The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 10.09.2003, made in M.C.O.P.No.661 of 1999, on the file of the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore, awarding a compensation of Rs.3,77,000/- with 9% interest per annum from 01.07.1999 to 10.09.2003.
2.Aggrieved by the above award, the second respondent/Tamil Nadu State Transport Corporation, Erode Division, has filed the above appeal praying to set aside the Order.
3.The short facts of the case are as follows:
The accident took place on 25.02.1999 at about 3.30 p.m. near the bus stop at Punchaipuliampatti. The first petitioner along with her husband Nagarajan and her brother-in-law namely Rangaswamy, Subramani and Selvaraj were standing in the inside of the bus stand for boarding the bus. At that time, the first respondent, the driver of the bus bearing registration No.TN33 N0572 drove the bus on route No.B4 in a rash and negligent manner. On seeing the bus, the said Nagarajan moved towards the bus and tried to board it through the front gate of the bus. But, the first respondent suddenly picked up the speed in the bus without any reason. Due to the jerk caused by the sudden pick up of the speed, the said Nagarajan fell down from the footstep and the left side back wheel of the bus ran over his head and crushed him to death at the spot itself. There was lot of crowd for boarding the bus. So, the driver ought to have taken care of the bus and slowed down for the convenience of the passengers. So, the accident took place due to the rash and negligent driving of the first respondent.
4.The deceased Nagarajan was aged about 45 years and he was hale and healthy. He was doing laundry work and also engaged in leather business earning about Rs.4,000/- p.m. The entire family was depending on his income. Due to this, the first petitioner has lost her husband and the second and third petitioners, who are the children of the deceased have also lost their father.
5.A criminal case has been registered against the first respondent by the Punjaipuliampatti Police, in Crime No.47/99 under
Section 304(A) I.P.C and is pending investigation. So, the first respondent, driver of the bus and the second respondent, the owner of the bus are jointly and severally liable to pay the compensation to the petitioners.
6.The petitioners have claimed a compensation of Rs.4,00,000/- with interest and costs.
7.The second respondent, in his Counter has resisted the claim stating that the respondent bus bearing registration No.TN 3 N0572, driven by the first respondent, was coming from Kaliampalayam to Puliampatti on the date of the accident. When entering into the Puliampatti bus stand, the deceased tried to enter into the bus through the front gate of the bus, but he could not enter into the bus and fell down on the road and sustained injuries by hit on the back wheel of the bus. Immediately, he was taken to the Hospital, but he died. The second respondent submitted that the first respondent had driven the vehicle with slow speed, when entering into the bus stand, and that the deceased had not fallen from the footstep. He fell down before entering into the footstep portion. There was no negligence in the driving. Further, the bus had not picked up speed on entering the bus stand as alleged in the claim petition and there was no jerk and no other passengers had tried to enter into the bus excepting the deceased, who in the attempt, had fallen on the ground. As the deceased had tried to enter into the bus, before it reached the resting place of the bus, the accident had occurred. Further, the earning capacity of the deceased and his longevity have to be proved by the petitioners. As such, the second respondent had prayed for dismissal of the petition with costs.
8.The first respondent was in consonance with the Counter statement of the second respondent.
9.Based on the above pleadings, the Tribunal framed two issues for consideration namely
(i) Was the accident caused due to the negligence of the first respondent or due to the negligence of the deceased?
(ii) Are the petitioners entitled to receive the compensation as prayed for? If so, what is the quantum and who is the responsible to pay the compensation?
10.On the petitioners' side, the wife of the deceased, Rangammal was examined as PW1. In support of her case, she had marked documents Exs.P1 to P6. On the respondent's side, A.Mani was examined as RW1 and one document was marked as Ex.R1, which is a copy of the Judgement in the criminal case dated 06.01.2000.
11.The said PW1 in her evidence, had stated that the same version about the manner of the accident as alleged in her claim petition. Further, the PW1 has stated that a complaint was registered at the Police Station against the first respondent and that an F.I.R. was registered by the Police and that Ex.P1 is a copy of the FIR, dated 25.02.1999. Further, the PW1 has marked Ex.P4, which is the copy of the Charge Sheet dated 15.03.1999, which has been filed against the first respondent for his negligence. Further, the said PW1 has marked Ex.P5, which is a Rough Sketch indicating that how the accident was caused and also marked a copy of Observation Mahazar as Ex.P6. Further, the said PW1, in her evidence has stated that the accident was caused only by the first respondent. But, the respondents have objected to the above statements of the first petitioner. They have stated that in the criminal case filed against the first respondent, it has been adjudged in the criminal Court that the first respondent was not guilty and hence the accident was not caused due to the negligence of the first respondent.
12.But, the Tribunal on consideration of the fact that other than the first respondent, who had alleged that it was the negligence of the deceased, which had caused the accident, there has been no other witnesses to confirm about this version. Even in the FIR, the charges have been filed only against the first respondent. The Tribunal decided that just because he has been acquitted in the criminal case filed against him, it cannot be said that the accident was not caused due to the negligence of the first respondent. From an inspection of the statements, which had been adduced by witnesses in the criminal Court, regarding the accident, it is found that their statements contradict one another. So, the criminal Court, having not been able to come to a conclusion had acquitted him in the case. Further, the Tribunal held that if the first respondent had been careful, as alleged, then he could have prevented the occurrence of the accident. It also cannot be said that the accident had happened due to the mechanical defects of the bus, as documents had been produced from the petitioners' side establishing that the bus was mechanically fit. But, the first petitioner PW1 has clearly stated that how the accident took place. Hence, the Tribunal decided that it was due to the negligence of the first respondent, that the accident happened. Hence, the Tribunal held that the first and second respondents are liable to pay the compensation to the petitioners. As the said Nagarajan had died in the accident, the Tribunal on scrutiny of the Ex.P2, the Post-mortem Certificate had come to the decision that the petitioners are eligible to receive the compensation, being the legal heirs of the deceased. To repudiate the legal heirship of the petitioners, there has been no objections raised from the respondents side.
13.At the time of his death, the deceased was aged about 45 years, which was established on scrutiny of the Ex.P2, Post-mortem Certificate. Though it had been adduced by PW1 in her evidence that the deceased was aged 44 years, as there was no supporting documents to establish this claim, the Tribunal concluded that the age of the deceased was 45 years. Though it had been stated in the petition that the deceased was earning a sum of Rs.4,000/- per month by doing Laundry Work and doing business in animal skins, PW1 in her evidence has claimed that the deceased was earning upto Rs.6,000/- per month. Though there was no documentary proof to establish salary of the deceased, the petitioners' side had contended that when there is no proof of salary, the Tribunal on its own accord can consider the age of the deceased and his family circumstances and number of the dependants and arrive at a finding regarding the deceased salary and in support of this contention they had furnished a citation of Judgement in 1998 ACJ, Page 1171, Pandian Roadways Corporation Ltd., vs. Sankarammal & others. In the said Judgement cited, the deceased in that case was aged 42 years and no documents had been lodged to establish proof of income. The Hon'ble Mr.Justice S.Jagadeesan has fixed a sum of Rs.2,000/- as the monthly income of the deceased and taking into consideration the age of the deceased as 42 years, had awarded Rs.2,43,000/- as compensation.
14.In the present case, considering the deceased age and the evidence adduced by PW1, the Tribunal decided that the monthly salary of the deceased was Rs.3,000/- per month. Deducting 1/3rd share from this for personal expenses, the Tribunal decided that the contribution of the deceased to this family was Rs.2,000/- per month and the annual contribution was Rs.24,000/-. Taking the multiplier of 15, as is relevant based on the deceased age of 45 and as per the Schedule-2 of the Motor Vehicles Act, the Tribunal decided that the contribution by the deceased to his family would have been as Rs.24,000/- X 15 = Rs.3,60,000/- and as such awarded this amount to the petitioners under the head of the loss of income to the petitioners. Also taking into account that the first petitioner, the wife and second and third petitioners, the children of the deceased would have suffered loss of love and affection of the deceased, the Tribunal granted a sum of Rs.5,000/- each as compensation to each of them under this head. For funeral expenses, it granted Rs.2,000/-. In total, the Tribunal awarded a sum of Rs.3,77,000/- as compensation to the petitioners and to be paid by the respondents with interest at the rate of 9% from the date of the petition to till the date of the deposit, within a period of two months and that the said award has to be deposited in a Nationalised Bank for a period of three years and the petitioners were permitted to receive interest, on such deposit once in six months. The Court fees for the award amount was to be paid by the petitioners within a period of 15 days of the Tribunal Order, failing which, the petition will be set aside.
15.The learned counsel appearing for the appellant in his appeal has argued that the Tribunal had failed to see that the deceased himself has invited the accident, by entering into the moving bus, lost his grip, sustained injuries and as a result died. As such, the fastening of the entire liability and negligence on the driver of the appellant bus is erroneous and unsustainable. Further, the Lower Court has failed to give due credence to Ex.R1, the Judgement of the Criminal Court acquitting the driver of the bus in the case registered with regard to the accident. The Tribunal having rightly held that the claimants have not filed any document to prove the income of the deceased, has miserably erred in fixing the income of Rs.3,000/- per month without any basis whatsoever. As such, the learned counsel appearing for the appellant prayed for setting aside the Award and Decree of the Tribunal.
16.Further, the learned counsel appearing for the appellant contended that the multiplier of 15 adopted by the Tribunal is no pertinent and that only a multiplier of 13 is proper.
17.The learned counsel appearing for the respondent argued that the first claimant's evidence clearly disclosed that the age of the deceased was 44 years. Further, in the claim petition also, the age of the deceased was mentioned as 44 years. Considering the two facts, there is no dispute over the age conclusion arrived at by the Tribunal. Regarding the income of the deceased, he was a laundry worker besides dealing in animal skins. As such, he was earning a sum of Rs.6,000/-. But, the Tribunal had fixed only a sum of Rs.3,000/- as monthly salary of the deceased and this too also in the year of 1999. So, the income fixed by the Tribunal is on the lower side. The multiplier of 15 adopted by the Tribunal is proper. Further, consortium was not awarded to the first claimant. Hence, the respondents have prayed for enhanced compensation.
18.After considering the facts of the case, discussions about the findings of the Tribunal, documentary evidence and arguments advanced by the learned counsel on either sides for their respective parties, the Court is of the view that the Tribunal has come to a correct conclusion as regards the age, income and multiplier assessed for calculating the compensation for loss of income to the petitioners ie. a sum of Rs.3,60,000/-. As such, this Court confirms the Tribunal award under this head. Further, the Tribunal had awarded a sum of Rs.5,000/- each to the petitioner ie. in total Rs.15,000/- towards loss of love and affection. For funeral expenses Rs.2,000/- was awarded. The first claimant is not entitled to get compensation for love and affection, but, she is entitled to get award for consortium. The award amount of Rs.5,000/- to the first claimant as compensation under the head of loss of love and affection could be treated as compensation under the head of loss of consortium. So, this Court opines that an award of Rs.3,77,000/- together with interest at the rate of 9% granted by the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore, in M.C.O.P.No.661 of 1999, dated 10.09.2003, is equitable, fair and prudent too, payable by the appellant/State Transport Corporation.
19.This Court directed the appellant/State Transport Corporation, on 28.01.2005, to deposit 50% of the award amount including the interest and costs to the credit of the M.C.O.P.No.661 of 1999, on the file of the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore.
20.Now, this Court directs the appellant/State Transport Corporation to deposit the balance compensation amount together with interest at the rate of 9% from the date of filing the claim petition to the till date of payment, within a period of six weeks from the date of receipt of this Order, to the credit of the M.C.O.P.No.661 of 1999, on the file of the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore.
21.It is open to the respondents/claimants to receive the balance amount, after such deposit, lying to the credit of the M.C.O.P.No.661 of 1999, on the file of the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore, by filing necessary payment out application in accordance with law.
22.In the result, the Civil Miscellaneous Appeal is dismissed with the above observations and the award passed by the Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore, in M.C.O.P.No.661 of 1999 is confirmed. No costs.
30.11.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Accidents Claims Tribunal (Third Additional Subordinate Court), Coimbatore.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.220 of 2005 30.11.2009