The Tribunal directed the respondent to deposit the above said award together with interest at the rate of 12% 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.217 of 2001, on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruppattur, within a period of two months from the date of its Order. Further, after such deposit was made into the Court, the first petitioner was permitted to withdraw a sum of Rs.20,000/- from his apportioned share of award and the second petitioner was permitted to withdraw a sum of Rs.30,000/- from her apportioned share of the award. The remaining apportioned share of award of the petitioners was to be deposited in a nationalised bank, as fixed deposit for a period of three years. 13.In case the petitioners were in need of money to meet necessary medical expenses, they were allowed to withdraw their https://hcservices.ecourts.gov.in/hcservices/ balance of apportioned share of the award amount deposited in the bank, after proving their necessity and satisfying the Court and getting due permission from the Court. The Advocate fees was fixed at Rs.1,500/-. The petitioners were directed to pay the Court fee due on the award amount, within a period of 30 days from the date of its Order. The respondent was directed to pay the cost of Rs.2,843/- to the petitioners. 14.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 was also pointed out that the Tribunal erred in granting a sum of Rs.10,000/- towards funeral expenses and Rs.85,000/- towards pain and suffering of the petitioners. It was also contended that the Tribunal should have taken the notional income of the deceased as Rs.10,000/- per year only instead of Rs.15,000/- per year, considering that she was a school going girl. As such, it has been contended that the Tribunal ought not to have awarded a sum of Rs.2,46,200/- when there was no evidence let in to prove the income of the deceased. It has also been contended that the Tribunal has erred in adopting a multiplier of 15 to assess the compensation payable to the petitioners. 15.Considering the facts and circumstances of the case and after scrutiny of the findings of the Tribunal and after hearing arguments advanced by the learned counsel appearing for the appellant, this court is of the view that the award and decree in M.C.O.P.No.217 of 2001, passed by the Motor Accident Claims Tribunal, Sub Court, Tiruppattur, is fair and equitable. However, the Tribunal award of Rs.85,000/- under the head of pain and suffering and mental agony to the claimants is not pertinent in the instant case. The said amount of Rs.85,000/- granted by the Tribunal, under the said head is modified as an award granted under the head of loss of income. However, the quantum of compensation granted by the Tribunal is reasonable. As such, this Court confirms the award passed by the Motor Accident Claims Tribunal, Sub Court, Tiruppattur, in M.C.O.P.No.217 of 2001. 16.This Court hereby directs the appellant/Tamil Nadu State Transport Corporation Ltd., to deposit the balance compensation amount with accrued interest and costs, as per the Tribunal Order made in M.C.O.P.No.217 of 2001, within a period of four weeks from the date of receipt of this Order, subject to deduction of the earlier deposits made by the appellant. 17.It is open to the claimant to withdraw their apportioned share amount, with accrued interest thereon, lying in the credit of the M.C.O.P.No.217 of 2001, on the file of the Motor Accident https://hcservices.ecourts.gov.in/hcservices/ Claims Tribunal, Sub Court, Tiruppattur, after filing necessary payment out application, in accordance with law. 18.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 04.09.2003, in M.C.O.P.No.217 of 2001, passed by the Motor Accident Claims Tribunal, Sub Court, Tiruppattur, is modified. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.The Motor Accident Claims Tribunal, Sub Court, Tiruppattur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.P. Jagadeeswaran, Advocate, SR. 19659 C.M.A.No.2938 of 2009 RJ (CO) kk 26/4 https://hcservices.ecourts.gov.in/hcservices/