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2010 DIGILAW 122 (MAD)

The Managing Director, Tamil Nadu State Transport Corporation (Salem)Ltd. , Salem v. Lakshmanan & Others

2010-01-18

N.KIRUBAKARAN

body2010
Judgment :- The appeal is filed by the Transport Corporation aggrieved by the award of Rs.3,85,000/-for the death of one Mr.R.Rajendran. .2. Thefacts of the case are as follows:- .The deceased, Mr.R.Rajendran on 212. 1999 tried to get into town bus belonging to the appellant and the driver suddenly started and moved the bus and due to which the deceased fell down and the bus ran over him and he died on the spot. Hence, the claim petition was filed claiming a sum of Rs.5,00,000/- which was resisted by the appellant/Transport Corporation. After appreciation of the pleadings and evidence on record, the Tribunal found that the Transport Corporation driver drove the bus in a rash and negligent manner and awarded a sum of Rs.3,85,000/- as compensation. Aggrieved by that, the appellant/Transport Corporation is before this Court. 3. Mr.V.Ramesh, the learned counsel for the appellant confined his argument only with regard to the quantum of compensation. However, in paragraph 6 of the award, the Tribunal enumerated the details of the accident occurred and on appreciation of evidence of PW1 and 2, RW1 and Ext.P1 came to the conclusion that the accident occurred because of the rash and negligent driving of the Transport Corporation driver. The finding is based on the evidence and therefore this Court confirms the findings with regard to the negligence. 4. As far as the quantum is concerned, the learned counsel for the appellant submitted that the deceased was a bachelor and worked as an Accountant in power loom factory and absolutely there was no evidence to that effect before the Court and that the Court also rightly found in paragraph 7 of the award that the claimant could have either summoned any one attached to the factory or caused to be produced the documents relating to the employment of the deceased in the said factory and therefore the Tribunal was not inclined to believe the version of the claimant regarding the employment of the deceased. The learned counsel further submitted that having reached the above conclusion, the Tribunal wrongly fixed the monthly income at Rs.2,500/-. In the absence of proof with regard to the income, the Tribunal should have followed the notional income as per the Motor Vehicles Act. 5. Thedate of accident which occurred was on 212. 1999. The learned counsel further submitted that having reached the above conclusion, the Tribunal wrongly fixed the monthly income at Rs.2,500/-. In the absence of proof with regard to the income, the Tribunal should have followed the notional income as per the Motor Vehicles Act. 5. Thedate of accident which occurred was on 212. 1999. Even though there is no evidence with regard to the employment, the Honourable Supreme Court in New India Assurance Company Vs. Kalpana (Smt. and others) reported in 2007 (3) SCC 538 held that in the absence of any definite material or proof regarding income, the monthly contribution of the viction to the family after deduction of personal expenses was fixed at Rs.3,000/-per month. In that case the accident occurred on 07.06.1999. Therefore, this Court is inclined to follow the said judgment and fixes the monthly contribution of the deceased family after 1/3 deduction as Rs.3,000/- per month. .6. As far as the age of the deceased is concerned, the learned counsel for the appellant submitted that there is no proof before this Court and the deceased was aged about 27 years. Further, Ext.P2 post-mortem certificate reveals that the age of the deceased was 27 years. Hence, the Tribunal rightly followed multiplier by 18 as per second schedule of the Motor Vehicles Act and therefore, the multiplier adopted by the Tribunal cannot be found fault with. As this Court fixed the monthly contribution of the deceased to the family at Rs.3,000/-, the loss of income is, Rs.3,000/- x 18 x 12 = Rs. 6,48,000/- .7. As far as the other amounts given for transportation, funeral expenses and loss of love and affection are confirmed, the award of the Tribunal is enhanced from Rs.3,85,000/- to Rs.6,78,000/-in the following manner :- .Towards loss of income Rs. 6,48,000/- Funeral Expenses Rs. 5,000/- Transportation Rs. 5,000/- Loss of Love and affection Rs. 20,000/- Rs. 6,78,000/- 8. The learned counsel for the appellant opposed the enhancement of compensation in the appeal filed by the appellant/Transport Corporation. However, it is well settled principle of law under Section 173 of the Motor Vehicles Act, this Court can re appreciate the entire evidence and can come to its own conclusion. Secondly, under order 41, rule 33 read with Section 151 and Article 227 of the Constitution of India, this Court can enhance the amount even in the absence of appeal/cross appeal by the claimant. Secondly, under order 41, rule 33 read with Section 151 and Article 227 of the Constitution of India, this Court can enhance the amount even in the absence of appeal/cross appeal by the claimant. What is material is whether the Tribunal rightly determined and awarded just and fair compensation. It is held by the Honourable Supreme Court in Nagappa Vs. Gurudayal Singh reported in 2003 (2) SCC page 274, Mahant Dhangir Vs. Madhan Mohan reported in AIR 1988 SC 54 , Tamil Nadu Transport Corporation Vs. Saroja, Minor Kavitha, Minor Vadivelu (Minor 2,3-respondents by their mother first respondent) reported in 2008 (1) TNMAC 352, APSTRC Vs. Rama Devi and others reported in 2008 (1) TNMAC 234 (SC), that this Court can enhance the compensation even in the absence of appeal/cross appeal by the claimants. .9. As far as the deduction of 1/3 towards personal expenses, the learned counsel for the appellant would rely upon the judgment reported in 2009 (2) TNMAC 118 (SC) and submitted that on death of a bachelor, 50% amount has to be deducted. In India, the normal rule is deduction of 1/3 towards personal expenses. Further, in Oriental Insurance Company Vs. Deo Patodi reported in 2009 (8) SCC Scale 194, it has been held that the deduction of 1/3 towards personal expenses is the normal rule in India. In Fakeer Appa and another Vs. Karnataka Cement Pipe Factory and others reported in 2004 (2) Scale 428 where there was death of a bachelor, 1/3 amount alone was deducted. Similarly the case in Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and others reported in 2006 (3) SCC 242 . Even in Bilkish Vs. United India Insurance Company Ltd and another reported in 2008 (4) SCC 259 , Bangalore Metropolitan Transport Corporation Vs. Sarojamma and another reported in 2008 (5) SCC page 142, 1/3 amount alone was deducted for the death of a bachelor. The judgment relied upon by the learned counsel for the appellant is no doubt is inrespect of a bachelor. However, there is unanimity of the judgments referred to above with regard to 1/3 deduction. Apart from that this Court only followed the Judgment of Kalpana case reported in 2007 (3) SCC 538 and fixed the monthly contribution after deduction at Rs.3,000/-and therefore, this Court takes the monthly contribution as Rs.3,000/-. 10. The Tribunal awarded 9% interest. However, there is unanimity of the judgments referred to above with regard to 1/3 deduction. Apart from that this Court only followed the Judgment of Kalpana case reported in 2007 (3) SCC 538 and fixed the monthly contribution after deduction at Rs.3,000/-and therefore, this Court takes the monthly contribution as Rs.3,000/-. 10. The Tribunal awarded 9% interest. However, considering the date of accident, this Court reduces the interest from 9% to 7.5%. Accordingly, the appeal preferred by the Transport Corporation is dismissed with enhancement of compensation from Rs.3,85,000/- to Rs.6,84,000/- in favour of respondents/claimants. 11. The learned counsel for the appellant submits that the entire award amount as per the Lower Court order was deposited before the Court and 50% of the amount was already withdrawn by the claimants. Hence, the Tribunal is directed to pay the balance 50% of deposited amount within two weeks from the date of receipt of the copy of the order. The appellant is granted eight weeks time to deposit the balance award amount as per this Court order. On such deposit the Tribunal is directed to pay the entire amount to be deposited to the claimant after payment of additional Court fee for the enhanced amount within two weeks from the date of payment of Court fee for the enhanced amount. 12. Accordingly, the appeal is disposed of.