Tamil Nadu State Transport Corporation v. Thottappan @ Chenniappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.3.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No.663 of 2009andM.P.No.1 of 2009 The Managing Director,Tamil Nadu State Transport Corporation,Ramakrishna Road,Salem,Kaspa & District. ... Appellant/4th Respondent vs.1.Thottappan @ Chenniappan,2.Muthayal,3.Pappi,4.Minor Nandini,5.Minor Santhosh Kumar,6.Golden Sun Industries, East Sambandam Street, RS Puram, Coimbatore & District.7.National Insurance Company Ltd., 2nd Floor, 52, Oppanakarar Street, Coimbatore District.8.Mohan Raj.(Minor respondents 4 and 5 arerepresented by their motherand guardian the 3rd respondent Pappi)(8th respondent is unnecessary party hence given up) ... Respondents/Petitioners 1 to 5and respondents 1 to 3 Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988 against the award and decree dated 30.12.2005passed in M.C.O.P.No.187 of 2002 on the file of the MotorAccidents Claims Tribunal (Sub Court), Bhavani. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.P.Jagadeeswaran JUDGMENT The Tamil Nadu State Transport Corporation is on appealchallenging the award dated 30.12.2005 passed in M.C.O.P.No.187 of2002 on the file of the Motor Accidents Claims Tribunal (SubCourt), Bhavani. 2. It is a case of fatal accident. The brief facts of thecase are as follows:- The accident in this case happened on12.5.2002. The deceased Ravi alias Sathasivam, aged 30 years, acable TV operator and engaged in agricultural work, was proceedingin a motorcycle as pillion rider along with Murugan alias Muthusamyand Veluchamy. The two wheeler was driven by Murugan aliasMuthusamy. Due to rash and negligent driving by the driver of thetwo wheeler, the two wheeler hit the bus belonging to theappellant, the 4th respondent before the Tribunal. In thataccident, the driver of the two wheeler, and the pillion rider Ravialias Sathasivam died on the way to the hospital. The other personVeluchamy sustained injuries. The father aged 55 years, motheraged 52 years, wife aged 27 years, minor daughter aged 10 years andminor son aged 9 years filed a claim for compensation in a sum ofRs.5 lakhs stating that the deceased was earning Rs.10,000/- permonth.3. In support of the claim, the wife of the deceased wasexamined as P.W.1. Exs.A-1 to A-8 were marked on behalf of theclaimants, the details of which are as follows:-Ex.A-1 is the photocopy of FIR dated 12.5.2002,Ex.A-2 is the photocopy of observation mahazar dated 12.5.2002,Ex.A-3 is the photocopy of rough sketch dated 12.5.2002,Ex.A-4 is the photocopy of post-mortem certificate dated 13.5.2002,Ex.A-5 is the photocopy of final investigation report, Ex.A-6 is the miscellaneous receipts of Nadupatti Panchayat office,Ex.A-7 is the photocopy of sale deed dated 13.3.1990 andEx.A-8 is the copy of licence dated 22.3.2001. Mr.Udhayakumar, the administrative officer of the seventhrespondent insurance company, the second respondent before theTribunal was examined as R.W.1 and a copy of insurance policy wasmarked as Ex.R-1. No oral or documentary evidence was let in onbehalf of the appellant transport corporation, the 4th respondentbefore the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

4. With regard to negligence, the Tribunal discussed theissue in paras 9 to 16 of the award in answer to point No.1. TheTribunal stated that in the accident the driver of the two wheelerdied. Further, the driver of the appellant transport corporationbus was not examined. There is no eye witness to the accident.Based on the F.I.R. Ex.A-1, observation mahazar Ex.A-2 and roughsketch Ex.A-3 and the oral evidence, the Tribunal held that dueto rash and negligent driving by both the drivers, the accidenthappened. The Tribunal fixed the liability to compensate theclaimants equally on the insurer of the two wheeler and theappellant transport corporation. It is stated that theinsurance company, the insurer of the two wheeler, has not filedany appeal so far. There is no material placed by the appellantto controvert the finding of the Tribunal on negligence.Therefore, the finding of negligence on the drivers of both thevehicles and 50% liability fixed on the appellant transportcorporation bus cannot be and is not seriously disputed by thecounsel for the appellant in this appeal and the same is confirmed.5. Insofar as the quantum of compensation is concerned, thesame was dealt with by the Tribunal in paragraphs 17 to 19 of theaward in answer to point No.2. The Tribunal fixed the age of thedeceased at 30 years. Based on the profession tax receipts Ex.A-6and sale deed Ex.A-7, the Tribunal fixed the income of the deceasedat Rs.2,500/- per month. The Tribunal adopted unit method andfixed the loss of contribution to the family of the deceased atRs.1,750/- per month (i.e.) Rs.21,000/- per annum. Based on theage of the deceased said to be 30 years, the Tribunal adopted 18multiplier and granted a sum of Rs.3,78,000/- (Rs.21,000/- x 18 =Rs.3,78,000/-) as loss of pecuniary benefits to the family of thedeceased. The Tribunal also granted compensation underconventional heads. In all, the Tribunal granted the followingamounts as compensation with 9% interest as hereunder:-Sl.No.Head Amount granted bythe Tribunal1Loss of pecuniary benefits to thedependents of the deceasedRs.3,78,000/-2Funeral expenses Rs. 5,000/-3Loss of love and affection to the parentsand two minor children of the deceasedRs. 10,000/-4Loss of consortium to the wife on the deathof the deceasedRs. 15,000/-TotalRs.4,08,000/- 6. The contention of the appellant's counsel is that themultiplier of 18 adopted by the Tribunal is high. It is also https://hcservices.ecourts.gov.in/hcservices/ contended that the interest granted at 9% is also on the higherside. Therefore, the quantum of compensation has to be reduced.7. On going through the award, this Court is not inclined tointerfere with the award of the Tribunal on the above contentionand to reduce the quantum of compensation for the followingreasons:-(i) The accident in this case happened in the year 2002. Thedeceased was aged 30 years at the time of accident.(ii) It was stated that the deceased was a Cable TV Operator andan agriculturist owning 5.89 acres of agricultural land. Hisincome was claimed at Rs.10,000/- per month. The Tribunal,however, has taken the monthly income as Rs.2,500/- which isvery meagre and the same is not commensurate with minimumwages or living wages during the relevant time. (iii) The following decisions will have to be kept in mind whilefixing the income of the deceased:-(a) A Division Bench of this Court in B.Anandhi – vs. -Latha reported in 2002 ACJ 233 (P.SATHASIVAM,J., as he then was)observed that a coolie would earn Rs.100/- per day. In thatcase, the accident happened in the year 1995. (b) The Apex Court in State of Haryana and another – vs. -Jasbir Kaur and others reported in 2004-1 Law Weekly, was of theview that an agriculturist would earn Rs.3,000/- per month. Inthat case, the accident happened in the year 1999. In the above cited cases, the income of the deceased wastaken at Rs.3,000/- per month for the year 1995 and 1999respectively, whereas in the present case, the accident happenedin the year 2002. Considering the same, the income of thedeceased, can be fixed at Rs.5,000/- per month as he was acable TV operator and an agriculturist owning agricultural landto an extent of 5.89 acres. (iv) The sum of Rs.10,000/- granted towards loss of love andaffection to the parents and two minor children is very verymeagre.(v)Since the income fixed is very meagre and the fact that thecompensation granted for loss of love and affection to theparents and two minor children is also very low, the highermultiplier "18" adopted in this case will compensate for thelesser income fixed coupled with lesser amount granted for lossof love and affection. https://hcservices.ecourts.gov.in/hcservices/ (vi)Considering the above aspects the total compensationgranted in a sum of Rs.4,08,000/- by the Tribunal does notrequire any further reduction as also the interest granted at9%. The appellant's liability fixed at 50% (i.e.)Rs.2,04,000/- with interest at 9% is confirmed. 8. Finding no merit, this Civil Miscellaneous Appeal isdismissed at the admission stage. Counsel for the appellant seekseight weeks' time to deposit the appellant's share of award amountand is granted and on such deposit, the claimants are entitled towithdraw the same as per order of the Tribunal. Consequently,connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.tsToThe Subordinate Judge, (Motor Accidents Claims Tribunal) Bhavani. 1 cc to Mr.P. Jagadeeswaran, Advocate, Sr. 8069C.M.A.No.663 of 2009BV (CO)kk 9/4