The Managing DirectorTamilnadu State Transport Corporation LtdVillupuram Division-IIIKanchipuramFormerly known asM.G.R.Transport Ltd.,Kanchipuram v. Sumathi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.11.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.2743 of 2009andM.P.No.1 of 2009The Managing DirectorTamilnadu State Transport Corporation LtdVillupuram Division-IIIKanchipuramFormerly known asM.G.R.Transport Ltd.,Kanchipuram.. Appellant/RespondentVs1.Sumathi2.Priya(Minor)3.Palayathan4.Murugammal(2nd respondent is minor rep.by her mother Sumathi guardian and next friend and Cause title accepted vide Order of this Courtdated 11.04.2008, made in M.P.1 of 2008in C.M.A.SR.No.100725/2007)5.S.Padmanabhan .. Respondents/Petitioners(R-5 Given up)Appeal filed under Section 173 of the Motor Vehicles Act, 1988against the Award and Decreetal Order, dated 02.03.2007, made inM.C.O.P.No.188 of 2002, on the file of the Motor Accident Tribunal,Additional Claims District Judge, Fast Tract Court No.II, Chennai.For appellant : Mr.V.RameshFor respondents : Mr.N.M.Elumalai1 to 4J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/second respondent, against the Award and Decreetal Order,dated 02.03.2007, made in M.C.O.P.No.188 of 2002, on the file of theMotor Accident Tribunal, Additional District Judge, Fast Tract CourtNo.II, Chennai, awarding a compensation of Rs.4,00,000/- to therespondents/petitioners. https://hcservices.ecourts.gov.in/hcservices/

2.Aggrieved by the said Order, the respondent/Tamil Nadu StateTransport Corporation Ltd., Villupuram Division-III, has filed theabove appeal.3.The short facts of case are as follows:On 20.10.2001, at about 20.30 hours, while the deceased wastravelling from Tiruthani to Arunkulam in a Bajaj M-80 Motorbikebearing registration No.TN 20 C3744 and nearing NarayanamangalamKandigai, the second respondent's vehicle/Transport Corporation Busbearing registration No.TN 21 N0341, coming from Chennai to Tirutaniand driven in a rash and negligent manner by its driver, dashedagainst the motorcycle. In the result, the deceased sustained headinjuries and multiple grievous injuries and died. The accidentoccurred only due to the rash and negligent driving of the driver ofthe second respondent vehicle. The second respondent, being theowner of the vehicle and the first respondent, the driver of thevehicle are jointly and severally liable to pay the compensation tothe petitioners with interest and costs. The Sub-Inspector ofPolice, Arakkonam Taluk Police Station registered a criminalcomplaint of the said accident in Crime No.636/2001.4.As such, the petitioners, who are the legal heirs of thedeceased had claimed a compensation of Rs.5,00,000/- with interestand costs.5.The second respondent/The Tamilnadu State TransportCorporation in his counter has resisted the claim stating that on20.10.2001, their bus Route No.97N, bearing registration No.TN21N3041 was on its trip from Chennai to Tiruttani. The driver startedits trip from Chennai at 19.30 hours. At about 22.15 hours, whilethe bus was proceeding along Madras to Tiruttani High Road, nearNarayanamangalam Kandigai, a Bajaj M-80 Motorcycle bearingregistration No.TN 20 C3744, was coming from the opposite directionand driven by its rider in a rash and negligent manner on the wrongside of the road. On seeing this, the driver of the bus appliedbrake and stopped the bus on the extreme left of the road. Eventhen, the deceased had dashed against the front left side of the bus,fell down and sustained fatal injuries. Due to this, the front lefthead lamp and left side bumper of the bus were damaged. As such, theaccident had occurred only due to the rash and negligent riding ofthe motorcyle. Further, the police complaint had been given by theLocal Panchayat Union President, who had not witnessed the accident.Based on this complaint, a Police case has been registered againstthe respondent's driver and so this respondent had sent an ObjectionLetter to the Inspector of Police, Arakkonam Taluk Police Station,for dropping the criminal case filed against the bus-driver.Further, it is evident from MVI report and photos that the accidentoccurred only due to the negligent riding of the two wheeler. Thisrespondent further submits that the age, occupation and income of thedeceased are not admitted. Further, the amount claimed in the claim https://hcservices.ecourts.gov.in/hcservices/ petition is highly excessive. Further, the petitioners have to proveby documentary evidence that they are legal heirs of the deceased.As such, the respondent has prayed for dismissal of claim petition.6.On taking into consideration, the facts set forth in thepetition and the counter filed by the second respondent, the pointthat arise for determination are as follows:(i)Whether the accident occurred due to the rashand negligent driving of the first respondent?(ii)Whether the accident had taken place due to therash and negligent act of the deceased?(iii)What is the quantum of the compensation whichthe petitioners are entitled to?7.The first petitioner, Sumathi, wife of the deceased wasexamined as PW1 and Karimullah, an eye witness of the accident wasexamined as PW3. During the course of their examination, Ex.P1 to P7were filed on the side of the petitioners. S.Padmanabhan, the driverof the bus was examined as RW1 on the side of the respondents. Nodocumentary evidence were let in by the side of the second respondent.8.The PW3 has stated in his evidence that on 20.10.2001, at 9.30p.m. he was travelling in the Tamil Nadu State Transport CorporationBus, route No.97, bearing registration No.TN 21 N0341, fromThiruvallur to Thiruthani; that when the bus was coming at thejunction of Arunkulam Road and Thiruthani Road, a Bajaj M-80 wascoming in the opposite direction; that the bus dashed against theBajaj M-80; that the bus was stopped, he and passengers alighted fromthe bus and saw the injured persons; that he came to know that theinjured was Velayudham; that message was sent through the Cotton Millwatchman to the relations of the injured; that the Panchayat BoardPresident also came to the place of occurrence; that Velayutham wastaken to the Government Hospital, Tiruthani, but was declared dead.Further, the PW3 has stated that the driver of the Tamil Nadu StateTransport Corporation Bus is responsible for the accident.9.The PW1, in her evidence had stated that the deceasedVelayutham is her husband; that she is the first petitioner; that thesecond petitioner is her daughter; that the third petitioner is herfather-in-law and the fourth petitioner is her monther-in-law; thaton 20.10.2001, at 10 p.m., her husband had met with the said accidentand admitted in the Government Hospital, Thiruttani and that he haddied. The PW1 has marked Ex.P1, the certified copy of the FIR;Ex.P2, Post-mortem Certificate of the deceased; Ex.P3, Motor VehicleInspector's report; Ex.P4, the Charge Sheet filed against the firstrespondent; Ex.P5, Pay Slip of her husband and Ex.P6, LegalheirCertificate and Ex.P7 Post-mortem Certificate and has further statedthat the time of the accident, her husband was working as weaver inthe Cotton Mill and that he was earning Rs.4,215/- per month and that https://hcservices.ecourts.gov.in/hcservices/ she has claimed a sum of Rs.5,00,000/- as compensation.10.The cross-examination of the learned counsel for the secondrespondent has not shattered the credibility and veracity of evidenceof PW3. Nothing has been elicited in the cross-examination of PW3that he is speaking falsehood. The evidence of PW3 is clear, cogentand natural. His evidence does not suffer from any infirmity andthere is no reason to discard his evidence. As such, the Tribunalaccepted his evidence in the case.11.RW1 has stated in his evidence that he is working as a driverof the Tamil Nadu State Transport Corporation at Thiruthani Depot,that on 20.10.2001, he was working as driver in the bus route No.97,bearing registration No.TN 21 N0341; that the bus was on its tripfrom Chennai to Thiruthani; that when the bus was proceeding towardsThirutani near Narayanamangalam Kandigai, a Bajaj M80 Motorcycle wascoming from the opposite direction in a zig zag manner; thatimmediately he stopped the bus; that the Bajaj M80 rider dashedagainst the leftside of the bus, that the criminal case was filedagainst him and that he was acquitted. The certified copy of the FIRis filed as Ex.P1. It has been mentioned in Ex.P1 that on 20.10.2001at 11.30 p.m. the deceased Velayudham was riding his Bajaj M80,bearing registration No.TN 20 C 3744 at the junction ofNarayanamangalam Kandigai and Thiruthani Road, that at that time aTamilnadu State Transport Corporation Bus bearing registration No.TN21 N0341 dashed against the said Bajaj M80; that as a result of whichVelayudham sustained severe head injury and died at the spot itself,that the deadbody was brought to the Government Hospital, Thiruthanithrough an Auto; that at the time of the accident, the deceasedVelayutham was working in the Cotton Mill. It is seen from Ex.P1that the accident had taken place on 20.10.2001 at 12 p.m. Thedocumentary evidence of Ex.P1 and oral evidence of PW3 are againstthe version of RW1. Hence, the documentary evidence of Ex.P1 and theoral evidence of PW3 override the oral evidence of RW1. Therefore,the oral evidence of RW1 is not acceptable in this case. Thecertified copies of Motor Vehicle Inspector's Report and the ChargeSheet are filed against the first respondent and have been marked asEx.P3 and Ex.P4. They show that the first respondent was responsiblefor the accident. Therefore, on taking into consideration theevidence of PW3 and Ex.P1, Ex.P3 and Ex.P4, the Tribunal held thatthe accident was caused by the rash and negligent driving of thefirst respondent. Further, the second respondent, as owner of thebus was held vicariously liable to pay compensation for the wrongfulact of the first respondent.12.The PW1 has stated in her evidence that her husband died dueto the accident on 20.10.2001 at 10.30 P.M. that at the time of theaccident, her husband was a Weaver in the Cotton Mill; that therebyhe was earning Rs.4,215/- per month and that she has claimedRs.5,00,000/- as compensation. The Salary Certificate of thedeceased Velayutham is filed as Ex.P5. They show that the deceasedwas drawing Rs.3,688/- per month. Out of the said amount, he would https://hcservices.ecourts.gov.in/hcservices/ have spent 1/3rd share for his personal expenses ie. Rs.1,229/-. Thebalance of Rs.2,459/- would have been contributed by him to hisfamily. Thus, the Tribunal decided that the annual incomecontributed to his family would be Rs.29,508/-. The certified copyof the Post-Mortem Certificate of the deceased Velayutham is filed asEx.P2. It reveals that the deceased Velayutham was aged about 27years at the time of accident. So, the Tribunal, on considering thedeceased age as 27 years adopted a multiplier of 18 as per secondschedule of Section 163(A) of Motor Vehicles Act. As such, the lossof income to the petitioners were fixed as Rs.5,31,144 (Rs.29,508 X18). As the petitioners had restricted their claim to Rs.4,00,000/-,the Tribunal held that the petitioners are entitled to receiveRs.4,00,000/- as compensation. Further, from Ex.P6, the LegalheirCertificate of the deceased, it was established that all thepetitioners were legalheirs of the deceased and as such concludedthat the petitioners are entitled to receive the above award.13.The Tribunal, therefore, directed the second respondent topay the above award to the petitioners with interest at the rate of7.5% per annum from the date of petition to till the date of therealisation, within a period of two months of its Order. Further,all the petitioners were entitled to get a sum of Rs.1,00,000/- eachas compensation with costs and interest proportionately. After theamount is deposited, the second petitioner's (Minor) share shall beinvested in a Nationalised Bank till the Minor petitioner attainedmajor. The 1st, 3rd and 4th petitioners' share shall be invested in aNationalised Bank for a period of not less than three years. Afterthe amount is invested, the 1st, 3rd and 4th petitioners are entitled toreceive the accrued interest thereon once in three months directlyfrom the Bank. The second petitioner's guardian is entitled toreceive the accrued interest on behalf of the second petitioner, oncein three months directly from the Bank. The Advocate fees was fixedat Rs.11,000/-.14.The learned counsel appearing for the appellant has argued inhis appeal that no Police Officer was examined to prove negligence onthe part of the driver of the appellant Corporation. The Tribunalfailed to consider the evidence of RW1, the driver of the appellantCorporation bus and should have dismissed the entire claim petitionon the basis of the available evidence on record. The Tribunal alsoerred in relying upon evidence of PW3, the alleged interested eyewitness in respect of manner of accident.15.The Tribunal has also erred in awarding a sum ofRs.4,00,000/- as total compensation and fixed 7.5% interest and thisis on the higher side. As such, the learned counsel for theappellant has prayed for setting aside the order of the Tribunal.16.The learned counsel appearing for the respondent argued thatthe Motor Accident Claims Tribunal has come to a conclusion regardingthe income of the deceased after scrutiny of the Salary Certificateand then had fixed the annual income of the deceased as Rs.29,508/-. https://hcservices.ecourts.gov.in/hcservices/ After deducting the 1/3rd share from the total amount, they hadconcluded that the deceased could have contributed the above income.Further, the Tribunal has arrived at the conclusion that the age ofthe deceased was 27 years after examination of Post-MortemCertificate. Then the Tribunal has adopted a multiplier of 18, onthe basis of the age of the deceased, and award a sum ofRs.5,31,144/-. However, the petitioners have restricted their claimto Rs.4,00,000/-. Hence, the Tribunal awarded a sum of Rs.4,00,000/-to the respondents/claimants with 7.5% interest. The said amount hasbeen equally apportioned to each of the claimants.17.This Court after going through the grounds of the appeal andarguments of the learned counsel appearing eithersides, is of theopinion that the award as calculated by the Tribunal as Rs.5,31,144/-is correct, based on the available evidence and materials on recortand the same is confirmed. Further, the Tribunal has not considered,granting of compensation under the heads of loss of consortium,funeral expenses and loss of love and affection. Normally in fatalcases, it is very necessary to consider the claims for loss ofconsortium, loss of love and affection and funeral expenses. In theTribunal's award, the compensation under these heads wereconspicuously absent. This amounts to Lacunae in the said Judgement.Hence, this Court by granting award under the above heads, has filledthe vaccum in the award granted. Hence, this Court wants to setright the defect and accordingly the Court grants compensation asfollows:(i) Loss of Income - Rs.5,31,144/-(ii)The first petitioner, the widow of the deceased isawarded a sum of Rs.25,000/- towards contribution, the2nd petitioner, the minor daughter of the deceased isawarded a sum of Rs.25,000/- for loss of love andaffection and third and fourth petitioners, the fatherand mother of the deceased are awarded a sum ofRs.5,000/- each.(iii)For funeral expenses, this Court grants a sum ofRs.5,000/-In total, the respondents/claimants are entitled to receive asum of Rs.5,96,144/- as compensation. Already, the Tribunal hadawarded a sum of Rs.4,00,000/- as compensation to the claimants andapportioned Rs.1,00,000/- to each of them.18.The additional award amount of Rs.1,96,144/- granted by thisCourt is apportioned as follows:(i).The first claimant is awarded a sum of Rs.35,000/-,(ii).The second claimant is awarded a sum ofRs.1,26,144/-, https://hcservices.ecourts.gov.in/hcservices/ (iii).The third claimant is awarded a sum of Rs.15,000/-and(iv).The fourth claimant is awarded a sum of Rs.20,000/-19.As such, the first claimant is awarded a sum ofRs.1,35,000/-; the second claimant is awarded a sum of Rs.2,26,144/-;the third claimant is awarded a sum of Rs.1,15,000/- and the fourthclaimant is awarded a sum of Rs.1,20,000/-.20.The said enhanced compensation award of Rs.5,96,144/- grantedby this Court (from Rs.4,00,000/- as granted by the Tribunal) willcarry 7.5% interest from the date of filing the application till thedate of payment, which is equitable, fair and prudent too, andpayable by the appellant/Tamil Nadu State Transport Corporation Ltd.,21.This Court directs the appellant/Corporation to pay the abovesaid compensation amount together with interest within a period ofsix weeks from the date of receipt of a copy of this Order, into thecredit of M.C.O.P.No.188 of 2002, on the file of the Motor AccidentClaims Tribunal, Additional District Judge, Fast Tract Court No.II,Chennai. If the appellant/Tamil Nadu State Transport Corporation hadalready deposited any amount into the credit of M.C.O.P.No.188 of2002, they should deposit the balance amount as pertinent to thisaward. The respondents/claimants are directed to pay the excessCourt fee for the enhanced amount of Rs.1,96,144/- granted by thisCourt.22.It is open to the first respondent/first claimant, thirdrespondent/third claimant, fourth respondent/fourth claimant toreceive the balance amount, after such deposit has been made, byfiling necessary payment out application in accordance with law. Thesecond respondent/second claimant's (Minor) share amount should bedeposited as a fixed deposit in a Nationalised Bank, till she becomesmajor. Till such time, the first claimant ie.natural mother of thesecond claimant is permitted to withdraw the accrued interest on thedeposit, once in three months.23.In the result, the award granted by the Tribunal has beenenhanced in the above terms and consequently the Civil MiscellaneousAppeal is dismissed and the award passed by the Motor Accident ClaimsTribunal, Additional District Judge, Fast Tract Court No.II,Chennai, is modified. Consequently, connected miscellaneous petitionis also closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krkTo1.The Motor Accident Tribunal, Additional District Judge, Fast Tract Court No.II, Chennai.2.The Section Officer, VR Section, High Court, Madras.1 cc To Mr.N.M.Elumalai, Advocate, SR.64443 C.M.A.No.2743 of 2009BVN(CO)sra 30.12.2009