The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Coimbatore Division II, Erode v. S.Alamelu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.10.2010CORAMTHE HONOURABLE MR.JUSTICE. C.S.KARNANC.M.A.No.1942 of 2006andM.P.No.1 of 2006andCross.Objn.No.11 of 2010The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Coimbatore Division II, Erode .. Appellant in C.M.A.No.1942 of 2004 and 1st respondent in Cross.Objn.No.11 of 2010 (2nd Respondent)Vs1.S.Alamelu2.Minor.S.Monisha3.L.Janardhanam4.J.Alamelu (Minors rep.by their mother and next friend R1), .. 1st to 4th Respondents in C.M.A.No.1942 of 2006 and Cross objectors Cross.Objn.No.11 of 2010 (Petitioners)5.G.Palanisamy .. 5th respondent in C.M.A.No.1942 of 2004 and (Given up) 2nd respondent in Cross.Objn.No.11 of 2010 (1st Respondent)PRAYER (in C.M.A.No.1942 of 2006): Appeal filed under Section 173 ofthe Motor Vehicles Act, 1988, against the Award and Decree, dated30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the MotorAccident Claims Tribunal, Principal District Court, Erode.PRAYER (in Cross.Objection No.11 of 2010): Cross Objection filedunder Order 41 rule 22 of the Code of Civil Procedure, against theAward and Decree, dated 30.08.2005, made in M.C.O.P.No.901 of 2004,on the file of the Motor Accident Claims Tribunal, Principal DistrictCourt, Erode. For appellant : Mr.S.V.Vasantha Kumar in C.M.A.No.1942 of 2006for Mr.A.Balu and R1 in Cross.Objn.No.11 of 2010 For respondents 1 to 4 : Mr.A.K.Kumarasamy for R1 to R4 in C.M.A.No.1942 of 2006 R5 in CMA.1942/06 and and Cross Objectors in R2 in Cross.Objection given up https://hcservices.ecourts.gov.in/hcservices/ Cross.Objn.No.11 of 2010 C O M M O N J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/second respondent against the Award and Decree, dated30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the MotorAccident Claims Tribunal, Principal District Court, Erode, awarding acompensation of Rs.12,37,992/- together with interest at the rate of7.5% per annum from the date of filing the claim petition till thedate of payment of the compensation.2.Both appeal and cross objection arising out of the sameJudgment, they are taken up together and disposed of by a commonJudgment.3.The short facts of the case are as follows:On 21.07.2004, at about 04.30 p.m. the deceased Sukumar wasriding his motorcycle bearing registration No.TN33 Q4357, while oneGowrishankar was also travelling in the motorcycle as a pillion rideralong the left side of NH47 road. When they are nearing KMS Petrolbunk near Chithode, the second respondent's Corporation bearingregistration No.TN33 N1271 driven by its driver, the firstrespondent, in a rash and negligent manner and suddenly dashedagainst the motorcycle. Due to which the deceased was thrown out andthe rear right side wheel of the bus ran over him, thereby he died atthe spot itself and the pillion rider Gowrishankar escaped with minorinjuries. Regarding the said accident, the Chithode Police Stationregistered a criminal case against the first respondent in CrimeNo.316/2004, under Sections 279, 337 and 304(A) I.P.C. At the timeof the accident, the deceased was aged about 35 years and was workingas a Lecturer at Sri Vasivi College and was getting a salary ofRs.8,772/- per month and also he was working as a Lecturer inDistance Education classes of Bharathiar University, AnnamalaiUniversity and Tamilnadu Open University and earning a sum ofRs.1,000/- per month. He was also working as part time tutor atVivekananda Institute and was earning a sum of Rs.7,000/- per annum.He was also earning another sum of Rs.4,000/- per month by takingtutions. As such, his total monthly income was more thanRs.14,352/-. The first petitioner is the wife of the deceased,second petitioner is the minor daughter of the deceased, thirdpetitioner is the father of the deceased and the fourth petitioner isthe mother of the deceased. The accident had happened only due tothe rash and negligent driving of the driver of the second respondentCorporation bus. As such, the petitioners claimed a compensation ofRs.40,00,000/- before the Tribunal.4.The second respondent, in their Counter, had resisted theclaim petition that the petition is false and not maintainable. Thisrespondent does not admit the accident, as stated in the petition.The first respondent was driving the bus bearing registration No.TN33N1271 at a moderate speed with care and caution. The deceased whodrove the motorcycle bearing registration No.TN33 Q4357 along with https://hcservices.ecourts.gov.in/hcservices/ his friend in a rash and negligent manner dashed against theCorporation bus and sustained injuries. There is no fault on thepart of the driver of the second respondent. The age, avocation andincome of the deceased are not admitted and it is for the petitionersto prove the same. The petition is bad for non-joinder of necessaryparties viz.,the insurer of the motorcycle. The claim ofRs.40,00,000/- is highly excessive and without any basis. As such,this respondent prayed for the dismissal of the petition.5.The learned Motor Accident Claims Tribunal had framed threeissues for the consideration namely:(i)Whether the accident happened due to therash and negligent driving of the bus TN33 N1271by the first respondent? (ii)Whether the petitioners are entitled to anycompensation? If so to what amount?(iii)To what relief?6.On the petitioners' side, the first claimant was examined asPW1, one Gowri Shankar, eye witness of the said accident, wasexamined as PW2, one Somasundaram, who is the employer, was examinedas PW3 and fifteen documents were marked as Exs.A1 to A15 namelyEx.A1-Certified xerox copy of FIR in Crime No.316/2004 of ChithodePolice Station, Ex.A2-Certified xerox copy of Rough Sketch, Ex.A3-Certified xerox copy of Observation Mahazar, Ex.A4-Certified xeroxcopy of M.V.I.report in respect of vehicle No.TN33 Q4357, Ex.A5-Certified xerox copy of M.V.I.Report in respect of Vehicleregistration No.TN33 N1271, Ex.A6-Certified xerox copy of the Post-mortem Certificate, Ex.A7-Certified xerox copy of Charge Sheet,Ex.A8-Attested xerox copy of Legal Heirship Certificate issued by theTahsildar, Erode, Ex.A10-Attested xerox copy of faculty of commerceissued by the Bharathiyar University to the deceased, Exs.A11-Attested xerox copy of Ph.D.Registration Communication sent by theBharathiyar University Coimbatore to the deceased, Ex.A12-Authorisation Letter issued by the Principal Sri Vasavi College,Erode to P.W.3, Ex.A13-Salary Certificate issued by the Principal SriVasavi College Erode regarding the salary drawn by the deceased,Ex.A14-Xerox copy of the Salary Register maintained by the Sri VasaviCollege, Erode for the deceased and Ex.A15-Certificate issued by thePrincipal, Sri Vasavi College, Erode. On the respondents' side thefirst respondent was examined as RW1 and no documents were marked.7.The case of the petitioners is that on 21.07.2004 at about04.30 p.m. when the deceased was riding his motorcycle bearingregistration No.TN33 Q4357 on NH47 main road near Chithode, thesecond respondent's Corporation bus bearing registration No.TN33N1271 was driven by its driver in a rash and negligent manner anddashed against the deceased from behind whereupon the deceased wasthrown out and the rear wheel of the bus run over the deceased anddue to which the deceased died at the spot itself. To prove the https://hcservices.ecourts.gov.in/hcservices/ same, the petitioners have examined one Gowrishankar as PW2. He wasthe pillion rider of the motorcycle at the time of the accident. Headduced evidence stating that on 21.07.2004 when the motorcyclebearing registration No.TN33 Q4357 was driven by the deceased he wastravelling in the motorcycle as a pillion rider. When the bike wasgoing near K.M.S.Petrol bunk at Chithode at about 04.30 p.m. the busbearing registration No.TN33 N1271 was coming from behind in a rashand negligent manner and dashed against the motorcycle from behindand because of which PW2 fell on the left side of the road, while thedeceased fell on the right side of the road and the rear wheel of thebus run over him and he died at the spot itself. 8.The first petitioner, who examined herself as PW1 alsoproduced Ex.A1-FIR, Ex.A2-rough sketch, Ex.A3-observation mahazar,Exs.A4 and A5-Motor Vehicle Inspector's Report pertaining to themotor cycle and the bus respectively Ex.A6-post mortem certificateand Ex.A7-charge sheet. The perusal of Ex.A1 reveals that withregard to the accident that took place at about 04.30 p.m. on21.07.2004 a case in Crime No.316/2004 was registered at about 05.15p.m. on the same day for the offence under Sections 279, 337 and 304(A) I.P.C. as against the driver of the bus bearing registrationNo.TN33 N1271. The perusal of Ex.A2 reveals that the accidenthappened on the right side of the road ie.on the left side. At theplace of impact the that portion of the road is about 20 feet and theaccident happened roughly about 5 or 6 feet from the eastern sidemargin of the thar portion. Further, she had adduced evidencestating that her husband's age was 35 years, in order to prove thesame she had marked his driving licence. The deceased was a Lecturerat Sri Vasavi College, Erode and his earning was Rs.8,772/- permonth, support of this statement she had marked Ex.A13-SalaryCertificate. She further stated that her husband also taught in thedistance education classes for which he was earning an additional sumof Rs.1,000/-.9.The first respondent was examined as RW1. He had adducedevidence stating that at about 04.15 p.m. on 21.07.2004 he took thetrip from Bhavani and came near Chitode at about 04.30 p.m. when hestarted the bus from the bus stop near police colony the motor cyclewhich was coming from behind suddenly over took the bus and at thattime since another vehicle was coming from the opposite direction,being unable to control the speed of the motorcycle dashed againstthe rear right side body of the bus and fell on its wheel. Since atthat time there was rain, the motor cyclist attempted to over tookthe bus and he was not able to control the bike and as such it is thedriver of the motor cycle who invited the accident. As such he is noway responsible for the accident.10.After considering the evidence of PW1, PW2, PW3 and RW1 anddocuments, which were marked as exhibits, the learned Tribunal hadcome to the conclusion that the accident had occurred only due to therash and negligent driving of the driver of the second respondent'scorporation bus, ie.the first respondent, therefore the second https://hcservices.ecourts.gov.in/hcservices/ respondent/State Transport Corporation Ltd., is liable to paycompensation and awarded the compensation as follows:i.Rs.11,92,992/- under the head of loss of income,after adopting multiplier method (Rs.70,176/- X17),ii.Rs.25,000/- under the head of loss of consortiumto the first claimant,iii.Rs.10,000/- under the head of loss of loveand affection to the second claimant,iv.Rs.10,000/- under the head of funeral expensesIn total, the Tribunal awarded a sum of Rs.12,37,992/- ascompensation to the petitioner, together with interest at the rate of7.5% per annum from the date of filing the claim petition till thedate of payment of compensation. The Tribunal apportioned a sum ofRs.5,26,496/- to the first claimant, Rs.5,11,496/- to the secondpetitioner, Rs.50,000/- to the third petitioner and Rs.1,50,000/- tothe fourth petitioner. Further, the Tribunal directed the secondrespondent to deposit the compensation amount of Rs.12,37,992/-together with interest at the rate of 7.5% per annum from the date offiling the claim petition till the date of payment of compensation,within a period of two months from the date of its order. In turn,the said amount to be deposited, under a fixed deposit scheme, inPunjab National Bank, Main Branch, Erode, for a period of threeyears. Further, the Tribunal directed that the minor's share amountto be continued in the bank deposit till she attains adulthood.Accordingly ordered.11.Aggrieved by the said Award and Decree, the appellant/secondrespondent has filed the above appeal praying to scale down the awardand decree passed by the Tribunal.12.The learned counsel appearing for the appellant/Tamil NaduState Transport Corporation Ltd., argued that the Tribunal hadawarded the compensation of Rs.11,92,992/- under the head of loss ofincome is on the higher side, since the Tribunal had erroneouslyfixed the income and the age of the deceased. The Tribunal alsoawarded a sum of Rs.25,000/- under the head of loss of consortium tothe first claimant is also on higher side. Further, the learnedcounsel vehemently argued that in the said accident two vehicles wereinvolved, as such compound negligence covered in the instant case,but the Tribunal had fastened the liability entirely upon the driverof the bus, which is not proper in its decision. Hence, the learnedcounsel prays before this Court to scale down the compensation amountawarded by the Tribunal.13.The learned counsel for the respondents 1 to 4/ claimantsargued that the Tribunal had categorically omitted the income of thedeceased a sum ofRs.1,000/-, which he was earning through distanceeducation besides his regular salary. This also is considered a https://hcservices.ecourts.gov.in/hcservices/ standard regular income and admissible according to law. To provethe same, the first claimant marked Ex.A15-Certificate issued by theCollege Principal/employer. The Tribunal had not properly consideredthat the first claimant is a young widow and the second claimant is ayounger daughter aged about five years. They lost theircompanionship of the deceased and now feel deserted. This was nottaken into proper consideration for awarding compensation under thehead of loss of consortium and loss of love and affection. Hence,the learned counsel prays before this Court for additionalcompensation.14.Considering the facts and circumstances of the case, thearguments advanced by the learned counsel appearing on either sideand the award and decree passed by the Tribunal, this Court is of theview that the deceased's income and age fixed by the Tribunal on thebasis of the salary certificate and driving licence of the deceased,awarded the compensation to the four claimants, a sum ofRs.12,37,992/- together with interest at the rate of 7.5% from thedate of filing the claim petition till the date of payment ofcompensation on various heads, which is fair and equitable. ThisCourt is unwilling to interfere with the findings of the Tribunal ontwo issues namely liability and quantum. Therefore, this Courtconcurs with the findings and award by the Tribunal.15.On 05.07.2006, this Court directed the appellant/secondrespondent to deposit 50% of the compensation amount, into the creditof the M.C.O.P.No.901 of 2004, on the file of the Motor AccidentClaims Tribunal, Principal District Court, Erode. Now, this Courthereby directs the appellant/second respondent to deposit the balancecompensation amount with accrued interest thereon, as per theTribunal order, into the credit of the M.C.O.P.No.901 of 2004, on thefile of the Motor Accident Claims Tribunal, Principal District Court,Erode, within a period of six weeks from the date of receipt of acopy of this order. 16.After such deposit being made, it is open to theclaimants/respondents 1 to 4 to withdraw the entire compensationamount with accrued interest thereon, lying in the credit of theM.C.O.P.No.901 of 2004, on the file of the Motor Accident ClaimsTribunal, Principal District Court, Erode, by making proper paymentout application, subject to the deduction of withdrawals, if any andsubject to the minor attaining adulthood, in accordance with law.17.In the result, the Civil Miscellaneous Appeal and the CrossObjection No.11 of 2010 are dismissed and the Award and Decree, dated30.08.2005, made in M.C.O.P.No.901 of 2004, on the file of the MotorAccident Claims Tribunal, Principal District Court, Erode isconfirmed. Consequently, connected civil miscellaneous petition isclosed. No costs.Sd/Asst. Registrar/true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To1.The Motor Accident Claims Tribunal, Principal District Court, Erode.2. The Section Officer, VR Section, High Court, Madras.+1 C.C.to Mr.A.Babu, Advocate SR.No.76004. +1 C.C.to Mr.A.K.KUMARASAMY, Advocate SR.No.75793. Pre-delivery Order in C.M.A.No.1942 of 2006 and Cross.Objn.No.11 of 2010NG(CO)DVR (15/12/2010)