The appellant-Transport Corporation has come forward this appeal as against an award of Rs.11,55,000/- granted by the Court below for the death of the deceased chandran in a road accident that took place on 05.09.2003.
2. The Transport Corporation would mainly contend that as per the first information report, the accident occurred due to the rash and negligent driving of the deceased himself, therefore, the court below ought to have reduced the award amount by fixing contributory negligence on the part of the deceased, which was not done. The deceased was working as a Headmaster in a Government School and he is a government servant, whose normal age of retirement was 58. After retirement, the deceased, had he been alive, could only get pension, whereas, due to the death of the person before retirement, the pensionary benefits were paid to his wife, who was the first claimant. The deceased was 53 years at the time of accident and taking into consideration the remaining period of service as five years, the Tribunal had granted compensation, however, has taken a sum of Rs.15,000/- as salary which is against the salary certificate, Ex.P3 and granted exorbitant amount towards loss of income. The court below had also granted excessive amount by taking into consideration that after retirement, the deceased could have received Rs.7,500/- per month, thereby granted a huge sum of Rs.5,40,000/- as compensation for loss of income after the retirement. Therefore, the learned counsel for the appellant would contend that the award passed by the Court below is excessive and exorbitant.
3. The learned counsel for the claimants/respondents would contend that the deceased was working as a Headmaster and by reason of his death, the family had lost their only bread winner. Further, 50% of the family pension, after the death of the deceased, alone is being paid to the wife/first claimant. Had the deceased would have been alive, he could have received the full salary for nearly five years and the pensionary benefits would also have been doubled. Considering the above said aspects, the court below had rightly awarded a reasonable amount as compensation.
4. Heard both parties. The short point for consideration in this appeal is whether the transport Corporation is liable for the accident and whether the quantum granted by the Court below is correct and reasonable.
5. As far as the question of liability is concerned, no doubt the first information report was registered indicating that the accident occurred due to the rash and negligent driving of the deceased. The First Information Report came to be registered on the basis of the complaint given by the driver of the bus. Inasmuch as the accident resulted in the death of the deceased, naturally, the driver would only say that the accident had occurred due to the rash and negligent driving of the other party and no prudent man will give a complaint that he himself was negligent. Moreover, when the transport Corporation disputes their liability, the first and foremost duty is to examine the driver, who is the proper and correct person to depose as to the alleged contributory negligence on the part of the deceased. Unfortunately in this case, the Corporation has not examined the driver but examined only the conductor, who, in his evidence has not clearly stated as to how the accident had occurred. Therefore, a reading of the evidence of the RW1 conductor and the FIR would only prove that the accident had occurred due to the negligent driving of the driver of the bus inasmuch as there is no evidence produced by the Transport Corporation to prove the contra. Therefore, I am not inclined to interfere with the finding of the Court below fastening the liability on the transport corporation and consequently, I hold that the Transport Corporation is liable to pay the compensation for the death of the deceased.
6. In so far as the quantum is concerned, the court below failed to take into consideration Ex.P3, salary certificate of the deceased. Further, In view of the fact that the deceased was a Government Servant and his retirement age was 58, the retirement age has to be considered for determination of the compensation amount. In this case, the age of the deceased is not in dispute and at the time of the accident, he was 53 years. Therefore, he had only five more years of service. As per the salary certificate Ex.A3, the gross income of the deceased was Rs.13,674/-, but the Tribunal notionally has taken Rs.15,000/- as monthly salary. Even if we take the salary at Rs.14,000/- and deduct 1/3rd amount towards personal expenses, it will come to Rs.9,667/- which will be the contribution of the deceased to the family per month. So up to 58 years, that is for another five years, the contribution of the deceased to the family can be taken at Rs.9,667X12X5=Rs.5,80,020/- which will be the correct compensation amount payable to the claimants. The Court below has granted Rs.6,00,000/- towards loss of income. Considering that there is a negligible difference between the compensation fixed by the Court below and as determined by this Court, the amount of Rs.6,00,000/- granted by the court below is hereby confirmed.
7. For the period after the retirement, the Court below has awarded compensation by taking into account that the monthly pension of the deceased was Rs.7,500/-. As per the decision of the Division Bench of this Court reported in (National Insurance Company Limited vs. Shanthi Pandiyan and others) (2008 (2) TNMAC 73), which was also relied in the judgment dated 10.06.2010 made in C.M.A. No. 2270 of 2003, in which I was a party, the Division Bench of this Court has held that in case of deceased Government servant, 40% of the gross salary has to be taken into account for determination of the compensation amount. Therefore, as per the decision of the Division Bench, by adopting 40% of the gross salary of the deceased, the income of the deceased after his retirement can be calculated at (40% of Rs.13,674) at Rs.5,470/- rounded off to Rs.5,500/-.. Out of this amount, 1/3rd deduction has to be given towards personal expenses. If that is done, the monthly earnings of the deceased after his retirement can safely be considered at Rs.3,666/-. As per the schedule of the Motor Vehicles Act, when the age of the deceased was admittedly 53 at the time of his death, the multiplier to be applied is '6'. If multiplier '6' is applied, the loss of income of the deceased after his retirement can safely be determined at Rs.3,666X12X6=2,63,952/- rounded off to Rs.2,64,000/- as against Rs.5,40,000/- awarded by the court below. So under this head the claimants are only entitled to get Rs.2,64,000/-, which will be the just and fair compensation amount.
8. The Tribunal has awarded Rs.5,000/- towards funeral expenses, which in my opinion is very meager and it is to be enhanced. Accordingly, the amount awarded towards funeral is enhanced to Rs.10,000/-.
9. At the time of the accident, the wife of the deceased/first claimant was 42 years. The consortium awarded by the court below at Rs.5,000/- to the wife/first claimant is very low and therefore it has to be enhanced and accordingly it is increased from Rs.5,000/- to Rs.20,000/-.
10. The Court below has granted Rs.5,000/- towards loss of love and affection to the children. Taking into consideration the aged parents of the deceased are still alive and the deceased had three children, each of them are to be awarded atleast Rs.5,000/- towards love and affection. Accordingly, each of the claimants would be entitled to a sum of Rs.5,000/- each, thus, the amount awarded under the head loss of love and affection is enhanced to Rs.30,000/-.
11. Thus, the claimants are entitled to a total compensation of Rs.9,25,000/- as follows:-
12. In the result, the appeal filed by the Transport Corporation is partly allowed and the quantum of compensation awarded by the Court below is reduced from Rs.11,55,000/- to Rs.9.25,000/- along with interest at 7.5% p.a. from the date of petition till the date of deposit. No costs.
13. It is represented by the learned counsel appearing for the appellant/transport corporation that as per the earlier order of this Court, Rs.9,00,000/- has been deposited before the court below. The appellant is directed to deposit the balance amount along with the accrued interest within a period of six weeks from the date of judgment. On such deposit the claimants/respondents are entitled to withdraw the same in accordance with the ratio, as apportioned by the Court below.
vsm/rsh To The Motor Accident Claims Tribunal (Additional District Judge) Dharmapuri