The Managing Director, Tamil Nadu State Transport Corporation Ltd. v. T.Duraisamy & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.12.2009 CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.498 of 2009andM.P.Nos. 1 and 2 of 2009The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Bharathipuram, Salem Main RoadDharmapuri.. Appellant / RespondentVs1.T.Duraisamy2.Mani.. Respondents/PetitionersAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 14.02.2008, made inM.C.O.P.No.1283 of 2006, on the file of the Motor Accident ClaimsTribunal, Additional District Judge, Krishnagiri.For appellant : Mrs.B.VijayalakshmiFor respondents : Mr.M.SriramJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellants/respondents against the Award and Decree, dated14.02.2008, made in M.C.O.P.No.1283 of 2006, on the file of the MotorAccident Claims Tribunal, Additional District Judge, Krishnagiri,awarding a compensation of Rs.3,31,000/- with 7.5% interest per annumfrom the date of filing the petition till the date of payment ofcompensation.2.Aggrieved by the above said award, the appellant/respondenthas preferred the above appeal to set aside the order.3.The short facts of the case are as follows:On 02.05.2005, the deceased and his friend, namely Soban Babuwere proceeding in his bike bearing registration No.TN29 V9702, withSoban Babu as pillion rider. It was driven by the deceased veryslowly and carefully observing all the rules of the road. At about21.45 hrs, while proceeding towards Hosur, on the Krishnagiri toHosur National Highway Road and nearing J.P.Petrol Bunk, the TNSTCBus bearing registration No.TN29 N1015, belonging to the respondent,driven by its driver behind the said bike, in a rash and negligentmanner, lost his control and dashed behind the said bike. Due to the https://hcservices.ecourts.gov.in/hcservices/ impact, the deceased and the said Soban Babu were thrown out from thebike, the said Soban Babu died on the spot and the deceased Siva @Sivakumar sustained fatal injuries and immediately, he was taken toGovernment Hospital, Krishnagiri and after first aid, he was taken toHigh Institution Hospital at Bangalore. But, due to the fatalinjuries, the deceased Sivakumar died on the way to the BangaloreHospital. Post-mortem has conducted at Government Hospital,Krishnagiri on 03.05.2005. The accident occurred only due to therash and negligent driving of the driver of the said TNSTC Bus. TheKrishnagiri Taluk Police has registered the case against the driverof the bus in Crime No.291/2005, under Sections 279, 338 and 304(A)of I.P.C.4.Due to the accident and sudden death of the deceasedie.Sivakumar, the petitioners lost their only son and the breadwinnerof the family. The petitioners have claimed a compensation ofRs.15,00,000/-.5.The deceased was a hale and healthy at the time of theaccident. He was aged only 27 years at the time of the death. Atthe time of the accident, he was an overall Supervisor-cum-Manager(in production, maintenance, sales and marketing) and was earning notless than Rs.6,000/- per month. The deceased has completed ITIFitter Course and has a Conductor Licence. In future, he might get aGovernment job and look after the petitioners.6.Therefore, the respondent as Owner-cum-Manager of the bus issolely liable to pay the said compensation with interest at the rateof 12% per annum from the date of petition till the date ofrealisation, under Section 166 of the Motor Vehicles Act, 1988.7.The respondent in his Counter has resisted the claim statingthat the Corporation Bus driver had driven the bus very slowly andcarefully and had observed all the rules of the road. While, the buswas nearing J.Petrol Bunk on the Krishnagiri to Hosur NH Road, therider of the TVS Suzuki came on the opposite direction the wrongroute, in high speed and came in front of the respondent's bus. Onseeing the said bike, coming on the wrong route from the oppositedirection, the driver of the bus applied brakes to avert an accident,but, before it stopped, the rider of the bike came in contact withthe bus and so the accident was caused only due to the rash andnegligent driving of rider of the said bike. Further, the non-inclusion of necessary parties, namely, Owner and Insurance Companyof the said bike renders the claim not maintainable. The age, incomeand occupation of the deceased are also not admitted. Thepetitioners claim of Rs.15,00,000/- as compensation is high andexcessive. The respondent has therefore prayed for dismissal of thepetition.8.The Motor Accident Claims Tribunal framed four issues for theconsideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i)Whether the accident had occurred due to therash and negligent driving of the driver of thebus belonging to the respondent?(ii)Whether the owner and insurer of the two-wheelerbearing registration No.TN29 V9702 are necessaryparties to this petition?(iii)Whether the petitioners are entitled to claimcompensation from the 1st and 2nd respondents?(iv)To what other relief?9.To prove the petitioners side contention three witnesses wereexamined and eight documents as Exs.A1 to A8 were marked. On therespondent's side, one witness was examined and no documents weremarked.10.The PW1, the father of the deceased, in his evidence hasstated that on 02.05.2005, his son and one pillion rider Soban Babuwere proceeding in the bike bearing registration No.TN29 V9702. Atthe time the deceased Siva @ Sivakumar had driven the vehicle, slowlyand carefully towards Hosur on Krishnagiri to Hosur National Highwayand when it was near by J.P.Petrol Bunk at 21.45 hrs, at that timethe first respondent vehicle's driver had driven the vehicle rashlyand negligently and dashed behind the bike of the deceased.Immediately after the accident, the deceased Sivakumar was taken tothe Government Hospital, Krishnagiri and after being given first aid,he was taken to the Bangalore Hospital for further treatment. But,due to the fatal injuries, the above said Sivakumar died on the wayto Hospital. The pillion rider also died due to the above accident.To prove this, the petitioner has filed documentary evidence. Onscrutiny of Ex.A1-FIR, it clearly shows that the accident happeneddue to the rash and negligent driving at the first respondentvehicle's driver. Even on cross-examination of PW1, the respondenthas not raised any serious objection regarding the manner of theaccident. Further, there has been no rebuttal evidence adduced bythe respondent to prove its contention.11.The learned counsel for the respondent has contended that theaccident happened due to the negligence on the part of the deceasedSivakumar and that the deceased Sivakumar had driven the vehicle inwrong side of the road with high speed and had dashed against therespondent vehicle, which had been driven very slowly and carefully.Further, the learned counsel for the respondent had contended that astwo vehicles were involved in this case, the owner and insurer of thebike are also necessary parties to adjudicate on the matter. TheTribunal on perusal of evidence of PW1 and evidence given by eyewitness PW2, wherein he had stating that at the time of the accident,the deceased had driven the vehicle slowly and cautiously and thatthe respondent driven alone drove with high speed and dashed behindthe deceased. Taking all the above aspects into consideration, theTribunal decided that the the respondent alone is liable to pay https://hcservices.ecourts.gov.in/hcservices/ compensation to the petition and so the owner and insurer of the bikebearing registration No.TN29 V9702 are not necessary parties.12.Further, for determining the quantum of compensation, theTribunal considered the Post-mortem Certificate, Ex.A2, wherein theage of the deceased has been mentioned as 28 years. Further, theTribunal perused the evidence given by the PW3, the Manager of oneIndira Products, wherein the deceased had been employed. On perusalof the PW3's evidence, it shows that the deceased Sivakumar wasworking in the said firm and engaged in Lab Testing work and alliedworks in his factory and that he was paying a sum of Rs.6,000/- permonth as salary to the deceased for six months in a year. On cross-examination of the PW2, has admitted that the salary register has notbeen produced before the Court and further admitted that the abovesaid work undertaken by the deceased is only seasonal work. TheTribunal on perusal of Ex.A8, Salary Certificate and considering thefact that the salary register has not been produced before the Court,took the salary of the deceased as Rs.4,000/- per month only. Takingthis into consideration, they assessed his annual salary asRs,48,000/- and as the deceased was employed for only six months in ayear, took his annual salary as Rs.24,000/- only. Deducting 1/3rdshare of this for his personal expenses, the annual incomecontributed by the deceased to his family was fixed as Rs.16,000/-.13.The Tribunal, on considering that at the time of theaccident, the deceased Sivakumar was unmarried considered the age ofthe first claimant for determining the multiplier to be adopted. Inthis aspect, the Tribunal relied on case reported in 2007 TNMAC Page378 in S.P.Ganapathy and another, wherein it has been held that themultiplier to be selected in fatal accidents should be on basis ofage of deceased or claimants, whichever is higher.14.The Tribunal, on considering this legal ruling decided toadopt a multiplier of 11 as applicable to the age of the firstclaimant, which was 50 years at the time of the accident; as per IISchedule of Section 163A of the Motor Vehicles Act. Hence, theTribunal assessed the loss of income to the claimants as Rs.16,000/-X 11 = Rs.1,76,000/-.15.The Tribunal then considered Ex.A5, the ITI Certificate ofthe deceased and the fact that the deceased Sivakumar also hadconductor's licence and had registered in the Employment Officer asper Ex.P6 to determine his future prospects. The Tribunal was of theview that if the deceased had been alive, he would have definitelygot a Government Job and so granted Rs.1,00,000/- to the petitionersfor future loss of income in this aspect. Further, the Tribunalgranted a sum of Rs.5,000/- to the petitioners for transport expensesand a sum of Rs.20,000/- each to the first and second petitioners forloss of love and affection. A sum of Rs.10,000/- was granted to thepetitioners for funeral expenses. In total, a sum of Rs.3,31,000/-was granted by the Tribunal, as compensation, to the petitioners. https://hcservices.ecourts.gov.in/hcservices/

16.The Tribunal directed the respondent to pay the above saidaward with interest at the rate of 7.5% per annum from the date offiling the petition till the date of realisation and deposit theaward with interest into the credit of the M.C.O.P.No.1283 of 2006,on the file of the Motor Accident Claims Tribunal, AdditionalDistrict Judge, Krishnagiri, within a period of two months from thedate of its Order. Further, after such deposit has been made, it hasto be invested in any one of the Nationalised Bank for a period ofnot less than three years. The petitioners were directed to pay thebalance Court fee within a period of two months from the date of itsOrder. The Advocate fee was fixed at Rs.9,620/-.17.The learned counsel for the appellant has contended in hisappeal that the Tribunal had erroneously fixed the negligence on theappellant driver, who drove the bus carefully and cautiously and thatit was only the rash driving of the deceased, which had been thecause for the accident. Further, the learned counsel for theappellant had argued that the Tribunal had erroneously fixed a sum ofRs.4,000/- per month as salary of the deceased, without any proof.Further, he has argued that the award of Rs.1,00,000/- granted by theTribunal for loss of income is erroneous.18.Further, the Tribunal failed to consider that no WoundCertificate, Medical Bills and Discharge Summary had been filed.19.As such, the learned counsel for the appellant had arguedthat the award granted by the Tribunal is not sustainable and has tobe set aside.20.The learned counsel for the respondent argued that thedeceased was an ITI Certificate Holder. At the time of the accident,he was 27 years old only and involved in fruit business and wasearning a considerable income. But, the Tribunal had not grantedadequate compensation to the claimant, who had lost their son in theaccident.21.For the foregoing reasons, and considering the facts andcircumstances of the case, the Court is inclined to consider thesalary of the deceased as Rs.6,000/- as per Ex.A8. Accordingly, hisannual salary would have been Rs.72,000/- and considering thedeceased had worked for only six months in a year takes the income ofthe deceased as Rs.36,000/- per year. Deducting 1/3rd share of thisfor his personal expenses, the annual contribution of the deceased tohis family is assessed as Rs.24,000/- per year. Taking a multiplierof 11 as applicable to the age of the first claimant, the loss ofincome incurred by the claimants is assessed at Rs.24,000/- X 11 =Rs.2,64,000/-. This Court accordingly grants a sum of Rs.2,64,000/-as loss of income incurred by the claimants.22.This Court is of the view that an award of Rs.1,00,000/-given by the Tribunal for future loss of income considering futureprospects of the deceased namely that the deceased would have gotemployment in a Government Organisation, is hypothetical and far https://hcservices.ecourts.gov.in/hcservices/ fetched and hence sets aside the award of the Tribunal under thishead.23.The Tribunal's Award of Rs.5,000/- for transport expenses isenhanced by this Court to Rs.7,000/-. Further, the Tribunal hasawarded a sum of Rs.20,000/- to each of the claimants for loss oflove and affection. This Court enhances the amount under this headto Rs.25,000/- to each of the claimants. A sum of Rs.10,000/-granted by the Tribunal towards funeral expenses is reasonable andthis Court confirms the same.24.In effect, the quantum of award granted by the Tribunal isfound satisfactory and this Court has only restructured the amountgranted under the heads. The rate of interest of 7.5% per annumfixed by the Tribunal is also reasonable. As such, therespondents/claimants are entitled to get the compensation amount ofa sum of Rs.3,31,000/- together with interest at the rate of 7.5% perannum from the date of filing the claim petition till the date ofpayment of compensation.25.At the time of admission of this appeal, on 04.03.2009, thisCourt imposed a condition on the appellant/State TransportCorporation to deposit the entire compensation amount with accruedinterest and costs into the credit of the M.C.O.P.No.1283 of 2006, onthe file of the Motor Accident Claims Tribunal, Additional DistrictJudge, Krishnagiri.26.As the accident happened in the year 2006, it is open to therespondents/claimants to withdraw the award amount lying in thecredit of the M.C.O.P.No.1283 of 2006, on the file of the MotorAccident Claims Tribunal, Additional District Judge, Krishnagiri, byfiling necessary payment out application, in accordance with law.27.In the result, the Civil Miscellaneous Appeal is dismissedand the award passed by the Motor Accident Claims Tribunal,Additional District Judge, Krishnagiri is confirmed. Consequently,connected miscellaneous petitions are also closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkrk https://hcservices.ecourts.gov.in/hcservices/ To1. The Motor Accidents Claims Tribunal, Additional District Judge, Krishnagiri2. The Section Officer, VR Section, High Court, Madras.+ 1 CC to Mrs.B.Vijayalakshmi,Advocate SR NO 68688+ 1 CC to M/s M.Sairam,Advocate SR NO 68843+ 1 CC to Mr.M.Sriram, Advocate SR NO 61593 Order in C.M.A.No.498 of 2009BVN (CO)SS (31.12.2009)