(Order of the Court was made by T.S.SIVAGNANAM, J.,) This appeal is filed by the insurance company as against the award of the Motor Accidents Claims Tribunal, Fast Track Court No.4, Coimbatore at Tiruppur in M.C.O.P.No.81 of 2004.
2. The respondents 1 to 3 are the claimants before the Tribunal, who are the legal heirs of late Kittusamy, who died in a road traffic accident. The fourth respondent is the driver of the offending vehicle and the fifth respondent its owner.
3. The case of the claimants is that the late Kittusamy was an Exporter and doing export of Woven Goods and he was running a concern under the name and style of Siva Mills employing several persons and was also carrying on export business and earning huge profits, which was not less than Rs.2 lakhs (Net profit per month). The deceased was an income tax assessee and profit per annum was not less than Rs.30 lakhs. The claimants produced the tax returns to show that the deceased was paying income tax. Further it was stated that the claimants are the dependents of late Kittusamy and he was the only earning member of the family. With regard to the accident, the claimants' case is that Kittusamy was travelling in the bus bearing Registration No.TN 39-S-2788 and boarded the bus from Avinashi to go over to Tirupur. According to the claimants, the bus was driven in a rash and negligent manner and when the bus was nearing Harvey Road, at Tirupur, at about 5.45 p.m, it was driven in such a manner, the said Kittusamy, who was standing inside the bus and on account of applying sudden break, he was thrown out of the running bus and sustained several injuries all over his body and was taken to the Government Hospital, Tirupur, where he was pronounced to dead. The claimants claimed total compensation of Rs,2,52,00,000/- restricted to Rs.2 crores. [loss of earning at Rs.2,50,00,000/-; transport to hospital Rs.5,000/-; damages to cloth and articles Rs.50,000/-; funeral expenses Rs.50,000/-, loss of consortium Rs.1 lakh and love and affections Rs.1 lakh.]
4. The third respondent before the Tribunal viz., the appellant Insurance Company filed a counter affidavit denying the claim made by the claimants. Firstly by contending that it is false to allege that the deceased was thrown out from the running bus, when he was standing inside the bus. The Insurance Company had attributed negligence on the part of the deceased apart from disputing the income of the deceased. They further contended that the driver had driven the bus in a proper manner and sought to fix the negligence on the deceased.
5. Before the Tribunal, the first claimant, viz., wife of the deceased examined herself as P.W.1., The eyewitness/co-passenger one Mr.S.P.Lakshmanan, was examined as P.W.2. Another Mill owner Mr.Rangasamy, was examined as P.W.3 and the Auditor of the deceased was examined as P.W.4. On the side of the claimants, ten documents were marked as Exs.P1 to P10. On the side of the respondents, the driver of the vehicle was examined as D.W.1. The Income Tax Officer, within whose jurisdiction the deceased had filed his return of income, was examined as D.W.2 and the Official of the Insurance Company was examined as D.W.3. On the side of the respondents, seven documents were marked as Exs.D1 to D7. The Tribunal framed three issues for consideration viz., whether the accident occurred on account of rash and negligent driving of the driver of the bus owned by the fifth respondent; Whether the deceased Kittusamy was working as a labour or whether he was earning Rs.2 lakhs per month and whether the claimants were entitled to the compensation sought for?
6. The Tribunal, after considering the oral and documentary evidence, fixed the income at Rs.75,000/- and calculated the annual dependency at Rs.6 lakhs (75,000-1/3X12). The Tribunal applied the multiplier of 11, taking age of the deceased as 54 years. Thus the pecuniary loss was assessed at Rs.66 lakhs (i.e. Rs.6 lakhs X11). The Tribunal awarded a sum of Rs.5,000/- for loss of consortium, Rs.5,000/- towards loss of love and affection. Rs.2,000/- towards funeral expenses, Rs.200/- towards damages to cloths and Rs.1,800/- towards transportation charges. In all the Tribunal awarded a sum of Rs.66,14,000/- as compensation. This award is put to challenge by the Insurance Company.
7. Mr.N.Vijayaraghavan, the learned counsel appearing for the appellant-Insurance Company vehemently contended that the income fixed by the Tribunal at Rs.75,000/- is excessive and though the income tax records were placed before the Tribunal and the Insurance Company was able to establish that the deceased was not earning so much profit as claimed by the claimants, the Tribunal erred in fixing the income at Rs.75,000/-. Further it is contended that on the aspect regarding the negligence of the deceased, the Tribunal erred in fixing negligence on the driver of the bus, in spite of taking into consideration the deposition of eyewitness, who was examined as P.W.2. Further the learned counsel submitted that though they may not be any error on the quantum awarded under the heads of non pecuniary damages, the income and the negligence aspect ought to be considered by this Court in a correct prospective and therefore, the award would require reconsideration.
8. Mr.S.Sounthar, learned counsel appearing for the respondents 1 to 3/claimants, on the other hand, submitted that the Tribunal after considering the over all facts and circumstances and taking note of the documents filed by the claimants, especially, the income tax returns of the deceased during the relevant point of time as well as the saral form, which was filed subsequent to the date of the accident, pertaining to the period of 1998-1999, correctly fixed the monthly income of the deceased at Rs.75,000/-. Therefore, there is no error in the order of the Tribunal in arriving at the income of the deceased. With regard to the negligent aspect is concerned, it is submitted that the Tribunal after considering the evidence on record, has given elaborate reasons as to how the driver of the bus was responsible for the accident and in this regard, the learned counsel referred to the finding rendered by the Tribunal in paragraph No.8 of its judgment.
9. We have carefully considered the submissions on either side and perused the materials placed on record.
10. The first aspect is with regard to the negligence as to whether the driver of the bus was negligent, as a result of which, the accident occurred. The learned counsel for the appellant vehemently contended that the Tribunal failed to properly appreciate the evidence on record and erroneously fixed the responsibility on the driver of the bus. To examine the correctness of this submission, we have carefully gone through the order of the Tribunal and from paragraph No.8 of the order, we find that the Tribunal has elaborately discussed the evidence, more particularly, the evidence of the co-passenger/eyewitness viz., P.W.2, who has in a very cogent manner stated about the entire accident occurred to the rash and negligent driving of the bus. Even during the cross examination of the said witness, the respondent-Insurance Company were unable to bring out any discrepancies in his evidence. Thus taking into consideration the manner in which the Tribunal had appreciated the evidence of eyewitness viz., P.W.2, we are of the view that the said finding does not call for any interference and the finding that the driver of the bus was negligent stands confirmed.
11. This leads us to the next question as to what would be the income of the deceased. Admittedly, the accident occurred on 21.09.2002. The saral form, which was produced by the claimants, was admittedly filed after the accident, but it pertained to the income of the deceased for the assessment year 1998-99 (Ex.P.10). So far as Exs.P6 and P7 are concerned, they are the income tax returns for the year 2002-2003, 2003-2004. Both documents are for the period subsequent to the accident. However we find that from the evidence of P.W.3, viz., one Rangasamy, who is also a Mill Owner, there is proof to show that the deceased was associated in the business activities of garments etc. We may also take judicial notice of the fact that the deceased was a resident of Tripur. Thus considering over all circumstances of the case, we deem it appropriate that the income of the deceased should be fixed at Rs.50,000/- per month. This is more so, because the Tribunal did not have any record to fix the income at Rs.75,000/. Therefore, considering the nature of the documents placed and the evidence on the side of the claimants, we are of the view that the monthly income should be fixed at Rs.50,000/- per month. The deceased was aged about 54 years at the time of his death, he left behind a widow and two major sons and there is evidence to show that he was the sole bread winner of the family. Considering the fact that he was a business man, a reasonable percentage should be added towards future prospects and the reasonable percentage in our opinion would be 15%. The next aspect is with regard to deduction towards income tax. At the relevant point of time 20% was the deduction to be made. There were three dependants and therefore, the deduction towards personal expenses shall be 1/3rd. Thus, the annual dependency is determined as Rs.3,67,992/- (57,500-20/100 (IT)-1/3 (Personal Expenses) X 12). The multiplier adopted by the Tribunal is proper. Accordingly, we also adopt the multiplier at 11. Thus the pecuniary loss is determined as Rs.40,47,912/- (3,67,992 X 11). As regards the compensation under the non pecuniary heads, the Tribunal, in our opinion, has awarded a very ridiculously compensation. Taking into consideration of the facts of the case and several pronouncement of the Honourable Supreme Court one of which in Rajesh & Others Vs. Rajbir Singh & Others reported in 2013 (3) CTC 883, the loss of consortium and loss of love and affection has to be appropriately fixed. Therefore, we determined the compensation for loss of consortium as Rs.1 lakh; loss of love and affection towards Rs.1,50,000/-; towards funeral expenses Rs.25,000/-; towards damages to cloth Rs.5,000/- and a sum of Rs.5,000/- towards transportation. Thus, we determined that the compensation payable to the claimant shall be fixed at Rs.43,27,912/-.
12. In the result, the appeal is partly allowed and the compensation awarded by the Tribunal in M.C.O.P.No.81 of 2004 at Rs.66,14,000/- (Rupees Sixty Six Lakhs and Fourteen Thousand only) is reduced and fixed at Rs.43,27,912/- (Rupees Fourty Three Lakhs Twenty Seven Thousand Nine Hundred and Twelve only). Pursuant to the interim order granted by this Court in the appeal on 07.09.2009, Rs.15 lakhs along with the interest has been deposited. The balance compensation amount payable to the claimants shall be deposited by the appellant-insurance company within a period of four weeks from the date of receipt of a copy of this order. The apportionment shall be as per the order passed by the Tribunal. The remaining compensation, on deposit, shall be permitted to be withdrawn as per the apportionment fixed by the Tribunal, by directly crediting the said amount to the Bank accounts of the respective claimants by NEFT transactions. No costs. Consequently, the connected miscellaneous petition is closed.