IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1750 of 2008 and M.P.No.1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Ltd., Villupuram .. Appellant/Respondent Vs 1.Pushpa 2.Minor.Thamizhselvan 3.Arumaikannu 4.Govindasamy .. Respondents/Respondents (R2 rep.by his mother and natural guardian R1) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.12.2007, made in M.C.O.P.No.93 of 2006, on the file of the Motor Accident Claims Tribunal, Chidambaram. For appellant : Mr.V.Kasi Viswanathan For respondents : Mr.T.Ravichandran for RR1 to 4 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 10.12.2007, made in M.C.O.P.No.93 of 2006, on the file of the Motor Accident Claims Tribunal, Chidambaram, awarding a compensation of Rs.11,32,000/- 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 Transport Corporation Ltd., Villupuram, 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 03.03.2005, at about 8.55 a.m. when the (deceased) Raja was travelling as a passenger in the respondent's bus bearing registration No.TN32 N1701, route No.224D, which was proceeding from Kumbakonam towards Cuddalore and when the bus was nearing Mamangalam bus stop, on the Kumbakonam – Chennai highway, the driver of the bus https://hcservices.ecourts.gov.in/hcservices/ drove the bus at a high speed and in a rash and negligent manner. As a result of this, the bus deviated from the road and dashed against the barrier on the left side of the road. Consequently, the barrier broke and the bus fell into a ditch and overturned. As a result of this accident, the (deceased) Raja sustained head injuries and died on the spot. 4.The deceased Raja possessed driving licence to drive heavy duty and light duty vehicles and was employed as a tractor and lorry driver and also owned a tractor. By doing agricultural work and through his employment as a driver the deceased Raja was earning a sum of Rs.200/- to Rs.400/- per day. In addition to this, the deceased Raja was employed under one Sundarajan of Chettiyathoppu, who was running Thennagam Lorry Service and was earning a sum of Rs.4,000/- per month. 5.As the accident had happened due to the rash and negligent driving of the respondent's driver, the petitioners have claimed a compensation of Rs.20,00,000/- from the respondent, under Section 166 (1) of the Motor Vehicles Act. The first petitioner is the wife of the deceased Raja, the second petitioner is the son of the deceased and the third and fourth petitioners are the parents of the deceased Raja. 6.Regarding the said accident, a criminal case has been registered at Chozhatharam Police Station in Crime No.97/2005, under Sections 279, 337, 308 and 304(A) of I.P.C. 7.The respondent, in his Counter, has resisted the claim stating that on 03.03.2005, the respondent's bus driver drove the bus bearing registration No.TN32 N1701, from Kumbakonam to Cuddalore in a slow and diligent manner. When the bus was nearing Mamangalam bus stop, at about 8.55 a.m., the respondent's bus conductor gave the whistle to stop the bus. So, the respondent's driver slowed down the speed of the bus. At that time, a two wheeler (TVS50) driven by a person with two pillion riders, suddenly came from the wrong side ie.left side of the road. The respondent's bus driver, on seeing this and in order to prevent the bus dashing against the TVS50, turned his vehicle to the left side and applied brakes and stopped the bus, but unfortunately, the respondent's vehicle drifted to the left side and over turned. As such, the respondent has submitted that the accident had not happened due to negligence on the part of the respondent's bus driver and hence he is not liable to pay any compensation to the petitioners. The respondent has also not admitted the averments contained in the claim regarding age, occupation and monthly income of the deceased. It was also submitted that the claim is excessive and disproportionate to the loss caused due to the accident. 8.The Motor Accident Claims Tribunal framed four issues for the consideration namely: (i) Was the accident caused by the rash and negligent driving of the driver of the respondent's bus? https://hcservices.ecourts.gov.in/hcservices/ (ii) Is the respondent liable to pay compensation? (iii)Are the petitioners entitled to get compensation? (iv)To what other relief? 9.On the petitioners' side, two witnesses were examined as PW1 and PW2 and 12 documents were marked as Exs.P1 to P12 namely Ex.P1 is the FIR; Ex.P2 is the Post-mortem Report; Ex.P3 is the Legal Heir Certificate; Ex.P4 is the Death Certificate of the deceased Raja; Ex.P5 is the Sale Agreement; Ex.P6 is the copy of RC Book pertaining to the respondent's bus bearing registration No.TN32 N1701; Ex.P7 is the Permit of the said bus; Ex.P8 is the RC Book copy of Tractor bearing registration No.TN37 U0799; Ex.P9 is the Marriage Invitation; Ex.P10 is the Certificate issued by Village Administrative Officer; Ex.P11 is the Ration card of Balasubramanian and Ex.P12 is the RC Book copy of the Tractor bearing registration No.TN37 U0799. On the respondent's side, no witnesses were examined and no documents were marked. 10.It is seen on examination of Ex.P1, the FIR, that a complaint has been registered against one Meganathan, the driver of the respondent's bus bearing registration No.TN32 N1701. It is also seen that the FIR has been registered within one hour from the time of the accident. 11.The respondent has not examined the driver of the above said bus bearing registration No.TN32 N1701, as a necessary witness in this case. Further, it is seen from the evidence of PW1, the first petitioner and wife of the deceased that she is not award of the manner in which the accident had been caused. Further, even during the cross-examination of PW1 by the respondent's side, only general questions regarding her husband's income were asked and in effect the respondent had tried to only establish that the accident was purely incidental and that the respondent's bus driver was not responsible for the accident. 12.The PW1, in her chief-examination, had stated the same version regarding the manner of the accident as was stated in the claim petition. It has also been admitted by the respondent that the (deceased) Raja had been a passenger in the said bus. Therefore, the Tribunal on considering the fact that the driver of the respondent's bus had not been examined as a necessary party by the respondent and considering the evidence of PW1, wherein, she had stated that the accident had been caused only because of the fact that the respondent's bus had been driven at high speed and in a rash and negligent manner by the driver of the above said bus, held that the accident had been caused only due to the negligence of the driver of the respondent's bus, and accordingly held that the respondent is liable to pay compensation to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 13.The petitioners, in their claim petition, have stated that the age of the deceased Raja was 28 years at the time of the accident. On scrutiny of Ex.P2, the Post-mortem Report, marked through PW1, it is seen that the age of the deceased Raja has been stated as 28 years. Hence, the Tribunal held that the age of the deceased Raja at the time of the accident was 28 years. 14.Further, the PW1, in her evidence adduced that a tractor had been purchased from one Balasubramanian; that the deceased Raja was getting an income through use of the tractor; that in addition the deceased Raja was also employed as a lorry driver and was earning a daily income of Rs.300/- to Rs.400/-; that he was supporting the entire family from out of this income; that due to the death of her husband Raja, she had been forced to return the tractor to the said Balasubramanian; that due to this, the petitioners' family has been put to a lot of hardship. 15.The said Balasubramanian was examined as PW2, before the Tribunal. In his evidence he adduced that he had sold the tractor to the deceased Raja on 10.04.2004 for a sum of Rs.1,20,000/- and had received a sum of Rs.50,000/- as advance from the (deceased) Raja. It was aged that after the (deceased) Raja paid the balance amount of Rs.70,000/- due on the sale of the tractor, the RC Book will be endorsed in the name of the (deceased) Raja. During cross- examination, PW2 had stated that the name of his father was Govindasamy and that the name of the father of the (deceased) Raja was also Govindasamy. 16.On scrutiny of Exd.P5, the Sale Deed for the said Tractor, the Tribunal were not able to find any discrepancy in the above said evidence given by the PW1 and PW2 as regards the sale of the Tractor. As such, the Tribunal held that the (deceased) Raja procured income through the use of the tractor. Even though, there was no documentary proof to establish that the (deceased) Raja was earning from Rs.300/- to Rs.400/- per day, the Tribunal on considering that the age of the petitioner was 28 years at the time of the accident and that he had been thrust with the responsibility of maintaining his family and also considering that the (deceased) Raja has paid half of the amount due on the said purchase of tractor, as per Ex.P5, held that the (deceased) Raja was earning an income of Rs.250/- per day at the time of accident. The Tribunal computed his monthly income as Rs.7,500/-. Deducting 1/3rd from this for his personal expenses, the Tribunal assessed the monthly contribution to his family as Rs.5,000/- and yearly contribution as Rs.60,000/-. 17.The Tribunal, adopting a multiplier of 18, as was relevant to the age of the deceased at the time of accident as per Schedule-2 of the Motor Vehicles Act, assessed the total loss of income of the petitioners as Rs.60,000/- X 18 = Rs.10,80,000/- and awarded the said amount as compensation to the petitioners under the head of loss of income. The Tribunal, further awarded a sum of Rs.2,000/- under the head of transport expenses for transporting the deceased to the hospital and Rs.10,000/- each to the petitioners 1st to 4th under the head of loss of love and affection. In total, the Tribunal granted https://hcservices.ecourts.gov.in/hcservices/ an award of Rs.11,32,000/- to the petitioners and directed the respondent to deposit the above said award with interest at the rate of 7.5% per annum, into the credit of the M.C.O.P.No.93 of 2006, on the file of the Motor Accident Claims Tribunal, Chidambaram, within a period of one month, from the date of its Order. The Tribunal, further apportioned a sum of Rs.3,22,000/- with proportionate accrued interest from and out of the award amount to the first petitioner, Rs.6,40,000/- with proportionate accrued interest to the second (minor) petitioner and Rs.85,000/- each with proportionate accrued interest to the third and fourth petitioners. After deposit of the award was made, the first petitioner was permitted to withdraw a sum of Rs.1,22,000/- with the total accrued interest on her apportioned share and the balance of Rs.2,00,000/- was to be deposited in Bharath State Bank, Chidambaram, C.Mutlur Village, as fixed deposit for a period of three years and the first petitioner was permitted to receive interest on such deposit once in three months. The second petitioner's apportioned share amount of Rs.6,40,000/- was to be invested in Bharath State Bank, C.Mutlur Village, Chidambaram, as fixed deposit and the first petitioner was allowed to withdraw the interest on the apportioned share of the second petitioner once in three months, to take care of the education and future advancement of the second petitioner. The third and fourth petitioners were permitted to withdraw a sum of Rs.35,000/- each with total accrued interest on their apportioned share with costs and the balance award amount of Rs.50,000/- each was to be invested in Bharath State Bank, C.Mutlur Village, Chidambaram, as fixed deposit, for a period of three years and the third and fourth petitioners were permitted to receive interest on the above said balance amount, once in three months, directly from the bank. The petitioners were directed to pay the Court fee due on the award amount and the Advocate fees was fixed at Rs.18,320/-. 18.The learned counsel appearing for the appellants has contended in his appeal that the accident occurred solely due to the rash and negligent manner of riding by the rider of the two wheeler, who came on to the bridge suddenly and crossed the road, without any precautionary measures and that only with a view thwart the accident, the driver of the bus had tried to control the bus, which resulted in the accident. From this, it is clearly seen that the accident had occurred only due to the fault of the rider of the two wheeler. It has also been contended that the insured and insurer of the two wheeler has not been impleaded as party to the proceedings to render proper adjudication. 19.The learned counsel appearing for the appellants had also pointed out that the learned Judge had erroneously fixed the negligence on the part of the appellant Corporation in entirety and that the learned Judge ought to have fixed contributory negligence, at least to some extent on the part of the rider of the two-wheeler, who is the root cause for the accident. The learned Judge had also failed to note that no material evidence were produced to prove the income of the deceased. Merely based on Ex.P5, the Tribunal fixed the income of the deceased at Rs.7,500/-, which is unsustainable in law, for the simple reason that Ex.P5 is not a relevant document to https://hcservices.ecourts.gov.in/hcservices/ fix the monthly income of the deceased. 20.As such, the learned counsel appearing for the appellant has contended that the loss of income assessed by the Tribunal taking the above said monthly income of the deceased as the basis was highly excessive. It has also been pointed out that the award under the various heads granted by the Tribunal was excessive. The learned counsel appearing for the appellant has therefore prayed for setting aside the award and decree passed by the Tribunal. 21.The learned counsel appearing for the respondent argued that the deceased Raja was 28 years at the time of accident and that he is the only breadwinner of his family. The widow of the deceased was aged only 21 years at the time of the accident and that she has a minor son aged about 2 ½ years. The third and fourth claimants are the parents of the deceased and all the claimants were depending upon the income of the deceased. The learned counsel appearing for the respondent further argued that the deceased was a driver and also the owner of a tractor and as such the deceased was earning not less than Rs.10,000/- per month. The Tribunal has properly assessed the quantum of compensation as a sum of Rs.11,32,000/- and awarded the said sum to the claimants and as such the award is fair and a well considered only. There is no discrepancy in the award and decree passed by the Tribunal. The Tribunal had adopted a correct multiplier on the basis of the age of the deceased at the time of accident. After the accident, the claimants' family have been put under a lot of hardship. The learned counsel appearing for the respondents has therefore argued that the appeal is not maintainable under the circumstances of the case. 22.Considering the facts and circumstances of the case, grounds of appeal raised by the appellant, arguments advanced by the learned counsels for their respective parties and scrutiny of findings of the Tribunal, this Court is of the view that the quantum of compensation granted is excessive and on the higher side. Without documentary evidence, the Tribunal had fixed the income of the deceased as Rs.7,500/- per month and this not proper. This, Court, considering that in the said occupation of the deceased, a regular/standard income could not be derived holds that the notional income of the deceased could only be taken as Rs.5,000/-. As such his annual income is fixed at Rs.60,000/-. After deducting 1/3rd share from this for his personal expenses, the income contributed by the deceased to his family is Rs.40,000/- X 18 – Rs.7,20,000/- and accordingly this Court grants an award of Rs.7,20,000/- to the claimants under the head of loss of income. This Court awards a sum of Rs.10,000/- to the claimants under the head of funeral expenses. Already, the Tribunal had awarded a sum of Rs.10,000/- each to the 1st to 4th claimants under the head of loss of love and affection. This Court treats the amount granted under this head as follows: 1.The first petitioner is awarded a sum of Rs.10,000/- for loss of consortium and the other three petitioners are awarded a sum of Rs.10,000/- each under the head of loss of love and affection. https://hcservices.ecourts.gov.in/hcservices/ 2.Further, the Tribunal had awarded a sum of Rs.2,000/- for transport expenses and this Court confirms the award granted under this head. In total, this Court awards a sum of Rs.7,72,000/- as compensation to the claimants together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. Therefore, this Court modifies the award and decree passed by the Motor Accident Claims Tribunal, Chidambaram, in M.C.O.P.No.93 of 2006. The apportionment of share of claimants fixed by the Tribunal is re-arranged and the revised apportioned share of claimants is as follows: The first claimant is apportioned a share of Rs.2,22,000/- from and out of the award amount, and the second claimant is apportioned a share of Rs.3,00,000/- from and out of the award amount; the balance award amount of Rs.2,50,000/- is apportioned to be shared equally amongst the third and fourth petitioners. The apportioned share amount of the claimants will carry an interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of deposit of compensation. 23.This Court, at the time of admission, imposed a condition on the appellant/Tamil Nadu State Transport Corporation Ltd., to deposit a sum of Rs.9,00,000/-, together with proportionate interest and entire costs. 24.As the accident happened in the year 2006, it is open to the 1 st, 3rd and 4th claimants, to withdraw their apportioned share of the award amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.93 of 2006, on the file of the Motor Accident Claims Tribunal, Chidambaram, after filing necessary payment out application in accordance with law. The second (minor) claimant's apportioned share of a sum of Rs.3,00,000/- has to be deposited in a nationalised bank in the vicinity of the residence of the claimants, under the cumulative deposit scheme, until he reaches the age of a major. The balance of award, which had been deposited by the appellant Transport Corporation Ltd., can be withdrawn by the appellant in the manner laid down as per law. 25.In the result, the Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 10.12.2007, in M.C.O.P.No.93 of 2006, passed by the Motor Accident Claims Tribunal, Chidambaram, is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1.Motor Vehicles Accident Claims Tribunal, Chidambaram, 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.T.Ravichandran, Advocate, Sr.No.9192 1 cc to Mr.V.Kasiviswanathan, Advocate, Sr.No.9936 Order in C.M.A.No.1750 of 2008 PUR {CO} TP/4.3.2010. https://hcservices.ecourts.gov.in/hcservices/