Madras High Court
M/S Tamil Nadu State Transport ... vs R.Kalavathi on 30 October, 2014
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.10.2014 CORAM THE HON'BLE MR.JUSTICE N.KIRUBAKARAN C.M.A(MD)No.97 of 2014 and M.P(MD)No.1 of 2014 M/s Tamil Nadu State Transport Corporation, (Kumbakonam) Limited, Through its Managing Director, Kumbakonam, Karaikudi Region. .. Appellant vs 1.R.Kalavathi 2.Minor R.Manoharan 3.Minor R.Alagu Sundari 4.Minor R.Dhanalakshmi 5.Karuppiah 6.Panchayammal ..Respondents Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the Judgment and Decree passed by the Motor Accident Claims Tribunal, District and Sessions Court, Communal Clash Cases Court, Madurai in MCOP No.109 of 2010 dated 12.09.2012. !For Appellants : Mr.D.Sivaraman ^For Respondents : Mr.K.Kumaravel :JUDGMENT
No one can invite death voluntarily, which is an offence under Section 309 of IPC, if the negligence is the cause. A precious life could have been saved, if the rider of the two wheeler wore helmet when he met with the accident on 27.09.2009. An avoidable negligence took away the life of the person and also caused injuries to the child who was traveling along with him. A number of publications are being made insisting upon the importance of the wearing helmets by the two wheeler rider. It is known that nobody takes care even to safeguard their lives. The authorities who are supposed to enforce law are also keeping blind eye to this violation day and out. A Division Bench of this Court already directed the authority to enforce the regulation with regard to the wearing of helmets. The order of this Court has been thrown to the wind and authorities have not followed neither the law nor implemented the order passed by this Court. It is unfortunate and sorry state of affairs in this country which needs to be rectified.
2. The appeal has been preferred by the Transport Corporation against the award of Rs.4,85,000/- to the dependent of the deceased, who died in the accident occurred on 27.09.2009, when he was travelling in the two wheeler along with his brother's child which was hit by Transport Corporation bus. Therefore, the claim petition, which was resisted by the appellant/Transport Corporation contending that the deceased was negligent and was playing with the child, who was seated in the front side of the motorcycle and he was not wearing the helmet. The Tribunal on enquiry found that the negligence was on the part of the driver of the Transport Corporation bus and therefore, fixed the liability on the appellant and awarded a sum of Rs.4,85,000/- as compensation. The said award is being challenged before this Court.
3. Mr.D.Sivaraman, learned counsel appearing for the appellant/Transport would contend that at the time of accident, the rider of the two wheeler was negligent and that he did not obey the road rules and that he had seated the child in front side of the motorcycle and that he was playing with the child while riding and that he was not wearing the helmet. He would rely upon the evidence of R.W.1 driver who deposed as to how the deceased was negligent. Therefore, he would submit that there is no negligence on the part of the driver of the corporation and the negligence was on the part of the deceased.
4. On the other hand, Mr.K.Kumaravel, learned counsel appearing for the respondents/claimants would submit that the Tribunal rightly fixed the negligence on the part of the driver of the Transport Corporation bus. However, he would submit that the Tribunal wrongly fixed Rs.3000/- being monthly income earned by the deceased relying upon the Judgment of the Hon'ble Supreme Court in New India Assurance Company Ltd., vs. Kalapana (Smt) reported in 2007(3) SCC 538. Moreover, he would find fault with the Tribunal for having given lesser amount for consortium to the first respondent and love and affection to the minor respondents/claimants. Hence, he seeks for enhancement.
5. However, Mr.D.Sivaraman, learned counsel appearing for the appellant/Transport Corporation would rely upon the judgment of the Hon'ble Supreme Court in Ranjana Prakash and others vs. Divisional Manager and another reported in 2011(2) TN MAC 313 (SC) and submit that the compensation cannot be enhanced in the absence of appeal/cross appeal by the claimants.
6. Heard the learned counsel appearing on either side and perused records.
7.The rider of the vehicle was travelling the motorcycle along with the child. P.W.2 categorically deposed that there was no fault on the part of the rider of the vehicle and only the Transport Corporation bus was driven rashly and negligently and came in the wrong side and hit the motorcycle causing the accident. Whereas, R.W.1 the Driver of the Transport Corporation deposed that the deceased was riding his motorcycle rashly and negligently without wearing the helmet and therefore, the accident occurred. The Tribunal believed the version of P.W.2 and taking into consideration of the filing of First Information Report and charge sheet against the driver of the Transport Corporation, namely, R.W.1 and also lodging of complaint by the driver of the Transport Corporation came to the conclusion that the accident occurred because of the rash and negligent driving of the Transport Corporation bus. The Tribunal rightly relied upon the closing of complaint filed by the Transport Corporation after investigation and filing of charge sheet against the driver of the Transport Corporation after investigation and the charge sheet has been marked as Ex.B.2. As the conclusion raised by the Tribunal is based on evidence on record, the said finding cannot be set aside and the same is confirmed. The Tribunal, after appreciation of evidence, rightly held that the Transport Corporation driver alone was negligent and therefore, Transport Corporation is liable to pay the compensation.
8. Though the appeal has been filed only on the question of negligence, a perusal of the award would show that the Tribunal committed a grave error in making deduction from Rs.3000/- which was determined as monthly contribution of the deceased relying upon Kalpana's case. The Hon'ble Supreme Court in New India Assurance Company Ltd., vs. Kalpana (smt) reported in 2007(3) SCC 538, fixed the monthly contribution of the deceased at Rs.3000/- after deducting 1/3rd towards the personal expenses in the absence of any evidence regarding income. When that being the case, the Tribunal should not have deducted further 1/3 from Rs.3000/- the monthly contribution as per the Kalpana's case. Therefore, the said deduction has to be deleted.
9. That apart, a Division Bench of this Court in M.Sengabagam vs. V.Vinod kumar and others reported in 2013(2) TAN MAC 450 took Rs.6000/- as monthly income of the deceased in the absence of documentary evidence for the monthly income. The accident in that case occurred on 28.12.2008, whereas in this case, the accident occurred only on 27.09.2009. Therefore, this Court can adopt the said determination and fix the monthly income of the deceased at Rs.6000/-.
10. The dependents of the deceased are six in number. As per the Judgment of the Hon'ble Supreme Court in Saralaverma vs. Delhi Transport Corporation reported in 2009(2) TAN MAC 1 (SC), if the dependents are between 4 and 6, then the deduction should be , and the said judgment was rightly followed by the Tribunal. As far as multiplier is concerned, the Tribunal based on the age of the deceased namely, 38, is justified in applying multiplier 15. Following judgment of the Sarala Verma case, the loss of income is determined as follows:- 6000 - 1/4 x 12 x 15 = Rs.8,10,000/-
11. The Tribunal did not take into account the age of the widow. At the time of accident she was aged about 36. However, towards loss of consortium, the Tribunal awarded only a sum of Rs.20,000/- and therefore, the same is liable to be enhanced to Rs.50,000/-. As far as loss of love and affection to the minors are concerned, only a sum of Rs.10,000/- each has been awarded. The said amount is very low. Since the minors are losing their care, the love, affection and guidance of the father through out their life. Hence, this Court enhances the amount awarded towards loss of love and affection to Rs.75,000/- for each of the child totally Rs.2,25,000/-. As far as the respondents 5 and 6, namely, the parents of the deceased are concerned, a sum of Rs.10,000/- each is granted. The other amount namely, Rs.5000/- each towards transportation and funeral expenses are reasonable and the same is confirmed. The rate of interest at 7.5% awarded by the Tribunal remains unaltered.
12. Though Mr.D.Sivaraman, learned counsel appearing for the appellant would submit that this Court cannot enhance the amount in the absence of appeal relying upon the judgment cited supra, the appeal is continuation of the original proceedings and this Court has got powers and jurisdiction under Order 41 Rule 33 of the Code of Civil Procedure to enhance the amount after appreciation of pleadings and evidence. What is required to be given is only just compensation and the technicality cannot stand in the way of rendering complete justice, especially when the breadwinner of the family died and the family members are left into lurch. To mitigate the situation caused due to untimely death of the breadwinner of the family, the compensation is given. Moreover, the provisions of the Motor Vehicles Act are beneficial in nature which are intended to CONSOLE, COMFORT AND COMPENSATE the victims of the road accident and the beneficial nature of the Motor Vehicles Act has been declared by the Hon'ble Supreme Court in a number of judgments.
13. In view of the above position, the contention raised by Mr.D.Sivaraman, cannot be accepted. Even in the absence of appeal filed by the claimants, this Court enhances the award from Rs.4,85,000/- to Rs.11,15,000/- in the appeal filed by the Transport Corporation. The appellant is directed to deposit the entire amount within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the tribunal is directed to pay the entire amount except the minors' share, which shall be deposited in the interest bearing fixed deposit till they attain majority, as per the ratio fixed by the tribunal.
With the above observations, this Civil Miscellaneous Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
30.10.2014 Index : Yes Internet: Yes skn To Motor Accident Claims Tribunal, District and Sessions Court, Communal Clash Cases Court, Madurai.
N.KIRUBAKARAN, J skn C.M.A(MD)No.97 of 2014 and M.P(MD)No.1 of 2014 30.10.2014