This appeal is directed against the judgment and award passed by the lower Court made in MCOP No.89 of 2001 dated 09.09.2003. The first respondent before the lower Court is the appellant. The claimants before lower Court are the respondents 1 to 4 and the second respondent before the lower Court is 5th respondent in this appeal.
2.The case of the claimants before the lower court is as follows:-
i) On 11.09.2000 at about 5.45 hrs. the deceased Mani was walking on the extreme left at Maraimalai Nagar Salai opposite to Thiruvalluvar Bus Stand, Pondicherry. At that time, the driver of the V.M.S.Bus bearing Regn.No.TN-32/B-1122 drove it in a rash and negligent manner in a one way without following the traffic rules of Pondicherry, at the said M.M. Adigal Salai. The driver of the above bus should drive on the southern side road at M.M.Adigal Salai and it is a rule for all vehicles and it is the traffic law of Pondicherry. But the driver of the bus drove the bus at northern side of the M.M.A.Salai against the traffic law of Pondicherry and dashed against the deceased Mani. Due to the said impact, the deceased Mani was thrown away and fell on the road and the rear wheel of the bus ran over his head and consequently the brain came out of his head and multiple grievous injuries were caused on him and he died on the spot itself. The post mortum of the deceased Mani was done at Pondicherry Government Hospital.
ii)The accident took place only due to the wrong committed by the driver of the bus who drove the vehicle in one way area in a rash and negligent manner and hit against the deceased and caused him multiple injuries to death on the spot. The first respondent being the owner of the vehicle and the 2nd respondent being the insurer of the vehicle are jointly and severally liable to pay the compensation to the claimants / petitioners.
iii)The deceased Mani was hale and healthy before the accident. The deceased Mani was professionally a fisherman and was earning a monthly income of Rs.5,000/-. The petitioners are the legal heirs of the deceased i.e. his wife, one son and two minor daughters and are wholly depending upon the income of the deceased and now the petitioners are starving without daily bread due to the death of the deceased and the petitioners lost their only companionship of the deceased Mani and their future became gloomy and his death caused irreparable loss to the petitioners.
iv) The petitioners calculate their claims as follows:-
The deceased Mani died at the age of 35 years and he would earn up to his age of 70 years. Therefore, the loss of income of the deceased is worked out as Rs.5000/- X 12 X 35 = 21,00,000/- after deducting 1/3rd amount towards his personal expenses for Rs.7,00,000/- and the remaining amount at Rs.14,00,000/-. This amount could be fixed as loss of income to the family due to the death of Mani.
v) The petitioners estimated their claim of Rs.14,00,000/- for the sudden death of their sole bread winner, the deceased Mani for their future life, Children's education and status etc.,
vi) Therefore, the petitioners pray before this Hon'ble tribunal to kindly pass an order directing the respondents to pay the compensation amount with interest and cost of the proceedings and pass such or other orders as it may deem fit and proper in the circumstances of the case and thus render justice.
3. The contentions raised by the second respondent before the lower court would be as follows:-
i) The allegation that accident was not due to rash and negligent Act of the petitioner are not true and it is only the petitioner who invited his fatal accident. It is also contended that there was no rash and negligent act on the part of the driver of the bus, the respondents 1 and 2 are not liable to pay any compensation.
ii) The claim that the deceased was aged 35 years is not true. The age of the petitioners 3 and 4 given are false. Deliberately it has been shown too young to claim a higher compensation if possible. The averments that the deceased was fisherman and was earning Rs.5,000/- per month is also false. In order to claim a higher compensation, false allegations are made. This respondent do not admit that the petitioners are the legal heirs of the deceased and are entitled to get compensation. The claim is excessive and arbitrary. Hence, the petition is liable to be dismissed with cost.
4. The lower Court had examined PWs 1 and 2 and admitted the documents in Exs. P1 to P4 on the side of the claimants and neither any oral evidence nor any documents were produced on the side of the respondents. The lower court had considered the evidence and passed a judgment and award for a sum of Rs.7,06,000/- with interest at 9% per annum from the date of petition till the date of payment. The respondents 1 and 2 before the lower Court had preferred the present appeal and subsequently, the Insurance Company had been ordered to be arrayed as 5th respondent and the first respondent before the lower court above figured as appellant and is prosecuting the appeal.
5. Heard Ms.Revathi, the learned counsel for the appellant / 1st respondent and Mr.A.K.Kumarasamy, the learned counsel for the respondents 1 to 4 / claimants. There is no representation for the 5th respondent / 2nd respondent.
6. The learned counsel for the appellant would submit in his arguments that the lower court was not correct in assessing the monthly income of the deceased at Rs.4,500/- relying upon Ex.P4 salary certificate, since the author of the said salary certificate was not examined by the lower court. He would further submit in his arguments that since the avocation of the deceased person would not yield any income during the monsoon period, still the lower court had assessed the compensation on the basis of the multiplier method holding the income of deceased person at Rs.4,500/- per month. He would further submit in his arguments that, the compensation for loss of consortium was awarded at Rs.40,000/- for his wife / first petitioner and a sum of Rs.30,000/- awarded to his children namely claimants 2 to 4, towards loss of love and affection which are certainly on the higher side and the awarding of such compensation should have been reduced. She would further submit in her argument that the said award of damages at Rs.1,30,000/- on conventional heads is not in accordance with law and therefore the compensation awarded by the lower court at Rs.7,06,000/- with interest at 9% per annum has to be reduced and proper compensation has to be fixed and thus the appeal may be allowed.
7. The learned counsel for the respondents 1 to 4 would submit in his argument that the lower Court was right in awarding a compensation in favour of the claimants at Rs.7,06,000/- after fixing the monthly income of the deceased at Rs.4,500/- by using the multiplier at 16. He would further submit that the awarding of compensation at Rs.40,000/- for the loss of consortium and Rs.30,000/- towards loss of love and affection for each child of the deceased, is not higher side. However, a judgment of our Honourable Apex Court reported in 2009 (2) TNMAC 1 (SC) in the case of Smt.Sarla Verma & others v. Delhi Transport Corporation and another would go to show that the dependants family members who are numbering from 4 to 6, the deduction should not be at 1/3rd, and it ought to have been at 1/4th. If it is adopted, the compensation payable to the loss of income of the deceased Mani would be the same as per the quantum of the award passed by the lower court. He would further submit in his argument that nothing is required to set aside or modify the order passed by the lower Court and hence, the appeal may be dismissed. He would also submit that the liability to pay the compensation for the claimants was first fixed against the fifth respondent and since he was transposed as 5th respondent, it has to be deemed that he did not prefer any appeal and therefore the award passed by the lower court against the 5th respondent Insurance Company cannot be altered, in the absence of any separate appeal preferred by the 5th respondent.
8. On giving anxious thoughts to the argument submitted on either side, this court could see that the fixing of liability for the rash and negligent driving on the part of the driver of the appellant / first respo