2.Minor Chalukaya ... 2nd respondent in CMA 228 & 1st respondent in CMA 229
3.Smt.Maheswari
4.M/s.ABT Limited 10/13, 15th Kalingarayan Street, Ram Nagar, Coimbatore,
5.Tamilnadu State Transport Corporation Madurai Division (PRC) Bye pass road Madurai (Minor 2nd respondent through his father and guardian 1st respondent) ... Respondents 3 to 5 in CMA 228 and Respondents 2 to 4 in CMA 229 and 230 PRAYER : Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, 1988, against judgment fair and decreetal order dated 29.03.2006 passed in MACOP.No.1535, 1534 and 1536 of 2003 on the file of the Motor Accidents Claims Tribunal (3rd Additional Sub Judge, Tiruchirappalli.
(Judgment of the Court was delivered by P.VELMURUGAN, J.) These Civil Miscellaneous Appeals in C.M.A.(MD)Nos.228, 229 and 230 of 2007 have been filed by the appellants Insurance Company, against the common judgment and decree dated 29.03.2006 in M.A.C.O.P.Nos.1535,1534 and 1536 of 2007 respectively, on the file of the Motor Accident Claims Tribunal / III Additional Sub Court, Tiruchirappalli.
2.Since the issue involved in these appeals is one and the same, they are heard together and disposed of by this common Judgment.
3.For the sake of convenience, the parties are referred to according to their litigative status before the Tribunal.
4.The case of the claimants in M.C.O.P.No.1535 of 2007 before the Tribunal, as per the Claim petition is that, on 05.09.1997 at about 6.20 am, the deceased who arrived from Dubai was travelling along with her husband and son, in a Taxi bearing Registration No.TN 07 E 1224 to Madurai which was driven by its driver in a rash and negligent manner at a breakneck speed. When the taxi neared Paramandithopu on the Madurai ? Trichy main Road, an ABT parcel lorry bearing Registration No.TN.38 1033, followed by a TNSTC bus bearing Registration No.TN 59 N 0120 came in the opposite direction in a rash and negligent manner without adhering to any traffic rules, collided against the taxi one after the other and as a result of which, the deceased sustained multiple grievous and fatal injuries all over her body and died due to the injuries. The 1st and 2nd petitioners sustained multiple grievous injuries all over the body. The deceased was 29 years old at the time of accident and she was hale and healthy. Only due to the rash and negligent driving of the drivers of all the three taxi, lorry and bus, the accident occurred and as a result of which, the 1st and 2nd petitioners lost their wife and mother respectively. The minor son of the deceased namely Chalukya sustained multiple grievous injuries all over the body and the petitioner got fracture in his left leg and he was treated as inpatient in Government Hospital, Melur for one day, in Meenakshi Mission Hospital, Madurai for 15 days and he was under private treatment at Trichy for some time. Because of the injuries, he could not walk and play like other children and had become permanently disabled. The father of the minor son and husband of the deceased namely Balaji sustained multiple grievous injuries all over the body and right thigh, right knee and left knee were badly damaged and he was treated as inpatient in Government Hospital, Melur for one day, in Meenakshi Mission Hospital, Madurai for 15 days and he was under private treatment at Trichy for some time. Because of the injuries, he could not walk and do his work as he did earlier and had become permanently disabled. The 1st respondent - the owner of the taxi and 2nd respondent - the insurer of the taxi, 3rd respondent ? the owner of the ABT lorry, 4th respondent ? Insurer of the ABT lorry and 5th respondent the State owned Transport Corporation and being self insured, they are all vicariously, jointly and severally liable to pay compensation to them. Accordingly, as the legal heirs of the deceased, her husband and minor son claimed a sum of Rs.75,00,000/- as compensation by filing MACOP.No.1535 of 2003 and the minor son filed MACOP.No.1534 of 2003, through his guardian namely his father claiming a sum of Rs.2,00,000/- for injuries sustained by him in the accident and Balaji filed MACOP.No.1536 of 2003, claiming a sum of Rs.1,00,000/- for injuries sustained by him in the accident.
5.The case of the 2nd and 4th respondents, before the Tribunal as per the counter filed in all the three MACOPs, is that the accident has not been disputed but the manner of the accident was not happened as explained in the claim petitions. The accident had not occurred due to the negligent act of the driver of the 1stand 3rd respondents, but the accident had occurred due to the negligent act of the 5th respondent/ the driver of the bus. Merely because of the 1st respondent taxi is insured with the 2nd respondent, the 1st and 2nd respondents are not liable to pay compensation to the claimants. The avocation and income of the deceased were denied and the claim is very high and therefore the claim petitions have to be dismissed.
6.The case of the 5th respondent, before the Tribunal, as per the counter is that the accident had not occurred due the negligent act of the 5th respondent /driver of the bus, but the accident had occurred only due to the rash and negligent driving of the driver of the 1st respondent and it is mentioned that a case has been registered against the driver of the taxi. The avocation and income of the deceased and the injuries to the claimants are denied. Since, the driver of the taxi is liable for the accident, this respondent is not liable to pay any compensation to the claimants and the claim petitions have to be dismissed with costs.
7.Before the Tribunal, all M.A.C.O.P.Nos.1535, 1534 and 1536 of 2003 were tried together and on the side of the claimants, P.W.1 to P.W.3 were examined and Exs.P.1 to P.39 were marked and on the side of the respondents, R.W.1 to R.W.3 were examined and Exs. R.1 to R.5 were marked.
8.After considering all the facts and circumstances of the case and oral and documentary evidence let in by the parties, the Tribunal has passed a common judgment and awarded a sum of Rs.68,04,000/- in MACOP.No.1535 of 2003, Rs.74,090/- in MACOP.No.1534 of 2003 and Rs. 20,280/- in MACOP.No.1536 of 2003 as compensation with cost and interest at 7.5% per annum from the date of petition and details of the same are as under:- In MACOP.No.1535 of 2003 Sl. No. Head Award (Rs) 1 Loss of income 68,00,000/-
Funeral expenses 2,000/-
Loss of consortium 2,000/-
Total 68,04,000/-
In MACOP.No.1534 of 2003 Sl.No.
Head Award(Rs) 1 For Permanent Disability 52,000/-
For pain & Suffering and Mental agony 7,000/-
For Extra nutritious 3,000/-
For Medical Expenses (as per Ex.P.28) 11,590/-
Total 74,090/-
In MACOP.No.1536 of 2003 Sl.No.
Head Award (Rs) 1 For pain and sufferings 7,000/-
For Medical Expenses (as per Ex.P.22) 13,280/-
Total 20,280/-
9.Aggrieved by the impugned award passed by the Tribunal, the appellants 1 and 2/ respondents 2 and 4, Insurance Company in all the claim petitions have filed the present Civil Miscellaneous Appeals, stating that the Tribunal has wrongly fixed 75 % liability on the driver of the 1st respondent taxi and 25 % liability on the driver of the 2nd respondent lorry. Further, the award passed by the Tribunal is highly excessive.
10.Considering the facts and circumstances of the case, documents placed before the Tribunal and award passed by the Tribunal, the following points arise for consideration:-
(i) Whether the accident occurred due to rash and negligent driving of driver of the 1st respondent taxi bearing Registration No. TN 07 E 1224 (Or) Whether the accident occurred due to rash and negligent driving of the driver of the 2nd respondent lorry bearing Registration No. TN.38 1033 (Or) whether the accident occurred due to rash and negligent driving of the driver of the 5th respondent bus bearing Registration No.TN 59 N 0120?
(ii) Whether all the three drivers of the Taxi, Lorry and Bus had contributed their negligence to the accident?
(iii) Whether the award passed by the Tribunal is just and reasonable?
(iv) To what relief the parties are entitled to ?
Point Nos.i and ii
11.As far as the negligence aspect is concerned, the appellants have not seriously disputed the lability fixed by the Tribunal. On perusal of the oral and documentary evidence, the liability fixed by the Tribunal needs no interference of this Court and these point are answered accordingly.
Point Nos.iii and iv
12.As far the quantum of the compensation in MACOP.No.1535 of 2003 (C.M.A.(MD) No.228 of 2007) is concerned, the learned counsel for the appellants would submit that the employment of the deceased as Accounts Manger in UAE has not been proved and her income stated to be 4600 Dhirhams equal to INR 2,00,000/-was also not proved. The compensation awarded by the Tribunal is highly excessive and hence, the award passed by the Tribunal is liable to be set aside.
13.The learned counsel for the claimants would submit that the deceased was a graduate in M.Com., and M.phil., and Post graduate Diploma in Computer Application. Even before marriage, she was working as a Lecturer in Cauvery College, Trichy. Further, she was working as Accounts Manager in Noor Alilm Stationery, Dubai ? UAE and was earning 4500 Dhirhams, 1 Dhirham is equivalent to Rs.11.25. She would get promotion with increased salary and get other benefits. She had spent all her earning towards the benefit of her family. At the time of accident she was just 29 years old. Hence, the award passed by the Tribunal is just and reasonable one and needs no interference of this Court.
14.In order to prove the employment and income of the deceased on the side of the claimant, P.W.2, the Marketing Manager of Noor-al-ilm Stationery Company in UAE, where the deceased stated to be worked, was examined. He had deposed that, he was working in the above said company for eight years and he knew Sathya Balaji who joined in his company in the year 1994 temporarily as Accounts and Finance in charge and made permanent in May 1995, as Finance Manager and she was earning 4500 Dhirhams. However, he has not produced any acquittance register or any other registers maintained by the employer to prove the salary of the deceased and through him Exs.A. 29 to 35 were marked. The Tribunal has fixed the monthly income of the deceased at 4500 Dhihrams i.e. INR.54,000/- per month and the age of the deceased at the time of accident was fixed as 30 and 17 multiplier was adopted and accordingly calculated and awarded a sum of Rs. 68,04,000/-.
15.On perusal of the materials placed on record shows that as Ex.A.6, the deceased is stated to have worked as Lecturer in Cauvery College, Trichy from 13.07.1990 to 31.08.1994. Ex.A.15 stated to be the payment vouchers, shows that the deceased singed on the same on 02.12.1995, 02.11.1995, 02.10.1995, 02.09.1995,02.08.1995, 02.07.1995 and 03.06.1995. Ex.A.30 Appointment order shows that date of her joining is 01 May 1995. As per Ex.A.14, Passport, her son B. Shalukya was born on 18.06.1995. It is to be noted that, she got married on 04.03.1994 and till 31.08.1994 was working as Lecturer in Cauvery College in Trichy and she gave birth to a child on 18.06.1995. Assuming that she has joined duty on 01.05.1995 in UAE, at that time she was in the advanced stage of pregnancy. That too when her husband was working as Sales Manager in Dubai and earning 8,500 Dhirhams per month in INR.80,000/-. Even perusal of the payment vouchers dated 03.06.1995, just 15 days before her delivery and on 02.07.1995 i.e within 15 days of giving birth to her child would show, that she has drawn the salary by putting her signature in the payment vouchers. It is an admitted fact that the deceased gave birth to a child in Tamil Nadu only, therefore, it is hardly possible for a woman after giving birth to a child, travelling within 15 days to abroad and receiving payment by putting the signature in the payment voucher that too first month of her appointment. Further, admittedly she had gone only on dependant visa not on worker's visa. When her husband is earning Rs.80,000/- and wife is in the family way that too at the advanced stage of pregnancy, the appointment order shows her date of joining duty on 01.05.1995, is not believable and hence, this Court is of the view that it would not be possible for the deceased for having been worked during that period as claimed by the claimants.
16.Therefore, it can not be accepted that she was working as an Accounts Manger and was earning 4500 dhihrams. For the above said reasons, the Exs.A.29 to 35 can not be accepted as it is and income of the deceased can not be fixed relying upon the above exhibits. However, it is worthwhile to refer, the decision of Division Bench of Kerala High Court, in the case of, Vahisa and others Vs. C.I Lincy and others, reported in 2017 ACJ P.669. The relevant portion of the judgment is extracted below:- ? 9.In the decision of Valsamma v. Binu Jose, 2014 ACJ 997 (Kerala), this court has held that income of a person in a foreign country which is not a permanent employment cannot be taken into consideration for the purpose of assessing compensation under the head of loss of dependency and the income will have to be assessed in the context of Indian standards which such person if he is employed in India will be getting. Considering the circumstances, the amount of Rs. 6,000/- fixed by the Tribunal as his monthly income can not be said low and it is reasonable as well.?
In view of the above decision, in the case on hand, considering her educational qualifications, her appointment as Lecturer in a college, Trichy and non production of salary certificate from the college, Rs.15,000/- per month is fixed as notional income for the purpose calculating the loss of income and since, on the date of accident the deceased was 29 years old, multiplier 17 would be adopted. Therefore the loss of income would be Rs.15,000 X 17X12 =30,60,000/-
17.In the case of, Rajesh and Others Vs. Rajbir Singh and others, reported in, 2013 ACJ 1403 (SC), the Hon'ble Apex Court has held that even in a case where persons are not having any permanent income, future prospects will have to be taken into consideration and in the age group upto 40, future prospects has to be taken as 50%. In the case on hand, on the date of accident, the deceased had completed 29 years of age, hence, 50% of monthly income is taken for future prospects. Accordingly, future prospects works out to Rs.7500 X 17 X 12 = Rs.15,30,000/-.
18.According to the husband of the deceased, he is dependant of his deceased wife. However, perusal of the evidence would show that he was also employed and earning Rs.80,000/- per month. Therefore, the submission of the learned counsel for the petitioner that the deceased husband is the dependant of the deceased is not acceptable. Under the above siad circumstances, we are of the considered view that the first claimant as the husband of the deceased is not dependant on the income of the deceased. In veiw of the law laid down by the Hon'ble Apex Court, in the case of, Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another, reported in 2009 (6) SCC 121 and upheld by a Larger Bench of the Hon'ble Apex Court, in the case of, Reshma Kumari and others Vs. Madan Mohan and others, reported in 2013 ACJ 1253 (SC) : 2013(1) TN MAC 481 (SC), in the case on hand, since the 2nd claimant minor son alone dependant on the decesed, 1/2 of the income has to be deducted towards personal expenses of the deceased. So, the loss of income comes to Rs.15,30,000/- [Rs.30,60,000 - 1/2] and future prospects would be Rs. 7,65,000/- [Rs.15,3000 -1/2].
19.The Tribunal has awarded Rs. 2,000/- towards loss of consortium and the same is enhanced to Rs.1,00,000/-. The Tribunal has awarded Rs.2,000/- towards funeral expenses and the same is enhanced to Rs.25,000/-.
20.The Tribunal has not awarded any compensation towards loss of estate and towards Transportation and loss of articles and also towards loss of love affection and this Court awards Rs.5,000/- towards loss of estate and Rs.10,000/- towards Transportation and loss of articles and Rs.1,00,000/-is awarded towards loss of love and affection. The rate of interest awarded by the Tribunal at 7.5% per annum remains unaltered.
21.The compensation claimed by the claimant, the compensation awarded by the Tribunal and the compensation modified by this Court are as follows [C.M.A.(MD)No.228 of 2007 / M.AC.O.P.No.1535/2003] :- HEAD AMOUNT CLAIMED BY CLAIMANT (Rs.) AMOUNT AWRDED BY TRIBUNAL (Rs) AMOUNT AWARDED BY THIS COURT (Rs.) Loss of income Loss of future prospects Transportation Loss of love and affection Loss of consortium Funeral expenses Loss of Estate Total 75,00,000/-
68,00,000/-
15,30,000/-
--
7,65,000/-
--
10,000/-
--
1,00,000/-
2,000/-
1,00,000 2,000/-
25,000/-
--
5,000/-
68,04,000/-
25,35,000/-
22. As far as the quantum of the compensation in MACOP.No.1534 of 2003(C.M.A.(MD)No.229 of 2007) is concerned, the learned counsel for the appellants would submit that the Tribunal has awarded the compensation without any basis and the compensation awarded is highly excessive. The injuries sustained by the claimant has been denied and therefore, the award passed by the Tribunal is liable to be set aside.
23.The learned counsel for the claimant would submit that the claimant sustained grievous injuries all over his body and he became permanently disabled and he could not do his work as a normal person and therefore, the award passed by the Tribunal is just and reasonable.
24.On perusal of the Ex.P.25, Discharge Summary, Exs.P.27 and 28 series, medical bills, Ex.P.38 Disability Certificate shows that the claimant sustained injuries and took treatment as inpatient and as outpatient and the Ex.P.38 Disability Certificate shows that the claimant suffered 40% of permanent disability. The Tribunal has awarded Rs.52,000/- towards permanent disability, Rs.7,000/-towards Pain and sufferings and Rs.3,000/- towards Medical expenses totalling to Rs.74,000/-.
25.Therefore, We are of the view that the award passed by the Tribunal is just and reasonable one and the same is confirmed and the appeal filed by the appellants in CMA(MD)No.229 of 2007 is liable to be dismissed.
26.As far as the quantum of the compensation in MACOP.No.1536 of 2003(C.M.A.(MD)No.230 of 2007) is concerned, the learned counsel for the appellants would submit that the Tribunal has awarded the compensation without any basis and the compensation awarded is excessive. The injuries sustained by the claimant has been denied and therefore, the award passed by the Tribunal is liable to be set aside.
27.The learned counsel for the claimants would submit that the claimant sustained grievous injuries all over his body and and he could not do his work as a normal person and therefore, the award passed by the Tribunal is just and reasonable.
28.On perusal of the Ex.P.19, out Patient Slip, Ex.P. Discharge Summary of the claimant, Ex.P.21. Medical bills shows that the claimant sustained injuries and took treatment as outpatient. The Tribunal has awarded Rs.7000/- towards pain and sufferings and Rs.13,280/-towards Medical expenses totalling to Rs.20,280/-.
29. Therefore, We are of the view that the award passed by the Tribunal is just and reasonable one and the same is confirmed and the appeal filed by the appellants in CMA(MD)No.230 of 2007 is also liable to be dismissed.
30.In the result,
(i) C.M.A.(MD)Nos.229 and 230 of 2007 are dismissed and the common judgment and decree, dated 29.03.2006 passed in M.AC.O.P.Nos.1534 and 1536 of 2003 are confirmed No costs. Consequently, connected miscellaneous petitions are closed.
(ii) C.M.A.(MD)No.228 of 2007 is partly allowed and the award passed by the Tribunal is modified as shown above. No costs. Consequently, connected miscellaneous petition is closed.
(iii) The appellants Insurance Company is directed to deposit the compensation amount, as modified by this Court along with proportionate interest and costs from the date of petition till the date of realisation, less the amount already deposited, if any, to the credit of M.C.O.P.No.1535 of 2007 on the file of the III Additional Sub Court, Motor Accident Claims Tribunal, Trichy, within a period of six weeks from the date of receipt of a copy of this judgment. The first claimant, being the husband of deceased is entitled to Rs.5,35,000/- and the second respondents minor son of the deceased is entitled to Rs.20,00,000/-. The claimants are permitted to withdraw the entire amount that would be deposited by the appellant, less the amount already withdrawn, if any, with proportionate interest and costs, through RTGS by filing necessary Application before the Tribunal. The appellants are permitted to withdraw the excess amount, if any.
To
1. The Motor Accidents Claims Tribunal, III Additional Sub Court, Tiruchirappalli.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai..