This civil miscellaneous appeal has been preferred by the appellant/second respondent, M/s.Jeeva Transport Corporation Limited, Erode against the decree and judgment in MCOP No.300 of 1995 on the file of Motor Accident Claims Tribunal cum Subordinate Court, Tiruppur, dated 26.11.2001 awarding a compensation of Rs.6,00,000/-.
2. Aggrieved by the said award, the appellant has filed the above appeal.
3. The short facts of the case is as follows;-
On 24.02.1995, the deceased Ayyasamy was travelling in JTC bus bearing registration No.TN-33-0371. At about 10.45 a.m., while the bus was proceedings towards east in NH-47 Coimbatore to Perundurai road near Naduppatti Pirivu, the driver of the bus drove it in a rash and negligent manner and hit against the lorry, coming opposite to it, lorry bearing registration No.KL-7-E-694, in which the deceased sustained severe injuries and died. This accident occurred due to the rash and negligent driving of both the JTC bus driver and lorry driver, who are the first and third respondents herein. The deceased was the Manager and only earning member in his family. He was working as Manager at J.V.Taps, Tiruppur and was earning Rs.5,000/- per month. The deceased was very affectionate towards the petitioners 1, 2 and 3. The petitioners 1 and 2 are the parents of the deceased and the third petitioner is the wife of the deceased. The accident had made the petitioners to become orphans. The third petitioner has lost her consortium in her youth. The petitioners have spend more than Rs.25,000/- for funeral expenses of the deceased. Hence, the petitioners have held that respondents 1 to 5 are jointly and severally liable to pay compensation to the petitioners. The driver and owner of the JTC bus bearing registration No.TN-33-0371 are the first and second respondents and the driver, owner and insurer of the lorry bearing registration No.KL-7-E-694 are the third, fourth and fifth respondents. The petitioners have claimed a total compensation of RS.12,50,000/-, but restricted it to Rs.12,00,000/-. The Perundurai Police Station had also registered a criminal case in Cr.No.133 of 1995.
4. In the counter filed by the second respondent, all the allegations made by the petitioners were denied. The age of the deceased i.e. 25 years, income of the deceased, his employment and travel in the said bus were denied. In the counter, the second respondent had alleged that the first respondent was driving the bus from west to east slowly, cautiously and was also observing the rules of the road. At that time, a bus was coming in the opposite direction. Following this bus, a lorry bearing registration No.KL-07-E-694 was coming. The said lorry driver without adhering to the traffic rules and regulations overtook the above bus in such a high speed that he lost control of the same and dashed against the bus of the Corporation and damaged the same. The bus was coming near Nadupatti Pirirvu. The accident has occurred only due to the rash and negligent driving of the driver of the lorry. The lorry driver tried to overtake the bus, which was going in front of it, without getting any signal from the bus. If the lorry driver had not tried to overtake the bus at this juncture, the accident would not have happened. Hence, the allegations that both the drivers are answerable for the claim petition is false and the second respondent contended that the accident did not take place due to the rash and negligent driving of the first respondent. Further, the second respondent has submitted that the award claimed by the petitioners i.e. Rs.12,00,000/- is highly exorbitant and disproportionate. Further, the second respondent submitted that the petitioners are not the legal heirs of the deceased.
5. The fifth respondent, the Oriental Insurance Company Limited, Maddacherri, Cochin, in his counter, has denied the age, employment, and salary particulars given by the petitioners in their claim. Further, there has been no documents filed by the petitioners to show that the deceased was an income tax assessee. The claim amount is also excessive. Further, from the first information report it could be seen that the accident had happened only due to the rash and negligent driving of the first respondent and as such, there is no necessity for the firth respondent to pay any compensation.
6. On the claimants side, PW1 to PW3 were examined and their oral and documentary evidence were recorded. Exhibits Ex.P1 to Ex.P10 were marked. On the respondent side RW1 was examined; but no documents were marked.
7. The learned Tribunal framed two issues namely; 1) Whether the petitioners are entitled to get compensation and if so,
2) What is the quantum of compensation?
8. On a careful scrutiny of the deposition of the eye witness to the accident and also after perusal of the first information report, it is clearly established that the bus had tried to overtake a lorry and had then dashed against another lorry coming on the opposite side. Further in the criminal complaint registered by the Perundurai Police it has been clearly mentioned that the accused is the bus driver of the said Transport Corporation. Consequently, the Tribunal exonerated respondents 3 to 5 of any liability to pay compensation and arrived at the conclusion that only the second respondent is liable to pay compensation.
9. After deciding the first issue that the first and second respondent namely driver and owner of the bus are responsible to pay compensation to the respondents/claimants, he was to decide on the quantum of compensation to be awarded. The deceased, was an employee at J.V.Taps and drawing a salary of Rs.5,000/- per month. To prover the same, the first petitioner/claimant produced salary certificate dated 12.12.1995 in the name of deceased Ayyasamy, but the Tribunal treated the salary of the deceased as Rs.4,500/-. As such, the total income of the deceased per annum was arrived at Rs.54,000/-. At the time of the accident, the age of the deceased was 25 years. That was decided by the Tribunal on the basis of the postmortem report i.e. Ex.P5. The Tribunal, considering the age of the deceased and income, had adopted a multiplier of 17 to calculate the loss of income and calculated it as Rs.9,18,000/-. 1/3rd deducted for personal expenses i.e. Rs.3,06,000/- was deducted, and the balance of Rs.6,12,000/- was awarded as compensation; for funeral expenses Rs.2,000/- was granted; and for consortium Rs.5,000/- was granted to the third claimant; Altogether Rs.6,19,000/- was assessed and awarded as compensation by the Tribunal. The said amount was rounded off to Rs.6,00,000/- by the Tribunal. Further the Tribunal directed the second respondent to deposit the claim amount within two months and also apportioned the said amount equally among the petitioners.
10. The Tribunal recorded the evidence of PW1, i.e. 1st claimant in the MCOP No.300 of 1995 and PW2, one Kamalam, who is the second claimant in MCOP No.322 of 1995, which is a connected claim petition in the said accident. Supporting this claim case, one Balakrishnan as PW3 was also examined on the side of the claimant. The documents, first information report, charge sheet, Motor vehicle inspectors report and another motor vehicle inspectors report, first claimant son deceased Ayyasamy's salary certificate, legal heir certificate of the deceased Ayyasamy and death certificate of Ayyasamy were scrutinized by the Tribunal and he has answered the two issued framed by him.
11. The Second respondent/Jeeva Transport Corporation/Appellant has filed the above appeal in C.M.A.No.781 of 2005 against the award passed in MCOP No.300 of 1995 by the Subordinate Court, Tiruppur dated 26.11.2001. The learned Counsel for the appellant vehemently argued that the negligence was not only on the part of the driver of the bus, but also the driver of the lorry bearing registration No.KL-7-E-694 and so the owner of the lorry and Insurance company of the lorry are equally liable to pay compensation. As such, contributory negligence arises in the said accident case. The learned counsel for appellant further submitted that the petitioners have not produced the rough sketch of the accident to prove the negligence against the transport corporation bus. Further for determining the age of the deceased, relevant documents have not been produced. The driver of the lorry was also not examined, even though he was a vitally important person on the said accident. The Tribunal failed to fix 50% liability on the fifth respondent/Oriental insurance company limited. The learned Counsel further pointed out that the Tribunal adopted 17 as multiplier, which is not reasonable.
12. The learned counsel for the respondents argued that the learned Tribunal after well-considering the three witnesses from the claimants side and documents marked on the side of the claimants, has come to the said conclusion. Among the 10 documents, Ex.P6 i.e. the salary certificate, Ex.P5 is the death certificate. Both documents are authentic and based on these, the learned Tribunal has come to the said conclusion. The learned counsel for the respondent contended that as per first information report and evidence of claimants, the accident was caused only by the rash and negligent driving by the driver of the bus. On the above said findings, the negligence and quantum of compensation fixed by the Tribunal is just and fair.
13. For the foregoing reasons and after considering the facts and circumstances of the case, evidence of the claimant's side, first information report, salary certificate of deceased regarding income and postmortem certificate of deceased regarding age fixation, the Tribunal has fixed the quantum of compensation as Rs.6,12,000/- for loss of income; this amount has been arrived at by using multiplier of 17, salary as Rs.4,500/- and annual income as Rs.54,000/- and age of deceased as 25 years and after deducting 1/3rd for personal expenses for deceased, the award was granted. For funeral expenses Rs.2,000/- and for consortium to 3rd claimant Rs.5,000 were granted. In total Rs.6,19,000/- was awarded by Tribunal and the same was rounded off to Rs.6,00,000/- with 9% interest per annum payable from date of filing the claim till date of payment of compensation, the grounds of appeal, arguments of the learned counsel for both the parties, the court is of the view that the award amount of Rs.6,00,000/- granted as compensation to the claimants is equitable and fair. Regarding negligence also, the learned Tribunal has come to a correct conclusion on the basis of evidence and First Information Report. The Court cannot find any counter case against the lorry driver.
14. The above said C.M.A. came along with CMP No.4351 of 2005 before this Court on 20.06.2006, the learned counsel for the appellant informed the Court that the entire compensation amount has been deposited by the appellant. Now, this Court permits the claimants to withdraw their apportioned share of the compensation amount with accrued interest after filing necessary payment out application, since the accident happened in the year 1995. Resultantly, the civil miscellaneous appeal is dismissed and the decree and judgment passed by the Motor Accident Claim Tribunal/Subordinate Judge, Tiruppur in MCOP NO.300 of 1995 dated 26.11.2001 is confirmed. The parties are directed to bear their own cost in this appeal.
JIKR To The Subordinate Judge, The Motor Accident Claims Tribunal, Tirrupur