The Managing Director,Tamil Nadu State Transport Corporation Ltd.,Coimbatore Division-II,Chennimalai Road,Erode v. Palanisamy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1798 of 2007andM.P.No.1 of 2007The Managing Director,Tamil Nadu State Transport Corporation Ltd.,Coimbatore Division-II,Chennimalai Road,Erode.. Appellant/ Respondent Vs1.Palanisamy2.Govindammal .. Respondents / PetitionersAppeal filed under Section 173 of the Motor Vehicles Act,1988,against the Award and Decree, dated 22.01.2007, made inM.A.C.T.O.P.No.591 of 2005, on the file of the Motor AccidentsClaims Tribunal-cum-Additional District Court (Fast Track CourtNo.5), Coimbatore sitting at Tiruppur.For appellant : Mr.C.Prabhakaran for M/s.N.AnandFor respondent : Mr.S.S.SwaminathanJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/respondent against the Award and Decree dated dated22.01.2007, made in M.A.C.T.O.P.No.591 of 2005, on the file of theMotor Accidents Claims Tribunal-cum-Additional District Court (FastTrack Court No.5), Coimbatore, sitting at Tiruppur, awarding acompensation of Rs.5,09,000/- with 7.5% interest from the date ofthe petition to till the date of payment of the compensation. https://hcservices.ecourts.gov.in/hcservices/

2.Aggrieved by the above said award, the appellant/TamilnaduState Transport Corporation Ltd., Coimbatore Division-II, Erode,has preferred the above appeal to set aside the order.3.The short facts of the case are as follows:On 13.06.2005, at about 21.45 hours, when the deceased wasriding the two wheeler bearing registration No.TN39 X3277, the busbearing registration No.TN 33 N1676, driven in a rash and negligentmanner by its driver, dashed against the deceased, who died in thesaid collusion. The Post-mortem of the deceased was conducted atGovernment Hospital, Palladam. As the accident was caused due tothe rash driving of the driver, in the course of the employmentunder the respondent, the respondent is liable to compensate thepetitioner. The deceased was a hale and healthy man of 30 yearsold, doing agricultural work and was also the owner of a Tractorand was earning a sum of Rs.10,000/- per month. The petitionershave spent a sum of Rs.10,000/- for funeral expenses and a sum ofRs.10,000/- for transporting the body of deceased to native place.As such, the petitioners, who are the legal heirs of the deceased,have claimed a compensation of a sum of Rs.12,00,000/- withinterest and costs.4.The respondent/Tamil Nadu State Transport Corporation in itsCounter has resisted the claim denying the age, occupation, incomeof the deceased as also the legal heirship and dependency of thepetitioners. Further, the accident, manner of the accident, natureof the injuries and loss of earnings of the deceased were notadmitted. It was submitted that on 13.06.2005, the bus bearingregistration No.TN 33 N1676 was proceeding from Tiruppur toMadurai. The driver of the bus was proceeding slowly, cautiouslyand was also following the rules of the road. At about 9.40 p.m.when the bus was nearing Avinashipalayam Sungam, a pedestrian triedto cross the road and suddenly came into the road. At that time, atwo wheeler bearing registration No.TN39 X3277 was coming in theopposite direction in a rash and negligent manner at a high speed.The driver on seeing the pedestrian and the two wheeler coming inthe middle of the road, blew the horn and applied brake and swervedthe bus to the rightside of the road. The driver of the bus didhis best to avert the accident. In spite of this, the deceaseddriver of the two wheeler with pillion rider, dashed then vehicleagainst the stopped the bus and fell down and so caused his owndeath. Further, the petitioners have not impleaded the owner andinsurer of the two wheeler bearing registration No.TN39 X3277 toarrive at a comprehensive decision. Further, the claim of thepetitioners is excessive; therefore, the respondent has prayed toset aside the claim.5.The Motor Accident Claims Tribunal framed two issues for theconsideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i)Who is responsible for the accident to becaused?(ii)Are the petitioners entitled to getcompensation? If so, what is the quantum ofcompensation?6.On the petitioners' side, six witnesses were examined and 22documents were marked. On the respondent's side one witness wasexamined as RW1 and no documents were marked.7.The petitioner in M.A.C.T.O.P.No.590 of 2005 was examined asP.W1 and he had marked a document ie.Ex.P1, the First InformationReport. It has been mentioned in the report that the accidentoccurred on 13.06.2005, at 21.45 hours; that the complaint had beenlodged by one Deivasigamani, the brother-in-law of Kanakaraj, whowas travelling in another motorcycle and who had died in the aboveaccident; that based on this complaint, a criminal case wasregistered by the Avinasipalayam Police as Crime No.215/2005,against the driver of the bus bearing registration No.TN33 N1676.Further, another document was marked by PW1 as Ex.P2, the MotorVehicle Inspector's Report of the said bus. It has been stated inthis report that the accident has not been caused due to anymechanical defects in the bus. Further, the driver of the bus wasexamined as RW1. The RW1, in his evidence has adduced that he wasdriving the bus carefully on the leftside of the road; that apedestrian without noticing the bus was crossing the road, in frontof the bus; that he had swerved the bus to the right side of theroad and stopped it; in spite of this, a two wheeler, which wascoming from the opposite direction, ridden rashly and negligentlyby its rider had dashed against the bus and both the riders hadfallen down; that the pedestrian, who had crossed the road alsodashed himself against the stationery bus and died.8.The Tribunal on a scrutiny of the evidence adduced by RW1held that as the driver of the bus, RW1 had admitted in hisevidence that he had driven the bus to the rightside of the road,it is very obvious that the two wheeler, which had dashed againstthe bus, was ridden in the correct direction and as such held thatthe accident had occurred only because the bus had dashed againstthe two wheeler. Further, the pedestrian, who crossed the road,was also hit by the bus and died.9.If the pedestrian, who had crossed the road, had dashedhimself against the stationery bus, he would not have died. But,the Tribunal, considering that the said pedestrian had died in theaccident, concluded that he had been hit by the moving the bus. Oncross-examination of the RW1, it had been admitted by him that hehad not filed any complaint with the Police and that even in theFIR, the complaint has been registered as against him. Further, no https://hcservices.ecourts.gov.in/hcservices/ witness was examined and no documentary evidence was produced onthe respondents side to establish that the driver of the bus hadnot been rash and negligent in driving of the bus. As such, theTribunal held that the accident was caused only by the rash andnegligent driving by RW1 ie.the driver of the bus, bearingregistration No.TN 33 N1676.10.The first petitioner, Palanisamy, was examined as PW2. ThePW2, in his evidence had reconfirmed the statements made by him inhis claim and also marked Ex.P8 as the Post-mortem Certificate ofhis deceased son. In this, it had been stated that the age of thedeceased Kanakaraj is 30 years old. The Death Certificate of thedeceased son was marked as Ex.P9. Further, Ex.P10, the legal heircertificate was marked to establish that the petitioners areparents of the deceased. To prove that the deceased had availed aloan to buy a Tractor and that he had paid the said loan ininstalments, a copy of the statement of accounts relating to thesaid loan was marked as Ex.P11. The petitioner has claimed thathis deceased son was earning a sum of Rs.10,000/- per month bydoing agricultural work using Tractor and he has again re-confirmedthis in his sworn affidavit. But, the petitioners have not given astatement of income and expenses of the decease to prove that thedeceased was earning a sum of Rs.10,000/- per month and thepetitioners have also not clearly stated the type of agriculturalactivities taken by the deceased and how much he earned by usinghis Tractor. As such, the Tribunal concluded that the salary ofthe deceased could be taken as Rs.4,000/- per month and fixed hisannual salary as Rs.48,000/-. Deducting 1/3rd share of this forpersonal expenses, the Tribunal decided that the yearly income ofthe deceased as Rs.32,000/-. The Tribunal adopting a multiplier of18 as was applicable to the age of the deceased, which was 30 andalso considering a multiplier of 11 as was relevant to the age ofthe mother of the deceased, adopted the average of these twomultipliers ie.18 + 11 / 2 = 14.5 to compute the loss of income tothe petitioners. The Tribunal then multiplying the Rs.32,000/- by14.5, assessed that the loss of income suffered by the petitionerswas Rs.4,64,000/- and awarded the same to the petitioners.Further, the Tribunal awarded a sum of Rs.20,000/- each to thepetitioners for loss of love and affection; and Rs.5,000/- forfuneral expenses and in total awarded a sum of Rs.5,09,000/- ascompensation to the petitioners and directed the respondent todeposit the above said award with interest at the rate of 7.5% fromthe date of filing the petition to till the date of payment ofcompensation. Further, an amount of Rs.1,00,000/- awarded to eachof the petitioners was directed to be deposited in a NationalisedBank for three yeas and permitted the petitioners to withdrawinterest from such deposit once in three months. The Tribunalpermitted the petitioners to withdraw the balance amount ofRs.3,09,000/- equally among themselves, immediately after suchdeposits were made by the respondent into the credit of https://hcservices.ecourts.gov.in/hcservices/ M.A.C.T.O.P.No.591 of 2005, passed by the Motor Accidents ClaimsTribunal-cum-Additional District Court (Fast Tract Court No.5),Coimbatore sitting at Tiruppur. The Advocate fees was fixed asRs.12,090/-. The petitioners were directed to pay the Court feeswithin a period of ten days from the date of its Order.11.The learned counsel appearing for the appellant in theirappeal has argued that the Tribunal has erred in assessment of theoccupation and the income of the deceased. Further, the learnedTribunal had erred in concluding that the accident took place onlydue to the carelessness and negligence of the appellant bus driver.The learned Tribunal failed to appreciate the fact that theappellant was forced to turn the bus to the right side in order toavoid a pedestrian, who came in front of the bus, but the deceasedwas riding the two wheeler in a rash and negligent manner.Further, no Police Officer was examined to prove the negligence onthe part of the appellant's driver and conductor and also theTribunal had erred in not considering the evidence of RW1, thedriver of the bus. Further, it was contended that the learnedTribunal failed to consider the age of the deceased, while applyingthe multiplier and ought to have adopted lesser years of multiplieras per rulings of the Apex Court. The learned Tribunal had erredin awarding a compensation of Rs.4,64,000/- towards the loss ofincome, Rs.40,000/- for loss of love and affection, Rs.5,000/-towards the funeral expenses. As such, the award of Rs.5,09,000/-as total compensation with 7.5% interest from the date of filingthe petition is excessive and has to be scaled down.12.The learned counsel appearing for the respondents submittedthat the Tribunal adopted the multiplier on the basis of thedeceased age and the age of the mother of the deceased and workedout the average of these two multipliers and arrived at themultiplier of 14.5. This multiplier method has been adopted by theMotor Accident Claims Tribunal following the Judgement reported bythe High Court in MLJ Page 360. The compensation was thencalculated and the compensation of Rs.4,64,000/- was given underthe head of loss of income. The compensation given is fair andreasonable.13.For the foregoing reasons and on the consideration of thefacts and circumstances of the case, the Court is of the opinionthat the deceased was involved in agricultural operations and alsoowned a Tractor. The same was considered by the Tribunal and theTribunal had rightly come to a conclusion that the income of thedeceased could be taken as Rs.4,000/- per month. This accidenthappened in the year 2005 and so the fixation of the income of thedeceased as Rs.4,000/- per month by the Tribunal is reasonable.There is no dispute on the age of the deceased. As such, theTribunal had adopted the average multiplier method and arrived atthe compensation of Rs.5,09,000/- including the grant of funeral https://hcservices.ecourts.gov.in/hcservices/ expenses of Rs.5,000/- and a sum of Rs.40,000/- for the loss oflove and affection to the petitioners. In this case expectancy oflife had not been considered by the Tribunal. The Tribunal hadalso arrived at the fixation of 14.5 as multiplier based on theJudgement reported in MLJ Page 360. As such, the award passed bythe Motor Accidents Claims Tribunal-cum-Additional District Court(Fast Tract Court No.5), Coimbatore sitting at Tiruppur, inM.A.C.T.O.P.No.591 of 2005, a sum of Rs.5,09,000/- together withinterest at the rate of 7.5% per annum from the date of filing thepetition till the date of payment is equitable and fair and payableby the appellant/Tamil Nadu State Transport Corporation. Hence,this Court does not want to interfere with the findings of theMotor Accident Claims Tribunal on this Court.14.Therefore, the Court directs the appellant/Tamil Nadu StateTransport Corporation to deposit the entire compensation amount ie.a sum of Rs.5,09,000/- together with interest at the rate of 7.5%per annum from the date of filing the claim petition to till thedate of payment of the compensation, into the credit ofM.A.C.T.O.P.No.591 of 2005, on the file of the Motor AccidentsClaims Tribunal-cum-Additional District Court (Fast Tract CourtNo.5), Coimbatore sitting at Tiruppur, within a period of six weeksfrom the date of receipt of a copy of this Order, if, thiscompensation amount has not been deposited. 15.If, the appellant had already been deposited a part of thisaward amount, the balance of the award amount should be depositedwith interest as per the above mentioned conditions.16.It is open to the respondents/claimants to receive theentire compensation amount, lying into the credit ofM.A.C.T.O.P.No.591 of 2005, on the file of the Motor AccidentsClaims Tribunal-cum-Additional District Court (Fast Track CourtNo.5), Coimbatore sitting at Tiruppur, by filing necessary paymentout application in accordance with law.17.In the result, the Civil Miscellaneous Appeal is dismissedand the award passed by the Motor Accident Claims Tribunal inM.A.C.T.O.P.No.591 of 2005, on the file of Additional DistrictJudge (Fast Track Court No.V), Coimbatore at Tiruppur is confirmed.Consequently connected miscellaneous petition is also closed. Nocosts. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.krk https://hcservices.ecourts.gov.in/hcservices/ To1.Motor Accidents Claims Tribunal-cum- Additional District Court (Fast Track Court No.5), Coimbatore sitting at Tiruppur.2. The Section Officer, VR Section, High Court, Madras.1 cc to Mr.S.S. Swaminathan, Advocate, Sr. 652831 cc to Mr.N. Anand, Advocate, SR. 65590 C.M.A.No.1798 of 2007PVR (CO)kk 8/1