Madras High Court
The Managing Director vs Joy Rajam on 8 December, 2016
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2016
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
C.M.A(MD)Nos.1389 of 2016 and 1390 of 2016
and
C.M.P(MD)Nos.11645 and 11646 of 2016
C.M.A(MD)No.1389 of 2016:
The Managing Director,
Tamil Nadu State Transport Corporation,
Vannarapettai,
Tirunelveli. ... Appellant/
2nd Respondent
Vs.
1.Joy Rajam
2.Punitha ... Respondents 1 & 2/
Petitioners
3.Ganesan ... 3rd Respondent/
1st Respondent
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the judgment and decree passed in M.C.O.P.No.76 of 2015, dated
10.12.2015 on the file of the Motor Accident Claims Tribunal cum Principal
Sub Court, Tenkasi.
!For Appellant : Mr.P.Prabhakaran
^For Respondents : Mr.D.Srinivasa Raghavan
for R.1 & R.2
C.M.A(MD)No.1390 of 2016:
The Managing Director,
Tamil Nadu State Transport Corporation,
Vannarapettai,
Tirunelveli. ... Appellant/
2nd Respondent
Vs.
1.Joy Rajam
2.Punitha
3.Rethina Swamy ... Respondents 1 to 3/
Petitioners
4.Ganesan ... 3rd Respondent/
1st Respondent
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the judgment and decree passed in M.C.O.P.No.77 of 2015, dated
10.12.2015 on the file of the Motor Accident Claims Tribunal cum Principal
Sub Court, Tenkasi.
For Appellant : Mr.P.Prabhakaran
For Respondents : Mr.D.Srinivasa Raghavan
for R.1 to R.3
:COMMON JUDGMENT
C.M.A(MD)No.1389 of 2016 has been filed by the appellant-Transport Corporation against the award of Rs.6,25,000/- (Rupees Six Lakhs and Twenty Five Thousand only) [M.C.O.P.No.77 of 2015] for the death of Allwin [minor son] and C.M.A(MD)No.1390 of 2016 has been filed by the appellant-Transport Corporation against the award of Rs.25,79,776/- (Rupees Twenty Five Lakhs Seventy Nine Thousand Seven Hundred and Seventy Six only) [M.C.O.P.No.76 of 2015] for the death of one Selvakani [father], in the accident occurred on 08.12.2014, when the father and minor son were travelling in a two wheeler bearing Registration No.TN-76-H-8364 on Tenkasi - Tirunelveli main road and hit by the appellant-Transport Corporation bus bearing Registration No.TN-72- N-1188 which was driven in a rash and negligent manner by its driver.
2. The claim petitions were filed and after contest, the Tribunal found that the accident occurred because of the rash and negligent driving of the driver of the appellant-Transport Corporation bus and awarded the compensation as stated above and challenging the same, the present appeals are filed.
3. Heard Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation and Mr.D.Srinivasa Raghavan, learned Counsel for the claimants.
4. Though Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation would argue that the accident occurred because of the rash and negligent driving of the two wheeler, the Tribunal, based on the evidence of an eyewitness - P.W.3 and the filing of F.I.R against the driver of the appellant-Transport Corporation bus and also the charge sheet filed by the police in Ex.P.14, rightly found that the accident occurred because of the rash and negligent driving of the driver of the appellant-Transport Corporation bus. The said finding is based on evidence and therefore, the same cannot be interfered with.
C.M.A(MD)No.1390 of 2016:
5. The deceased Selvakani is stated to have worked as a Heavy Vehicle Driver and was earning about Rs.20,000/- (Rupees Twenty Thousand only) per month. In this regard, Ex.P.16 - salary certificate issued by P.W.4 - employer of the deceased Selvakani, has been marked. The Heavy Vehicle Driving Licence was marked as Ex.P.6. Therefore, the Tribunal took a sum of Rs.20,000/- (Rupees Twenty Thousand only) as the monthly income of the deceased Selvakani as claimed by the claimants.
6. Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation would submit that there is no positive evidence except the evidence of P.W.4 to show that the deceased Selvakani was earning about Rs.20,000/- (Rupees Twenty Thousand only) per month. He relied upon the judgment of this Court in Managing Director, Tamil Nadu State Transport Corporation Ltd. v. Jayalakshmi reported in 2014 (1) TNMAC 152, wherein this Court has determined the monthly income of a driver at Rs.9,000/- (Rupees Nine Thousand only) per month and therefore, if at all, the maximum amount which could be determined is only at Rs.9,000/- (Rupees Nine Thousand only) per month.
7. He also relied on the judgments in Alamelu v. Minor Janani reported in 2012 (1) TNMAC 737 and Divisional Manager, New India Assurance Co. Ltd. v. Saraswathi reported in 2012 (2) TNMAC 342, to show that a sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) alone could be the monthly income of the drivers.
8. On the other hand, Mr.D.Srinivasa Raghavan, learned Counsel for the claimants relied upon the judgment of the Honourable Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1) TNMAC 459 (SC), wherein for a vegetable vendor, who got injured in an accident occurred in 2008, a sum of Rs.6,500/- (Rupees Six Thousand and Five Hundred only) per month was fixed and after adding future prospects, a sum of Rs.9,000/- (Rupees Nine Thousand only) has been awarded, whereas in the case on hand, the accident occurred on 08.12.2014 and therefore, he justified a sum of Rs.20,000/- (Rupees Twenty Thousand only) as monthly income of the deceased Selvakani - Driver, awarded by the Tribunal.
9. The accident occurred on 08.12.2014 and the deceased proved to be the Heavy Vehicle Driver as per Ex.P.6 - driving licence. It is very difficult to get any driver for less than a sum of Rs.10,000/- (Rupees Ten Thousand only) per month due to various factors, viz., increase in number of vehicles, movement of people often and scarcity of drivers.
10. Though P.W.4 adduced evidence that he paid Rs.20,000/- (Rupees Twenty Thousand only) per month to the deceased Selvakani as monthly income as a driver, it is not on the higher side. At the same time, the amount of Rs.9,000/- (Rupees Nine Thousand only) as contended by Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation is on the lower side.
11. This Court, relying upon the earlier judgment of this Court in Managing Director, Tamil Nadu State Transport Corporation Ltd. v. Jayalakshmi reported in 2014 (1) TNMAC 152, determined the monthly income of the driver at Rs.9,000/- (Rupees Nine Thousand only) and it is stated that it attained finality as there was no appeal against the said judgment. For the driver, who died in the accident, which occurred on 26.06.2008, this Court determined the monthly income as Rs.9,000/- (Rupees Nine Thousand only) per month. Due to various reasons as stated above and also the increase in inflation and spending power of people, naturally, the monthly income of the deceased has to be fixed and therefore, the monthly income of the deceased Selvakani is fixed at Rs.15,000/- (Rupees Fifteen Thousand only) per month.
12. Regarding the future prospects, Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation would submit that there are two conflicting judgments with regard to addition of future prospects of the deceased in Reshma Kumari v. Madan Mohan reported in 2013 (1) TN MAC 481 (SC) and Rajesh and others v. Rajbir Singh and others reported in (2013) 9 Supreme Court Cases 54, and the issue has been referred to a Larger Bench and therefore, he would submit that the future prospects cannot be extended to a private employee.
13. No doubt, the issue has been referred to a Larger Bench of the Honourable Supreme Court. However, there is a latest judgment of Three Judges Bench of the Honourable Supreme Court in Rajesh v. Rajbir Singh reported in (2013) 9 Supreme Court Cases 54 : 2013 (3) CTC 883, wherein it has been categorically held that self-employed persons and the persons with fixed wages are entitled to 50% addition towards their future prospects for the persons below the age of 40 years and 30% addition for the persons who are in the age group of 40 - 50 years. As the deceased Selvakani was aged about 43 years, the future prospects to be added is at 30%. Accordingly, this Court determines the monthly income with future prospects as follows:
Rs.15,000/- + Rs.4,500/- = Rs.19,500/-.
14. The size of the family of the deceased is three and as per the judgment of the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), the 1/3rd amount is to be deducted towards personal expenses. Accordingly, after deduction of 1/3rd amount, the monthly income of the deceased Selvakani would be Rs.13,000/- (Rupees Thirteen Thousand only) [Rs.19,500/- - Rs.6,500/-].
15. The appropriate multiplier to be adopted, as the age of the deceased was 43 years as proved by the post-mortem certificate - Ex.P.9, is 14 and the loss of income would be Rs.21,84,000/- (Rupees Twenty One Lakhs and Eighty Four Thousand only) [Rs.13,000/- X 12 X 14].
16. A perusal of the award passed in M.C.O.P.No.77 of 2015 would show that the wife/widow who was aged 40 years was rightly awarded a sum of Rs.1,00,000/- (Rupees One Lakh only) towards loss of consortium as per the judgment of the Honourable Supreme Court in Rajesh v. Rajbir Singh reported in (2013) 9 Supreme Court Cases 54 : 2013 (3) CTC 883 and the same is confirmed.
17. Towards loss of love and affection for the daughter and father of the deceased, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) has been awarded and the same is on the higher side and accordingly, a sum of Rs.1,00,000/- (Rupees One Lakh only) is awarded to the daughter of the deceased and a sum of Rs.50,000/- (Rupees Fifty Thousand only) is awarded to the father of the deceased towards loss of love and affection.
18. The amounts awarded under the other heads, viz., a sum of Rs.15,000/- (Rupees Fifteen Thousand only) towards transportation charges and a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards funeral expenses, are all reasonable and hence, the same is confirmed. However, no amount has been awarded by the Tribunal towards loss of estate and this Court is of the view that a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) would meet the ends of justice and accordingly, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) is awarded towards loss of estate.
19. Accordingly, the respondents 1 to 3 in C.M.A(MD)No.1390 of 2016/claimants 1 to 3 in M.C.O.P.No.77 of 2015 are entitled to get the following compensation:
Sl.
No. Heads Amount awarded by Tribunal (Rs.) Amount reduced/ enhanced by this Court (Rs.) Total (Rs.)
1.
Loss of Income 22,39,776.00 (-) 55,776.00 21,84,000.00
2. Loss of Consortium for first respondent/first claimant/wife 1,00,000.00 Nil 1,00,000.00
3. Loss of Love and Affection for respondents 2 and 3/claimants 2 and 3/daughter & father [Rs.1,00,000/- + Rs.50,000/- respectively] 2,00,000.00 (-) 50,000.00 1,50,000.00
4. Transportation Charges 15,000.00 Nil 15,000.00
5. Funeral Expenses 25,000.00 Nil 25,000.00
6. Loss of Estate Nil (+)25,000.00 25,000.00 Grand Total 24,99,000.00 Rounded off 25,00,000.00
20. Therefore, the respondents 1 to 3/claimants 1 to 3 are entitled to a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) with interest at the rate of 7.5% per annum and proportionate costs, from the date of petition till date of realisation.
C.M.A(MD)No.1389 of 2016:
21. In the same accident, the minor son of the deceased Selvakani and the first respondent/first claimant, namely, Allwin, aged about 7 years also died. The Tribunal awarded a sum of Rs.6,25,000/- (Rupees Six Lakhs and Twenty Five Thousand only) relying upon the judgment of the Division Bench of this Court in National Insurance Co. Ltd. v. R.Vimala reported in 2015 (2) TNMAC 490 (DB).
22. The amounts awarded under the heads, viz., a sum of Rs.4,50,000/- (Rupees Four Lakhs and Fifty Thousand only) towards pecuniary loss of minor son; a sum of Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) towards loss of love and affection; a sum of Rs.10,000/- (Rupees Ten Thousand only) towards transportation charges; a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards funeral expenses; a sum of Rs.10,000/- (Rupees Ten Thousand only) towards loss of estate and a sum of Rs.5,000/- (Rupees Five Thousand only) towards loss of articles, are all in consonance with the judgment of the Division Bench of this Court in National Insurance Co. Ltd. v. R.Vimala reported in 2015 (2) TNMAC 490 (DB) and accordingly, the same is confirmed.
23. In the result,
(i) C.M.A(MD)No.1390 of 2016 is partly allowed and the respondents 1 to 3/claimants 1 to 3 are entitled to a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) with interest at the rate of 7.5% per annum and proportionate costs, from the date of petition till date of realisation. No costs. Consequently, the connected civil miscellaneous petition is closed;
(ii) C.M.A(MD)No.1389 of 2016 is dismissed, confirming the judgment and decree passed in M.C.O.P.No.76 of 2015, dated 10.12.2015 by the Motor Accident Claims Tribunal cum Principal Sub Court, Tenkasi. No costs. Consequently, the connected civil miscellaneous petition is closed; and
(iii) The appellant-Transport Corporation is directed to transfer the respective award amounts in both the appeals, less the amount already deposited, if any, as per the apportionment made by the Tribunal, through RTGS/NEFT to the personal Savings Bank Account Numbers of the claimants in both the appeals, after getting the Account Details from the respective claimants by the officials of the appellant-Transport Corporation, on or before 08.02.2017.
List the matters on 09.02.2017 for reporting compliance.
To The Motor Accident Claims Tribunal cum Principal Sub Court, Tenkasi..