This Civil Miscellaneous Appeal has been preferred by the owner of the insured vehicle as well as by the Insurance Company against the award of the Tribunal to the tune of Rs.10,34,128/-(Rupees Ten lakhs thirty four thousand one hundred and twenty eight only) as against the claim of Rs.18,00,000/-(Rupees Eighteen Lakhs only).
2. At the outset, Mr. Sreenivasa Raghavan, the learned Counsel for the respondents submitted that the appeal preferred by the Insurance Company is not maintainable in view of the absence of permission from the Tribunal Under
Section 170 of the Motor Vehicles Act and if at all, the owner alone is entitled to maintain this appeal. In support of the aforesaid contentions, he relied upon the judgment of Honourable Supreme Court in Asha and Others Vs. United India Insurance Company Ltd., and another reported in 2008(2)SCC 774, and judgment of this Court in National Insurance Company Limited Vs.T.Murugesan and three others reported in 2009(1)TN MAC 160, and another judgment reported in 2009(1)TN MAC 166, National Insurance Company Limited, Gobi Vs. K.Ampujam and three others. In Asha and Others Vs. United India Insurance Company Ltd., and another, reported in 2008(2)SCC 774, the question before the Honourable Supreme Court was that whether the joint appeal by the owner and the Insurance Company on defences not available Under
Section 149(2) of the Motor Vehicles Act is maintainable or not. The Honourable Supreme Court held that the joint appeal is maintainable after deletion of the name of the Insurance Company. Even otherwise, the Insurance Company can be transposed as respondent. In the present case, the appeal is made by the owner as well as the Insurance Company. Relying upon the judgments quoted above, this Court transposes the Insurance Company as 4th respondent in this appeal.
3. The case of the respondents 1 to 3/claimants before the Tribunal was that the deceased Sureshkumar who was a Teacher in a Panchayat Union Middle School, was travelling in his Yamaha Motor Cycle,on Manamadurai to Sivaganga Main Road near Samiyarpatti Vilakku on the left side of the road and the driver of the appellant bus bearing Registration No.TN-63-Y-9399, drove the bus in a rash and negligent manner and dashed against the head of the deceased and the deceased died on the spot. The deceased was earning about Rs.7,063/-(Rupees seven thousand and sixty three only) as a monthly income. The first respondent and the second respondent/claimants are the parents and the 3rd respondent herein is the brother of the deceased.
4. The Insurance Company, the 4th transposed respondent herein contested the said M.C.O.P. contending that the accident occurred because of the negligence of the deceased and not because of the negligence of the driver of the insured vehicle.
5. The 2nd respondent/claimant was examined as P.W.1; one Mr.Shanmugham was examined as P.W.2, Ex.P.1 is the copy of F.I.R.; Ex.P.2 is the certified copy of Post Mortem; Ex.P.3 is the certified copy of Motor Vehicles Report; Ex.P.4 is the certified copy of the charge sheet; Ex.P.5 is the pay certificate of the deceased Suresh Kumar and no one was examined on the side of the appellant as well as 4th respondent and no document was marked as exhibit on their side.
6. The Tribunal after analysing the pleadings and evidence both oral and documentary, came to the conclusion, especially on relying upon P.W.2's evidence, that the accident could have been avoided if the driver of the bus was in careful manner driven the vehicle and the accident occurred due to the rash and negligence of the driver of the bus. Apart from that, the Tribunal relied upon Ex.P.3, the Motor Vehicles Inspector's Report, Ex.P.4-charge sheet against the driver of the bus, to come to the above said conclusion. The important portion of paragraph 11 of the award dealing with negligence is extracted as follows.
"11. P.W.2 has deposed evidence in the cross, that the accident road runs south to north. The victim was proceeding from south to north in his motor bike, P.W.2 had denied that the accident happened due to the rash and negligent driving of the deceased. It is from the evidence of P.W.2 and the documents would go to show, that the victim was proceeding in his motor cycle near the place of the accident, the bus was proceeding from Sivaganga, that the bus driver could have listened the person driving the motor cycle in front of the bus. But the driver of the bus did not see the person driving the motor cycle in front of him. If he could have driving the bus in a careful manner and slowly, then the accident could have been avoided and that it is due to the rash and negligent driving of the driver of the bus, this accident has happened. This point is answered accordingly."
7. The Tribunal having come to the conclusion that the accident occurred due to the rash and negligence of the driver of the insured vehicle, proceeded to fix the quantum of compensation, on the basis of the monthly income of the deceased. The monthly income of the deceased was proved by Ex.P.5 pay certificate of the deceased, Suresh Kumar, and based on that the monthly income was arrived at Rs.8,000/-(Rupees eight thousand only) per month. The multiplier adopted by the Tribunal was based on the age of the deceased who was 20 years at the time of accident and adopted a multiplier as "16". Totally, a sum of Rs.10,24,128/-(Rupees Ten Lakhs twenty four thousand one hundred and twenty eight only) was awarded as against the claim of Rs.18,00,000/-(Rupees Eighteen Lakhs). The said award is being challenged before this Court by the Transport Corporation.
8. The learned Counsel for the appellants Mr. Maheswaran, on behalf of Mr.Prabhu Rajadurai, contended that
(i) the negligence was wrongly fixed on the driver of the insured vehicle and the finding in this regard is against the evidence on records, especially, P.W.2. He relied upon the portion of the evidence to contend that the deceased was riding the vehicle behind the bus and the deceased only drove the vehicle in a rash and negligent manner in the rear side of the bus and that alone, caused the accident. As a result, the deceased died because of the accident.
ii) He further contended that in the award, wrong multiplier "16" was adopted by the Tribunal taking into consideration the age of the deceased which was 20. According to the learned Counsel for the appellants, the proper multiplier would be, according to the age of the mother, which was 50, at the time of death. Hence, the proper multiplier would be, according to the fact, is "13".
iii) The next point canvassed by the learned Counsel for the appellant is that since the deceased being a bachelor, 50% should be deducted from the amount fixed as monthly income for his personal expenses. However, the Tribunal wrongly deducted 1/3. In support of this contention and regarding the multiplier, the learned Counsel for the appellants, relied upon the judgment of the Honourable Supreme Court in (Bilkish Vs.United India Insurance Company Limited and anothers) reported in 2008(1)TN MAC 307 (SC). In that case, the deceased was 20 years old bachelor and the age of the parents were 47 and 42. The Tribunal adopted multiplier "11" in view of the age of the claimants, that is the parents and the said multiplier was confirmed by the High Court. On appeal, the Honourable Supreme Court, reduced the multiplier from "12" to "11". In that case, the monthly income of the deceased was Rs.31,494/-(Rupees Thirty one thousand four hundred and ninety four only). Considering those facts and circumstances peculiar to the facts of the case, the Honourable Supreme Court adopted multiplier as "11". The Honourable Supreme Court considered the parents' age for finding the multiplier. Based upon the said judgment, the learned Counsel for the appellants vehemently argued that the age of the mother alone ought to have taken into consideration. However, the Tribunal took the multiplier based upon the age of the deceased. He also cited another Honourable Supreme Court Judgment in New India Assurance Company Limited Vs.Smt.shanti Pathak and Others reported in 2007(4)T.A.C.17(S.C.), wherein on the age of the appellants/claimants, the multiplier was adopted in that case.
iv. Regarding the deduction of 1/3 from the monthly income towards personal expenses, the appellant Counsel submitted that it was wrongly done by the Tribunal as the deceased was a bachelor. According to him, 50% should be deducted towards personal expenses. He relied on the decision in Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in (2009)4 MLJ 997 (SC). The learned Counsel for the appellant especially relied upon, paragraph 15 of the judgment wherein it has been stated that in regard to bachelor, normally 50% is deducted towards personal and living expenses. With regard to future prospects, the learned Counsel for the appellants contended that the Tribunal already fixed the monthly income as Rs.8,000/-(Rupees Eight thousand only) considering the future prospects also.
9. On the contrary, Mr.Srinivasa Raghavan, learned Counsel for the respondents submitted that the negligence was rightly fixed on the driver of the appellant based on the evidence and the same need not be interfered with. With regard to multiplier, he fairly conceded that for adopting the multiplier, the age of the claimants should be taken into consideration. The learned counsel for the respondents does dispute the judgment cited by the learned Counsel for the appellants in this regard.
10. Answering the point taken by the learned Counsel for the appellants that the 50% should deducted from the income of a bachelor towards personal expenses, the learned Counsel for the respondents relied upon a same judgment relied on by the appellant's Counsel reported in (2009)4 MLJ 997 (SC) (Sarla Verma and Others Vs. Delhi Transport Corporation and Another). Paragraph 15 of the Judgment, reads as follows.
"However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third".
11. Put it in a nutshell, the learned Counsel for the respondent supported the deduction of one-third from the monthly income towards personal expenses made by the Tribunal. As far as the future prospects is concerned, the learned Counsel contended that the Tribunal did not take the future prospects in proper perspective and did not arrive at the loss of income properly.
12. The learned Counsel for respondents/claimants relied upon the Honourable Supreme Court Judgment in General Manager, Kerala State Road Transport Corporation, Trivandrum, Vs. Mrs.Susamma Thomas and others reported in AIR 1994 SUPREME COURT 1631, and submitted especially relied upon the paragraph 13 of the judgment. He submitted that 100% of the present income should be taken as a future income and accordingly, the loss of income should be calculated. He also relied upon the Honourable Supreme Court judgment in Smt.Sarala Dixit and another Vs.Balwant Yadav and Others reported in AIR 1996 SC, 1274 to press the point that a formula to be adopted in this type of cases is i.e., the present income + double of the present income and future income + present salary divided by 2 minus deduction of one-third will be the correct formula. He contended that the deceased was earning a sum of Rs.7,063/-(Rupees seven thousand and sixty only) which was proved by Ex.P.5. The double of the amount of the salary comes about Rs.14,126/-(Rupees fourteen thousand one hundred and twenty six only) and both the present and future are added together which comes about Rs.21,189/- (Rupees twenty one thousand one hundred and eighty nine) +21,180 divided by 2 X 12 comes to Rs.1,27,134/-(Rupees one lakh twenty seven thousand one hundred and thirty four only); adopting the multiplier of "13" it comes about Rs.16,52,742/- (Rupees sixteen Lakhs fifty two thousand seven hundred and forty two only). If one-third is deducted from the aforesaid amount, it yields Rs.11,01,828/-(Rupees eleven lakhs one thousand eight hundred and twenty eight only). According to him, the aforesaid amount would be the correct loss of income because of death of the deceased.
13. On perusal of the pleadings, evidence and records, it would go to show that there was contradition in the pleadings as well as the evidence adduced by the appellants in Paragraph 2 of the counter statement of the Insurance company. In paragraph 2 of the Counter statement filed by the Insurance Company, it was stated that the bus was coming from back side of the deceased and all of a sudden, the deceased carelessly and negligently turned his motor cycle to his right and the accident happened.
14. On the contrary, the learned Counsel for the appellants relying upon the evidence of P.W.2, contended that the rider of the motor cycle (the deceased) was rash and negligent in riding his vehicle and dashed the rear side of the bus and hence, the accident occurred because of the negligence of the deceased. Whereas it is seen from the evidence as well as the pleadings that it was the bus driver who was rash and negligently driving the vehicle and hit the deceased. In fact, Ex.P.4 - charge sheet proved that the driver of the insured vehicle alone was responsible for the accident. When that is the position, the Tribunal was right in concluding that negligence was on the part of the driver of the insured vehicle and hence, it does not warrant any interference from this Court.
15. As far as the multiplier is concerned, there is no dispute as it was conceded by the learned counsel for the respondents/claimants that the appropriate multiplier is based on the age of the claimants(mother). Therefore, the multiplier to be adopted is reduced from "16" to "13".
16. Regarding the deduction, the learned Counsel for the appellant submitted that the deceased being a bachelor, 50% should be deducted from the income of the deceased, whereas the learned Counsel for the respondent contended that the Tribunal rightly deducted one-third. A number of judgments have been quoted to stress their respective points. However, the Honourable Supreme Court in its recent Judgment in Regional Insurance Company Vs.Deopattodi reported in 2009(8)SCALE 194, held that deduction of one-third towards personal expenses is the ordinary rule in India. In that case, the Honourable Supreme court after analysing various previous judgments of the Honourable Supreme Court, held as follows:
"Indisputably, deduction of one-third towards personal expenses is the ordinary rule in India we think that in the facts and circumstances of the case, the same should be applied"
17. The earlier judgments of the honourable Supreme Court in this regard are 1998(8)SCC, 633 passed in Donat Louis Machedo and Others Vs.L.Ravindra and Others, 2004(2)SCC 473 passed in Fakeerappa and another Vs. Karnataka Cement Pipe Factory and Others, 2006(3) SCC 242 in Bijoy Kumar Dugar Vs.Bidya Dhar Dutta and Others, 2008(4)SCC 259 Bilkish Vs. United India Insurance Company, 2008(5)SCC 142, Bangalore Metropolitan Transport Corporation Vs. Sarojamma and finally 2005(10)SCC 720(New India Assurance Company Ltd., Vs. Charlie and another).
18. In the aforesaid cases, one-third amount alone was deducted for a bachelor. Only an exception in this regard is passed by the Honourable Supreme Court in Syed Basheer Ahamed and Others Vs. Mohammed Jameel and another reported in 2009(2)SCC 225. In that case, 50% was ordered to be deducted for the death of the bachelor. Considering the judgments referred to above, it would be appropriate and reasonable to deduct only one-third amount towards personal expenses of the deceased and to award two-third towards loss of income. Therefore, the award of the Tribunal in this regard is not disturbed and is maintainable.
19. Towards loss of future prospects, the learned Counsel for the appellants contended that the award was passed considering the future prospects also and that there need not be any more amount in this regard. Whereas the learned Counsel for the respondents/claimants contended that the future prospects should be taken into account, especially the advancement in the field of education as a Teacher is more. In support of that, he relied upon the judgment of the Honourable Supreme Court passed in Sharala Dixit case for the formula to be adopted for future prospects.
20. There are a number of judgments by the Honourable Supreme Court with regard to future prospects. The criteria for considering the future prospects is to arrive at the loss of income by the deceased.
21. The Court cannot close its eyes and mechanically arrive and fix the amount while considering the future prospects of the deceased. In this regard this Court relies upon the judgment of the Honourable Supreme Court in APSRTC Vs. M.Ramadevi and others 2008(1) TN MAC 234. In that case, even in the absence of appeal, enhancement was ordered.
22. Mr.Srinivasa Raghavan contended that even in the absence of cross appeal/appeal by the claimants, the compensation can be enhanced considering the future prospects of the deceased. The formula adopted in Sharala Dixit's case can be safely adopted in this case also. Accordingly, the amount arrived following Sharala Dixit's case is followed and a sum of Rs.11,01,828/-(Rupees eleven Lakhs one thousand eight hundred and twenty eight only) is arrived after the deduction of one-third towards personal expenses of the deceased.
23. For enhancing the award, the learned Counsel for the appellants objected that this Court cannot award any amount or enhance the amount in the absence of appeal/cross appeal by the claimants.
24. The Civil Miscellaneous Appeal is the only continuation of the original proceedings and this Court is only examining correctness of the award passed by the Tribunal. Invoking Order 41 Rule 33 of Civil Procedure Code, this Court can very well enhance or reduce the award even in the absence of any appeal / cross appeal in this regard.
25. The view of this Court is supported by number of judgments including 2008(1)TN MAC 352 (TNSTC Vs. Saroja and others and 2008(1)TN MAC 234 (SC) (APSCRTC Vs. M.Ramadevi and others). In a case reported in 2003(2)SCC 274 (Nagappa Vs. Gurudayal Singh and Others), Three Judges Bench of the Honourable Supreme Court held that even in the absence of the appeal, the Appellate Court can enhance the amount.
26. The learned Counsel for the respondents contended that there was no amount awarded towards funeral expenses. Hence a sum of Rs.5,000/-(Rupees five thousand only) is awarded towards funeral expenses. The learned Counsel for the respondents contended that for loss of love and affection, a sum of Rs.10,000/- (Rupees ten thousand only) was awarded. The amount to be awarded by the Tribunal in toto, should be fair and proper. As observed by the Honourable Supreme Court, it should not be exorbitant or very low. It should not be arbitrary or unreasonable. Considering the case in toto and also considering the fact, the various amounts awarded on various headings, a sum of Rs.10,000/-(Rupees ten thousand only)awarded by the Tribunal is reasonable. Hence it is maintained.
27. In view of the aforesaid judgments, the contention of the learned Counsel for the appellant opposing the enhancement, is rejected.
28. The award of the Tribunal is modified as follows.
29. Accordingly, the award is modified from Rs.10,34,128/-(Rupees Ten Lakhs thirty four thousand one hundred and twenty eight only) to Rs.11,16,828/- (Rupees eleven Lakhs sixteen thousand eight hundred and twenty eight only). Consequently, the appeal is disposed of in the above terms. No Costs.
ssl To The Motor Accident Claims Tribunal(Principal District Judge,) Sivaganga.