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2010 DIGILAW 1037 (KAR)

Lakshmi v. Managing Director, Tamilnadu State Transport Limited

2010-09-27

H.S.KEMPANNA, N.K.PATIL

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Judgment :- N.K. Patil, J. These two appeals by the claimants and Tamil Nadu State Transport Corporation Limited (hereinafter referred to as ‘Corporation’ for short) respectively, are directed against the very same judgment and award dated 8th August 2005, passed in M.V.C. No.6718/2004, by the learned Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-9), (for short, ‘Tribunal’), awarding compensation of Rs.8,09,000/- in favour of the claimants as against their claim for Rs.30,00 Lakhs. 2. While the claimants have filed the appeal on the ground that the compensation awarded is inadequate and needs enhancement, the Corporation has filed the appeal on the ground that the Tribunal is not justified in fastening 100% liability on it and hence, the impugned judgment and award passed by Tribunal is liable to be modified by fixing some percentage of contributory negligence on the part of the deceased also. 3. The facts in brief are that, claimant No.1 is the mother, claimant No.2 is the wife and claimant Nos.3 and 4 are the children of the deceased A. Raja Gopalan, S/o. late Aravamudhan. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 7:30 A.M. on 01-09-2004, when the deceased was entering the Hosur Bus stand to catch a bus to Bangalore, at that time, a Bus belonging to Tamil Naud State Transport Corporation bearing No.TN-29/N-1048, route No.42-A entered the Bus Stand from Hosur with a high speed, in a rash and negligent manner and dashed against the deceased, due to which, he fell down and the wheel of the bus ran over the deceased, as a result of which, he sustained crush injury and succumbed to the same at the spot. 4. It is the case of the claimants that, the deceased was hale and healthy prior to the date of accident, which resulted in his death and the he was aged about 45 years, working as Stenographer in Special Bureau, Government of India, drawing salary of Rs.12,745/- per month and was contributing the entire sum towards the family requirements. 4. It is the case of the claimants that, the deceased was hale and healthy prior to the date of accident, which resulted in his death and the he was aged about 45 years, working as Stenographer in Special Bureau, Government of India, drawing salary of Rs.12,745/- per month and was contributing the entire sum towards the family requirements. It is their further case that, the deceased had left with another 15 years service and had great promotional opportunities in future apart from pay revision and in view of his untimely death, the family has become haywire and they are in great financial distress and have lost the only source of social security. Therefore, they have prayed for enhancement of compensation awarded by Tribunal. 5. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs.30.00 lakhs against the Corporation. The said claim petition had come up for consideration before the Tribunal on 8th August 2005. the Tribunal, after considering he relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.8,09,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants are in appeal before this Court, seeking enhancement of compensation. 6. We have heard learned counsel for claimants and learned counsel appearing for Corporation for considerable length of time. 7. The principal submission canvassed by the learned counsel appearing for claimants, at the outset, is that, the deceased was about 45 years and working as a Central Government employee and was left with another 15 years of service. In view of the law laid down by the Hon’ble Apex Court in Sarla Verma’s case ( 2009 ACJ 1298 ), 30% of the gross salary must be taken as the prospective income and added to the gross monthly salary of the deceased, for arriving at the compensation payable towards loss of dependency. Further, she submitted that the Tribunal erred in deducting 1/3rd towards the personal expenses of the deceased, when in fact, it ought to have deducted 1/4th since the dependents are four. Further, she submitted that the Tribunal erred in deducting 1/3rd towards the personal expenses of the deceased, when in fact, it ought to have deducted 1/4th since the dependents are four. Therefore, she submitted, after deducting necessary income tax, applying proper multiplied and deducting 1/4th towards the personal expenses of the deceased, just and reasonable compensation may be awarded. 8. As against this, learned counsel appearing for Corporation, into alia, contended and vehemently submitted that, the Tribunal, without appreciating the oral and documentary evidence in its proper perspective, has grossly erred in fastening the entire liability on the Corporation. Therefore, after re-appreciation of the oral and documentary evidence, some percentage of negligence may be fastened on the part of the deceased and accordingly, the impugned judgment and award passed by Tribunal may be modified. 9. After hearing learned counsel for the parties, and after going though the original records made available, the points that arise for our consideration in these appeals are: I) Whether the Tribunal is justified in fastening the entire liability on the Corporation? II) Whether the Tribunal has awarded just and reasonable compensation? Re-Point (I): After perusal of the judgment and award passed by Tribunal, it is seen that the occurrence of accident and the resultant death of the deceased are not in dispute. For answering this point, the evidence of PW2, who is an eye witness to the accident, has to be re-appreciated. He has stated in his evidence that, when he was waiting for the bus at Hosur Bus Stand to go to Bangalore, at that time, the deceased was coming to Hosur Bust Stand and the bus belonging to Tamil Nadu State Corporation when plying from Hosur to Sarjapura on route No.42(A) bearing No.TN-29-N-1048, came with high speed in a rash and negligent manner and dashed against the deceased and consequently, the deceased fell down and the grant wheel of the bus ran over him and as a result of the same, the body of deceased was crushed and he died at the spot. The Tribunal has rightly observed that the presence of PW2 cannot be doubted at all, as he was waiting for the bus in the bus stand, which is situated about 50 ft. away from N.H4. Further, PW2 has denied the suggestion that the deceased attempted to board a moving bus and fell down on his own. The Tribunal has rightly observed that the presence of PW2 cannot be doubted at all, as he was waiting for the bus in the bus stand, which is situated about 50 ft. away from N.H4. Further, PW2 has denied the suggestion that the deceased attempted to board a moving bus and fell down on his own. Further, no worthwhile information was obtained from the said witness in his cross examination to disbelieve and discard his natural evidence. The evidence of RW1 contradicts the evidence of PW2, who has absolutely no animosity because he has deposed the things which took place in his presence, which was never questioned by the Corporation, to substantiate their case that the deceased attempted to board a moving bus and thereby he also contributed to the cause of accident. Further, it can be seen that the Police have filed the charge sheet against the deriver of the Bus, RW1, who has not disputed the accident in question. Therefore, after re-appreciation of the oral evidence of PW2 and RW1 coupled with the documentary evidence available on file, including Exs.P1 to P3, which are FIR, spot sketch and Post Mortem Report and P5, Charge sheet, we are of the considered view that the accident has occurred only due to the rash and negligent driving by the driver of the Bus belonging to Corporation and we have no hesitation in upholding the reasoning and the finding given by the Tribunal for fastening the entire liability on the Corporation for the death of the deceased. Therefore, we hold that the Tribunal is highly justified in fastening the entire liability on the Corporation and interference in the same is uncalled for. Re-Point (II): After perusal of the impugned judgment and award passed by the Tribunal and in the light of the judgment of the Apex Court in Sarla Verma’s case, we are of the view that the compensation awarded by Tribunal is on the lower side and needs to be enhanced. It is also not in dispute that the deceased was aged about 45 years and a Central Government employee, drawing monthly salary of Rs.12,745/- and was left with another 15 years of service. It is also not in dispute that the deceased was aged about 45 years and a Central Government employee, drawing monthly salary of Rs.12,745/- and was left with another 15 years of service. As rightly pointed out by the learned counsel appearing for claimants, in view of the judgment of the Apex Court in Sarla Verma’s case (Supra), 30% towards future prospects is liable to be added to the gross salary of the deceased. Accordingly, if 30% (Rs.3,823-50, rounded off to Rs.3,824/-) is added to the gross salary (Rs.12,745/-), the total monthly income comes to Rs.16,569/-, out of which, if a sum of Rs.714/- is deducted towards income tax, as per Ex.P6, Form 16 for the relevant year, the net income comes to Rs.15,855/- per month. Out of which, if 1/4th is deducted towards the personal and living expenses of the deceased, the net income comes to Rs.11,891/- per month. Since he was aged about 45 years, the appropriate multiplied, as per the decision in Sarla Verma’s case is ‘14’. Accordingly, having regard to all the above aspects, we re-determine compensation towards loss of dependency at Rs.19,97,688/- (i.e. Rs.11,891/- x 12 x 14) as against Rs.7,74,000/ awarded by Tribunal. 10. Further, the Tribunal is not justified in awarding compensation towards conventional heads. The first claimant – mother of the deceased has lost the social and financial security, the second claimant the wife has lost the partner of her life at such an young age and claimants 3 and 4 – who are minor children, have lost the natural love and affection of their father permanently. Therefore, taking all these aspects into consideration, we award we award a sum of Rs.20,000/- towards loss of love and affection, at the rate of Rs.5,000/- to each claimant, Rs.10,000/- towards loss of estate, Rs.10,000/- towards transportation of dead body and funeral expenses and a sum of Rs.10,000/- towards loss of consortium. 11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Corporation is dismissed as being devoid of merits. 11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Corporation is dismissed as being devoid of merits. The impugned judgment and award dated 8th August 2005, passed in M.V.C. No.6718/2004, by the learned Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-9), is hereby modified, awarding a sum of Rs.20,47,688/- as against Rs.8,09,000/- awarded by the Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows: Towards Loss of Dependency Rs. 19,97,688/-Towards Loss of love and affection Rs.20,000/- Towards Loss of estate/loss of expectancy Rs.10,000/- Towards loss of consortium Rs.10,000/- Towards transportation of dead body and funeral expenses Rs.10,000/- Total Rs. 20,47, 688/-The Corporation is directed to deposit the enhanced compensation of Rs.12,38,688/-within interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. Immediately on such deposit by the Corporation, out of the enhanced compensation of Rs.12,38,688/-, a sum of Rs.3,00,000/- each with proportionate interest, shall be invested in Fixed Deposit, in any Nationalized or Scheduled Bank, in the names of the third and fourth claimants – minor children of deceased, till they attain the age of majority, with liberty reserved to second claimant to withdraw the interest periodically, for their welfare. Further, a sum of Rs. 4,00,000/- with proportionate interest, in the name of the second claimant, for a period of five years, renewable for another five years, and a sum of Rs. 1,00,000/- with proportionate interest, in the name of the first claimant, for a period of three years, shall be invested in Fixed Deposit, in any Nationalized or Scheduled Bank, with liberty reserved to them to withdraw their respective interest, periodically. The remaining sum of Rs. 1,38,688/- with proportionate interest shall be released in favour of the claimants 1 and 2, in equal proportion, immediately. Office to draw award, accordingly.