IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1799 of 2007 and M.P.No.1 of 2007 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore Division-II, Chennimalai Road, Erode .. Appellant/ Respondent Vs 1.Kandasamy 2.Vanjiammal 3.Lingusamy 4.Gobal .. Respondents 1 to 4/ Petitioner 1 to 4 Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 22.01.2007, made in M.A.C.T.O.P.No.592 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.V), Coimbatore sitting at Tiruppur. For appellant : Mr.C.Prabhakaran for M/s.N.Anand For respondent : Mr.S.S.Swaminathan 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 dated 22.01.2007, made in M.A.C.T.O.P.No.592 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore, sitting at Tiruppur, awarding a compensation of Rs.1,00,000/- with 7.5% interest per annum from the date of the petition to till the date of payment of the compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the above said award, the appellant/Tamilnadu State Transport Corporation Ltd., Coimbatore Division-II, Erode, has preferred the above appeal to set aside the order. 3.The short facts of the case are as follows: On 13.06.2005, at about 21.45 hours, when the deceased was walking on the mud road. At that time, the bus bearing registration No.TN33 N1676, driven in a rash and negligent manner, dashed against the deceased and he was thrown away and sustained grievous injuries. He was immediately taken to Kumaran Hospital, Tiruppur and later to Government Hospital, Tiruppur, where he died due to injuries. A Post-mortem was conducted at Government Hospital, Tiruppur. 4.The accident was due to the rash and negligent driving of the driver of the bus in the course of the employment under the respondent. Hence, the respondent is liable to pay the compensation to the petitioners. 5.The deceased was a hale and healthy man, aged about 70 years old. He was doing agricultural work and earned a sum of Rs.5,000/- per month. He could have contributed to the family for another ten years had he not died due to the accident. So, the loss of income for the said period would be Rs.6,00,000/-. The petitioners spent a sum of Rs.10,000/- for funeral expenses and a sum of Rs.10,000/- for transporting the body to the native place. The petitioners spent a sum of Rs.50,000/- towards treatment to the deceased. The petitioners have claimed a sum of Rs.10,000/- for pain and suffering sustained by the deceased during the period of the treatment. The 1st, 3rd and 4th petitioners being the sons of the deceased and the second petitioner being the daughter of the deceased have claimed a compensation of Rs.5,00,000/- from the respondents, with interest and costs. 6.In the counter filed by the respondent/Tamil Nadu State Transport Corporation, the claim was resisted and the respondent has not admitted the age of the deceased, legal heirship, occupation of the deceased, dependency, date, place and manner of the accident, nature of the injuries and loss of earnings. It was submitted that on 13.06.2005, the bus bearing registration No.TN33 N1676 was proceeding from Tiruppur to Madurai. The driver of the bus was proceeding slowly, cautiously and was also following the rules of the road. At about 9.40 p.m. when the bus was nearing Avinashipalayam Sungam, a pedestrian tried to cross the road and suddenly came into the road. At that time, a two wheeler bearing registration No.TN39 X3277 was coming in the opposite direction in a rash and negligent manner at a high speed. The driver on seeing the pedestrian and the two wheeler, coming in the middle of the road, in a negligent manner, blew the horn and applied brake and https://hcservices.ecourts.gov.in/hcservices/ swerved to the rightside of the road. In spite of the same, the pedestrian suddenly came into the middle of the road, rashly and dashed himself against the bus and fell down and caused his own death. The driver of the bus was not at fault and he had not driven the bus either rashly or negligently. The respondent submits that the pedestrian, without any road sense, had tried to cross the road after seeing the oncoming bus. The deceased ought not to have crossed this road, while the bus was going in the state highway. Hence, the claim of Rs.5,00,000/- under various heads are exaggerated and there is no merit, truth or substance in the petition. Hence, the respondent has prayed for dismissal of the claim petition with costs. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident to be caused? (ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation? 8.On the petitioners' side, six witnesses were examined and 22 documents were marked. On the respondent's side one witness was examined as RW1 and no documents were marked. 9.The petitioner in M.A.C.T.O.P.No.590 of 2005 was examined as P.W1 and he had marked a document ie.Ex.P1, the First Information Report. It has been mentioned in the report that the accident occurred on 13.06.2005, at 21.45 hours; that the complaint had been lodged by one Deivasigamani, the brother-in-law of Kanakaraj, who was travelling in another motorcycle and who had died in the above accident; that based on this complaint, a criminal case was registered by the Avinasipalayam Police as Crime No.215/2005, against the driver of the bus bearing registration No.TN33 N1676. Further, another document was marked by PW1 as Ex.P2, the Motor Vehicle Inspector's Report of the said bus. It has been stated in this report that the accident has not been caused due to any mechanical defects in the bus. Further, the driver of the bus was examined as RW1. The RW1, in his evidence has adduced that he was driving the bus carefully on the leftside of the road; that a pedestrian without noticing the bus was crossing the road, in front of the bus; that he had swerved the bus to the right side of the road and stopped it; in spite of this, a two wheeler, which was coming from the opposite direction, ridden rashly and negligently by its rider had dashed against the bus and both the riders had fallen down; that the pedestrian, who had crossed the road also dashed himself against the stationery bus and died. https://hcservices.ecourts.gov.in/hcservices/ 10.The Tribunal on a scrutiny of the evidence adduced by RW1 held that as the driver of the bus, RW1 had admitted in his evidence that he had driven the bus to the rightside of the road, it is very obvious that the two wheeler, which had dashed against the bus, was ridden in the correct direction and as such held that the accident had occurred only because the bus had dashed against the two wheeler. Further, the pedestrian, who crossed the road, was also hit by the bus and died. 11.If the pedestrian, who had crossed the road, had dashed himself against the stationery bus, he would not have died. But, the Tribunal, considering that the said pedestrian had died in the accident, concluded that he had been hit by the moving the bus. On cross-examination of the RW1, it had been admitted by him that he had not filed any complaint with the Police and that even in the FIR, the complaint has been registered as against him. Further, no witness was examined and no documentary evidence was produced on the respondents side to establish that the driver of the bus had not been rash and negligent in driving of the bus. As such, the Tribunal held that the accident was caused only by the rash and negligent driving by RW1 ie.the driver of the bus, bearing registration No.TN 33 N1676. 12.The first petitioner, Kandasamy, was examined as PW3. In his evidence, he has confirmed and reiterated the contentions made in his claim petition. Further, he marked Ex.P12, the Post-mortem Report of the deceased; Ex.P13, the Death Certificate; Ex.P15, X- ray Scan taken on the petitioner; Ex.P16, Medical bills issued by Kumaran Hospital, wherein the petitioner had taken treatment and Ex.P14, Legal Heirship Certificate. It has been mentioned in the claim petition that the age of the deceased was 60 years old at the time of the accident. But, on scrutiny of the Exs.P12 and P13, it is seen that the age of the deceased has been mentioned as 75 years old. As such, the Tribunal considering that the deceased does not have the ability to earn Rs.5,000/- as claimed, concluded that the yearly salary of the deceased could be taken as Rs.15,000/-, as per the second schedule of the Motor Vehicles Act. Adopting a multiplier of 5, the Tribunal awarded a sum of Rs.75,000/- as compensation to the petitioners, being loss of income of the deceased. For loss of love and affection, a sum of Rs.2,500/- was granted, as awarded by the Tribunal, to each of the petitioners. For funeral expenses, a sum of Rs.5,000/- was granted and for medical expenses, a sum of Rs.10,000/- was granted. In total, the Tribunal granted an award of Rs.1,00,000/- as compensation to the petitioners and directed the respondent to pay the said award with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment of the compensation, within a period of one month from the date of its Order, into the credit of M.A.C.T.O.P.No.592 of 2005 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court https://hcservices.ecourts.gov.in/hcservices/ No.V), Coimbatore sitting at Tiruppur. It further apportioned the award amount to be shared equally amongst the four petitioners. The Advocate Fees was fixed at Rs.5,000/-. It further directed the petitioners to pay the Court fees due on the award within a period of 10 days from the date of its Order. 13.The learned counsel appearing for the appellant has argued in his appeal that the appellant was forced to turn the bus in the rightside in order to avoid the pedestrian, but in spite of this the pedestrian had dashed himself against the bus. Further, no Police Officer was examined to prove the negligence on the part of the appellant's driver and conductor. The learned Tribunal had erred in fixing the monthly income of the deceased. Further, the learned Tribunal had erred in not taking into consideration of the evidence of the RW1 ie.the driver the appellant. Further, the award of Rs.1,00,000/- with 7.5% interest given under various heads are without any basis and hence has prayed for setting aside of the Order. 14.The learned counsel appearing for the respondent argued that the deceased was an agricultural worker. Further, he was a labourer in the Southern Railway in Parcel Section, Chennai-3. As such, the deceased had been earning a sum of Rs.5,000/- per month. At the time of the accident, the deceased was a healthy person and aged about 70 years. But, the Tribunal had erroneously come to the conclusion that the age of the deceased was 75 years old. The award passed by the Tribunal is on the lower side. 15.For the foregoing reasons and on consideration of the facts and circumstances of the case and findings of the Tribunal and arguments advanced by the learned counsel appearing for either side, the Court is of the view that as per the schedule-2 of the Motor Vehicles Act, the Tribunal had adopted a multiplier of 5 to assess loss of income and this Court confirms the finding of the Tribunal on multiplier and loss of income computed. As such, the Tribunal had awarded a compensation of Rs.75,000/- towards loss of income; Rs.2,500/- each to the claimants for loss of love and affection, which works out to Rs.10,000/- in total, and funeral expenses a sum of Rs.5,000/- and a sum of Rs.10,000/- for medical expenses. In total, a sum of Rs.1,00,000/- has been awarded by the Tribunal together with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment. This Court confirms the findings of the Tribunal on the said conclusion as it is equitable and fair. 16.Therefore, the Court directs the appellant/Tamil Nadu State Transport Corporation to deposit the entire compensation amount ie. a sum of Rs.1,00,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition to till the date of payment of the compensation, into the credit of https://hcservices.ecourts.gov.in/hcservices/ M.A.C.T.O.P.No.592 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.V), Coimbatore sitting at Tiruppur, within a period of six weeks from the date of receipt of a copy of this Order, if, this compensation amount has not been deposited. 17.If, the appellant had already been deposited a part of this award, the balance of the award amount should be deposited with interest as per the above mentioned conditions. 18.It is open to the respondents/claimants to receive the entire compensation amount, lying into the credit of M.A.C.T.O.P.No.592 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Track Court No.V), Coimbatore sitting at Tiruppur, by filing necessary payment out application in accordance with law. 19.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Accident Claims Tribunal in M.A.C.T.O.P.No.592 of 2005, on the file of Additional District Judge (Fast Track Court No.V), Coimbatore at Tiruppur is confirmed. Consequently connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Accidents Claims Tribunal-cum- Additional District Court (Fast Track Court No.V), Coimbatore sitting at Tiruppur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.S.S. Swaminathan, Advocate, SR. 65284 1 cc to Mr.N. Anand, Advocate, SR. 65591 C.M.A.No.1799 of 2007 PVR (CO) kk 8/1 https://hcservices.ecourts.gov.in/hcservices/