The Managing DirectorTamil Nadu State Transport Corporation LimitedErode-1 v. M.Vijayarangan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.11.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.3520 of 2008andM.P.No.1 of 2008The Managing DirectorTamil Nadu State Transport Corporation LimitedErode-1.. Appellant / 2ND RespondentVs1.M.Vijayarangan2.Saraswathi3.M.Thangaraj4.Elangovan .. Respondents /Claimants &(R4 Given up) Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988against the Award and Decree, dated 15.04.2008, made inM.C.O.P.No.103 of 2007, on the file of the Motor Accident ClaimsTribunal and Sub Court, Bhavani.For appellant : Mrs.B.VijayalakshmiFor respondents : Mr.MA.P.Thangavel RR 1 to 3J U D G M E N TThe above civil miscellaneous appeal has been filed by theappellant/second claimant against the Award and Decree, dated15.04.2008, made in M.C.O.P.No.103 of 2007, on the file of the MotorVehicles Accident Claims Tribunal and Sub Court, Bhavani, awarding acompensation of Rs.3,27,000/- with 6% interest from the date offiling the petition to till the date of payment of the compensation.2.Aggrieved by the said Order, the 2nd respondent/Tamil NaduState Transport Corporation Ltd., Erode-1 has filed the above appealto set aside the award.3.The short facts of the case are as follows:On 15,04.2006, at about 3.20 p.m. when the deceased Mrurgesanwas riding the Bicycle on the left side of the Bhavani to Mettur mainroad in order to go to North from South and when he was in front ofKeerthi Bakery at Anthiyur Corner, the first respondent coming fromthe opposite direction, drove the Bus bearing registration No.TN 33 N1256 in a rash and negligent manner and dashed against the bicycle, https://hcservices.ecourts.gov.in/hcservices/ as a result of which, the deceased sustained injuries. He was takento Bhavani Government Hospital, where he was pronounced dead. Thepost-mortem was done at Bhavani Government Hospital. The firstrespondent was solely responsible for the accident.4.The deceased was aged about 55 years at the time of theaccident and he was hale and healthy before the accident. Thedeceased was a Jute bag Tailor and working under one Thirumalai atBhavani before this accident. He was earning a monthly income ofRs.5,000/- before the accident. The petitioners are depending onlyon the income of the deceased and have claimed a compensation ofRs.6,00,000/- with interest at 18% under Section 166 of the MotorVehicles Act, 1988.5.Since the accident was due to the rash and negligent drivingof the first respondent, who was the driver of the bus and workingunder the second respondent, the owner of the bus, at the time of theaccident, both the respondents are jointly and severally liable topay the compensation to the petitioners.6.The Bhavani Police authorities have registered a criminal caseof the said accident as Crime No.200/2006 under Sections 279 and 304(A) of I.P.C.7.The second respondent/The Tamil Nadu State TransportCorporation Ltd., Erode, in its counter has resisted the claimdenying the manner of the accident as alleged in the petition. Ithas been stated that on 15.04.2006, the first respondent drove thebus, bearing registration No.TN 33 N 1256 in a moderate speed and ina vary cautious manner from Bhavani to Surampatti Valasu. The firstrespondent stopped the bus at Anthiyur corner, where some passengersalighted and then restarted the bus. At this time, there was heavyrain with blowing wind and the deceased Murugesan, who was riding thebicycle with umbrella in one hand and his other hand on the cycle,lost control after his umbrella was thrown off by the wind and so hehad dashed against the front right side bumper of the bus and felldown. Therefore the deceased, by his negligence and carelessness acthad invited the accident. As such, there is no negligence orcarelessness on the part of the first respondent and so no liabilitycould be fastened upon the respondents.8.Further, it was submitted that the petitioners had to provethat they are legal heirs of the deceased to establish their claim.Also, the age, income and occupation of the deceased was notadmitted. Further, the FIR, which has been filed by the son of thedeceased and subsequently criminal case filed against the firstrespondent has no bearing on the claim. The first respondent iscontesting the police case before the Judicial Magistrate. As such,any compensation awarded only on the basis of the FIR would beerroneous and not in the interest of the Justice. Further, even ifthe Tribunal decided that the first respondent was also responsiblefor the accident, the major share of contributory negligence should https://hcservices.ecourts.gov.in/hcservices/ also be laid on the deceased and based on this, the award should bedetermined. Further, the claim of Rs.55,000/- for loss of income,Rs.30,000/- for pain and suffering and Rs.20,000/- for transport tohospital are highly excessive and exorbitant. Even otherwise, theclaim as such is totally excessive. Even the interest rate of 18%claimed on the compensation in the petition is excessive, when theexisting present rate of interest is only 6% and in support of thiscontention, a case was referred viz.2005 ACJ 1441 (SC), TNSTC vs.Rajapriya. As such, the second respondent has prayed for dismissalof the claim petition with costs.9.On the petitioners side, the son of the deceased,M.Vijayarangan was examined as PW1 and seven documents were marked asEx.P1 to P7. On the respondents side, N.Elangovan, Managing Directorof Tamil Nadu State transport Corporation Ltd., was examined as RW1.No documents were marked on the respondents side.10.The Motor Accident Claims Tribunal framed two issues for theconsideration namely(i)Was the accident caused by the negligent andrash driving of the first respondent?(ii)Are the petitioners entitled to receive thecompensation and if so, what is the quantum ofthe compensation?11.The first petitioner is the eldest son of the deceased. Thesecond petitioner is the married daughter of the deceased and thethird petitioner is the youngest son of the deceased. This wasestablished on scrutiny of the Ex.P7, the Legal Heir Certificate.Ex.P2 is the rough sketch of the accident. Ex.P3 is the accidentregister. But, it has been mentioned in this that there are no cluesto establish that who is guilty. Ex.P4 is the Motor VehicleInspector's Report. On an inspection of this, it is established thatthe accident was not caused by any mechanical defects of the vehicleand further that there were no damages to vehicle. Ex.P5 is the copyof the final investigation of the accident, it has been found thatthe accident occurred due to the rashness and highspeed with whichthe first respondent had driven the bus and that a charge sheet hasbeen filed against the driver of the bus. So, the Tribunal onexamination of the Exs.P1 to P5 and on evidence given by the PW1 cameto the conclusion that the accident was caused by the rash and highspeed with which the first respondent had driven the bus and that dueto this accident the deceased had died. As such, the Tribunal heldthat both the first and second respondents are jointly and severallyliable to pay the compensation to the petitioners.12.The PW1 in his evidence had stated that the age of thedeceased at the time of his death was 55 years. Even in the post-mortem report, it has been stated that the age of the deceased was 55years. PW1, in his evidence as well as in the petition has stated https://hcservices.ecourts.gov.in/hcservices/ that his father, the deceased, was working as a Jute Bag Tailor andearning a sum of Rs.5,000/- per month. But, no evidence has beenfurnished to prove this on the petitioners side. But, the Tribunalheld that even a Coolie was capable of earning Rs.100/- per day andaccordingly determined that the deceased could have earned Rs.3,000/-per month. Deducting 1/3rd share from this for the personal expensesof the deceased, it was held that he could have contributedRs.2,000/- to his family every month. So, the yearly contribution tohis family was taken as Rs.24,000/-. Adopting a multiplier of 11,which was taken on the basis of the deceased age, the Tribunal heldthat the loss of income to the petitioners would be Rs.24,000 X 11 =Rs.2,64,000/-. For loss of love and affection, the Tribunal awardedRs.20,000/- each to the 1st and 3rd petitioners and Rs.15,000/- to thesecond petitioner. For transport expenses Rs.3,000/- was granted andfor funeral expenses Rs.5,000/- was granted to the petitioners. Intotal, the Tribunal awarded a sum of Rs.3,27,000/- as totalcompensation to the petitioners. The Tribunal, then apportionedRs.1,30,000/- each to the first and third petitioners and Rs.67,000/-to the second petitioner.13.Further, the Tribunal directed the respondents to deposit theabove award with interest at the rate of 6% from the date of filingthe petitioner to till the date of payment of the compensation intothe credit of M.C.O.O.P.No.103 of 2007, on the file of the MotorAccident Claims Tribunal and Subordinate Judge, Bhavani, within Onemonth from the date of its Order.14.Further, the petitioners were allowed to withdraw theirapportioned portion of the award after such deposit was made afterfollowing necessary Court procedure as laid down in law. It alsodirected the petitioners to pay the balance Court fee on the awardwithin ten days of its Order. The respondents were directed to paythe Advocate fees of Rs.9,540 by cheque.15.The learned counsel appearing for the appellant has argued inhis appeal that the Tribunal had erroneously fixed the negligence onthe appellant driver, who drove the bus carefully and cautiously.Further, the Tribunal failed to consider that the deceased wascrossing the rainy road without noticing the oncoming bus. Further,as all the sons and daughter of the deceased are major, there is noloss of dependency and as such, the award of Rs.3,27,000/- granted bythe Tribunal is excessive and hence, the learned counsel appearingfor the appellant has prayed for setting aside of the order of theTribunal. Further, the learned counsel appearing for the appellanthas strongly raised the point that without age and income proof, theaward has been passed and so, this is an erroneous one.16.The learned counsel appearing for the respondents argued thatthe Motor Accident Claims Tribunal, after considering the Post-mortemCertificate had come to a conclusion that the age of the deceased was55 years. Further, the deceased was a Jute bag Tailor and wasworking under one Thirumalai, who was the employer of the deceased. https://hcservices.ecourts.gov.in/hcservices/

17.For the foregoing reasons and on consideration of the facts,circumstances, Order of the Tribunal and arguments advanced by thelearned counsel on eitherside, the Court is of the view that there isno error on the negligence point determined by the Tribunal. TheTribunal also had determined the issue on the basis of Ex.P1-F.I.R.,Ex.P2 – Rough Sketh, Ex.P3 – Observation Mahazar, Ex.P4 – MotorVehicle Inspector's Report and the evidence of the PW1 and then cometo a conclusion in favour of the claimants. Regarding the quantum ofthe compensation, as the accident had happened in the year 2006. Inthe year, a salary of Rs.100/- per day could have been earned by thedeceased and therefore, the fixing of Rs.100/- per day by theTribunal, as the salary of the deceased, is reasonable. As such, theTribunal has come to a conclusion, after deducting 1/3rd share forthe personal expenses of the deceased and on the basis of the age ofthe deceased, the Tribunal has adopted a multiplier of 11 and grantedcompensation of Rs.2,64,000/- For love and affection, to theclaimants 1st to 3rd Rs.20,000/- each had been awarded and to the 2ndclaimant a sum of Rs.15,000/- was awarded. For transport and funeralexpenses, Rs.3,000/- and Rs.5,000/- were awarded as compensation.The awards granted under the above mentioned heads are reasonable andfair. Hence, the Court does not wants to interfere in the findingsof the Tribunal and hence the award passed by the Tribunal-SuordinateCourt, Bhavani, in M.C.O.P.No.103 of 2007, dated 15.04.2008 isconfirmed.18.This Court has already directed the appellant/Corporation on19.11.2008 to deposit a sum of Rs.1,50,000/- with proportionateinterest and costs. Now, this Court directs the appellant to pay thebalance compensation amount with accrued interest at the rate of 6%from the date of filing of the claim petition to till date ofpayment, within a period of six weeks from the date of receipt of acopy of this Order.19.It is open to the respondents/claimants to receive thebalance amount, after depositing by the appellant/Corporation to theCredit of M.C.O.P.No.103 of 2007, on the file of the Motor AccidentClaims Tribunal, Sub-Ordinate Judge, Bhavani, by filing necessarypayment out application, in accordance with law.20.In the result, this civil miscellaneous appeal is dismissedand the award passed by the Motor Accident Claims Tribunal, Sub-Ordinate Judge, Bhavani in M.C.O.P.No.103 of 2007, dated 15.04.2008is confirmed. Consequently, connected civil miscellaneous petitionis also closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krkTo1.The Motor Accident Claims Tribunal, Sub Court, Bhavani.2.The Section Officer, VR Section, High Court, Madras.1 cc To Mrs.B.Vijayalakshmi, Advocate, SR.639891 cc To Mr.Ma.P.Thangavel, Advocate, SR.63976 C.M.A.No.3520 of 2008PKB(CO)sra 14.12.2009