IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1519 of 2008 and M.P.No.1 of 2008 The Managing Director Tamilnadu State Express Transport Corporation Ltd., Chennai-2 .. Appellant/Respondent Vs 1.Kasthuri 2.Vijayakumari 3.Minor.Sathiya 4.Minor.Gnanaprakash 5.Minor.Chitra 6.Vellachi Ammal .. Respondents/Claimants (R3 to R5 rep.by their mother and guardian R1) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 24.03.2006, made in M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam. For appellant : Mr.M.Krishnamoorthy For respondents : Mr.K.Govi Ganesan 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 24.03.2006, made in M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam, awarding a compensation of Rs.3,64,000/- 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 Stae https://hcservices.ecourts.gov.in/hcservices/ Express Transport Corporation Ltd., Chennai-2 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: On 23.10.2001, at about 12.30 p.m. in the nigh, when the (deceased) Kanniappan was returning to home in his tricycle from Madurantakam to his village and while he was nearing Morapakkam Iyyanar Temple, a bus bearing registration No.TN07 N6115, belonging to the respondent and driven by the driver of the bus, in a rash and negligent manner, hit behind the deceased and caused the accident. Due to the sudden impact, the (deceased) Kanniappan sustained multiple grievious injuries all over his body and he was admitted at Government Hospital, Madurantakam and later on admitted at CMC Hospital, but succumbed to his injuries on 01.11.2001. 4.Regarding the said accident, a criminal case has been lodged as against the driver of the bus and the same is pending before the Judicial Magistrate Court, at Madurantagam. The accident was caused only due to the rash and negligent driving of the respondent's driver. Hence, the petitioners have claimed a compensation of Rs.5,00,000/- from the respondent with interest and costs under Sections 140 and 166 of the Motor Vehicles Act. 5.The respondent, in his Counter, has resisted the claim denying the averments in the claim as regards the manner of the accident. It has been submitted that the bus was proceeding from Chennai to Mayiladuthurai and driven at normal speed and according to traffic rules and regulations and that the accident had occurred only because the (deceased) suddenly and rashly crossed road. It was submitted that the petitioners alone were responsible for the accident had courted the accident. 6.Further, the respondent has not admitted the averments in the claim regarding the age, occupation and income of the deceased and the age of the petitioners. The respondent has also not admitted that the petitioners are the legal heirs of the deceased. The respondent has also submitted that the claims under various heads are excessive and unsustainable and as such the petitioner should be dismissed with costs. 7.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Was the accident caused due to the rash and negligent driving of the driver of the respondent's bus? https://hcservices.ecourts.gov.in/hcservices/ (ii) What is the quantum of compensation, which the petitioner is entitled to get? (iii)To what other reliefs? 8.The first petitioner is the wife of the deceased, the 2nd to 5th petitioners are the children of the deceased and sixth petitioner is the mother of the deceased Kanniappan. 9.On the petitioners' side two witnesses were examined as PW1 and PW2 and four documents were marked as Exs.P1 to P4. Ex.P1 is the FIR; Ex.P2 is the Post-mortem Report; Ex.P3 is the Death Certificate and Ex.P4 is the Legalheir Certificate. On the respondent's side one witness was examined as RW1 and no documents were marked. 10.The first petitioner, wife of the deceased, was examined as PW1. The PW1 in her evidence, has deposed that while her husband was proceeding on his tricycle, he has been hit by the speeding respondent's bus and that he had died due to the injuries caused to him in the impact. The eyewitness to the accident, one Venkatesan, was examined as PW2. The PW2, in his evidence, has deposed that while the said tricycle was being ridden by the (deceased) Kanniappan from Chennai towards Tindivanam, the respondent's bus bearing registration No.TN07 N6115, driven at a high speed and in a rash and negligent manner by its driver, had hit the tricycle from behind and that the (deceased) Kanniappan had died from the injuries caused to him in the accident. He had stated that the accident was caused only by the rash and negligent manner of driving by the driver of the respondent's bus. 11.On the respondent's side, the driver of the bus was examined as RW1. The RW1, in his evidence, has stated that while he was driving the bus, from north to south, and when the bus was nearing Ayyanar Temple near Madurantagam, the tricycle had suddenly come out from the shadow of a lorry parked in the opposite direction and on seeing this he had stopped the bus. But, in spite of this the bus had hit the rider of the tricycle ie.the deceased Kanniappan. He had further stated that an FIR had been filed against him and a criminal case registered against him, but that on subsequent enquiry it was found by the criminal Court that he was not guilty of causing the said accident and had absolved him and dismissed the criminal case filed as against him. He had stated that the accident had been caused only by the negligence of the rider of the tricycle. But, the Tribunal, on considering that the said Judgment copy of the Criminal Court has not been marked as evidence in the instant case to establish the contentions of RW1 and also considering that the evidence of PW2, the eyewitness of the accident was in consonance with the statements in the FIR marked as Ex.P1, held that the respondent's https://hcservices.ecourts.gov.in/hcservices/ bus driver had driven the bus at a high speed and in a rash and negligent manner and had caused the accident. 12.It is seen from the averments in the claim and from the statements in the Post-mortem report of the deceased that the deceased was aged about 42 years at the time of accident. From a scrutiny of Death Certificate marked as Ex.P3, it is seen that the age of the deceased has been stated as 47 years. As such, the Tribunal held that the age of the deceased could be taken as lying between 45 to 50 years. Though, it has been stated in the petition that the deceased was maintaining his family and that all the petitioners were dependants on his income, no documentary evidence has been furnished to establish the occupation of the deceased and the monthly income earned by him. As such, the Tribunal fixed the notional income of the deceased as Rs.3,500/- per month and his annual income as Rs.42,000/-. Deducting 1/3rd share of this for his personal expenses, the Tribunal held that the annual contribution made by the deceased to his family could be taken as Rs.28,000/-. Adopting a multiplier of 13, as was relevant to the age of the deceased as per the Motor Vehicles Act, the Tribunal assessed the total contribution that the deceased could have made to his family as Rs.28,000/- X 13 = Rs.3,64,000/-. 13.The Tribunal, accordingly awarded a sum of Rs.3,64,000/- to the petitioners and directed the respondent to deposit the above award 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, into the credit of the M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam, within a period of three months from the date of its Order. The Tribunal further apportioned a sum of Rs.1,50,000/- from and out of the award amount, to the first petitioner and apportioned a sum of Rs.30,000/- to the sixth petitioner. The balance award amount was apportioned to be shared equally by the 2nd to 5th petitioners. Further, the apportioned share of award granted to the 1st, 2nd and 6th petitioners, was to to be deposited in a nationalised bank, as fixed deposit for a period of three years and the interest on such deposit could be received by them once in six months and the apportioned share of the minor 3rd to 5th petitioners were to be deposited as fixed deposit in a nationalised bank, until such time they attain the age of a major and the first petitioner was permitted to withdraw the interest on the deposit of the minor petitioners once in six months, for the welfare of the minor petitioners, until such time they become majors. The excess Court fee paid by the petitioners was to be refunded to them. The Advocate fees was fixed at Rs.9,000/- and the respondent was directed to pay the cost of Rs.12,016.50 to the petitioners. 14.The learned counsel appearing for the appellant has https://hcservices.ecourts.gov.in/hcservices/ contended in his appeal that the Tribunal ought to have dismissed the claim petition since the impugned accident was caused due to the negligence of the deceased, who had suddenly crossed the road behind a stationary vehicle unmindful of the vehicles proceeding on the highway and courted the accident. It was also contended that the Tribunal erred in believing the evidence of PW2, an alleged eyewitness, whose presence at the place of accident was not proved. It was also contended that the Tribunal ought to have held that the deceased had equally contributed to the accident. 15.It was contended that the award of Rs.3,64,000/- for loss of pecuniary benefits had been granted by the Tribunal by taking excessive multiplier of 13 years and excessive monthly income of the deceased at Rs.3,500/-. It was also pointed out that as the claimants had not mentioned the avocation of the deceased and as his income had also not been proved by acceptable evidence, the income of Rs.3,500/- fixed by the Tribunal, as the notional income of the deceased was excessive. As such, the learned counsel appearing for the appellant has prayed to set aside the award and decree passed by the Tribunal. 16.The learned counsel appearing for the respondent vehemently argued that the (deceased) Kanniappan met with an accident on 23.10.2001. From the date of accident till 01.11.2001, ie. the date of his death, he underwent treatment, as inpatient, at Government Hospital, Maduranthagam, and also at Government Medical College Hospital, Chingelpet. During the period of his treatment, the petitioners have incurred medical expenses, even though the deceased was treated in a Government Hospital. Further, the learned counsel appearing for the respondents has raised a valid point that the Tribunal had not given any compensation under the head of loss of consortium, loss of love and affection, transport, medical and funeral expenses. In the instant case, the Tribunal should have granted an award under the said heads. So, the learned counsel appearing for the respondents has contended that the appeal is not maintainable. 17.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal, arguments advanced by the learned counsels on eithersides, this Court is of the view that the Tribunal had awarded the compensation after due consideration of the age of the deceased and also after considering that the deceased was a watchman working in a Engineering College at Madurantagam. Besides, it is seen that the deceased has also been involved in agricultural operations. Considering this aspect, the Tribunal had fixed the notional income of (deceased) Kanniappan as Rs.3,500/-. As such, this Court does not find that any error has been committed by the Tribunal in assessment of compensation. Though the notional income fixed by the Tribunal is slightly on the higher side, it is also seen that the Tribunal had not given https://hcservices.ecourts.gov.in/hcservices/ any compensation to the petitioners under the various heads namely loss of consortium, loss of love and affection, medical expenses, transport expenses and funeral expenses. As such, this Court views that the slightly excessive notional income fixed by the Tribunal has been counter balanced by the non award of compensation under the various other heads to which the petitioners are entitled to get and as such this Court finds that the award granted by the Tribunal is fair and equitable in the circumstances of the case. As such, this Court confirms the award made in M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam. 18.This Court imposed a condition on the appellant/transport corporation on 29.04.2008 to deposit the entire award amount with accrued interest to the credit of the M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam. 19.As the accident happened in the year 2001, it is open to the claimants to withdraw their apportioned share amount with accrued interest as per findings of the Tribunal, lying the credit of the M.A.C.T.O.P.No.241 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Madurantakam, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any and also subject to the fifth claimant attaining the age of a major. 20.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 24.03.2006, in M.A.C.T.O.P.No.241 of 2002, passed by the Motor Accident Claims Tribunal, Sub-Court, Madurantakam, is confirmed. Consequently, connected miscellaneous petition is closed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Sub-Court, Madurantakam, 2. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.M.Krishnamoorthy,Advocate Sr 11598 +1cc to Mr.K.Govi Ganesan, Advocate Sr 11667 PKB(CO) km/2.3. C.M.A.No.1519 of 2008 https://hcservices.ecourts.gov.in/hcservices/