Madras High Court
Subbayammal vs Saminathan on 18 January, 2010
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18.1.2010 CORAM : THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.118 of 2005 1.Subbayammal 2.P.Duraisamy 3.P.Subramaniam ... Appellants -Vs- 1.Saminathan 2.The Managing Director, Tamil Nadu Transport Corporation, (Coimbatore Division-II) Chennimalai Road, Erode. ... Respondents Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, against the award dated 7.7.2004 made in M.C.O.P.No.624 of 2003 on the file of the Principal District Judge, Erode. For Appellants : Mr.V.P.Sengottuvel * * * * * JUDGMENT
The claimant is aggrieved by the award of the Tribunal granting a sum of Rs.52000/- as against the claim of Rs.4,00,000/-.
2. The facts of the case are as follows:
On 26.3.2003, the deceased Palaniappa Gounder was travelling in a bullock cart and the bus belonging to the first respondent driven rash and negligently dashed behind the bullock cart resulting in spontaneous death of Palaniappa gounder on the spot. Hence the claim petition was filed and the same was resisted by the second respondent transport corporation.
3. On appreciation of pleadings and evidence available on record the Tribunal found that the accident occurred because of rash and negligent driving of the bus and it has been elaborately discussed in paragraph 7 of the award. For coming to the said conclusion evidence of P.W.1, P.W.2 and R.W.1 and documentary evidence of Ex.A1 to A6 were taken into consideration. The Tribunal disbelieved the evidence of R.W.1 and believed the evidence of P.W.1 and P.W.2 and one another factor which was taken into consideration by the Tribunal was that the charge sheet was filed against the first respondent for the offence under Sections 279,337 and 304-A I.P.C. Hence the findings given regarding negligence is based on evidence and therefore it is confirmed. Apart from that there is no appeal filed by the Transport Corporation and hence the findings has attained a finality.
4. Mr.V.P.Sengottuvel, learned counsel for the appellants submitted that the deceased aged about 57 years was an agriculturist, milk-vendor and coconut merchant and his earning was Rs.6000/- per month. The Tribunal in paragraph 9 of the award came to the conclusion that there was no documentary evidence to prove the monthly income of the deceased. Therefore following the second schedule in Section 163 of the Motor Vehicles Act, notional income of Rs.15000/- per annum was taken into account and adopted the multiplier 5 based on the age of the deceased namely 60 years and awarded a sum of Rs.50,000/-.
5. Mr.V.P.Sengottuvel, learned counsel for the appellants submitted that there cannot be any evidence for the income of an agriculturist, milk-vendor and coconut merchant and his avocations were carried out individually and not in a formal manner; that the court cannot expect official documents in this regard and therefore he challenged the reasoning given by the Tribunal that there was no documentary evidence to prove the monthly income of the deceased at Rs.6000/- per month.
6. Learned counsel relied upon a judgement of the Hon'ble Supreme Court in Lata Wadhwa and others vs. State of Bihar and others reported in 2001 ACJ 1735, wherein for the death of an house wife a sum of Rs.3000/- was fixed. Relying upon the said judgement, the learned counsel submitted that when for the death of an house wife the loss of income was fixed at Rs.3000/- per month, for a person having three avocations, the earning must be more and therefore he sought for enhancement of compensation.
7. Though the second respondent corporation contested the matter before the Tribunal, inspite of receipt of notice, no one appeared on its behalf before this court. As the pleadings and evidence are available before this court, this court proceeds to decide the matter on merits. Apart from that the second respondent corporation did not file any appeal.
8. A perusal of the pleadings and evidence would go to show that as rightly found by the Tribunal, the negligence was fixed on the Transport Corporation driver. As stated earlier there is no appeal by the corporation. With regard to quantum as rightly pointed out by Mr.V.P.Sengottuvel, the avocations carried out by the deceased was Agriculture, milk-vending and coconut business. When that is the position, this court cannot expect any record from the claimants and if strict proof of evidence is expected, most of our citizens would not in a position to prove their income. Rs.15,000/- per annum was fixed as Notional income for the persons who are all non-earning persons, whereas the deceased was having three business. Hence the deceased would not come under the category of non-earning person and the fixation of notional as per second schedule does not arise. Apart from that the second schedule was introduced in the Motor Vehicle Act by way of Act 54 of 1994 with effect from 14.11.1994, whereas the accident occurred on 26.3.2003, i.e. almost nine years after the inclusion of second schedule and therefore the the Tribunal was wrong by fixing the annual income of the deceased at Rs.15000/- as per second schedule of the Motor Vehicle Act.
9. Learned counsel for the appellants relied upon Lata Wadhwa and others vs. State of Bihar and others reported in 2001 ACJ 1735 to show that the monthly income of the house wife was fixed by the Hon'ble Supreme Court at Rs.3000/- per month. In that case fire accident occurred and based on the report submitted by Mr.Justice Y.V.Chandrachud, compensation was fixed by the Supreme Court for various persons, who died in the accident and for the death of a house wife a sum of Rs.3000/- was fixed. In that case accident took place in 1989. At this distance of time, the amount fixed in that case would be less compared to the cost of living, inflation and earning power. In another case, the Honourable Supreme Court in New India Assurance Co.Ltd vs. Kalpana (Smt) and others reported in (2007) 3 SCC 538, held that in the absence of any evidence about the income, the monthly contribution to the family after deduction for personal expenses was fixed at Rs.3000/- per month. In that case also, the accident took place in 1999. The Honourable Supreme Court after deducting 1/3 for personal expenses, fixed the monthly contribution to the family at Rs.3000/- and this court following the aforesaid Kalpana case, fixes the monthly contribution of the deceased at Rs.3000/- per month.
10. Postmortem report which was marked as Ex.A4 reveals that the age of the deceased was 60 years and the Tribunal rightly taken the age of the deceased at 60 and correctly adopted the multiplier 5 as per second schedule and therefore the loss of income would be Rs.3000 X 12 X 5 = 1,80,000/-. Funeral expenses was fixed at Rs.2000/- by the Tribunal and it is considered to be very low and this court enhances the same to Rs.5000/-. No amount was awarded towards transportation. Hence a sum of Rs.2000/- is given for transportation expenses.
11 It is stated in paragraph 23 of the claim petition that the bullock of the cart also sustained injury and the cart got heavily damaged and in view of that this court has to award towards damage to the cart and also the injuries to bullock. Therefore a sum of Rs.7500/- is given towards damage. The first appellant is the wife of the deceased. No amount was granted towards consortium and therefore this court awards Rs.10,000/- towards consortium. The appellants 2 and 3 are the sons and they are entitled to amount towards loss of love and affection and accordingly for each Rs.10,000/- is awarded. The interest awarded by the Tribunal at 9% per annum is confirmed.
12. In the result, the appeal filed by the appellants is allowed enhancing the award amount from Rs.52,600/- to Rs.2,24,500/- in the following manner:
1) Towards loss of income to Rs.1,80,000/-;
2) Funeral expenses Rs.5000/-;
3) Towards Transportation Rs.2000/-;
4) Injuries to bullock and damage to bullock cart Rs.7500/-; 5) Loss of consortium Rs.10,000/-;
6) Loss of love and affection for second and third appellants in toto Rs.20,000/- and
7) Loss of Consortium to first appellant at Rs.10,000/-. Totalling a sum of Rs.2,24,500/-.
13. The appeal is allowed and no order as to costs.
18.1.2010 Index : Yes/No Internet: Yes/No To The Principal District Judge, Erode.
N.KIRUBAKARAN,J vk C.M.A.No.118 of 2005 18.01.2010