Madras High Court
Dheeran Chinnamalai Transport ... vs Ammani And Ors. on 16 June, 1999
Equivalent citations: I(2000)ACC89, 2000ACJ589, (1999)IIMLJ722, 1999 A I H C 4795, (1999) 2 MAD LJ 722, (2000) 1 MAD LW 793, (2000) 1 ACJ 589, (1999) 3 TAC 866, (2000) 1 ACC 89
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. These CM.A. No. 1107 of 1993 and Cross-objection No. 48 of 1995, arising out of a common judgment, are being disposed of by this common judgment.
2. Dheeran Chinnamalai Transport Corporation has filed the appeal in CM. A. No. 1107 of 1993 challenging the award passed in M.A.C.T.O.P. No. 1359 of 1990 on the file of the Motor Accidents Claims Tribunal, Trichy, directing the appellant to pay a compensation of Rs. 3,00,000 as against total compensation of Rs. 5,00,000 to the claimants on the ground of negligence and of quantum.
3. The claimants/respondents in the appeal, being dissatisfied with the quantum of Rs. 3,00,000 have filed the Cross-objection No. 48 of 1995 seeking enhancement of compensation by requesting an additional sum of Rs. 1,50,000 restricting their claim to Rs. 4,50,000.
4. The facts that are required for the disposal of the above matters are as follows:
(a) Srinivasan, deceased in this case was practising as a lawyer in both civil and criminal cases in the courts situated at Trichy and other areas. On 13.5.1990 at about 11.30 a.m., the deceased was coming on his TVS 50 from West to East keeping to his left on Salem-Trichy Road. When he was nearing Nochiam, the bus bearing registration No. TML 5636 belonging to the appellant Corporation came in the opposite direction. The bus which was driven rashly and negligently came to the wrong side of the road and hit against the TVS 50, thereby knocked down the deceased. The deceased, having sustained multiple grievous injuries, was taken to the hospital. However, he died on the way to the hospital. The deceased at the time of death was aged about 38 years and had put in 11 years of practice. The claimants, the respondent Nos. 1 to 3 herein are the wife and two children, viz., a son and a daughter of the deceased. The wife aged about 30 years, the son aged about 10 years and the daughter aged about 5 years, have filed a claim petition seeking a compensation of Rs. 5,00,000.
(b) The above claim was contested by the appellant Corporation by filing a counter and examining its driver as RW 1 stating that the accident was not due to the negligence of the driver and as such, the appellant Corporation was not liable to pay any compensation.
(c) On the side of the claimants, the claimant No. 1, wife was examined as PW 1 and the eyewitness Rangaraj was examined as PW 2, through whom Exhs. A-l to A-4 were marked. On behalf of the appellant Corporation RW 1, the driver was examined, through whom Exhs. B-l and B-2 were, marked. Since the parents of the deceased were made as respondents in the claim petition, claiming share in the compensation, the father of the deceased was examined as RW 2.
(d) On a careful scrutiny of the materials placed before the Tribunal, it concluded that the driver of the bus was negligent in driving the bus and that the claimant and the parents of the deceased were entitled to the compensation of Rs. 3,00,000. The Tribunal further directed that out of total compensation, the claimants, the wife and the children of the deceased, are entitled to get 75 per cent and the parents of the deceased are entitled to get 25 per cent.
5. The said order is put at issue in this appeal before this court. As indicated earlier, the claimants and the parents of the deceased have jointly filed the cross-objection seeking enhancement of the compensation stating that the compensation amount awarded was on the lower side.
6. Mr. Rathinamani, learned counsel for the appellant Corporation and Mr. Krishnamoorthy, learned counsel for cross-objectors would submit their respective submissions in support of their pleas.
7. I shall refer at the outset, regarding the negligence on the part of the driver of the bus belonging to the appellant Corporation.
8. The claimants have proved through PW 2 that the driver of the bus which was coming from East to West drove the bus rashly and negligently and hit against the deceased who was coming in the opposite direction and dragged both the vehicle and the deceased to a considerable distance of about 50 feet from the place of impact.
9. As a matter of fact, it is seen from the materials that there is no attempt made by the driver even to apply brakes. Furthermore, the evidence of the eyewitness, PW 2, has been corroborated not only by the F.I.R., Exh. A-3, registered by the police, but also through observation mahazar, Exh. B-l, and sketch marked through the driver, Exh. B-2.
10. It is seen from the sketch, Exh. B-2, the bus was driven towards the right side and caused the impact. This would clearly show that the driver came on the wrong side and hit against the deceased, who was riding the TVS 50 on his left side. Therefore, the Tribunal has correctly concluded that the evidence of RW 1 is liable to be rejected and the evidence of PW 2, the eyewitness was worthy of acceptance. In such a situation, there is no valid reason to countenance the contention of the learned counsel for the appellant with regard to negligence.
11. As regards the quantum, it is the contention of the learned counsel for the appellant that the awarding of the compensation was without proper calculation and without assigning any proper reason. According to him, the total award of Rs. 3,00,000 is very much on the higher side and unjust.
12. On the other hand, learned counsel for the respondents/cross-objectors, while accepting the contention of the learned counsel for the appellant that the awarding of the compensation was without proper calculation would state that the cross-objectors are entitled to get more amount of compensation and that the principles relating to the assessment and damages have to be properly applied, in the light of the facts and circumstances of the case.
13. The deceased was admittedly an advocate practised for about 11 years. According to wife, PW 1, the deceased was earning about Rs. 3,000 per month. The Tribunal fixed his monthly income at Rs. 2,000 and after deducting Rs. 750 towards personal expenses of the deceased, assessed monthly dependency at Rs. 1,250. On the basis of the said amount, Tribunal by adopting the multiplier of 20 years, has calculated and fixed the amount of Rs. 3,00,000 as compensation.
14. In the claim petition, the claimants claimed Rs. 5,00,000 as a consolidated amount. The Tribunal, admittedly, has not taken into consideration the other important heads, namely, loss of consortium, loss of love and affection, etc., even though the calculation was made only by taking into account the head, namely, loss of income.
15. The deceased, who put in practice for about 11 years, could have easily earned about Rs. 3,000 per month, as stated by the wife of the deceased PW 1. Merely because there is no documentary evidence available, the said evidence cannot be rejected. However, the Tribunal had fixed Rs. 2,000 as monthly income without any material on record.
16. As already indicated, the deceased was a young man of about 38 years and sufficiently experienced and but for the accident, he would have certainly got a prosperous future also. Therefore, the loss of income has to be estimated taking into account the future prospects as well.
17. According to the decided cases by this court in Alagammai v. Managing Director, Marudhu Pandian Transport Corporation ; Tamil Nadu Electricity Board v. A. Vijayalakshmi and General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas , while fixing the compensation the chances for future prospects shall be taken into account.
18. In my view, fixing meagre amount as a monthly income without any materials for the same, especially when the wife of the deceased, PW 1, would assert that the deceased was earning about Rs. 3,000 per month is not proper. Therefore, if the evidence of PW 1 is taken into account, then we have no difficulty in fixing the monthly dependency at Rs. 2,000.
19. In the instant case, the multiplier of 20 has been adopted. It may not be appropriate, as per the guidelines given by the Apex Court. According to the Schedule, 16 would be a proper multiplier. If 16 is adopted as multiplier and the monthly dependency is fixed at Rs. 2,000 then the total amount would come to Rs. 3,84,000.
20. As stated earlier, there are no amounts apportioned towards the loss of consortium to the wife, who is a young widow and towards the loss of love and affection to the two children and other heads towards funeral expenses and loss of expectation of life.
21. Accepting the contention of the cross-objectors, in view of the discussion made above, the award of the Tribunal is modified and compensation for each head is fixed in the following manner:
(a) towards loss of dependency Rs. 3,84,000
(b) towards loss of consortium Rs. 15,000
(c) towards loss of love and affection Rs. 15,000
(d) towards funeral expenses Rs. 6,000
(e) towards loss of expectation of life Rs. 20,000
--------------
Total Rs. 4,40,000
--------------
22. Therefore, there shall be an award For a sum of Rs. 4,40,000 with interest at 12 per cent per annum from the date of the petition till realisation. Out of this amount, the claimant/cross-objector Nos. 1 to 3 are entitled to 75 per cent and the parents/cross-objector Nos. 4 and 5 are entitled to 25 per cent as ordered earlier by the Tribunal.
23. With the above observations, the appeal and the cross-objections are disposed of. No costs.