The civil miscellaneous appeal has been filed by the appellant/respondent against the decree and judgment dated 29.01.2004 passed by the Motor Accidents Claims Tribunal, Additional District and Sessions Judge, (Fast Track Court No.II) Chennai and made in MCOP No.1783 of 2001, awarding a compensation of Rs.9,75,600/-.
2. Aggrieved by the said award, the appellant/Metropolitan Transport Corporation Limited, Chennai-2, has filed the above appeal to set aside the order.
3. The short facts of the case are as follows;-
On 13.02.2001, around 19.10 hours, when the deceased was riding his Yamaha motorcycle with registration No.TN-01-Q-8537 near the junction of 100 feet road and MTH road (near Lucas Signal) and waiting for signal going to Padi in east to west direction, an MTC bus on route 48C running from Mint to Koyambedu and coming from behind the victim and turning left had hit his vehicle and dragged him for some distance and the victim was caught under the bus and in the process suffered fatal injuries.
The respondent, as its owner is vicariously liable for the rash and negligent act of the employee driver and liable to pay the entire compensation. Hence, the petitioners, who are the legal heirs namely the first petitioner, the mother of the deceased; the second petitioner, the wife of the deceased and the third and fourth petitioners, who are the minor children of the second petitioner have claimed compensation of Rs.10,00,000/- from the respondent.
The V-5, Thirumangalam Police Station, Traffic investigation wing, Chennai have registered a criminal case in Cr.No.34/TM2/2001 regarding the said accident.
4. The respondent in his counter has resisted the claim stating that the bus in Route No.48C, bearing registration No.TN-02-N-0239 was on its trip from Korukkupettai to Koyambedu. At about 19.10 hours, when the bus was proceeding near wheels India Signal, MTH Road, the deceased ride his motorcycle rashly and negligently and suddenly slowed his vehicle without giving any signal while turning towards left side of the road. On noticing the same, the driver applied sudden brake and stopped the bus. In spite of that the bus grazed the petitioner. Hence, the motor cyclist himself was responsible for the incident. The respondent has claimed that there has been no negligence on the part of the driver of the bus and also submitted that the claim amount is excessive and sought dismissal of the claim petition.
5. The Motor Accidents Claim Tribunal framed two issues namely;-
1) Did the accident happen due to the negligence of the driver and the high speed at which the bus was driven?
2. If so, what is the quantum of compensation that the petitioners are entitled to?
6. The petitioners, in their petition dated 05.03.2001 had stated that the deceased Damodaran, while he was travelling in his motorbike bearing registration No.TN01-Q-8537 and waiting for signal near junction of 100 feet road and MTH road, the MTC bus route No.48C, coming from behind, on the route from Mint to Koyambedu, driven by its driver with high speed and in a rash and negligent manner had dashed against the left side of the motorcycle, and due to this the deceased sustained grievous injuries and died.
7. On the petitioners' side, PW2, one Subramanian was examined. In his evidence, he had submitted that he was a mechanic and that on 13.02.2002, he was the pillion rider on the deceased's vehicle and that they were waiting for signal near Lucas TVS. When they received the signal, they started the vehicle, when suddenly the MTC bus bearing registration No.TN-02-N-0239 hit the back of their vehicle. In the result, he fell down, but the deceased was caught on the bumper of the bus and was dragged along with his bike. Subsequent to this, the bus driver had run away from accident spot. Some of the public helped him to admit the deceased in a hospital, but he was declared dead at the hospital. Further, he has stated that the accident happened due to negligence of the bus driver. Further it was submitted that the deceased and he were AC Mechanics and that the deceased was earning Rs.10,000/- per month.
8. Further, PW4, one Mr.D.Amaladas, who was working in Transport Corporation Documents Department, was examined. In his evidence, he had submitted that on 13.02.2001, at 7.10 p.m., near the junction of MTH road and 100 feet road, the accident had occurred involving the collision of the MTC bus bearing registration No. TN-02-N-0239 and the motorcycle bearing registration No. TN-01-Q-8537. On a complaint given by one Aravind kumar, to Thirumangalam Police Station that the rider of the motorcycle had been badly injured and that he had died before reaching the hospital, the Thirumangalam Police had registered a criminal case in Cr.No.34 of 2001 under
Sections 279 and 304 of IPC and that after investigation, a charge sheet had been filed against Kandasamy, the driver of MTC bus with the Chief Metropolitan Magistrate, Sessions Court at Egmore under
Sections 279 and
304(A) IPC in C.C.No.351 of 2001 and that it was still pending before the said Court.
9. On the respondent side, the driver of MTC Bus, Kandasamy was examined. In his examination, he has submitted that when he was driving the bus bearing registration No. TN-02-N-0239 at about 7.10 a.m. on 13.02.2001. When he was proceeding to Koyambedu, on entering Tirumangalam, the rider of the motorcyclist, who was proceeding towards padi, thinking that the bus was going straight suddenly turned left and that the motorcyclist hit the bus, which was travelling on the left side of the road. The pillion rider of the motorcycle jumped from the vehicle, but the rider of the motorcycle was injured. The bus conductor had immediately taken the injured motorcycle to the Hospital. Further, he submitted that it was due to the negligence of the rider of the motorcycle that the accident occurred.
10. On the petitioners' side, Ex.P1 the first information report was filed.In this, the complaint had been given against the driver of the bus bearing registration No.TN-02-N-0239. In this complaint, it was given that the driver of the bus had dashed against the motorcycle which was waiting for signal.Further, rough sketch was marked as Ex.P2. Even in this, it has been given that the bus coming from behind the motorcycle had collided with the motorcycle. Further the driving licence of the deceased Damodharan was marked as Ex.P4. Though RW1, in his evidence has stated that it was due to negligence of motorcyclist that the accident occurred, on an examination of rough sketch and F.I.R., it was evident that the accident had occurred due to rash and negligent driving of the bus driver. Further, the pillion rider of the motorcycle was examined as PW2, and he had adduced evidence that the accident was caused because of the negligence on the part of the bus driver. Hence, the Tribunal on consideration of the above, established that the accident was caused only by the negligence of the driver of the bus.
11. Further the petitioners had established that they are legal heirs of the deceased through Ex.P10, which is the legal heirs certificate. In this it had been mentioned that the first petitioner, Rajammal, is the mother of deceased; the second petitioner, Kaveri, is the wife of the deceased and that the third and fourth petitioners, Deepan Chakravarthy and Preetha, are minor children of the deceased.
12. Further, the deceased was aged 41 years at the time of accident. Ex.P3, the S.S.L.C. Mark sheet of the deceased has been marked in support of this, wherein it had been stated that the date of birth of the deceased was 05.04.1959. Considering that the accident happened in the year 2001, the age of the deceased was taken as 42 years. The postmortem report of the deceased has been marked as Ex.P9. In this his age had been given as 43 years. Further, the death certificate was marked as Ex.P8. From this the exact date of his death was 13.02.2001. Further for proof of his occupation, Ex.P6 was marked. From this it was established that the deceased had been working in Southern Railway, in the electrical workshop. Further Ex.P7, Salary certificate was marked. In this, the salary last drawn by the deceased was Rs.9,385/-. Further the bonus for deceased has been mentioned as 1,552/-, in the said certificate. Therefore, the Tribunal had taken the salary of the deceased as only Rs.7,830/-. So, considering that the deceased salary was Rs.7,830/- and taking an annual income of Rs.93,960/- and applying multiplier of 15, as his age was 41, it was calculated that the deceased would have earned Rs.14,09,400/-. Deducting 1/3rd for his personal expenses, the deceased would have given Rs.9,39,600/- to his family had he been alive. Accordingly, the Tribunal granted Rs.9,39,600/- to the petitioners under the head of loss of income. For funeral expenses Rs.5,000/- was granted and for Transport Rs.1,000/- was granted. Due to the fact that the wife of the deceased had lost her husband at a relatively young age, a consortium of Rs.10,000/- was awarded. Rs.10,000/- was granted by the Tribunal under the head, loss of love and affection to the petitioners. For mental agony to the petitioners, Rs.10,000/- was granted. In total, a sum of Rs.9,75,600/- was granted by the Tribunal and apportioned as follows;-
1) The second petitioner, wife of deceased, is entitled to get Rs.4,50,600/-
2) The first, third and fourth petitioners are entitled to get Rs.1,75,000/- each and that the said award is to be deposited, with interest at the rate of 9% from the date of claim petition till date of payment, into the credit of MCOP No.1783 of 2001, on the file Motor Accidents Claims Tribunal, Additional District and Sessions Court (Fast Track Court No.II), Chennai within 8 weeks. Further it was directed that the award amount of the first and second petitioners should be deposited in a nationalsied bank as fixed deposit for 3 years and that of the third and fourth petitioners should also be deposited in a nationalised bank as fixed deposit, until they attain the age of major. The Advocate fees were fixed as Rs.16,756/-.
13. The learned counsel for the appellant has argued in his appeal, that the Tribunal had erred in fixing the responsibility for the accident solely on the driver of the appellant corporation bus. A mere filing of first information report and the charge sheet against the driver of the bus and relying on the same would not conclude the negligence on the part of the driver of the bus. The Tribunal ought to have apportioned at least some amount of award towards contributory negligence on the part of deceased. The amount awarded by the Tribunal towards mental agony and loss of love and affection as Rs.10,000/- and Rs.10,000/- respectively is also erroneous.
14. For the above said reasons and on consideration of the facts and circumstances of the case, arguments of the learned counsel for both the sides, the Court is of the opinion that the learned Tribunal, in order to come to a conclusion regarding negligence, had examined PW2 and first information report and criminal case which was pending on the file of Chief Metropolitan Magistrate Court, Egmore as against the driver of the bus and then had confirmed the negligence on the part of the driver of the bus. The Tribunal, in order to fix the quantum of compensation has well considered the deceased age, salary, dependency, nature of employment and adopted a multiplier of 15, relevant to the age of the deceased and arrived at the compensation amount of a sum of Rs.9,39,600/- for loss of income. For Transport and funeral expenses, Rs.6,000/- was granted. For loss of consortium, the Tribunal awarded Rs.10,000/- to the second claimant. For loss of love and affection, Rs.10,000/- was awarded to all the claimants. For mental agony, Rs.10,000/- was awarded to all the claimants. The Court is of the opinion that the learned Tribunal awarded the compensation in a proper way except a sum of Rs.10,000/- towards mental agony, which is excessive and not pertinent in the present case under that head. After deducting the said amount, the respondents/claimants are entitled to get compensation as awarded by the Tribunal together with interest at the rate of 9% per annum from the date of filing of the petition till date of payment, which is equitable and fair.
15. The above said appeal came before this Court on 31.05.2005, when this Court directed the appellant to deposit balance compensation amount including interest and costs to the credit of MCOP NO.1783 of 2001 on the file of Additional District and Sessions Judge, Fast Track Court No.II, Chennai. Further, this Court directed the first and second respondent, i.e. mother and wife of the deceased to withdraw 50% of their respective share from their award with entire accrued interest and costs. It is open to the appellant/corporation to receive the balance amount from the Tribunal as per Court procedures with accrued interest for the said Rs.10,000/- alone from the first claimant share amount. The rest of the award amount of Rs.9,65,600/- have been apportioned as per Tribunal orders. The first and second claimant were permitted to withdraw their remaining apportioned amount with accrued interest. Regarding the claimants 3 and 4 their apportioned shares of award should be held in the bank till they become majors. The second claimant is permitted to withdraw the interest of the minor's share of award directly from the bank once in six months.
16. In the result, the civil miscellaneous appeal is partly allowed with the above terms. Consequently, the award passed by the Motor Accidents Claim Tribunal, Additional District and Sessions Judge, Fast Track Court No. II, Chennai in MCOP No.1783 of 2001 is modified. Connected miscellaneous petition is closed. The parties are directed to bear their own costs in this appeal.
12.10.2009 Index:Yes Internet:Yes JIKR To The Additional District and Sessions Judge, Fast Track Court No.II, Motor Accidents Claims Tribunal Chennai.
C.S.KARNAN,J JIKR PRE DELIVERY JUDGMENT IN C.M.A.No.971 of 2005 12.10.2009