Madras High Court
Metropolitan Transport Corporation vs A.Nagarathinam on 22 August, 2012
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras Dated 22.08.2012 Coram The Honourable Mrs.Justice R.BANUMATHI and The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.1914 of 2007 and Cross Objection No.58 of 2012 Metropolitan Transport Corporation, Chennai Division-I Ltd., rep.byits Managing Director, Anna Salai, Chennai-2. ..Appellant in C.M.A. & Respondent in Cross Objn. ..vs.. 1. A.Nagarathinam 2. A.Ramalingam (Minor) rep.byhis mother & next friend A.Nagarathinam 3. S.Kumudhavalli 4. M.Sahadevan ..Respondents in C.M.A.& Cross Objectors Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988 and Cross Objection filed under Order 41, Rule 22 of C.P.C., against the award and decree dated 06.03.2006 made in MCOP.No.5492 of 2003 on the file of Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai. For Appellant in CMA & Respondent in Cross Objn. : Mr.M.Krishnamurthy For Respondent in CMA & Cross Objectors : Mr.V.Mohan Choudary COMMON JUDGMENT
R.SUBBIAH, J., Challenging the award (06.03.2006) passed by the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai, in M.C.O.P.No.5492 of 2003, Metropolitan Transport Corporation filed the civil miscellaneous appeal. Feeling dissatisfied with the compensation awarded by the Tribunal, legal heirs of one deceased Ashok Kumar filed the Cross Objection.
2. To avoid confusion, the parties are hereinafter referred to as arrayed in the civil miscellaneous appeal.
3. Respondents are the wife, minor son and parents of the legal heirs of deceased Ashok Kumar respectively, who died in a motor accident that had occurred on 24.09.2003 involving the appellant Transport Corporation bus bearing registration No.TN-01-N-3536. They filed a clam petition before the Tribunal that on 24.09.2003, while the said Ashok Kumar was riding a motor cycle bearing registration No.TN-20-A-0167 along with a pillion rider at moderate speed in M.T.H.Road from Ramapuram towards Avadi, the appellant Corporation bus came in a rash and negligent manner from the opposite direction at hectic speed in wrong side of the road and hit the motor cycle and as a result of which, the rider of the two wheeler was thrown out and he succumbed to the injuries. The pillion rider also died due to the injuries sustained by him. Since the accident had occurred due to rash and negligent driving of the driver of the appellant Corporation bus, respondents made a claim as against the appellant for a sum of Rs.40,00,000/- as compensation stating that the deceased was the proprietor of two companies, namely, M/s.Ashok Enterprises and M/s.Ashok Security Services and thus, earning Rs.20,000/- and Rs.10,000/- per month respectively. Apart from that, he was doing agriculture operation and earning Rs.5,000/- per month. Hence, they claimed Rs.37,50,000/- towards loss of pecuniary benefits and Rs.2,50,000/- under different conventional heads, totalling to Rs.40,00,000/-.
4. Resisting the case, appellant Transport Corporation filed a counter. They denied the manner of accident and loss of income claimed by respondents.
5. Before the Tribunal, to prove the claim, 1st respondent examined herself as P.W.1 besides examining P.Ws.2 to 4 and marked Exs.P-1 to P-13 and on the side of appellant, driver of the bus in question was examined as R.W.1, but no document was marked. The Tribunal, after analysing the evidence both oral and documentary, held that the accident was caused due to rash and negligent driving of the driver of appellant Corporation bus and by arriving at such conclusion, Tribunal has awarded Rs.13,86,000/= as compensation. Aggrieved over the award, the present appeals have been filed.
6. Heard the learned counsel for both parties.
7. It is the submission of the appellant that the accident had occurred due to rash and negligent driving of the rider of the motor cycle, who came on the wrong side of the road and dashed against the appellant Corporation bus, which was coming from the opposite direction. In order to speak about the manner of accident, driver of the bus was examined as R.W.1 Therefore. by relying upon the evidence of R.W.1, the Tribunal ought to have rejected the claim of the respondents.
8. On a perusal of the award, we find that on the side of respondents, one Sivalingam, an eye witness to the occurrence was examined as P.W.2, who had categorically stated in his evidence that the accident was the result of rash and negligent driving of the driver of the appellant Corporation bus alone. So far as P.W.2 is concerned, he is an independent witness. In his cross examination, no favourable reply in favour of the case of appellant was brought out. Further we find that, apart from R.W.1, no other independent witness was examined on their side to corroborate his evidence. The evidence of R.W.1 is a self-interested one. Hence, in the absence of any independent witness and any crucial document, such as rough sketch, etc., we are unable to appreciate the submission made by the appellant and as such, we do not find any infirmity in the finding arrived at by the Tribunal with regard to liability.
9. So far as the quantum of compensation is concerned, as could be seen from the award that in order to prove the income earned by the deceased, on the side of respondents, Exs.P-6 to P-8, Saral forms pertaining to Income Tax Assessment Years 2001-2002, 2002-2003 and 2003-2004 were filed. A perusal of the said documents would show that the annual income of the deceased for the Assessment Year 2001-2002 is Rs.58,809/-; 2002-2003 is Rs.93,717/- and 2003-2004 is Rs.98,210/-. The Tribunal, by relying upon these documents, has fixed a sum of Rs.9,000/- as monthly income of the deceased and thereafter, by deducting 1/3rd expenses towards personal expenses of the deceased and by applying the multiplier of 18, has arrived at a sum of Rs.12,96,000/- as loss of income to the family.
10. It is the submission of the appellant that Saral forms would contain the dates of 22.04.2003, 28.04.2003 and 29.05.2003 respectively, which would show that these documents were created for the purpose of this case. But, the Tribunal, without considering this aspect, by relying upon Exs.P-7 to P-8, had fixed the monthly income at Rs.9,000/-. It is the further submission of the appellant that even if the annual income mentioned in Saral forms had taken into consideration as genuine, the average annual income works out to Rs.83,580/- and the monthly income works out to Rs.6,965/-. But the Tribunal has arrived at Rs.9,000/- as monthly income, which is not proper and correct. Therefore, on that account also, the compensation amount awarded by the Tribunal is liable to be reduced.
11. On the contrary, it is the submission of the respondents that the deceased had died on 24.09.2003. The Saral forms contained the dates of five months prior to the date of accident. Under such circumstances, there cannot be any valid reason for rejecting the documents and no infirmity could be found in the calculation made by the Tribunal by placing reliance on those documents. It is the further submission of the respondents that the Tribunal, while awarding compensation, has failed to include the annual prospects of the deceased. Further, The Tribunal had deducted 1/3rd amount towards personal expenses of the deceased. Since respondents are four in number, the Tribunal ought to have deducted 1/4th amount towards personal expenses of the deceased instead of 1/3rd amount. Therefore, by fixing a higher sum more than Rs.9,000/- and by deducting 1/4th amount towards personal expenses of the deceased, the amount awarded by the Tribunal has to be enhanced by way of re-assessment. In support of these contentions, they relied on the decision of Hon'ble Apex Court in the case of Santhosh Devi .vs. National Insurance Co.Ltd., and others (2012 ACJ 1428)..
12. Keeping the said submissions in mind, we have carefully gone through the materials available on record and it is not in dispute that Saral forms contained the dates of five months prior to the date of accident. In the said circumstances, we are of the opinion that the submission made by the appellant that the documents could have been created for the purpose of getting compensation has no force. Further we find that even in the grounds of appeal, no ground has been raised challenging Exs.P-6 to P-8. When that being the positiion, we are not inclined to accept the submission made by the appellant by rejecting Exs.P-6 to P-8, the award passed by the Tribunal has to be modified.
13. With regard to the submission made by the respondents in respect of future prospects, we are of the opinion that average monthly income would be only to Rs.6,965/- if calculation is made based on Exs.P-6 to P-8, whereas the Tribunal has fixed Rs.9,000/- as monthly income of the deceased. Under such circumstances, we are not inclined to add any further amount towards future prospects. However, we are of the opinion that since the claimants are four in number, by deducting 1/4th amount towards personal expenses, the amount could be modified. If we deduct 1/4th amount from Rs.9,000/-, the amount would be Rs.6,750/- (Rs.9000/- minus Rs.2,250/-). If we apply multiplier of 18, the total loss of amount would be Rs.14,58,000/- (Rs.6,750/- x 12 x 18), which, in our view, could be just and proper compensation. Hence, the sum of Rs.12,96,000/- awarded by the Tribunal towards loss of pecuniary benefits is hereby enhanced to Rs.14,58,000/-. Further, we find that the Tribunal has awarded only a sum of Rs.20,000/- towards loss of consortium to the 1st respondent-the wife, aged about 25 years at the time of accident. Considering the fact the 1st respondent had lost her husband at her young age, we are of the view that the amount awarded by the Tribunal under this head needs enhancement. Hence, Rs.50,000/- is awarded under this head by adding another sum of Rs.30,000/-. That apart, the Tribunal has awarded Rs.25,000/- towards loss of love and affection. Considering the fact that the 2nd respondent had lost his father at his tender age, namely, 11 months, the said amount cannot be said to be an adequate compensation. Hence, the same is hereby enhanced to Rs.1,00,00/-. Consequently, the compensation awarded by the Tribunal for Rs.13,86,000/- is hereby enhanced to Rs.16,18,000/- and the break up details are as follows:
Rs.
Loss of dependency .. 14,58,000/-
Loss of consortium .. 50,000/-
Funeral expenses .. 10,000/-
Loss of love and affection .. 1,00,000/-
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Total 16,18,000/-
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In view of the above,
C.M.A.1914 of 2007: This Appeal fails and is dismissed; however, there will be no order as to costs. Consequently, M.P.No.1 of 2007 is also dismissed.
Cross Objection: This appeal is partly allowed; however there will be no order as to costs. The appellant Transport Corporation is directed to deposit the entire modified amount of Rs.16,18,000/- with interest at 7.5% interest per annum from the date of petition till date of deposit, after deducting the amount already deposited, if any, before the Tribunal, within a period of six weeks from the date of receipt of a copy of this Order. Out of which, the 1st respondent is entitled to Rs.10,00,000/-; 2nd respondent is entitled to Rs.4,00,000/- and respondents 3 and 4 are entitled to equal share in the remaining amount. On such deposit being made, Respondents 1, 3 and 4 are permitted to withdraw their entire respective share with proportionate interest. So far as the 2nd respondent is concerned, the Tribunal is directed to deposit the minor's share in any Nationalised bank till he attains majority and the 1st respondent-mother is permitted to withdraw interest once in three months for the upkeep and maintenance of the 2nd respondent.
Index: Yes. (R.B.I,J.,) (R.P.S.,J.,) Internet: Yes. 22.08.2012 gl Copy to The III Judge, (Motor Accidents Claims Tribunal), Court of Small Causes, Chennai. R.BANUMATHI, J., and R.SUBBIAH, J., gl
Pre-delivery common judgment in CMA.No. 1914 of 2007 & Cross Objection No.58 of 2012 22 .08.2012