S.Palaniappan v. The Managing Director Tamil Nadu State Transport Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1718 of 2008andM.P.No.1 of 2008The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Salem .. Appellant/RespondentVs1.S.Palaniappan2.Sarasu3.Subramanian .. Respondents/PetitionersAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award, dated 08.01.2008, made in M.C.O.P.No.1668 of 2006,on the file of the Motor Vehicles Accident Claims Tribunal andAdditional District and Sessions Court at Salem.For appellant : Mrs.B.VijayalakshmiFor respondents : Mr.R.Syed MustafaJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/respondent against the Award and Decree, dated 08.01.2008,made in M.C.O.P.No.1668 of 2006, on the file of the Motor VehiclesAccident Claims Tribunal and Additional District and Sessions Courtat Salem, awarding a compensation of Rs.4,90,500/- with 7.5% interestfrom the date of filing the petition till the date of payment of thecompensation.2.Aggrieved by the said Order, the appellant/respondent, TheManaging Director, Tamil Nadu State Transport Corporation Ltd.,Salem, has filed the above appeal to set aside the award and decree.3.The short facts of the case are as follows:The deceased Gurunathan was aged about 20 years at the time ofaccident. He was a hale and healthy and doing all sorts of his https://hcservices.ecourts.gov.in/hcservices/ routine work. At the time of accident, he was studying in GovernmentITI, doing whole sale vegetable business and earning a sum ofRs.1,500/- per month. The entire income was contributed to hisparents and his elder brother.4.On 04.10.2006, the deceased Gurunathan travelled in amotorcycle bearing registration No.TN27 M8670 as a pillion rider andthe said motorcycle was ridden by its rider on the Sankari-Salem mainroad, on the extreme left side of the road and following all trafficrules and regulations. At about 15.15 hrs, when the rider wasproceeding near Kalipatty branch road, a TNSTC bus bearingregistration No.TN27 N1631, driven by its driver in a rash andnegligent manner and with great speed, came from the oppositedirection and hit against the motorcycle and so caused the accident.5.Due to the accident, the deceased sustained grievous injuriesall over the body and sustained grievous injuries on the vital partsof the body and died on the spot itself. The accident happened onlydue to the rash and negligent act of the driver of the bus.6.In connection with the accident, the Sankari Police Stationregistered a case as Crime No.1034/2006, under Sections 279, 337 and304A of I.P.C. against the driver of the TNSTC Bus.7.The first and second petitioners are the parents of thedeceased Gurunathan and the third petitioner is the elder brother ofthe deceased. The petitioners have claimed a sum of Rs.10,00,000/-as compensation for the death of the said Gurunathan from therespondent Transport Corporation with interest and costs underSection 166 of the Motor Vehicles Act 1988, r/w Rule 3 of TNMACTRules.8.The respondent in his Counter has resisted the claim statingthat the rider of the said motorcycle had driven the motorcycle in arash and negligent manner and had caused the accident. Further, theage, occupation and income of the deceased were denied. Thepetitioners have also not produced any medical bills to authenticatetheir claim. Further, the manner of the accident as alleged in theclaim is false and also the claim made in the petition is excessiveand so has prayed for dismissal of the petition.9.The Motor Accident Claims Tribunal framed two issues for theconsideration namely:(i)Was the accident caused by the negligentact and rash driving of the driver of therespondent's bus?(ii)What is the quantum of compensation, whichthe petitioners are entitled to get? https://hcservices.ecourts.gov.in/hcservices/

10.On the petitioners side two witnesses as PW1 and PW2 wereexamined and five documents were marked as Exs.P1 to P5. On therespondent's side one witness was examined as RW1 and no documentswere marked. The Tribunal scrutinised the averments in the petitionand Counter Affidavit regarding the manner of the accident.11.On the petitioners side, one Mathesh, an eyewitness of theaccident was examined as PW2. In his evidence, he has adduced thaton 04.10.2006, at about 3.00 p.m. he had come back fromTharrippattarai and taking Tea at a teashop, situated on theKalipatti branch road, and left off Salem main road, and looking outon the Sankari main road. At about 3.15 p.m. he had seen the TVSSuzuki motorcycle, ridden by a person from his Village, one Selvamand also its pillion rider one Gurunathan, on the Salem Road, on theextreme left and proceeding towards Salem. At that time, therespondent's bus bearing registration No.TN27 N1631, driven by itsdriver with high speed and in a rash and negligent manner andproceeding towards Edapadi Branch road, suddenly without turning thebus to the left for proceeding on the Edapadi branch road, turned iton the right and hit against the motorcycle, as a result of whichboth the riders of the motorcycle were thrown out and the saidGurunathan, died on the spot itself. On cross-examination, PW2 hasdenied that he is related to the deceased and also denied theallegation of the respondents that he was not an eyewitness of theaccident.12.The respondent's bus conductor, was examined as RW1 and inhis evidence, he has stated that the said bus was driven in a carefulmanner by its driver; that the rider of the motorcycle had ridden themotorcycle in a rash manner and had not seen the bus entering intothe four roads and had dashed the motorcycle against the bus and sohad invited the accident. As such, the bus driver was notresponsible for the accident. On cross examining the conductor andon being questioned as to how many days the driver of the bus hadbeen placed on suspension, the conductor of the bus replied in thenegative. Further, on cross-examination, he has stated that he doesnot know the registration number of the motorcycle involved in theaccident. Further, no reasons will given on the respondent's sidefor not examining the driver of the bus in the present case.Further, no documentary evidence was produced on the respondent'sside to show the action that the respondent had taken against the busdriver. If the manner of the accident as narrated by the respondenthad been true, the driver of the said bus could have at least comeforward as a witness and adduced evidence before the Tribunal. TheTribunal then scrutinised the Ex.P1 – FIR regarding the place, timeand manner of the accident and had also found that a criminal casehas been registered as against the driver of the said bus underSections 279, 337 and 304A of I.P.C. So, the Tribunal on consideringthe evidence of PW2 and on perusal of the contents of FIR marked asEx.P1, concluded that the accident had been caused by the rash and https://hcservices.ecourts.gov.in/hcservices/ negligent driving of the driver of the bus and so held the respondentliable to pay compensation to the petitioner.13.It is evident, after scrutiny of the Ex.P2 – Post-mortemReport of the deceased, that the age of the deceased was 20 years atthe time of the accident. Ex.P3 – Death Certificate of the deceased.PW1, the mother of the deceased, had adduced evidence that prior tothe accident, her son was a student in ITI and marked Ex.P4 - 10thStandard Mark Sheet of the deceased. From a scrutiny of the Ex.P5,it is seen that the deceased was undergoing an Electrician Course atGovernment ITI, at the time of the accident. As such, the Tribunalconsidered that if the deceased had been alive, he had good prospectsof earning in the future. Considering that the deceased wasunmarried and considering the age of his mother as 42 years, theTribunal adopted a multiplier of 15 for assessing compensation.14.On scrutiny of evidence of PW1 and on consideration of Exs.P5and P6, the Tribunal held that the deceased had good prospects ofearning a decent sum in the future. The Tribunal therefore, heldthat the deceased could have earned a salary of Rs.3,900/- per month.Deducting 1/3rd share of this for his personal expenses, the Tribunalfixed his contribution to his family, in the future, as a sum ofRs.2,600/- per month. Adopting the multiplier of 15, the Tribunalassessed loss of income to the petitioner as Rs.2,600/- X 12 X 15 =Rs.4,68,000/-. For transport and funeral expenses, the Tribunalawarded a sum of Rs.2,500/- and a sum of Rs.20,000/- was granted tothe petitioners for loss of love and affection. In total, theTribunal awarded a sum of Rs.4,90,500/- to the petitioners andapportioned a sum of Rs.3,00,000/- to the second petitioner, motherof the deceased and apportioned Rs.95,250/- each to the firstpetitioner and third petitioner, the father and brother of thedeceased respectively.15.Further, the Tribunal directed the respondent to deposit theabove said award together with interest at the rate of 7.5% perannum, into the credit of the M.C.O.P.No.1668 of 2006, on the file ofthe Motor Vehicles Accident Claims Tribunal and Additional Districtand Sessions Court at Salem, within a period of two months from thedate of its Order and further directed that the apportioned share ofthe petitioners had to be deposited in any one of the NationalisedBanks at Salem and the petitioners were permitted to receive intereston such deposits, once in three months, directly from the Bank. TheCourt fee for the award has to be paid by the petitioners within tendays from the date of its Order. The Advocate fees was to be fixedas per rules and regulations of the Court.16.The learned counsel for the appellant in his appeal hascontended that the Tribunal had failed to consider that themotorcycle had been driven by its rider in a rash and negligentmanner. Further, considering the age of the deceased was only 20years, the Tribunal, had wrongly fixed the salary of the deceased asRs.3,900/- per month, without any proof. Further, the Tribunal https://hcservices.ecourts.gov.in/hcservices/ failed to consider that the claimant did not produce any legal heircertificate to show their entitlement in getting compensation. Assuch, the grant of Rs.4,90,500/- awarded by the Tribunal is excessiveand so the learned counsel for the appellant has prayed for settingaside the award and decree.17.The learned counsel for the respondent argued that theTribunal grant of Rs.2,500/- for funeral expenses is on the lowerside. The deceased was an ITI Student. The Tribunal, fixed thenotional income of the deceased as Rs.2,600/- per month afterdeducting personal expenses and so it is justified, considering thatthe year of the accident was 2006. The learned counsel for therespondent further submitted that the award granted by the Tribunalhas been well considered.18.After considering the facts and circumstances of the case,evidence given by both sides, arguments advanced by the learnedcounsels for their respective parties, the Court is of the view thatit is an admitted fact that the deceased was a student undergoing aTechnical Course in Government ITI and that after doing his course,he had good prospects of earning and extending support to his family.The Tribunal had adopted a multiplier as 15 on the basis of the ageof the mother and income of the deceased to assess compensation andthis Court confirms the assessment of compensation based on this, ascorrect. As such, the award of the Tribunal of Rs.4,68,000/- towardsloss of income, Rs.2,500/- for funeral expenses and Rs.20,000/- forall the claimants for loss of love and affection is correct and sothis Court confirms the award under these heads. The loss of a 20years old ITI Student, is a great loss to the claimants, who are thelegal heirs of the deceased, as they lost their son in the prime ofhis life. As such, the Court, confirms the award passed by MotorVehicles Accident Claims Tribunal and Additional District andSessions Court at Salem, in M.C.O.P.No.1668 of 2006. The rate ofinterest of 7.5% per annum is also justified considering the year ofthe passing the award. In total, the award passed by the Tribunal isfair and equitable.19.This Court hereby directs the appellant/Tamil Nadu StateTransport Corporation to deposit the entire compensation amount, asum of Rs.4,90,500/- together with interest at the rate of 7.5% perannum, from the date of filing the claim petition till the date ofpayment of the compensation, into the credit of the M.C.O.P.No.1668of 2006, on the file of the Motor Vehicles Accident Claims Tribunaland Additional District and Sessions Court at Salem, within a periodof four weeks from the date of receipt of this Order, subject to thededuction of earlier deposit amount of compensation.20.It is open to the claimants to withdraw their apportionedshare amount as per the Tribunal Order, lying in the credit of the https://hcservices.ecourts.gov.in/hcservices/ M.C.O.P.No.1668 of 2006, on the file of the Motor Vehicles AccidentClaims Tribunal and Additional District and Sessions Court at Salem,after filing necessary payment out application, in accordance withlaw.21.In the result, the above Civil Miscellaneous Appeal isdismissed and the award passed by the Motor Vehicles Accident ClaimsTribunal and Additional District and Sessions Court at Salem, inM.C.O.P.No.1668 of 2006, is confirmed. Consequently, connectedmiscellaneous petition is also closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1. Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Court, Salem.2. The Section Officer, VR Section, High Court, Madras. Order in C.M.A.No.1718 of 2008TM (CO)RH (6.1.10)