The above civil miscellaneous appeal has been filed by the appellant/respondent, State Transport Corporation, against the judgment and decree passed in MCOP No.99 of 2003 by the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Villupuram awarding a compensation of Rs.4,50,000/- with 9% interest from the date of filing the claim petition till date of payment of compensation.
2. The short facts of the case are as follows;
On 24.09.2001, at about 06.00 p.m., the first claimant's husband, was driving the lorry bearing registration No.TN-27-T-6334 which belongs to the Tamil Nadu electricity board. The lorry was driven by the first claimant's husband, deceased Janu from Villupuram to Sankarapuram, near Perangiyur, on Ullundurpet to Villupuram National Highways road, a State Transport Corporation bus bearing registration No.TN-31-N-0006 came from the opposite direction and dashed against the deceased lorry and caused the accident. In the result, the driver deceased Janu sustained grievous injuries and died on the spot. The said accident was due to the rash and negligent driving of the driver of the bus bearing TN-31-N-0006. At the time of the accident the deceased was 50 years old and was working with the Tamil Nadu Electricity board as driver. The legal heir of the deceased namely the claimants 1) Nazeer Janu, wife of the deceased and first claimant, 2) Yasin, 3)Shabi, 4) Gani are sons of the deceased and 5)Sharmila, daughter of deceased, have claimed compensation of Rs.19,00,000/- against the respondent/Transport Corporation Bus.
In the said accident, a criminal case was registered by the Thiruvennainallur Police Station in crime No.569 of 2001.
3. The respondent corporation has filed their counter statement and denied the allegation made in the claim petition. The vehicle bearing registration No.TN-31-N-0006 was on its commercial trip from Vriddachalam to Villupuram on 24.09.2001. At about 17.45 hours, near Perangiyur, the driver of the corporation bus noticed a lorry bearing registration No.TN-27-T-6334 coming in the opposite direction driven by its driver rashly and negligently with high speed. It was raining on that day and a herd of sheep was proceeding ahead of the corporation bus, the driver of the corporation bus pulled the vehicle to its extreme left on the mud portion of the road and brought the vehicle to a halt. However, the lorry bearing registration No. TN-27-T-6334 coming in the opposite direction, driven by the deceased at a great speed was unable to control the vehicle because of the rain and herd of sheep, lost his control and dashed against the corporation vehicle which had been halted. Thus, the driver of the lorry bearing registration No.TN-27-T-6334 alone was solely responsible for the accident . As such, the petitioners are not entitled to claim compensation for the death of the deceased, who died of his own negligence.
4. The State Transport Corporation further stated that the owner/Tamil Nadu Electricity Board Corporation, of the lorry bearing registration No. TN-27-T-6334 are not added as necessary party in the claim petition and hence the claim petition is bad for non joinder of necessary parties. The respondent does not admit the age, income and occupation of deceased. In any event, the amount claimed as compensation is exorbitant and excessive. Further, the claimants have also filed MCOP NO.146 of 2002 on the file of the Subordinate Court, Kallakurichi and had claimed a compensation of Rs.10,00,000/-. As such, the claimants had suppressed the fact of their parallel claim for the same accident.
5. In the said claim case, on the side of the claimants two witnesses were examined. PW1 is the first claimant, and PW2 is the eye witness of the said accident. On the side of the claimants, six exhibits were marked namely 1) First Information Report, as Ex.P1, 2) Motor Vehicle Inspectors report of the vehicle bearing registration NO.TN-31-N-0006 as EX.P2, 3) Postmortem certificate of deceased Janu as Ex.P3, 4) deceased salary certificate as Ex.P4, 5) Charge sheet filed against one Rajendran as Ex.P5 and 6) The parallel claim petition MCOP No.146 of 2002 was not pressed. for which memo was filed and the document was marked as Ex.P6.
6. On the side of the respondent, RW1 the driver of the respondent vehicle was examined. No document was marked on his side.
7. The learned Motor Accident Claims Tribunal framed two issues namely;1) Whether the accident happened due to rash and negligent driving by the driver of the respondent's vehicle? If so,
2. What is the quantum of compensation to be awarded to the claimant.
8. Regarding negligence, the Tribunal has come to conclusion that contributory negligence arises in this case. As such the respondents are liable to pay 50% of the compensation. For the negligence point the Motor Accident Clams Tribunal, considering the first claimant oral evidence and her documents, which were marked through her namely 1) first information report as Ex.P1 and charge sheet against the driver of the State Transport Vehicle as Ex.P5, had come to a conclusion that negligence on the part of the respondent is only 50%. On the strength of this decision, the learned Tribunal considered the case law cited by the respondent's corporation counsel reported in ACJ 158 (Rajasthan State Road Transport Corporation vs. Ashok Misra and orthers). The operative portion of the judgment is below;
"Negligence - composite negligence - Apportionment of inter liability - Head on collision between a bus and van coming from opposite direction resulting in the death of two occupants of the van and other sustaining injuries - Tribunal appreciated the evidence of witnesses and site plan, found that both the vehicles were being driven at fast speed and both drivers were rash and negligent - Tribunal did not specify the percentage of their respective blame/whether the Tribunal ought to have apportioned their inter as liability - held; yes, both the drivers held equally negligent in appeal."
Following this decision, the Motor Accident Claims Tribunal decided on the quantum of compensation as follows.
At the time of accident, the deceased was 50 years and was a driver in the Tamil Nadu Electricity Board. His salary was Rs.9,908/- after deduction, his net salary was Rs.6,233/- . To prove the income, the first claimant marked the document as Ex.P4. She also marked the document, postmortem certificate, in which the age of deceased was mentioned as 50 as per Ex.P3. As such, the deceased may have continued for another 8 years in the same post. Accordingly, his income was calculated as Rs.9,51,168/-. In the said calculation, the gross income of the deceased Rs.9,908/- has been taken. The personal expenses of the deceased i.e. 1/3rd of the income has been deducted and calculated the income of the deceased as per Section 163 (A) of the second schedule and multiplier has been taken as 11. But, the learned counsel for the claimant cited two cases for enhancing the quantum of compensation. The Two case laws are as follows;-
2000 ACJ 1368 (Jyoti Kaul & Ors vs. State of Madhya Pradesh and another) wherein it was decided as follows;
"Quantum - Fatal accident - Principles of assessment - Multiplier - Choice of - Multiplier would depend on the facts and circumstances of each case - Factors on which multiplier depends stated."
"Quantum - Fatal accident - Multiplier -Choice of Deceased aged 50 - Tribunal adopted multiplier of 15 - High Court found that deceased was likely to be superannuated after 8 years and reduced the multiplier from 15 to 10. All predecessors of the deceased lived for more than 80 years - Apex Court observed that Tribunal had given good reason for applying multiplier of 15 - Multiplier of 15 restored. (1995 ACJ 605 (MP) modified."
1998 ACJ 1203 (Rakma Devi and Ors vs. Ramavatar and Ors), wherein it was decided as follows;
"Quantum - Fatal accident -Deceased aged 28. earning Rs.2,250/- p.m. - Claimants widow, four minor children and mother - Tribunal awarded Rs.1,90,000/-. Appellate Court took into consideration future prospects, assessed income at Rs.3,000/- p.m. dependency at Rs.2,000/- p.m. adopted multiplier of 18 and awarded Rs.4,32,000/- plus Rs.15,000/- to widow for loss of consortium, Rs.5,000/- to each child for loss of fatherly affection and care and Rs.5,000/- to mother for loss of care and enhanced the award to Rs.4,72,000/-"
Then the Tribunal considering the case laws referred by the claimants advocate had taken the multiplier as 15. The learned Tribunal further calculated the pension for 7 years after retirement and as such he has calculated that the income from pension for 7 years as Rs.2,52,000/- taking into account that his monthly pension will be Rs.4,500 - Rs.1,500 (for personal expenses) = Rs.3,000/-
In total, Rs.6,34,112 + Rs.2,52,000 = Rs.8,86,112/- was awarded as compensation. For consortium and funeral expenses, Rs.9,500/- was granted and the learned Tribunal rounded off the Compensation as Rs.9,00,000/- For 50% contributory negligence, a sum of Rs.4,50,000 was deducted from this compensation and therefore the Tribunal awarded a compensation of RS.4,50,000/- against the respondent corporation. Further, the learned Tribunal awarded the compensation with 9% interest from the date of filing the compensation petition till date of payment of compensation.
9. The learned counsel for the appellant argued that the eye witness i.e PW2's evidence has been wrongly considered by the Tribunal. No independent eye witness or police officers were examined to prove the negligence on the part of the driver of the appellant corporation. The Tribunal has erred in calculating the age, occupation and monthly income of the deceased. Further, the learned counsel for the appellant has raised the point that a monthly income of Rs.9,908/- was fixed by the Tribunal for 8 years and Rs.4,500/- fixed after retirement of deceased. This was also incorrect. The multiplier of 15 has been taken by the Tribunal without any basis.
10. The learned counsel for the respondents argued that the criminal case was registered against the driver of the vehicle which is owned by the State Transport Corporation. The first claimant age was 44 years at the date of accident. Other five children were dependant upon the income of the deceased. The deceased alone is the breadwinner. So, the Tribunal should have taken the deduction of income for expenses as 1/4th instead of 1/3rd. The claimant has claimed compensation under five head, but the Tribunal has only considered the three heads. The compensation for loss of affection and miscellaneous expenses were not considered.
11. For the reasons stated above, and on consideration of the facts and circumstances of the case, the Court opines that the learned Motor Claims Tribunal after well considering the citations mentioned in the case and evidence of the claimants and deceased age, income etc., and manner of accident, has come to a conclusion on two issues namely negligence and quantum, which was fixed as 50%. Further the continuation of appellant that gross salary of the deceased has been taken instead of net salary of deceased is not justified. Because, his salary would have definitely increased in the future years of his service and hence the award passed by the learned Motor Accident Claims Tribunal - Chief Judicial Magistrate, Villupuram in MCOP No.99 of 2003 dated 24.02.2004 is equitable and fair and so confirmed. The rate of interest of 9% from the date of filing the claim petition till payment of compensation is also reasonable.
12. The said accident happened in the year 2001. It is open to the respondents 1 to 5/claimants 1 to 5 to receive the balance compensation amount lying to the credit of MCOP No.99 of 2003 on the file of Motor Accident Claims Tribunal/Chief Judicial Magistrate, Villupuram by filing necessary payment out application in accordance with law as apportioned by the Tribunal in his order. As far as the amount that has been awarded to the minor/sixth respondent is concerned, it should be deposited in any one of the Nationalised Banks initially for a period of three years, renewable thereafter till the attainment of majority. The first respondent/guardian of the minor respondent is permitted to withdraw the interest accrued thereon, once in three months directly from the Bank till the attainment of majority of the minor. This Court already had given direction to the appellant to deposit entire award amount on 07.04.2005.
13. In the result, the civil miscellaneous appeal is dismissed and consequently the award passed by the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Villupuram in MCOP NO.99 of 2003 is confirmed. The parties are directed to bear their own cost in this appeal.
JIKR To The Chief Judicial Magistrate Motor Accidents Claims Tribunal Villupuram