Tamil Nadu State Transport Corporation Ltd. v. Elavarasi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.3.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No.700 of 2009andM.P.No.1 of 2009 The Managing Director,Tamil Nadu State Transport Corporation Ltd., Kumbakonam. ... Appellant/Respondent vs.1.Elavarasi,2.Minor Nivedha,3.Minor Sathiyapriya,4.Minor Priyadharshini,5.Saradhambal.(Minor 2 to 4 respondents arerepresented by their motherand next friend Elavarasi, the1st respondent) ...Respondents/Petitioners 1 to 5Civil Miscellaneous Appeal is filed under Section 173 ofMotor Vehicles Act, 1988 against the award and decree dated13.9.2007 passed in M.C.O.P.No.32 of 2007 on the file of theMotor Accidents Claims Tribunal (District Court), Nagapattinam.For appellant : Mr.N.Anand -----JUDGMENTTamil Nadu State Transport Corporation is on appealchallenging the award dated 13.9.2007 passed in M.C.O.P.No.32 of2007 on the file of the Motor Accidents Claims Tribunal(District Court), Nagapattinam. 2. It is a case of fatal accident. The brief factsof the case are as follows:- The accident in this case happenedon 21.1.2005 at 11.00 hours. The deceased Sambamoorthy, said tobe aged 40 years, working as a Railway Point Man in Southern https://hcservices.ecourts.gov.in/hcservices/ Railway, was travelling in the bus belonging to the appellanttransport corporation. The bus was plying on Thanjavur-NagaiMain Road. When it was near Ambal Auto Garage Railway Gate, dueto rash and negligent driving by the driver of the appellanttransport corporation bus, the said Sambamoorthy was thrown outof the bus. He sustained grievous injuries and died atThanjavur Medical College Hospital in spite of treatment. Acriminal case was lodged in Crime No.19 of 2005 against thedriver of the bus before the Judicial Magistrate No.II,Thanjavur. On the death of Sambamoorthy, the wife aged 36years, three daughters aged 14, 12 and 8 years respectively andmother aged 60 years filed a claim for compensation in a sum ofRs.15 lakhs, stating that the deceased was earning a sum ofRs.8,434/- per month. 3. In support of the claim, the wife of the deceasedwas examined as P.W.1. One Viswanathan, another co-passengerwas examined as P.W.2. Exs.P-1 to P-6 were marked, the detailsof which are as follows:-Ex.P-1 is the F.I.R., dated 22.1.2005,Ex.P-2 is the post-mortem certificate dated 7.2.2005,Ex.P-3 is the Motor Vehicle Inspector's Inspection Reports dated 25.1.2005, Ex.P-4 is the returned C.P., dated 21.10.2005,Ex.P-5 is the Southern Railway Salary Slip dated 15.1.2005 andEx.P-6 is the legal heir certificate dated 23.5.2005. Mr.Jayaprakash, the driver of the appellant transportcorporation bus was examined as R.W.1. No document wasmarked on behalf of the appellant transport corporation, therespondent before the Tribunal.4. So far as the negligence is concerned, it is the caseof the claimants that the driver of the appellant transportcorporation bus drove the vehicle in a rash and negligent mannerand while attempting to cross the speed broker near the AmbalAuto Garage Railway Gate, in the jolt, the deceased was thrownout of the overcrowded vehicle. P.W.2, the co-passenger andalso the eye witness, clearly stated that the bus was driven ina rash and negligent manner and that was the reason for thedeath of the deceased. R.W.1, the driver of the appellanttransport corporation, against whom a criminal case has beenfiled, deposed that the deceased travelled on the footboard and https://hcservices.ecourts.gov.in/hcservices/ despite warning he continued to travel so and out of his ownnegligence he fell down from the bus and died. The Tribunal didnot accept the evidence of R.W.1, the driver of the appellanttransport corporation. According to the Tribunal, R.W.1, thedriver of the bus admitted in his cross-examination that morethan 80 passengers travelled in the bus when the admittedcapacity is only 58+2. This shows the carelessness in which thebus was plied. Further, the criminal case was also registeredagainst the driver of the bus. The Tribunal found that R.W.1did not place a complaint before the police on this aspect. TheTribunal also came to the conclusion that the driver of the bushaving accepted that more than 80 passengers were travelling,should have considered the safety of the passengers and refusedto allow anybody to travel on the foot board. It also came toconclusion that there was no material to substantiate the pleathat the deceased travelled on the foodboard except the merestatement of the driver. It is pertinent to point out that theconductor of the bus was not examined. The finding of theTribunal on this issue is justified as the driver is not theperson who can speak about the passengers on the footboard. Onthe contrary it is a conductor who will be the right person tostate as to how the accident had happened. In this regard, thedecision of the Division Bench of this Court in PallavanTransport Corporation Ltd., - v. - T.Mallika reported in 2005(1) CTC 161 can be relied upon. In that case, the DivisionBench of this Court came to hold that when the defence offootboard travel was raised by the transport corporation, thecourt felt that the evidence of the conductor is moreappropriate than that of the driver. It is also the same in thepresent case. Therefore, the finding of rash and negligentdriving on the part of the driver of the appellant transportcorporation bus as held by the Tribunal stands confirmed. 5. As far as compensation is concerned, the Tribunaltaking into consideration Ex.P-5, the salary certificate whichshowed the income of the deceased as Rs.8434/- per month andalso taking into consideration, the future prospects, fixed theincome of the deceased at Rs.9,000/- per month, of which 1/3 wasdeducted and the loss of dependency to the claimants was fixedat Rs.6,000/- per month (i.e.) Rs.72,000/- per annum. Since thedeceased was aged about 45 to 50 years, the Tribunal adopted 13multiplier and fixed the total loss of dependency atRs.9,36,000/-. In addition to that, the Tribunal grantedcompensation under conventional heads. In all, the Tribunalgranted the following amounts as compensation with interest at7.5% per annum:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.Head Amount granted bythe Tribunal1Loss of pecuniary benefits to thedependents Rs.9,36,000/-2Loss of consortium to the wife on thedeath of her husband Rs. 5,000/-3Loss of love and affection to the threeminor daughters and mother (Rs.2,000/-each) Rs. 8,000/-4Funeral expenses Rs. 2,000/-TotalRs.9,51,000/-6. In appeal, there is no serious dispute with regardto the income fixed by the Tribunal. Learned counsel for theappellant does not raise serious dispute with regard to theincome of the deceased as it is admitted that the deceased wasworking in the Southern Railway and he was aged 45 to 50 yearsand he had more than a decade of service. The prospects ofhigher income is always there. A sum of Rs.566/- alone has beenadded to fix the income at Rs.9,000/- per month as againstRs.8,434/- per month which is a reasonable. In so far as themultiplier is concerned, even as per second schedule to theMotor Vehicles Act, 1988, the proper multiplier for the agegroup 45 to 50 years is 13. Therefore, the multiplier of 13adopted by the Tribunal is not excessive. In any event, theTribunal has granted a very meagre sum of Rs.5,000/- towardsloss of consortium to the wife and a paltry sum of Rs.8,000/-towards loss of love and affection to the three minor daughtersand aged mother. Even if the compensation under the headpecuniary loss is marginally higher, it can be justified towardscompensation for loss of consortium to the wife and loss of loveand affection to the four claimants, viz., three minor daughtersand aged mother. As a result, the appellant has not made out acase for reduction in quantum of compensation as also theinterest granted at 7.5% as the accident in this case happenedin the year 2005 and the award is of the year 2007. 7. Finding no merit, the Civil Miscellaneous Appeal isdismissed at the admission stage. Counsel for the appellantseeks for eight weeks' time to deposit the award amount and isgranted and on such deposit, the respondents are permitted to https://hcservices.ecourts.gov.in/hcservices/ withdraw the same as ordered and apportioned by the Tribunal.Consequently, connected miscellaneous petition is closed.tsSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe District Judge, (The Motor Accidents Claims Tribunal), Nagapattinam. + 1 cc to Mr. N. Anand, Advocate SR No.10457 Judgment in C.M.A.No.700 of 2009CK(CO)SR/17.4.2009