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2009 DIGILAW 4078 (MAD)

Sathass & Others v. V. M. Palanisamy & Others

2009-10-06

C.S.KARNAN

body2009
Judgment :- The appellants have filed this civil miscellaneous appeal against the judgment and award of the learned Principal District Judge, Erode District, Erode in M.A.C.T.O.P.No.59 of 2004, dated 210. 2004 awarding a sum of Rs.1,82,000/-. 2. Aggrieved by the said order, the appellants have filed the appeal praying for additional compensation of Rs.1,50,000/-. 3. The brief facts of the case are as follows;- On 012. 2003 at about 09.00 p.m. the deceased was riding his moped bearing registration no TN-33-M-4568 from Erode to Veepampalayam pirivu. When he was going near Amman koil at Thindal, the State Transport Corporation bus bearing registration No. TN-33-N-1017, driven by the first respondent in the same direction at a hectic speed, dashed against the moped of the deceased from behind. Because of this, the deceased was thrown out and sustained injuries and died on the spot. The accident happened only due to the rash and negligent driving of the bus by the first respondent. As such, a criminal case was registered against him. The deceased was aged 43 years and was earning Rs.5,000/- per month as a Mosaic designer and polishman. Hence, the petitioners who are the wife, children and parents of the deceased had prayed for a compensation of Rs.5,00,000/- as against the respondents, who are the driver and owner of the bus involved in the accident. 4. The first respondent was exonerated. 5. The second respondent, the Tamil Nadu State Transport Corporation Limited (Coimbatore Division II) in their counter submitted that on 012. 2003, the first respondent, the driver of the bus bearing registration No.TN-33-N-1017 drove the bus in a normal speed and that at that time, the deceased who was riding his TVS 50 Moped bearing registration No.TN-33-M-4568 suddenly crossed the road without hearing the horn of the bus and dashed at the left side back portion of the bus and thus, invited the accident. The accident happened only on the negligence of the rider of the moped and the driver of the bus was not at fault. Further, the second respondent denied the age, occupation and income of the deceased. Further the petitioners were asked to prove their legal heir ship. Further, the insurance company of the TVS 50 moped should have been added as necessary party. Further, the compensation asked for is excessive and hence prayed for dismissal of the petition. 6. Further, the second respondent denied the age, occupation and income of the deceased. Further the petitioners were asked to prove their legal heir ship. Further, the insurance company of the TVS 50 moped should have been added as necessary party. Further, the compensation asked for is excessive and hence prayed for dismissal of the petition. 6. To prove the case of the petitioners, the first petitioner was examined as PW1. Further PW2-Palanisamy and PW3-kulandaivel were also examined and exhibits A1 to A8 were marked. The first respondent was examined as RW1 and no document was marked on the side of the respondents. 7. The Motor Accidents Claims Tribunal framed three issues to be decided in this case namely; 1) Whether the accident happened due to the rash and negligent driving of the bus bearing registration No.TN-33-N-1017 by the first respondent? 2) Whether the petitioners are entitled to compensation? If so, to what amount? and 3) To what relief? 8. To prove the case of the petitioners, the petitioners have examined one Palanisamy as PW2, who would state in his proof affidavit that on 012. 2003, at about 9 p.m., when he was standing in front of Kalyan store at Thindal, he saw the deceased riding his TVS 50 moped from east to west. At that time, the bus bearing registration No.TN-33-N-1017 belonging to the second respondent corporation, driven by its driver in a rash and negligent manner from east to west, dashed against the Moped from behind, because of which the deceased was thrown on the road and sustained head injuries and died on the spot itself and the owner of Kalyan stores has preferred a complaint with regard to the accident to the police. Apart from this, the first petitioner, the wife of the deceased has examined herself as PW1 and produced Ex.A1- first information report; Ex.A2-observation mahazar; Ex.A3- rough sketch; Ex.A4-Motor vehicle inspectors report pertaining to the bus bearing registration No.TN-33-N-1017; Ex.A5-motor vehicle inspectors report pertaining to the TVS 50 moped TN-33-M-4568; Ex.A-6 Postmortem certificate and EX.A7- charge sheet. A perusal of Ex.A1 would go to show that with regard to the accident a case in Crime No.334/2003 of Erode Taluk Police Station was registered against the driver of the bus TN-33-N-1017. A perusal of Ex.A1 would go to show that with regard to the accident a case in Crime No.334/2003 of Erode Taluk Police Station was registered against the driver of the bus TN-33-N-1017. A perusal of Ex.A3-rough sketch would go to show that subsequent to the accident, the bus travelled to a distance of 30 feet from the place of impact and the accident took place at the left extreme of the road i.e. on the east extreme of the road. 9. To counteract the evidence adduced on the side of the petitioners, the first respondent was examined as RW1, who stated in his proof affidavit that the deceased was driving his TVS 50 moped and in his attempt to cross the road from the cross road and dashed on the left side of the bus and so he fell down on the road. 10. A perusal of the rough sketch would go to falsify the evidence of RW1, since the place of impact is on the left extreme of the road and there is no cross road approaching the main road at the place of impact. As such, the Court was not inclined to believe the evidence of RW1. Further, after completing the investigation, the investigating officer had laid the charge sheet only against the first respondent. Considering the evidence of PW1 and PW2 and considering the documentary evidence of Exs.A1 to A7 this Court comes to the conclusion that the accident happened only due to the rash and negligent driving of the bus bearing registration No.TN-33-N-1017. Hence, this point is answered in favour of the petitioners and as against the respondents. 11. As it was established that the accident happened due to the rash and negligent driving of the bus bearing registration No.TN-33-N-1017, the second respondent, State Transport Corporation, as the owner of the bus involved in the accident was held liable to pay the compensation to the petitioners, since the deceased succumbed to the injuries sustained by him as it is evident through Ex.A6, postmortem certificate. Then, the Court, to decide on how much the petitioners would be entitled to as compensation, took the age of the deceased as 43 years because as per Ex.A6-postmortem certificate, the age of the deceased was fixed by doctor as 40 years. Then, the Court, to decide on how much the petitioners would be entitled to as compensation, took the age of the deceased as 43 years because as per Ex.A6-postmortem certificate, the age of the deceased was fixed by doctor as 40 years. But, as the petitioners themselves have stated that the age of the deceased was 43, the Court took the age of the deceased as 43 years. For establishing the income of the deceased, PW3, who is the employer of the deceased was examined. In his poof affidavit, it was stated that the deceased was working in his mosaic company namely Valli Murugan Mosaics and that the deceased was working as a daily wage earner as laying and polishing worker at the rate of Rs.100/- per day and batta of Rs.20/- per day. He also issued Ex.A8-salary certificate to show that the deceased was being paid Rs.100/-per day. Further PW3 has not produced any document to show that he is actually running the mosaic company by submitting his licence or any other connected relevant document. As such, this Court decided not to believe the evidence of PW3, for proof of income of the deceased. Considering the age of the deceased, the Court fixed the income of the deceased as Rs.1,500/- per month. If 1/3rd of this income is deducted towards his personal expenses, the monthly contribution to his family would be Rs.1,000/- and the annual contribution to the family would be Rs.12,000/-As the Court had fixed the age of the deceased as 43, then the multiplier of 15 was applied as per second schedule under Section 163(A) of the Motor Vehicles Act. The actual contribution was worked out as Rs.1,80,000/-. Apart from this another sum of Rs.2,000/-was also awarded towards funeral expenses of the deceased. The total compensation was then worked out as Rs.1,82,000/-. As per Mohamedan law, the father and mother of deceased are entitled to 1/6th share, while the wife of deceased is entitled to 1/8th share and both the sons viz the second and third petitioners are entitled to equal share out of the remaining amount. As such the first petitioner wife was entitled to 1/8th share i.e. Rs.22,750/-; the second and third petitioners are each entitled to 13/48th share i.e. Rs.49,292 each and the fourth and fifth petitioners are entitled to 1/6th share each i.e. Rs.30,333/-. 12. As such the first petitioner wife was entitled to 1/8th share i.e. Rs.22,750/-; the second and third petitioners are each entitled to 13/48th share i.e. Rs.49,292 each and the fourth and fifth petitioners are entitled to 1/6th share each i.e. Rs.30,333/-. 12. In the result, the petition is partly allowed with proportionate costs and the petitioners were awarded a total compensation of Rs.1,82,000/- and the second respondent, Tamil Nadu State Transport Corporation was directed to deposit the amount with interest at the rate of 9% per annum from the date of petition i.e. 02.01.2004 till date of payment, within two months from this date. The respective share of the amount was directed to be deposited in Indian Overseas Bank, District Court extension Counter, Erode for a period of three years and they were entitled to receive the accrued interest, periodically, directly from the bank. The share of interest towards the award amount and proportionate costs of the minor the third petitioner was ordered to be given to the first petitioner/mother immediately after the deposit and his share of award amount was directed to be deposited in the above said bank till he attains majority and the first petitioner/mother is entitled to withdraw the accrued interest then and there from the bank. The petitioners were directed to pay the balance Court fee within 15 days from this date. Advocate fee was fixed at Rs.6,640/- and a separate cheque shall be issued in his favour and that the second respondent pay a sum of Rs.7847.50 being cost of petition to the petitioners. 13. The learned counsel for the appellants in their appeal argued that the learned Tribunal failed to see that the income of the deceased was Rs.120/- per day as per the evidence of PW3 employer and the certificate issued by PW3 as Ex.A8. They further contended that PW3 is an independent witness and the reasons given to reject his evidence was not legally sustainable. The monthly income of Rs.1,500/- per month arrived at as the monthly income of deceased was erroneous and conservative. The learned Judge has also failed to grant any award towards loss of consortium to the first appellant, loss of love and affection towards appellants 2 to 5. Hence, the learned counsel for appellants argued that the quantum of compensation awarded was low and has got to be enhanced. 14. The learned Judge has also failed to grant any award towards loss of consortium to the first appellant, loss of love and affection towards appellants 2 to 5. Hence, the learned counsel for appellants argued that the quantum of compensation awarded was low and has got to be enhanced. 14. The learned counsel for the respondent/transport corporation argued that there was no income proof for the deceased at the time of accident. The claimant had mentioned in his claim petition that the deceased was a mosaic designer and polisher and the work cannot be taken as normal work done every day, and hence the question of standard income does not arise. Hence, the learned counsel for the respondent contended that Rs.1,500/- fixed as monthly salary for the deceased is just and fair. 15. For the foregoing reasons, and considering the facts and circumstance of the case, the Court is of the view that the deceased was the only earning member of his family and he had to support five dependants namely his wife, two children and aged parents. As such, the deduction towards personal and living expenses of the deceased should be taken as 1/4 of his income and not 1/3rd as taken by the learned Principal District Judge, Erode, as the number of dependants are more than four. Further even considering the fact that the deceased did not have any income proof, the salary of Rs.1,500/- fixed by the learned District Judge, is too conservative, especially considering the fact that the deceased was supporting a big family. Even though the deceased may not have earned a steady salary, considering the nature of his work as a mosaic polisher and designer, his salary could be taken as Rs.2,000/- per month for practical purposes considering the year of the accident i.e. 2003. Accordingly this Court has taken his annual contribution to the family as Rs.2000 -1/4th X 2000 = 1,500 X 12 = Rs.18,000/- . Applying the multiplier of 15, as per second schedule under Section 163-A of Motor Vehicles Act, the actual contribution is worked out as Rs.2,70,000/-Further this Court awards a compensation of Rs.2,000/-for funeral expenses; Rs.15,000/- for loss of love and affection and Rs.10,000/-for loss of consortium. In total, this Court awards a total compensation of Rs.2,99,000/-i.e. the award amount given by the learned District Judge, Erode has been enhanced by Rs.1,17,000/-. In total, this Court awards a total compensation of Rs.2,99,000/-i.e. the award amount given by the learned District Judge, Erode has been enhanced by Rs.1,17,000/-. This Court directs the second respondent to deposit the balance enhanced award amount with interest at 7.5% per annum from the date of the filing the claim petition till the date of deposit into the credit of MACT OP.No.59 of 2004 on the file of the learned Principal District Judge, Erode District, Erode, within six weeks from the date of receipt of a copy of this order. The balance enhanced award amount is apportioned among the petitioners as under; 1) first petitioner/wife of deceased = Rs.14,625/- 2) second and third petitioners = Rs.31,687.50/- each 3) fourth and fifth petitioners (parents of deceased) = Rs.19,500/-each 16. It is open to the appellants to withdraw their respective share of award amount with accrued interest after filing necessary payment out application in accordance with law, except the third claimant/third appellant. As he is a minor, his share of award amount should be deposited in a nationalised bank till he becomes a major and the accrued interest of the third appellant (minor) can be received by the first appellant as natural guardian, once in six months, directly from the bank. Resultingly, the civil miscellaneous appeal is allowed in above terms and consequently the award passed by the Motor Accident Claims Tribunal/Principal Sub Court, Erode in MCOP No.59 of 2004 is modified. The parties are directed to bear their own costs in this appeal.