The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree Order dated 10.08.2004, made in M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), awarding a compensation of Rs.9,79,000/- with 9% interest per annum, from the date of filing the petition to till the date of deposit of compensation.
2.Aggrieved by the above award, the appellant/respondent, Tamilnadu State Transport Corporation Ltd., has filed the above appeal praying to set aside the Order.
3.The short facts of the case are as follows:
The first petitioner is the wife and the second and third petitioners are the daughters of the deceased Krishnasamy, who died in a motor vehicle accident, which took place on 22.02.2003, at about 19.55 hrs, in the Kovai to Avinashi Road, near Mariamman Koil, Gold Wins.
4.On 22.02.2003, at about 19.55 hrs, the deceased K.V.Krishnasamy was going by bike bearing registration No.TN 39 Q0713 from east to west in the Kovai to Avinashi Road, near Mariamman Koil Gold Wins keeping to the left side of the road. At that time, a bus bearing registration No.TN39 N1506, driven by the bus driver in the regular course of employment under the respondent was coming from east to west and driven rashly and negligently, dashed against the deceased. Due to the accident, the deceased K.V.Krishnasamy sustained grievous injuries all over the body. Immediately after the accident, the deceased K.V.Krishnasamy, was taken to CMC Hospital, Coimbatore, but in spite of Doctor efforts, the deceased died. The deceased was employed in K.K.C.Textile Mills, Krishnapuram, Somanur, Saizer and was earning a sum of Rs.6,000/- per month. The deceased is the only breadwinner of his family.
5.The driver of the bus has been charged under
Sections 279,337 and
304(A) I.P.C by the T.I.W.East Police Station in Crime No.57/2003. The petitioners have claimed a compensation of Rs.5,00,000/- from the owner of the said bus with interest at the rate of 18% per annum from the date of filing of petition to till the date of deposit of award under
Section 166 of Motor Vehicles Act, 1988.
6.The respondent in his Counter has resisted the claim stating that the petitioners have to prove that the driver of the respondent was responsible for the accident. The respondent submits that on 22.02.2003, at 4.27 p.m. the driver of the respondent's took the bus bearing registration No.TN39 N1506 from Salem to Coimbatore observing all road rules and regulations in moderate speed and at about 7.55 p.m. while proceeding near Coimbatore Gold Wins, two persons came in a two-wheeler bearing registration No.TN 39 Q0713 behind the back of the bus and tried to overtake the bus on the left side and while overtaking the bus in the leftside, the driver of the two wheeler was not able to control the speed of the two wheeler in the edge of the road and lost control and due to that the pillion rider fell down under the left side back wheel of the bus. Hence, the accident had been caused by the rash and negligent riding of the two wheeler by its rider and not due to any negligence of the bus driver.
7.Further, the petitioners have to prove that the driver of the two wheeler had proper and valid driving licence. Further, the petition is bad for non-joinder of proper and necessary party ie.the driver, owner and insurer of the two wheeler bearing registration No.TN 39 Q0713. Further, the respondent has not admitted that the petitioners are legal heirs of the deceased and that they are dependent on the deceased. Further, the age, income and occupation of the deceased was not admitted. Further, the respondent denies that the petitioners have sustained loss of earning and loss of earning power as alleged in the petition and further the claim of the petitioners are excessive.
8.Further, the contention of the respondent that the Motor Accident Claims Tribunal, Court of the Subordinate Judge, Tiruppur (Fast Track Court No.V) did not have jurisdiction to try the case, was rejected by the Tribunal citing legal opinions contained in AIR 1981 NL Page 1683 and 2001 ACJ Page 1992.
9.The Motor Accident Claims Tribunal framed two issues for consideration namely:
(i) Who was responsible for the accident? Is compensation to be paid? If so, who is liable to pay compensation?
(ii) What is the quantum of compensation to be paid?
10.On the petitioners side, four witnesses were examined and seven documents were marked as Exs.P1 to P7. On the respondent's side one witness was examined as RW1 and no do documents were marked.
11.The contention of the first petitioners that her husband had died in the said accident has not been opposed by the respondent. To prove that who was responsible for the accident, the first petitioner was examined as PW1. She had adduced in her evidence that on 22.02.2003, at 7.55 p.m. when the deceased was travelling as a pillion rider in the two wheeler bearing registration No.TN 39 Q0713, on the leftside of Kovai to Avinashi road, from east to west, the bus bearing registration No.TN39 N1506, coming behind the two wheeler and in the same direction driven rashly and negligently and at high speed, dashed against the back of the two wheeler, when the bus was nearing Mariamman Koil. She has further stated that the husband had sustained head injuries and died on the spot and has stated that the accident had been caused only by the rash and negligent driving of the driver of the bus. In support of her evidence, she had marked, Ex.P1-FIR; Ex.P2-Post Mortem Report; Ex.P3-Death Certificate of the deceased and Ex.P6-Motor Vehicle Inspector's Report.
12.But, another eye witness of the accident Mr.Mahendraverman, who has been examined as PW2, has given a sworn affidavit, which was not as per the Civil Procedure Code laid down in law and as such the Tribunal rejected the evidence of this witness.
13.On the petitioners' side, another witness S.Varadarajan, was examined as PW4. The PW4, in his evidence has adduced that he had witnessed the accident on 22.02.2003 at about 7.55 hrs and that the accident had occurred on the Coimbatore to Avinashi Road, near the temple, and that the bus bearing registration No.TN39 N1506 driven rashly, negligently and at highspeed by the driver of the bus had dashed against the rear of the two wheeler travelling in front of the bus, on the same direction, and that as a result of the accident, the pillion rider, the husband of the petitioner, PW1 had sustained injuries and died. Further, he has stated that the Police had conducted enquiry of the said accident on the spot itself. The respondent's side had cross-examined PW4 but were not able to extract any evidence to suggest that he was not an eye witness to the said accident. But, the contention of the counsel appearing for the respondent was that the evidence adduced by the PW4 should be rejected as he had not given a complaint to the Police Station regarding the said accident. But, the Tribunal, following law as laid down in 2003 ACJ Page 475 decided to ignore it.
14.Even in the FIR, it has been stated that the respondent's bus had been the cause for the accident. From an examination of Ex.P2, the Post-mortem Report, it was evident that a criminal case number had already been filed regarding the accident. From a scrutiny of Ex.P6, the Motor Vehicle Inspector's Report, it was evident that the driver of the two wheeler had valid driving licence till 30.10.2003, and that the accident had occurred earlier to this date. Further, the damages to the two wheeler had been given in the report and it has been further stated that the accident had not been caused by any mechanical deficiencies of the vehicle. Similarly, the Motor Vehicles Inspector's Report regarding the said bus clearly shows the registration number of the bus and the criminal case number regarding the said accident. Considering all the above oral and documentary evidence, the Tribunal decided that the accident has been caused only by the driver of the respondent.
15.Further, on the respondent's side, the conductor of the bus was examined as RW1. The RW1, in his evidence has stated that he was the conductor of the said bus involved in the accident. The driver of the bus has not given any evidence before the Tribunal, nor given any reasons for non appearance. The Tribunal was not inclined to consider the evidence of RW1, who had stated that the driver of the two wheeler was not able to control the speed of the two wheeler in the edge of the road and lost his control and due to that the pillion rider fell down on the left side back wheel of the bus, so they rejected this evidence as it did not have any ring of genuiness. Further, it was concluded by the Tribunal, that as the driver of the bus has not come forward to give evidence to state that he has not caused the accident, he is to be held guilty under Section 114(G) of Evidence Act and that he was the cause for the accident. Further, on consideration of law laid down as per 2004 ACJ Page 484; 2002 ACJ Page 1571, Para 5 & 7; 1990 ACJ Page 450 and 1972 ACJ Page 380, the Tribunal held that the respondent is liable to pay compensation to the petitioners.
16.In her evidence, PW1 has stated that at the time of the accident, the deceased was aged about 50 years and was working at K.K.V. Textile Mills as Sizer and earning a sum of Rs.6,000/- per month. Further, PW3, the partner in K.K.V.Textile Mills had adduced evidence stating that the deceased had been working as Sizer for five years before his death in the accident and that he was earning a salary of Rs.6,000/- per month and that he had been paying the salary to the deceased every month and marked Ex.P7-copy of the Partnership Deed as proof for the same. The evidence given by PW3 was in consonance with the evidence adduced by PW1. The Tribunal, after considering the evidence given by the individuals PW1 and PW3 and further following legal opinion as laid down in the Judgement of the Madras High Court in 2002 ACJ Page 233, Para 20, Anandhi Vs. Latha, concluded that the deceased had worked as Sizer in the said Mill and was earning a sum of Rs.6,000/- per month. Further, the Tribunal also considered another Judgement, which was relevant to the present case, in AIR 1992 TNLJ Page 116; AIR 1989 SC Page 1074 and further another case (ref. C.M.A.No.844 of 1996), High Court of Madras, K.Subramanian/New India Assurance Co., Ltd., Vs. Bhuvaneswara and another, wherein it has been stated in operation portion that "Though account books relating to payment of salary have not been produced, the oral evidence of PW1 and Salary Certificate, Ex.A8, shows that the deceased was getting Rs.3,000/- per month".
17.Further, the petitioners had marked Ex.P4 to prove that they are legalheirs of the deceased. The veracity of the document has not been questioned and as such the Tribunal held that the petitioners are the legal heirs of the deceased. Further, it has been stated in the evidence of PW1 that the age of the deceased was 50 years. Further, even in Ex.P2-Post Mortem Report, the age has been mentioned as 50 years. As there were no contra evidence to this produced by the respondents, the Tribunal took the age of the deceased as 50 years and adopted a multiplier of 13.
18.Further, the learned counsel appearing for the petitioners had argued that the future prospects of the deceased also has to be considered in calculating the compensation and in support of this had cited Judgements made in 1977 ACJ Page 1 2002 ACJ Page 113 1996 ACJ Page 581 AIR 1998 NC Page 3036 2002 ACJ Page 1601 Para 6 and 2004 ACJ Page 222
19.Accordingly, the Tribunal took the average of salary at the time of the death and double of his present salary and considered the salary of the deceased as Rs.9,000/- per month. So, the Tribunal calculated the loss of income to the petitioners as Rs.9,000/- X 12 X 13 X 2/3 = Rs.9,36,000/-. Further, the Tribunal awarded a sum of Rs.10,000/- to the first petitioner for loss of consortium and a sum of Rs.10,000/- each to the first, second and third petitioners for loss of love and affection. For funeral expenses, a sum of Rs.3,000/- was awarded a compensation by the Tribunal.
20.Further, the arguments advanced by the respondent's side stating that the owner, driver and insurer of the two wheeler had not been included in the petition was not considered by the Tribunal, who relied on legal opinion expressed in Judgement in 2002 ACJ Page 1258 for the said rejection.
21.In total, a sum of Rs.9,79,000/- was awarded as compensation to the petitioners and apportioned 50% of the award amount to the first petitioner and 25% each to the second and third petitioners and directed the respondent to deposit the above amount into the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), with interest at the rate of 9% per annum from the date of filing of petition to till the date of payment of deposit. Further, the amount deposited in the Court has to be invested in a Nationalised Bank for three years and that the petitioners are permitted to receive interest on such deposit once in six months. Further, the apportioned amounts of the minor petitioners were to be kept in the bank until they become major. The respondent was given one month time to deposit the award amount and the petitioners were directed to pay the court fees within a period of one month.
22.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal had erred in relying upon the evidence of PW4, the eyewitness in respect of manner of accident and further no Police Officer was examined to prove negligence on the part of the driver of the appellant-Corporation. Further, the Tribunal had failed to consider the evidence of RW1, the conductor of the appellant-Corporation and ought to have fixed at least contributory negligence on the part of the motorcycle rider. Further, the Tribunal erred in relying upon the evidence of the PW1, the claimant in respect of the age, occupation and monthly income of the deceased. The Tribunal had also erred in fixing the annual income of the deceased at Rs.9,000/- and multiplier at 13 without any basis. Further, the award granted under loss of income, loss of consortium, loss of love and affection and funeral expenses were erroneous.
23.The learned counsel appearing for the respondent argued that the Tribunal awarded the compensation on the basis of the income of the deceased, his age and dependency of the claimants. The Tribunal had not awarded appropriate amounts under the heads of the loss of love and affection and loss of consortium. But, considering the overall circumstances, the quantum of the compensation awarded by the Tribunal is fair. As such, the appeal is not maintainable.
24.For the foregoing reasons, facts and circumstances of the case, discussions before the Tribunal and arguments advanced by the respective counsels before this Court and considering the grounds of appeal, the Court is of the view that the Tribunal's awarded for loss of income of Rs.9,36,000/- has been computed incorrectly on improper fixation of income for the deceased. The income taken by the Tribunal was an average of his present salary and double that of his present salary ie.Rs.6,000/- + Rs.12,000/- = Rs.18,000/- / 2 = Rs.9,000/-. This mode of calculation, based on hypothesis cannot be entertained by law. Further, the deceased was working in a private company, which is not a statutory body or a Government/Government's concern and hence the future earnings cannot be predicted accurately for the deceased, who was ranked as a Sizer, in the Textile Firm. Hence, the Court takes the income of the deceased as Rs.5,000/- per month and after deducting 1/3rd share of this for personal expenses, considers that his contribution to his family would be Rs.3,300/- per month only. Taking an annual salary of Rs.39,600/- and adopting a multiplier of 13, this Court awards a sum of Rs.39,600 X 13 = Rs.5,14,800/- under the head of loss of income to the petitioners. The award of Rs.10,000/- to the first claimant for the loss of consortium is modified as Rs.25,000/- by this Court. The award of Rs.25,000/- granted by the Tribunal to the first claimant for loss of love and affection is set aside. The award of Rs.10,000/- each granted by the Tribunal to the second and third claimant for the loss of love and affection is modified as Rs.25,000/- each by this Court. For funeral expenses, the Tribunal had awarded a sum of Rs.3,000/-. This Court enhances the amount under this head to Rs.10,000/-. As such, this Court awards a total compensation of a sum of Rs.5,99,800/- together with interest at the rate of 9% per annum from the date of filing the claim petition to till the date of payment.
25.The said appeal came before this Hon'ble Court on 19.01.2005, when this Court ordered the appellant/State Transport Corporation to deposit a sum of Rs.5,50,000/- to the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur). Further the Court permitted the first claimant to withdraw a sum of Rs.2,50,000/- and the second claimant to withdraw a sum of Rs.50,000/-. The Court directed the Tribunal to invest the balance amount, with accrued interest, of the minor in the bank.
26.In case, the appellant has deposited more than the award amount of Rs.5,99,800/- with interest. The appellant/State Transport Corporation is at liberty to withdraw the excess amount from the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur). If, the appellant/State Transport Corporation had deposited less than Rs.5,99,800/- with accrued interest, this Court directs the appellant/Corporation to comply with this Court Order within a period of six weeks from the date of receipt of this order.
27.The Tribunal apportioned 50% of the award amount to the first claimant and 25% each to the second and third claimants. The ratio adopted for apportionment of award to the claimants is confirmed by this Court.
28.As such, it is open to all the claimants to withdraw their apportioned award amount lying the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), by filing necessary payment out application in accordance with law.
29.In the result, the above Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal in the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), is modified. Consequently, connected miscellaneous petition is closed. No costs.
09.12.2009 Index: Yes/No Internet: Yes/No krk C.S.KARNAN, J.
Krk To
1.Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruppur.
2. The Section Officer, VR Section, High Court, Madras.
Pre-deliver Order in C.M.A.No.171 of 2005 09.12.2009