IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.498 of 2009 and M.P.Nos. 1 and 2 of 2009 The Managing Director Tamil Nadu State Transport Corporation Ltd., Bharathipuram, Salem Main Road Dharmapuri .. Appellant / Respondent Vs 1.T.Duraisamy 2.Mani .. Respondents/Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 14.02.2008, made in M.C.O.P.No.1283 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri. For appellant : Mrs.B.Vijayalakshmi 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 14.02.2008, made in M.C.O.P.No.1283 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri, awarding a compensation of Rs.3,31,000/- with 7.5% interest per annum from the date of filing the petition till the date of payment of compensation. 2.Aggrieved by the above said award, the appellant/respondent has preferred the above appeal to set aside the order. 3.The short facts of the case are as follows: On 02.05.2005, the deceased and his friend, namely Soban Babu were proceeding in his bike bearing registration No.TN29 V9702, with Soban Babu as pillion rider. It was driven by the deceased very slowly and carefully observing all the rules of the road. At about 21.45 hrs, while proceeding towards Hosur, on the Krishnagiri to Hosur National Highway Road and nearing J.P.Petrol Bunk, the TNSTC Bus bearing registration No.TN29 N1015, belonging to the respondent, driven by its driver behind the said bike, in a rash and negligent manner, lost his control and dashed behind the said bike. Due to the https://hcservices.ecourts.gov.in/hcservices/ impact, the deceased and the said Soban Babu were thrown out from the bike, the said Soban Babu died on the spot and the deceased Siva @ Sivakumar sustained fatal injuries and immediately, he was taken to Government Hospital, Krishnagiri and after first aid, he was taken to High Institution Hospital at Bangalore. But, due to the fatal injuries, the deceased Sivakumar died on the way to the Bangalore Hospital. Post-mortem has conducted at Government Hospital, Krishnagiri on 03.05.2005. The accident occurred only due to the rash and negligent driving of the driver of the said TNSTC Bus. The Krishnagiri Taluk Police has registered the case against the driver of the bus in Crime No.291/2005, under Sections 279, 338 and 304(A) of I.P.C. 4.Due to the accident and sudden death of the deceased ie.Sivakumar, the petitioners lost their only son and the breadwinner of the family. The petitioners have claimed a compensation of Rs.15,00,000/-. 5.The deceased was a hale and healthy at the time of the accident. He was aged only 27 years at the time of the death. At the time of the accident, he was an overall Supervisor-cum-Manager (in production, maintenance, sales and marketing) and was earning not less than Rs.6,000/- per month. The deceased has completed ITI Fitter Course and has a Conductor Licence. In future, he might get a Government job and look after the petitioners. 6.Therefore, the respondent as Owner-cum-Manager of the bus is solely liable to pay the said compensation with interest at the rate of 12% per annum from the date of petition till the date of realisation, under Section 166 of the Motor Vehicles Act, 1988. 7.The respondent in his Counter has resisted the claim stating that the Corporation Bus driver had driven the bus very slowly and carefully and had observed all the rules of the road. While, the bus was nearing J.Petrol Bunk on the Krishnagiri to Hosur NH Road, the rider of the TVS Suzuki came on the opposite direction the wrong route, in high speed and came in front of the respondent's bus. On seeing the said bike, coming on the wrong route from the opposite direction, the driver of the bus applied brakes to avert an accident, but, before it stopped, the rider of the bike came in contact with the bus and so the accident was caused only due to the rash and negligent driving of rider of the said bike. Further, the non- inclusion of necessary parties, namely, Owner and Insurance Company of the said bike renders the claim not maintainable. The age, income and occupation of the deceased are also not admitted. The petitioners claim of Rs.15,00,000/- as compensation is high and excessive. The respondent has therefore prayed for dismissal of the petition. 8.The Motor Accident Claims Tribunal framed four issues for the consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i)Whether the accident had occurred due to the rash and negligent driving of the driver of the bus belonging to the respondent? (ii)Whether the owner and insurer of the two-wheeler bearing registration No.TN29 V9702 are necessary parties to this petition? (iii)Whether the petitioners are entitled to claim compensation from the 1st and 2nd respondents? (iv)To what other relief? 9.To prove the petitioners side contention three witnesses were examined and eight documents as Exs.A1 to A8 were marked. On the respondent's side, one witness was examined and no documents were marked. 10.The PW1, the father of the deceased, in his evidence has stated that on 02.05.2005, his son and one pillion rider Soban Babu were proceeding in the bike bearing registration No.TN29 V9702. At the time the deceased Siva @ Sivakumar had driven the vehicle, slowly and carefully towards Hosur on Krishnagiri to Hosur National Highway and when it was near by J.P.Petrol Bunk at 21.45 hrs, at that time the first respondent vehicle's driver had driven the vehicle rashly and negligently and dashed behind the bike of the deceased. Immediately after the accident, the deceased Sivakumar was taken to the Government Hospital, Krishnagiri and after being given first aid, he was taken to the Bangalore Hospital for further treatment. But, due to the fatal injuries, the above said Sivakumar died on the way to Hospital. The pillion rider also died due to the above accident. To prove this, the petitioner has filed documentary evidence. On scrutiny of Ex.A1-FIR, it clearly shows that the accident happened due to the rash and negligent driving at the first respondent vehicle's driver. Even on cross-examination of PW1, the respondent has not raised any serious objection regarding the manner of the accident. Further, there has been no rebuttal evidence adduced by the respondent to prove its contention. 11.The learned counsel for the respondent has contended that the accident happened due to the negligence on the part of the deceased Sivakumar and that the deceased Sivakumar had driven the vehicle in wrong side of the road with high speed and had dashed against the respondent vehicle, which had been driven very slowly and carefully. Further, the learned counsel for the respondent had contended that as two vehicles were involved in this case, the owner and insurer of the bike are also necessary parties to adjudicate on the matter. The Tribunal on perusal of evidence of PW1 and evidence given by eye witness PW2, wherein he had stating that at the time of the accident, the deceased had driven the vehicle slowly and cautiously and that the respondent driven alone drove with high speed and dashed behind the deceased. Taking all the above aspects into consideration, the Tribunal decided that the the respondent alone is liable to pay https://hcservices.ecourts.gov.in/hcservices/ compensation to the petition and so the owner and insurer of the bike bearing registration No.TN29 V9702 are not necessary parties. 12.Further, for determining the quantum of compensation, the Tribunal considered the Post-mortem Certificate, Ex.A2, wherein the age of the deceased has been mentioned as 28 years. Further, the Tribunal perused the evidence given by the PW3, the Manager of one Indira Products, wherein the deceased had been employed. On perusal of the PW3's evidence, it shows that the deceased Sivakumar was working in the said firm and engaged in Lab Testing work and allied works in his factory and that he was paying a sum of Rs.6,000/- per month as salary to the deceased for six months in a year. On cross- examination of the PW2, has admitted that the salary register has not been produced before the Court and further admitted that the above said work undertaken by the deceased is only seasonal work. The Tribunal on perusal of Ex.A8, Salary Certificate and considering the fact that the salary register has not been produced before the Court, took the salary of the deceased as Rs.4,000/- per month only. Taking this into consideration, they assessed his annual salary as Rs,48,000/- and as the deceased was employed for only six months in a year, took his annual salary as Rs.24,000/- only. Deducting 1/3rd share of this for his personal expenses, the annual income contributed by the deceased to his family was fixed as Rs.16,000/-. 13.The Tribunal, on considering that at the time of the accident, the deceased Sivakumar was unmarried considered the age of the first claimant for determining the multiplier to be adopted. In this aspect, the Tribunal relied on case reported in 2007 TNMAC Page 378 in S.P.Ganapathy and another, wherein it has been held that the multiplier to be selected in fatal accidents should be on basis of age of deceased or claimants, whichever is higher. 14.The Tribunal, on considering this legal ruling decided to adopt a multiplier of 11 as applicable to the age of the first claimant, which was 50 years at the time of the accident; as per II Schedule of Section 163A of the Motor Vehicles Act. Hence, the Tribunal assessed the loss of income to the claimants as Rs.16,000/- X 11 = Rs.1,76,000/-. 15.The Tribunal then considered Ex.A5, the ITI Certificate of the deceased and the fact that the deceased Sivakumar also had conductor's licence and had registered in the Employment Officer as per Ex.P6 to determine his future prospects. The Tribunal was of the view that if the deceased had been alive, he would have definitely got a Government Job and so granted Rs.1,00,000/- to the petitioners for future loss of income in this aspect. Further, the Tribunal granted a sum of Rs.5,000/- to the petitioners for transport expenses and a sum of Rs.20,000/- each to the first and second petitioners for loss of love and affection. A sum of Rs.10,000/- was granted to the petitioners for funeral expenses. In total, a sum of Rs.3,31,000/- was granted by the Tribunal, as compensation, to the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 16.The Tribunal directed the respondent to pay the above said award with interest at the rate of 7.5% per annum from the date of filing the petition till the date of realisation and deposit the award with interest into the credit of the M.C.O.P.No.1283 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri, within a period of two months from the date of its Order. Further, after such deposit has been made, it has to be invested in any one of the Nationalised Bank for a period of not less than three years. The petitioners were directed to pay the balance Court fee within a period of two months from the date of its Order. The Advocate fee was fixed at Rs.9,620/-. 17.The learned counsel for the appellant has contended in his appeal that the Tribunal had erroneously fixed the negligence on the appellant driver, who drove the bus carefully and cautiously and that it was only the rash driving of the deceased, which had been the cause for the accident. Further, the learned counsel for the appellant had argued that the Tribunal had erroneously fixed a sum of Rs.4,000/- per month as salary of the deceased, without any proof. Further, he has argued that the award of Rs.1,00,000/- granted by the Tribunal for loss of income is erroneous. 18.Further, the Tribunal failed to consider that no Wound Certificate, Medical Bills and Discharge Summary had been filed. 19.As such, the learned counsel for the appellant had argued that the award granted by the Tribunal is not sustainable and has to be set aside. 20.The learned counsel for the respondent argued that the deceased was an ITI Certificate Holder. At the time of the accident, he was 27 years old only and involved in fruit business and was earning a considerable income. But, the Tribunal had not granted adequate compensation to the claimant, who had lost their son in the accident. 21.For the foregoing reasons, and considering the facts and circumstances of the case, the Court is inclined to consider the salary of the deceased as Rs.6,000/- as per Ex.A8. Accordingly, his annual salary would have been Rs.72,000/- and considering the deceased had worked for only six months in a year takes the income of the deceased as Rs.36,000/- per year. Deducting 1/3rd share of this for his personal expenses, the annual contribution of the deceased to his family is assessed as Rs.24,000/- per year. Taking a multiplier of 11 as applicable to the age of the first claimant, the loss of income incurred by the claimants is assessed at Rs.24,000/- X 11 = Rs.2,64,000/-. This Court accordingly grants a sum of Rs.2,64,000/- as loss of income incurred by the claimants. 22.This Court is of the view that an award of Rs.1,00,000/- given by the Tribunal for future loss of income considering future prospects of the deceased namely that the deceased would have got employment in a Government Organisation, is hypothetical and far https://hcservices.ecourts.gov.in/hcservices/ fetched and hence sets aside the award of the Tribunal under this head. 23.The Tribunal's Award of Rs.5,000/- for transport expenses is enhanced by this Court to Rs.7,000/-. Further, the Tribunal has awarded a sum of Rs.20,000/- to each of the claimants for loss of love and affection. This Court enhances the amount under this head to Rs.25,000/- to each of the claimants. A sum of Rs.10,000/- granted by the Tribunal towards funeral expenses is reasonable and this Court confirms the same. 24.In effect, the quantum of award granted by the Tribunal is found satisfactory and this Court has only restructured the amount granted under the heads. The rate of interest of 7.5% per annum fixed by the Tribunal is also reasonable. As such, the respondents/claimants are entitled to get the compensation amount of a sum of Rs.3,31,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 25.At the time of admission of this appeal, on 04.03.2009, this Court imposed a condition on the appellant/State Transport Corporation to deposit the entire compensation amount with accrued interest and costs into the credit of the M.C.O.P.No.1283 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri. 26.As the accident happened in the year 2006, it is open to the respondents/claimants to withdraw the award amount lying in the credit of the M.C.O.P.No.1283 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri, by filing necessary payment out application, in accordance with law. 27.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Accident Claims Tribunal, Additional District Judge, Krishnagiri is confirmed. Consequently, connected miscellaneous petitions are also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Motor Accidents Claims Tribunal, Additional District Judge, Krishnagiri 2. The Section Officer, VR Section, High Court, Madras. + 1 CC to Mrs.B.Vijayalakshmi,Advocate SR NO 68688 + 1 CC to M/s M.Sairam,Advocate SR NO 68843 + 1 CC to Mr.M.Sriram, Advocate SR NO 61593 Order in C.M.A.No.498 of 2009 BVN (CO) SS (31.12.2009) https://hcservices.ecourts.gov.in/hcservices/