IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1807 of 2007 and M.P.No.1 of 2007 The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem Division-II Dharmapuri .. Appellant/ Respondent Vs 1.Lakshmi 2.Minor.S.Anand 3.Minor.S.Ravichandran 4.Chinnapillai 5.Chendrayan .. Respondents/ Petitioners (R2 and R3 rep.by their next friend mother R1) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 28.02.2006, made in M.C.O.P.No.642 of 2005, on the file of the Motor Accident Claims Tribunal and Principal District Judge at Dharmapuri. For appellant : Mrs.B.Vijayalakshmi For respondents : Mr.P.Mani 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 28.02.2006, made in M.C.O.P.No.642 of 2005, on the file of the Motor Accident Claims Tribunal and Principal District Judge at Dharmapuri, awarding a compensation of Rs.5,28,000/- together 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, the appellant/respondent, The Managing Director, Tamil Nadu State https://hcservices.ecourts.gov.in/hcservices/ Transport Corporation Ltd., has filed the above appeal praying to set aside the said award and decree. 3.The short facts of the case are as follows: On 26.03.2005, at about 6.40 p.m. when the (deceased) Shanmugam was proceeding in the motorcycle bearing registration No.TN29 P8395, towards his Village, from Krishnagiri to Kaveripattinam on the NH7 Road, keeping to the left side of the road and when he was nearing Pazhathottam, the respondent's bus bearing registration No.TN29 N1248, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, dashed against the motorcycle. As a result of the said accident, the (deceased) Shanmugam fell down and sustained injuries over his head, chest and other parts of the body. The (deceased) Shanmugam was taken to Government Hospital, Kaveripattinam and was admitted as inpatient. Subsequently, the (deceased) Shanmugam was admitted at the Government Mohan Kumaramangalam Medical College Hospital, Salem, for better treatment. But, the (deceased) Shanmugam died within an hour of admission on the same night. 4.Prior to the accident, the deceased Shanmugam was doing business in flowers and was earning an income of Rs.3,500/- per month. He was also earning an additional income of Rs.1,500/- per month by doing agricultural work. As such, the (deceased) Shanmugam was earning an income of Rs.5,000/- per month. As the accident had been caused by the negligence of the driver of the respondent's bus, the respondent is liable to pay compensation to the petitioners as they are the legal heirs and dependants of the deceased Shanmugam. Hence, the petitioners have claimed a compensation of Rs.9,00,000/- with interest and costs from the respondent under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, a criminal case has been filed at Kaveripattinam Police Station in Crime No.257/2005, under Sections 279 and 304(A) I.P.C. 6.The respondent, in his Counter, has resisted the claim denying the averments made in the claim as regards the age, income and occupation of the (deceased) Shanmugam. It was also submitted that the fourth and fifth petitioners in the claim are not the legal heirs of the (deceased) Shanmugam. The respondent has also denied the averments in the claim that the accident has been caused by the negligence of the respondent's bus driver. It was also pointed out that as the insurer of the motorcycle, ridden by the deceased, bearing registration No.TN29 P8395 has not been added as a necessary party in the claim, the petition is bad for non-joinder of necessary party. It was also submitted that the (deceased) Shanmugam did not have a valid driving licence at the time of accident and that the accident was caused only because of the reason that the (deceased) Shanmugam had driven his motorcycle at a high speed and in a rash and https://hcservices.ecourts.gov.in/hcservices/ negligent manner and that because of this he was not able to control his motorcycle and that the motorcycle had skidded, which had resulted in the accident. It was submitted by the respondent that on 26.03.2005, at about 6.40 p.m. the respondent's bus driver had driven the bus carefully, on the Krishnagiri-Dharmapuri road and that the said bus was going behind a lorry proceeding in the same direction 15 meters ahead of it. At that time, the motorcyclist of the TVS50 vehicle ie.the (deceased) Shanmugam, coming in the opposite direction, after seeing the lorry go past him, suddenly turned his motorcycle to the right, as he wanted to proceed towards Velampatti, without seeing the oncoming bus coming behind the lorry. On seeing this, the bus driver applied brakes and tried to stop the bus, but before he could stop the bus, the motorcyclist ie.the (deceased) Shanmugam dashed his motorcycle on the front bumper of the bus and fell down. Due to this, the (deceased) Shanmugam had sustained injuries. Hence, it has been submitted that the accident happened only because of the negligence of the (deceased) Shanmugam and hence the respondent cannot be held liable to pay compensation to the petitioners. It was also submitted that the claim is excessive and has to be dismissed with costs. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the rash and negligent manner of driving and the high speed at which the driver of the respondent's bus had driven the bus bearing registration No.TN29 N1248? (ii) Are the petitioners entitled to get compensation from the respondent? If so, what is the quantum of compensation, which they are entitled to get? 8.On the petitioners' side three witnesses were examined as PW1 to PW3 and three documents were marked as Ex.P1 to P3. On the respondent's side one witness was examined as RW1 and no documents were marked. 9.The wife of the (deceased) Shanmugam, Lakshmi, the first petitioner in the claim, was examined as PW1 before the Tribunal. The PW1, in her evidence, deposed that her husband, the (deceased) Shanmugam, rode the TVS50 motorcycle bearing registration No.TN29 P8395, on the extreme left side of the road and that the respondent's bus bearing registration No.TN29 N1248, coming in the opposite direction, driven by its driver, at a high speed and in a rash and negligent manner, had dashed against the motorcycle and caused the accident. In support of her evidence, she has marked Ex.P1, the FIR. On cross-examination, the PW1 has admitted that she was not an eyewitness of the accident. As such, the Tribunal was of the view https://hcservices.ecourts.gov.in/hcservices/ that the evidence of the PW1 was not useful in determining the cause for the accident and finding out the driver, who was at fault. 10.On the petitioners' side, one Sanyasi, who has stated that he is an eyewitness of the accident, was examined as PW2. The PW2, in his evidence has stated that on 26.03.2005, at 6.40 p.m. he was riding his TVS50 motorcycle from Kaveripattinam towards Pattanur and that the (deceased) Shanmugam was going ahead of him and riding the TVS50 bearing registration No.TN28 8395 and that when they were nearing Pazhatohottam, the respondent's bus bearing registration No.TN29 N1248, coming in the opposite direction and driven by its driver at high speed and in a rash and negligent manner had dashed against his brother, the (deceased) Shanmugam. He has deposed that the accident had been caused only because of the fault of the respondent's bus driver. It has been admitted by both the contending parties that the accident had occurred on the Salem-Krishnagiri national highway. It was also admitted that the place of the (deceased) Shanmugam was situated on the east of the road. From the evidence of the PW2, it is seen that the (deceased) Shanmugam was travelling from south towards north that he had to cross the road towards east, to proceed to his place. 11.The respondent had stated that the (deceased) Shanmugam, who was travelling from south towards north, suddenly turned his vehicle from west towards east and crossed the road to proceed to his place and that the accident had occurred due to the attempt of the (deceased) Shanmugam in crossing the road at this place. But, the PW2 has denied this contention of the respondent. He had stated that the (deceased) Shanmugam did not attempt to cross the road and that the accident had occurred at a place of 10 feet prior to the said branch road. Ex.P1 is the copy of the FIR, registered at the Kaveripattinam Police Station regarding the said accident. It is seen from the FIR that the (deceased) Shanmugam, brother of the PW2 had been travelling in his TVS50 at a distance of 10 feet ahead of PW2, who was also riding his TVS50 on the same road and that when they were travelling on the extreme left of the road near Pazhathottam, the respondent's bus driven at a high speed and in a rash and negligent manner had dashed against his brother, the (deceased) Shanmugam. The said complaint has been given by the PW2 at the Police Station. The Tribunal, on scrutiny of the Ex.P1 and evidence of the PW2, were of the opinion that the manner of the accident stated was in consonance with one another. 12.On the respondent's side one Kuppuraj was examined as RW1. No other witnesses were examined to authenticate the evidence given by the RW1. It has been stated in the Counter of the respondent that the said bus was proceeding from Krishnagiri towards Kaveripattinam from north towards south and that a lorry was proceeding ahead of it, in the same direction; that the (deceased) motorcyclist Shanmugam had come from the opposite direction in his TVS50; that as soon as the https://hcservices.ecourts.gov.in/hcservices/ lorry passed him, the (deceased) Shanmugam had suddenly turned his bike from west towards east and tried to cross the road. 13.But, the RW1 in his evidence had deposed that the lorry had proceeded ahead of the TVS50 ridden by the (deceased) Shanmugam and that the (deceased) Shanmugam had tried to cross the road, without seeing the oncoming bus coming in front of him and that had resulted in the accident to be caused. As such, the evidence given by the RW1 was contradictory to that of the averments made in the Counter of the respondent. Further, the contention of the RW1, that he had gone to the Police Station and informed them of the accident but, the Police were not inclined to register the complaint given by him and he was forced to sit at the Police Station, was not found believable by the Tribunal. Though the RW1 had deposed in his evidence that he had informed the Branch Manager of his concern regarding the accident and that his Branch Manager had subsequently come to the Police Station about 6.30 p.m. or 6.45 p.m. but, the Branch Manager had not taken any steps to ask the Police to register the complaint of the RW1, the Tribunal were of the opinion that the Branch Manager had not taken any steps as he did not find the evidence of the RW1 believable. Though the RW1 had stated that he had given a written statement to his office regarding the manner of the accident, it is pertinent to note that the respondent had not filed the said written statement as documentary evidence in the instant case. 14.The RW1 has also admitted that the counter of the respondent had only been given after they had gathered all the relevant details about the manner of the accident. It is relevant to note at this point that the evidence of RW1 was contradictory to that of the statements in Counter of the respondent. Further, the Accident Register and Rough Sketch prepared by the Investigating Officer in the said accident detailing the spot where the accident had occurred had not been filed by the respondent. Though the RW1 had stated that many passengers in the bus had witnessed the accident, the respondent had not examined even one of them as witness in the instant case. As such, the Tribunal were not inclined to accept the version of the accident as stated by RW1 in his evidence as it was not found believable and held that the evidence of the PW2 as reliable and believable as it was inconsonance with the details given in the FIR. Hence, the Tribunal held that the accident had been caused only by the negligence of the bus driver. 15.The PW1 had admitted that her husband did not have a valid driving licence to ride the TVS50 motorcycle. The respondent pointed this out and contended that as the (deceased) Shanmugam did not have a valid driving licence, he had ridden the TVS50 in a faulty manner. But, the Tribunal were not inclined to accept the contention of the respondent that just because the (deceased) Shanmugam did not have a valid driving licence, it cannot be concluded that he does not know how to ride the vehicle. The Tribunal, on scrutiny of documentary https://hcservices.ecourts.gov.in/hcservices/ exhibits furnished held that the accident had been caused only by the fault of the driver of the respondent's bus bearing registration No.TN29 N1248 and that the petitioners had proved this clearly through oral and documentary evidence. 16.The first petitioner is the wife of the (deceased) Shanmugam and the second and third petitioners are the minor children of the (deceased) Shanmugam. The fourth petitioner is the mother of the (deceased) Shanmugam. On scrutiny of the Ex.P3, the Legal Heir Certificate, it is seen that all the above four petitioners are the legal heirs of the (deceased) Shanmugam. The fifth petitioner is the father of the (deceased) Shanmugam. The Tribunal held that as the other four petitioners are alive the fifth petitioner cannot be considered the legal heir of the (deceased) Shanmugam. Even though, the fifth petitioner cannot be considered as the legal heir according to the rules laid down as per law, the Tribunal were of the opinion that he was also dependant on the income of the (deceased) Shanmugam. As such, the Tribunal, on considering that as the first, second, third and fourth petitioners were the legal heirs and dependants of the (deceased) Shanmugam and also that the fifth petitioner was also dependant on the income of the (deceased) Shanmugam, held that all the five petitioners are eligible to get compensation and also held that the respondent is liable to pay compensation to them. 17.Though, it has been alleged in the claim that the (deceased) Shanmugam's age was 30 years, no Birth Certificate or Educational Certificate have been furnished to prove the said claim. On scrutiny of theEx.P2, the Post-mortem Certificate of the (deceased) Shanmugam), it is seen that the age of the deceased has been mentioned as 30 years. It is seen from the petition that the (deceased) Shanmugam was 5 years elder to his wife. On scrutiny of Ex.P3, the Legal Heir Certificate, it is seen that the first petitioner's age has been mentioned as 29 years. As such, on the basis of the age of the first petitioner, as given in the Legal Heir Certificate, the Tribunal considered that the age of the (deceased) Shanmugam could be taken as 34 years, at the time of accident. 18.It has been alleged in the claim that the (deceased) Shanmugam was earning a sum of Rs.3,500/- per month through trading of flowers and also getting an income of Rs.1,500/- by doing agricultural work. The PW1, in her evidence, had also confirmed the averments made in the claim as regards, the income of the (deceased) Shanmugam. To prove the contention of the petitioners that the deceased Shanmugam was doing trading of flowers, one Hemaraj was examined as PW3. The PW3, in his evidence deposed that he has been running a flower shop in the name and style of Hema Flower Shop, situated at S.K.R.Market, Bangalore and that the said shop has been in operation for 15 years; that the (deceased) Shanmugam used to procure 'Kakkada' and 'Jasmine' flowers from in and around the neighbouring Villages from flower producers and sell the same to him https://hcservices.ecourts.gov.in/hcservices/ and that as a result of this trading, the (deceased) Shanmugam was getting a monthly profit of Rs.4,000/-. But, it was admitted by the PW3, that the 'Kakkada' type of flowers were seasonal flowers and were available only for two months in a year and that the 'Jasmine' variety of flower was also available only for nine months in a year. It was evident that the above business could not be considered a regular one and that there are probabilities for fluctuations in the income earned by the deceased. Further, no details had been furnished to state the quantity of flowers, which the (deceased) Shanmugam was trading in and the frequency of selling the flowers at the shop. Further, no details were furnished as to the procurement R1 from flower producers and the amount of profit, which the (deceased) Shanmugam used to make on such purchases. 19.The Tribunal opined that if the petitioner had travelled frequently to Bangalore for selling flowers, he would not have had the time to do agricultural work, held that the (deceased) Shanmugam could have carried out agricultural work, during the period at which he was not conducting flower business and accordingly fixed the notional income earned by the deceased as Rs.3,500/- and accordingly took his annual income as Rs.42,000/-. Deducting 1/3rd share from this for his personal expenses, the Tribunal assessed the loss of income to the petitioners as Rs.42,000/- - Rs.14,000/- = Rs.28,000/-. Adopting a multiplier of 17, as was relevant to the age of the deceased at the time of his death ie.34 years, the Tribunal assessed the total loss of income to the petitioners as Rs.28,000/- X 17 = Rs.4,76,000/- and accordingly awarded a sum of Rs.4,76,000/- as compensation to the petitioners under the head of loss of income. The Tribunal, further, awarded a sum of Rs.5,000/- for funeral expenses. The Tribunal, further, awarded a sum of Rs.15,000/- to the first, second and third petitioners under the head of loss of love and affection. The Tribunal further awarded a sum of Rs.15,000/- as compensation to the first petitioner under the head of loss of consortium. 20.Further, the Tribunal, on considering that the (deceased) Shanmugam had not died immediately after the accident and that he had been initially taken to the Government Hospital, Kaveripattinam, for first aid treatment and that subsequently, he had been admitted at Mohan Kumaramangalam Medical College Hospital, Salem, for better treatment and that he had died, awarded a compensation of Rs.15,000/- to the petitioners for the pain and suffering undergone by the (deceased) Shanmugam during the period of medical treatment prior to this death. The Tribunal on considering that the (deceased) Shanmugam had been shifted from the hospital at Kaveripattinam to Salem for better treatment and considering that the petitioners would also have incurred expenses for taking the body of the deceased from Salem, granted an award of Rs.2,000/- under the head of transport expenses. In total, the Tribunal granted an award of Rs.5,28,000/- to the petitioners as compensation and out of the award amount, the https://hcservices.ecourts.gov.in/hcservices/ first petitioner was apportioned Rs.1,60,000/- with proportionate interest; the second and third minor petitioners were apportioned Rs.1,30,000/- each with proportionate interest and the fourth petitioner was apportioned Rs.60,000/-with proportionate interest and the fifth petitioner was apportioned a sum of Rs.48,000/- with proportionate interest. 21.The respondent was directed to deposit the award amount of Rs.5,28,000/- along 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.642 of 2005, on the file of the Motor Accident Claims Tribunal and Principal District Judge at Dharmapuri, with costs, within a period of two months from the date of its Order. 22.Further, it was directed that the apportioned award amount of the first, fourth and fifth petitioners was to be invested in a nationalised bank for a period of three years and the first, fourth and fifth petitioners were permitted to withdraw interest on their apportioned share of deposit, once in three months. The second and third minor petitioners' apportioned share of award was to be invested in a nationalised bank, until such time they attain the age of a major. The first petitioner, being the mother and natural guardian of the second and third minor petitioners, was permitted to withdraw interest on the minor's share of deposit, once in three months. The Advocate fees was fixed at Rs.12,280/- and the respondent was directed to pay the cost of Rs.16,944.50 to the petitioners. 23.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to consider that the accident occurred only due to the negligence of the deceased, who drove his TVS50 without valid licence and hence the Order of the Tribunal is not fair. It was also contended that the Tribunal failed to consider that no age proof for the deceased was filed by the claimants and hence the Tribunal had erred in fixing the age of the deceased as 34 years. 24.It was also contended that the Tribunal had erroneously fixed the income of the deceased as Rs.3,500/- per month in spite of the fact that no income proof of the deceased was filed by the claimant. It has been pointed out that the income of the deceased in the absence of income proof could be taken as only Rs.3,000/- as per the directions made in Judgments of the Hon'sble Supreme Court in related cases. 25.As such, the learned counsel appearing for the appellant has contended that the award of Rs.5,28,000/- granted by the Tribunal is not sustainable under the law and has prayed for setting aside the award and decree passed by the Tribunal. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for the appellant vehemently argued that the award of Rs.15,000/- granted by the Tribunal under the head of pain and suffering of the (deceased) Shanmugam was not relevant. 26.The learned counsel appearing for the respondent argued that the deceased was the only breadwinner of his family; that the claimants were five in number; that all the five claimants were depending on the income of the deceased. The Tribunal, after a thorough consideration of evidence laid down by the both sides had properly assessed the compensation, and is therefore fair and equitable. 27.Considering the facts and circumstances of the case and scrutiny of findings of the Tribunal, this Court is of the view that no income proof was furnished to establish the income of the deceased. In spite of this, the Court accepting that he may have earned an income through flower business and agricultural work fixes the notional income of the deceased as Rs.3,000/- per month. Deducting 1/3rd share for his personal expenses, the income contributed by the deceased to his family is taken as Rs.2,000/- per month. Accordingly, the loss of income of the claimants is assessed at Rs.2,000/- X 12 X 17 = Rs.4,08,000/-. For funeral expenses, the Tribunal had awarded a sum of Rs.5,000/-. This Court enhances, the award granted under this head to Rs.10,000/-. The Tribunal had awarded a sum of Rs.15,000/- to the first petitioner under the head of loss of consortium. This Court, finding the above grant reasonable, confirms the award granted under the said head. The Tribunal awarded a sum of Rs.15,000/- to the claimants under the head of pain and suffering undergone by the deceased. This Court, sets aside the award granted under the head of pain and suffering as it is found that not relevant in the circumstances of the case. 28.The Tribunal had awarded a sum of Rs.2,000/- to the claimants under the head of transport expenses. This Court enhances the award granted under this head to Rs.4,000/-. The Tribunal had awarded a sum of Rs.15,000/- to the first, second and third claimants