Today, the matter comes up for admission. This Civil Miscellaneous Appeal has been preferred by the appellant Transport Corporation against the award of Rs.6,00,000/-(Rupees six lakhs only) for the death of one Karuppaiah.
2. The facts of the case are as follows:
The deceased Karuppaiah was working as a mason and doing building contract works earning about Rs.10,000/-(Rupees ten thousand only) per month. On 18.08.2007, when the deceased was driving his TVS Star bike, the Transport Corporation vehicle driven in rash and negligent manner, dashed against the motor bike from the opposite side and due to that, Karuppaiah was thrown out and died on the spot.
3. Hence, the claim petition was filed seeking a sum of Rs.6,00,000/- (Rupees six lakhs only) as compensation. The claim petition was contested by the Corporation. On behalf of the claimants, three witnesses were examined and Exs.P.1. to P.8. were marked. On the side of the appellant, only the conductor of the appellant Corporation was examined as R.W.1.
4. On appreciation of the pleadings, evidence and Exhibits, the Tribunal came to the conclusion that the driver of the Corporation was alone responsible for the accident and fixed the liability on the driver of the Corporation.
5. As far as the quantum is concerned, the Tribunal fixed Rs.4,500/- (Rupees four thousand and five hundred only) as monthly income and deducted one- third towards personal expenses and after taking multiplier 17, arrived at a sum of Rs.6,12,000/-(Rupees six lakhs and twelve thousand only) towards loss of dependency. However, the Tribunal awarded only a sum of Rs.6,00,000/-(Rupees six lakhs only) based on the claim petition, in which a sum of Rs.6,00,000/- (Rupees six lakhs only) alone was sought for.
6. Aggrieved by the award of Rs.6,00,000/- (Rupees Six Lakhs only), the present appeal has been preferred by the appellant Corporation. Mr.Royce Immanuel, attacked the award contending that, in the absence of any proof for monthly income, the Tribunal should not have fixed the monthly income at Rs.4,500/- and arrived at the loss of income. Secondly, he also questioned the negligence fixed on the appellant's driver.
7. It is seen from the record that P.W.2, pillion rider of the motor cycle gave police complaint about the accident, categorically deposed that the accident occurred because of the negligent driving of the appellant bus. P.W.2 was the eyewitness to the accident. R.W.1 was the conductor of the bus; he could not have seen the accident. Appellant did not examine the driver of the bus. The complaint was registered against the appellant's driver. If there was negligence on the part of the rider of the motor cycle, definitely there would have been complaint from the appellant's driver or owner against the rider of the motor cycle. There was no such complaint. Hence, the Tribunal rightly held that the accident occurred because of the rash and negligent driving of the appellant's driver based on evidence of P.W.1, P.W.2 and Exs.P.1 to P.4. Hence, the finding of the Tribunal in this regard, is confirmed.
8. Regarding quantum, the Tribunal fixed the monthly income at Rs.4,500/- as against the claim of Rs.10,000/-. The claim of the respondents was that the deceased was earning as Mason at Rs.10,000/-. P.W.3 spoke about the avocation of the deceased as Mason and the same was proved by Ex.P.5. However, the Tribunal calculated the daily wages at Rs.150/- and arrived at Rs.4,500/- towards monthly income. Since the age of the deceased was 35, the multiplier 17 was adopted. After deduction of 1/3rd amount towards personal expenses, Rs.3,000/- was taken as loss of income and Rs.3,000/- X 12 X 17 = Rs.6,12,000/- would be the loss of dependency. Since the claim was made for Rs.6,00,000/- only, the Tribunal awarded Rs.6,00,000/-.
9. It has been decided by the Honourable Supreme Court, the Tribunal can award more compensation than the amount claimed and it has been decided in Nagappa Vs. Gurudayal Singh and others reported in 2002(9) SCALE 37. When such is the position, this Court is unable to understand as to why the Tribunal did not award the loss of income which was correctly arrived as Rs.6,12,000/-(Rupees six lakhs twelve thousand only).
10. Even though this matter comes for admission, the loss of income is enhanced to (viz., Rs.3,000/- X 12 X 17 = Rs.6,12,000/- as correctly calculated by the Tribunal) Rs.6,12,000/-(Rupees six lakhs and twelve thousand only). The income fixed by the Tribunal is in tune with the judgment of the Honourable Supreme Court in New India Assurance Co. Ltd. vs. Kalpana (Smt) and others reported in (2007) 3 SCC 538, wherein it was held that in the absence of any material evidence, the monthly contribution of the deceased after deduction of 1/3rd amount towards personal expenses, Rs.3,000/- was fixed.
11. A perusal of the award shocks the conscience of this Court. The Tribunal failed to award any amount under the conventional headings. Merely because, the amount to be awarded towards loss of income exceeded the claimed amount, it cannot be a bar for the Tribunal to follow the Motor Vehicles Act by awarding amounts under conventional headings. No amount was awarded towards love and affection, for loss of consortium, for funeral expenses and for transportation. The approach of the Tribunal should be equity in nature, especially while dealing with the cases under Motor Vehicles Act which is a beneficial and benevolent piece of legislature.
12. Taking into consideration the fact that no amount awarded in those headings, this Court awards the following manner:
Loss of love and affection:
13. It is very painful to note that the respondents 3 and 4 were two months old babies at the time of the death of their father and the second petitioner was seven years old. Even without considering this important factor, the Tribunal misdirected itself in not awarding the amount. The petitioners 3 and 4, being two months old babies, lost the chance of recognising and seeing their father's face and they lost the chance of getting love, care and guidance from their father through out their lives. Taking into account of the peculiar circumstances of the case, the respondents 2 to 4 are awarded a sum of Rs.15,000/-(Rupees fifteen thousand only) each and the 5th respondent, being the mother of the deceased, is awarded a sum of Rs.5,000/-(Rupees five thousand only) and in all amounting to Rs.50,000/-(Rupees fifty thousand only). Loss of Consortium:
14. The first respondent lost her husband at the young age of 26 years. No amount can be equal to the life partner of the first respondent. The loss of husband makes the first respondent to bear a social stigma of widowhood. It is very unfortunate that the widows are not treated equally in the society and their siting are not considered as a good omen. These are all the inputs to be taken into account. Hence, for loss of consortium, a sum of Rs.25,000/-(Rupees twenty five thousand only) is awarded to the first respondent.
15. Towards transportation, a sum of Rs.2,500/-(Rupees two thousand and five hundred only) is awarded and a sum of Rs.5,000/-(Rupees five thousand only) is awarded towards funeral expenses.
16. In the result, the following amounts are given in favour of the respondents:
(i) For loss of income Rs.6,12,000.00
(ii) For loss of love and affection for R.2. to R.4. Rs. 45,000.00
(iii)For loss of love and affection for R.5. Rs. 5,000.00
(iv) For loss of consortium to the first respondent Rs. 25,000.00
(v) For transportation Rs. 2,500.00
(vi) For funeral expenses Rs. 5,000.00
---------------
Total Rs.6,94,500.00
----------------
The rate of interest granted by the Tribunal is in consonance with the lending rate as on date namely 7.5% and hence, it is confirmed.
17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and
Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover,
Sections 163 and
166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice. Hence, in the interest of justice, an attempt to do complete justice, this Court enhances the award from Rs.6,00,000/-(Rupees six lakhs only) to Rs.6,94,500/-(Rupees six lakhs ninety four thouand and five hundred only).
18. For the reasons stated above, the appeal is liable to be dismissed and accordingly dismissed. Connected Miscellaneous Petition is dismissed in the admission stage itself enhancing the award of Rs.6,00,000/- to Rs.6,94,000/-. Consequently, the connected Miscellaneous Petition is closed. No Costs. The Office is directed to communicate the order copy to the respondents/claimants.
19. This Court on 03.07.2009 granted interim stay of the award passed by the Tribunal while disposing of the petition to condone the delay of 37 days in filing the appeal preferred by the appellant herein, on condition that 50% of the balance award amount had to be deposited before the Tribunal, as 50% was already deposited before the Tribunal. In view of that, the stay granted by this Court on 03.07.2009 is vacated.
20. The appellant is directed to deposit the enhanced amount within a period of four weeks from the date of receipt of a copy of this order. Meanwhile, the Tribunal is directed to pay the entire award amount which has been deposited by the appellant herein to the claimants within a period of one week from the date of receipt of a copy of this order.
21. As far as the enhanced amount is concerned, after deposit of the same, the Tribunal is directed to pay the amount to the claimants within one weeks from thereof.
ssl To The Motor Accident Claims Tribunal, Sub-Court, Virudhunagar.