This Civil Miscellaneous Appeal has been filed by the appellants/claimants against the award of the Tribunal in reducing the compensation from Rs.2,47,000/- (Rupees Two Lakhs and Forty Seven Thousand) to Rs.1,27,000/- (Rupees One Lakh and Twenty Seven Thousand only) by fixing contributory negligence on the rider of the motorcycle at the ratio of 50:50, for the death of one Ayyappan @ Ponnambalam, aged 29 years, doing business, allegedly earning a sum of Rs.20,000/- (Rupees Twenty Thousand only), in the accident occurred on 12.05.2000, when the brother of the deceased, namely, Balakumaran, was riding his motorcycle, in which, the deceased was travelling as a pillion rider, on Batlagund - Dindigul main road, the brother of the deceased tried to overtake a lorry which was proceeding in front of him and while so, the bus bearing Registration No.TN-57-A-1998 was coming in the opposite direction and in that process, the motorcyclist indicated his process of overtaking the lorry by applying dim and bright signal of the head light of the motorcycle, however, the driver of the bus drove the vehicle in a rash and negligent manner and came on the wrong side of the road and dashed against the motorcycle, due to which, the deceased fell down and sustained injuries and breathed his last at the spot itself. Therefore, the claim petition was filed.
2. Before the Tribunal, the first appellant/first claimant examined herself as P.W.1 and one Aravindar was examined as P.W.2 and Exs.P.1 to P.8 were marked. On the side of the respondents, R.W.1 to R.W.3 were examined and Exs.R.1 to R.6 were marked.
3. On contest, the Tribunal, based on Ex.R.4 - judgment passed by the criminal Court in C.C.No.150 of 2001, wherein the brother of the deceased who was examined as P.W.1, did not depose that the driver of the offending bus drove the vehicle in a rash and negligent manner, found that the rider of the motorcycle had also contributed to the accident and held that the accident was not only due to the rash and negligent driving of the driver of the offending bus but also due to the contributory negligent on the part of the rider of the motorcycle and arrived at the compensation of Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand only) and deducted 50% of the same and awarded a sum of Rs.1,27,000/- (Rupees One Lakh and Twenty Seven Thousand only) including Rs.2,000/- (Rupees Two Thousand only) towards funeral expenses and a sum of Rs.5,000/- (Rupees Five Thousand only) towards consortium. Aggrieved over the quantum of compensation, the appellants/claimants filed the present appeal.
4. Heard Mr.R.Subramanian, learned Counsel for the appellants/claimants and Mr.A.S.Mathialagan, learned Counsel for the second respondent-Insurance Company and perused the materials available on record.
5. The first respondent/owner of the offending vehicle as well as the third respondent/father of the deceased remained exparte before the Tribunal and hence, notice to them is dispensed with, in view of the Full Bench judgment of Madhya Pradesh High Court in Mrs.Jamunabai v. Chhote Singh reported in I (2004) ACC 190 (FB).
6. The Tribunal, based on Ex.R.4 - judgment passed by the criminal Court in C.C.No.150 of 2001, wherein the brother of the deceased, who was examined as P.W.1, did not depose that the driver of the offending bus drove the vehicle in a rash and negligent manner, found that the rider of the motorcycle had also contributed to the accident and held that the accident was not only due to the rash and negligent driving of the driver of the offending bus but also due to the contributory negligent on the part of the rider of the motorcycle. Further, the Tribunal arrived at the compensation of Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand only) and deducted 50% of the same and awarded a sum of Rs.1,27,000/- (Rupees One Lakh and Twenty Seven Thousand only) including Rs.2,000/- (Rupees Two Thousand only) towards funeral expenses and a sum of Rs.5,000/- (Rupees Five Thousand only) towards consortium.
7. Challenging the same, the appellants/claimants are before this Court.
8. The points that arise for consideration in this appeal, are:
(i) Whether the finding of the Tribunal in fixing contributory negligence on the rider of the motorcycle is tenable?
(ii) To what relief, the appellants/claimants are entitled to?
Point No.(i):
9. The first appellant/first claimant is the wife of the deceased and the second appellant/second claimant is the son of the deceased. The third respondent is the father of the deceased. On the fateful day, i.e. on 12.05.2000, at about 10.45 a.m., the deceased and his brother, Balakumaran, were travelling in a motorcycle belonging to said Balakumaran on Batlagund - Dindigul main road to reach their industry and at that time, the said Balakumaran was riding the motorcycle and the deceased was travelling as a pillion rider. While so, the rider of the motorcycle was trying to overtake a lorry which was going in front of him and in that process, the bus bearing Registration No.TN-57-A-1998 belonging to the first respondent and insured with the second respondent-Insurance Company came in the opposite direction and dashed against the motorcycle.
10. It is the specific case of the appellants/claimants that the rider of the motorcycle was in the process of overtaking a lorry which was going in front of him and at that time, the bus bearing Registration No.TN-57-A-1998 belonging to the first respondent insured with the second respondent- Insurance Company came in the opposite direction in a rash and negligent manner and dashed against the motorcycle, despite the signal given by the rider of the motorcycle indicating that he was in the process of overtaking the lorry and hence, the driver of the offending bus alone was rash and negligent and therefore, the finding of the Tribunal in fixing contributory negligence on the rider of the motorcycle is not sustainable.
11. It is seen that the Tribunal, considering the pleadings, oral and documentary evidence, more particularly, Ex.R.4 - judgment passed by the criminal Court in C.C.No.150 of 2001, wherein the brother of the deceased, who was examined as P.W.1, did not depose that the driver of the offending bus which came in the opposite direction, drove the vehicle in a rash and negligent manner, found that the rider of the motorcycle had also contributed to the accident and therefore, held that the accident was not only due to the rash and negligent driving of the driver of the offending bus, but also due to the contributory negligent on the part of the rider of the motorcycle.
12. It is a well settled law that the judgment rendered by a criminal Court would not bind the Tribunal while considering the claim for compensation. However, the evidence adduced by the brother of the deceased, who was examined as P.W.1 before the criminal Court, has to be taken into consideration when negligence aspect has been dealt with. At no point of time, the brother of the deceased deposed about the rash and negligent driving on the part of the offending bus, which was coming in the opposite direction. Further, the appellants/claimants failed to examine the brother of the deceased before the Tribunal as one of the witnesses, which would weaken the case of the appellants/claimants and in such an event, a presumption has rightly been drawn by the Tribunal in determining the negligence and accordingly, held that both the driver of the offending bus as well as the rider of the motorcycle had equally contributed to the accident.
13. Therefore, this Court has no reason to set aside the said conclusion reached by the Tribunal and hence, Point No.(i) is answered accordingly.
Point No.(ii):
14. The learned Counsel for the appellants/claimants contended that even if the Tribunal comes to the conclusion that the driver of both the vehicles are equally liable for the accident, the Tribunal cannot pass any award apportioning the compensation payable by the drivers of the vehicle. He further contended that the compensation is joint and several and the claimants can receive the compensation from any one of the drivers of the offending vehicles and insured and relied on the judgment reported in 2015 (1) TN MAC 801 [SC] and submitted that the compensation of Rs.2,47,000/- (Rupees Two Lakhs and Forty Seven Thousand only) fixed by the Tribunal must be directed to be paid by the respondents 1 and 2. Further, the learned Counsel for the appellants/claimants contended that the amount awarded towards compensation is too meagre and therefore, prayed for enhancement of compensation to Rs.10,00,000/- (Rupees Ten Lakhs only).
15. The ratio in the above said judgment is not applicable to the facts of the present case. The Tribunal has held that the brother of the deceased/rider of the two wheeler is equally contributed to the accident. The appellants/claimants had not deliberately impleaded the brother of the deceased and insurer of the motorcycle. The brother of the deceased was also not examined as witness to speak about the way, in which, the accident had occurred.
16. The learned Counsel for the second respondent ? Insurance Company submitted that the first appellant/wife of the deceased got married and is living with her husband and therefore, the first appellant is not entitled to any enhancement of compensation towards loss of consortium. The said contention has considerable force and therefore, I hold that the first appellant is not entitled to any enhancement of compensation towards loss of consortium.
17. The age of the deceased is 29 years. The Tribunal applied multiplier 16. However, as per the judgment of the Honourable Supreme Court in Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another reported in 2009 (6) SCC 121, the correct multiplier to be adopted is 17.
18. The Tribunal, in the absence of any proof regarding the income of the deceased, fixed the notional income of the deceased at Rs.15,000/- (Rupees Fifteen Thousand only). However, this Court, considering the facts and circumstances of the case, determines the monthly income of the deceased at Rs.3,000/- (Rupees Three Thousand only) and 50% has to be added towards future prospects as the deceased was aged 29 years at the time of the accident and accordingly, the monthly income of the deceased would be Rs.4,500/- (Rupees Four Thousand and Five Hundred only) [Rs.3,000/- + Rs.1,500/-]. As the size of the family is 2, after deducting 1/3rd amount towards personal expenses of the deceased, the monthly contribution to the family of the deceased would come to Rs.3,000/- (Rupees Three Thousand only) [Rs.4,500/- - Rs.1,500/-] and accordingly, the loss of income would be Rs.6,12,000/- (Rupees Six Lakhs and Twelve Thousand only) [Rs.3,000/- X 12 X 17].
19. A sum of Rs.2,000/- (Rupees Two Thousand only) awarded towards funeral expenses is very meagre and hence, this Court enhances the same to a sum of Rs.5,000/- (Rupees Five Thousand only).
20. Since the first appellant got married subsequent to the death of the deceased, a sum of Rs.5,000/- (Rupees Five Thousand only) awarded by the Tribunal to the first appellant/wife of the deceased towards loss of consortium, alone is confirmed and she is not entitled to any enhancement under the said head.
21. No amount was awarded by the Tribunal to the second appellant/son of the deceased towards loss of love and affection and hence, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) is awarded by this Court under the said head.
22. Similarly, no amount was awarded by the Tribunal to the third respondent/father of the deceased towards loss of love and affection and hence, a sum of Rs.10,000/- (Rupees Ten Thousand only), is awarded by this Court under the said head.
23. Further, the Tribunal did not award any amount towards transportation charges and hence, this Court awards a sum of Rs.5,000/- (Rupees Five Thousand only), towards transportation charges.
24. The rate of interest awarded by the Tribunal at 7.5% per annum remains unaltered.
25. Accordingly, the total award amount would come to Rs.6,62,000/- (Rupees Six Lakhs and Sixty Two Thousand only), out of which, after deducting 50% towards contributory negligence fixed on the rider of the motorcycle, the appellants/claimants are entitled to only a sum of Rs.3,31,000/- (Rupees Three Lakhs and Thirty One Thousand only), along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs. Accordingly, Point No.(ii) is answered.
26. In the result,
(i) This Civil Miscellaneous Appeal is partly allowed;
(ii) The appellants 1 and 2 and the third respondent/claimants are entitled to a sum of Rs.3,31,000/- (Rupees Three Lakhs and Thirty One Thousand only), along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs;
(iii) The first appellant/first claimant is entitled to a sum of Rs.1,00,000/- (Rupees One Lakh only) along with accrued interest and costs;
(iv) The second appellant/second claimant/son of the deceased is entitled to a sum of Rs.2,00,000/- (Rupees Two Lakhs only) along with accrued interest and costs;
(v) The third respondent/father of the deceased is entitled to a sum of Rs.31,000/- (Rupees Thirty One Thousand only) along with accrued interest and costs;
(vi) The second respondent-Insurance Company is directed to deposit the entire award amount along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.1594 of 2000 on the file of the Motor Accident Claims Tribunal - cum ? I Additional District Judge, Madurai, within a period of eight weeks from the date of receipt of a copy of this judgment;
(vi) The appellants/claimants are directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment;
(vii) On such payment of additional Court Fees, if any, by the appellants/claimants, the Tribunal is directed to transfer the respective share amounts of the appellants/claimants and the third respondent to their Personal Savings Bank Account Numbers, through RTGS/NEFT system, after getting their Account Details, within a period of two weeks thereafter;
(viii) In the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Motor Accident Claims Tribunal - cum ?
I Additional District Judge, Madurai.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..