Madras High Court
The Managing Director vs R.Loganayagi on 28 June, 2019
Author: S. Ramathilagam
Bench: S. Ramathilagam
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2019
CORAM:
THE HONOURABLE MRS.JUSTICE S. RAMATHILAGAM
C.M.A.No.2002 of 2019
and M.P. 7147 of 2019
The Managing Director
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Periyamilaguparai, Tiruchirapalli-620001 ..Appellant
Vs.
1. R.Loganayagi
2. R. Manikandan ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 16.07.2018 made in
M.C.O.P.No. 4251 of 2014 on the file of the Motor Accident Claims Tribunal,
Principal District Judge, Cuddalore.
For Appellant : Mr. Venkatachalam.D
For Respondents : Mr.S.Udayakumar
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Transport Corporation challenging the award dated 16.07.2018 made in M.C.O.P.No. 4251 of 2014 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Cuddalore. http://www.judis.nic.in 2
2. Brief facts:
2.1 On 23.10.2014 at about 16.30 hrs when the deceased's grandmother carried the deceased and walking from east to west keeping extreme left of cuddalore to Vridhachalam main road, near Bus stop, Rottandikuppam, the respondent's bus bearing Regn.No. TN-45-N-3534 came in the same direction, at a great speed, in a rash and negligent manner, without making horn and dashed agaisnt the deceased's grand mother and the deceased, then hit a TVS XL Super moped in which two were traveling and also Hero Honda Motor Cycle bearing Reg.
No. TN-31-P-4872 in which two were travelling, as a result the deceased sustained fatal injuries and inspite of best treatment in Government Hospital, Kurinjipadi and in JIPMER Hospital, Puducherry she died at 11.15 P.M on 24.10.2014. The S.H.O Vadalur Police Station had registered a criminal case against the driver of respondent in Cr.No. 337 of 2014. The accident took place only due to rash and negligence on the part of the respondent's bus driver. The respondent is employer of offending vehicle. Since the respondent's bus belongs to the State owned Transport Corporation, it is exempted from insurance. The respondent is liable to pay the compensation to the petitioners. Therefore the petitioners claimed a sum of Rs.10,00,000/- as compensation.
2.2 The Transport Corporation in their counter has denied the mode of accident as stated by the claimants in the claim petition. Further, it is stated that claimants ought to have impleaded the moped rider, motor cyclist, owner and its http://www.judis.nic.in 3 insurer as parties to the claim. The claimants are not dependents on the deceased and in any event the claim made at Rs.10,00,000/- is excessive and the same is without any basis.
2.3 The tribunal upon analysing the documents and oral pleadings, has awarded a sum of Rs.10,00,000/- as claimed by the claimants by holding that the accident had occurred only due to the rash and negligence driving on the part of the driver of the Transport Corporation Bus and directed to pay the said compensation to the claimants. Aggrieved against the said award, the Transport Corporation has preferred this appeal.
2.4 In the grounds of appeal, it is contended by the appellant/Transport Corporation that the monthly income taken by the tribunal at Rs.10,800/- is on the higher side and the deceased who was two years old baby and non-earning person, the tribunal ought to have taken the notional income as per the second schedule to the Motor Vehicles Act. The further grounds of the appellant is that the tribunal has not followed the dictum laid down by the Apex Court in Kishan Gopal's case wherein the Apex Court awarded a sum of Rs.5,00,000/- for a child death, hence the compensation awarded by the tribunal at Rs.10,00,000/- is erroneously.
3. Heard both sides and perused the documents available on record. http://www.judis.nic.in 4
4. On perusal of the records it is seen that there is no contravention about the accident and the appellant herein is denying only the negligence on the part of the driver of its bus. In order to prove the negligence on the part of the bus driver, claimants have examined PW2 who is an eye witness as well as injured person in the occurence. They deposed the same as narrated by the claimants in the claim petition. It is also seen that FIR was also registered as against the driver of the transport corporation bus for his negligence act. The said FIR was marked as Ex.P1.
5. It is also seen from the records that the tribunal by relying upon the judgments submitted by the claimants reported in 2016 ACJ 1873 in the case of Suraj Verma Vs. Delhi Development Authority and Others has fixed the notional income at Rs.10,800/- and by deducting half of the income towards personal expenses and adopting multiplier 15, has calculated loss of dependency at Rs.9,72,000/- .
6. The appellant/Transport Corporation is very much aggrieved against the notional income taken by the tribunal and vehemently argued by quoting the judgment of this Court dated 22.10.2018 in the case of The Managing Director, TNSTC, Trichy Vs. S.M. Munisvaran and 2 Others. In the said case the deceased minor was 14 years old, studying 11th standard. This Court by considering age of the deceased minor, has confirmed the notional income fixed by the tribunal at Rs.30,000/- per annum and confirmed the loss of income, which was calculated at Rs.4,50,000/- by applying multiplier method. http://www.judis.nic.in 5
7. On the other hand, the learned counsel for the respondents/claimants have submitted a judgement of this Court reported in 2019 (1) TNMAC 672 (DB) in the case of National Insurance Co.Ltd Vs. R.Vimala. In the said case, the age of deceased was 9 years, studying 5th standard, the tribunal has taken the notional income at Rs.30,000/- per annum and calculated the loss of income at Rs.4,50,000/-. This Court by citing the decision in the case of Oriental Insurance Co. Ltd., Vs. Syed Ibrahim, enhanced the award of the tribunal by fixing monthly income at Rs.5,000/- and calculated the loss of income at Rs.7,20,000/- by applying multiplier method.
8. In view of the observations made in the above said judgments, this Court is of the view that in the present case, though the learned counsel for the respondent/claimant had relied upon the said judgment for enhancement, the said judgment is not squarely applies to the present case, since in the said case the notional income was fixed at Rs.5000/- per month against the notional income fixed by the tribunal at Rs.30,000/- per annum for the decased who was nine years old, but in the present case the deceased was only two years baby, therefore this Court cannot take higher amount than Rs.5000/- which was taken for 9 years old boy. Therefore, this Court by relying upon the said judgment, is of the view that in the present case the notional income fixed by the tribunal at Rs.10,800/- for the deceased who was 2 years old is excessive and the same needs to be modified.
9. Hence, this Court by following the observation made in the said judgment http://www.judis.nic.in 6 reported in 2019 (1) TNMAC 672 (DB) in the case of National Insurance Co.Ltd Vs. R.Vimala fix the notional income at Rs.5,000/- per month, and after deducting 1/3 towards personal expenses and applying multiplier at 15, arrived the the loss of dependency Rs.6,00,000/- which is proper. Considering the fact that the claimants who are the parents, lost their 2 years old baby, this Court inclined to enhance the sum awarded for Loss of love and affection from Rs.10,000/- to Rs.25,000/- and the sum awarded for Funeral expenses from Rs.8,000/- to Rs.15,000/- and since the sum awarded towards loss to estate at Rs.10,000/- is found reasonable, the same is confirmed.
9. The break-up detais of the enhanced compensation awarded by this Court is as under.
S.No Description Amount awarded Amount awarded by
by Tribunal this Court
(Rs) (Rs)
1. Loss of dependency 9,72,000/- 6,00,000
(10,800 x 12 x 15 - (5000 x 12 x 15 -
1/2) 1/3)
2. Loss of Love and 10,000 25,000
Affection
3. Loss of Estate 10,000 10,000
4. Funeral Expenses 8,000 15,000
Total 10,00,000 6,50,000
10. In the result,
(i)The Civil Miscellaneous Appeal is partly allowed. No costs.
http://www.judis.nic.in
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Consequently, connected miscellaneous petition is closed.
(ii)The compensation awarded by the Tribunal is reduced from Rs.10,00,000/- to Rs. 6,50,000/-, shall carry interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit.
(iii) Since it is represented by the appellant that the entire award amount has been deposited before the tribunal, the appellant/Transport Corporation is permitted to withdraw the remaining amount after deducting the modified award passed by this Court. The tribunal is directed to transfer the modified award amount to the claimants' bank account through RTGS within a period of two weeks, as per the apportionment ordered by the tribunal, if not already transfered.
28.06.2019 Internet : Yes Index : Yes/No Speaking/Non-speaking order ak To The Principal District Judge, (The Motor Accident Claims Tribunal) Cuddalore.
S. RAMATHILAGAM.J., ak http://www.judis.nic.in 8 C.M.A.No.2002 of 2019 and M.P. 7147 of 2019 28.06.2019 http://www.judis.nic.in