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2014 DIGILAW 2084 (MAD)

Managing Director v. K. V. Suganya

2014-07-11

S.VIMALA, V.DHANAPALAN

body2014
JUDGMENT V. Dhanapalan, J. 1. The Transport Corporation is the appellant. The award of compensation by the Motor Accidents Claims Tribunal (III Additional District Judge), Poonamallee, in M.C.O.P.No.969 of 2011 at Rs.43,55,000/-for the death of one Dinesh Kumar, to the claimants, who are the wife, son and parents of the deceased, is under challenge in this appeal. 2. Brief facts are that on 09.06.2011 at about 08.15 a.m., Dinesh Kumar, the deceased herein, was riding a motorcycle bearing Reg.No.TN 33 AF 0286 towards Porur on Poonamallee Trunk Road at the junction of Kumananchavadi Seppoy Nagar and at that time, the bus bearing No.TN 23 N 1986 belonging to the appellant/Corporation was driven by its driver in a rash and negligent manner at a high speed and dashed against the motorcycle driven by the deceased Dinesh Kumar, thereby caused the accident. On account of this, the deceased Dinesh Kumar sustained multiple injuries and died in the hospital. On the basis of the complaint given by one Karthigeyan, the eye witness, a case was registered in Crime No.1094/PH1/2011 by the Poonamallee Highway Traffic Investigation police for offences under Sections 279 and 337 I.P.C. Alleging that the accident was due to the rash and negligent driving of the driver of the appellant/Corporation, the claimants, viz., the wife, son and parents of the deceased, have filed the claim petition, claiming compensation of Rs.70 lakhs. 3. Resisting the claim petition, the appellant/Corporation filed a counter affidavit before the Tribunal. In the counter affidavit, they have denied the manner of accident as alleged by the claimants and claimed that the driver of the appellant/Corporation is not responsible for the accident and the accident had happened only due to the carelessness and negligent act of the deceased. The appellant/ Corporation also disputed the age and monthly income of the deceased. 4. Before the Tribunal, the wife of the deceased has been examined as P.W.1; the eye witness, Karthigeyan, who laid the complaint before the police, has been examined as P.W.2 and the Regional Engineer of the company in which the deceased was working, has been examined as P.W.3. Exs.P.1 to P 11 have been marked on the side of the claimants. On the side of the appellant/Corporation, the driver of the bus, has been examined as R.W.1. No documents were marked on the side of the respondent. 5. Exs.P.1 to P 11 have been marked on the side of the claimants. On the side of the appellant/Corporation, the driver of the bus, has been examined as R.W.1. No documents were marked on the side of the respondent. 5. Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the appellant/Corporation and that the appellant/Corporation is liable to pay the compensation. 6. As regards the quantum of compensation payable, the Tribunal found that at the time of accident, the age of the deceased was claimed as 28 years and he was working in a private concern, viz., Thermik Technologies and earning a sum of Rs.40,000/- per month. On the basis of the documents marked, i.e., Exs.P6 - Annexure to the appointment order; Ex.P7-Authorisation letter given by the employer-company to P.W.3; Ex.P8 series - Pay slips; and Ex.P9 - Annexure to the appointment letter showing the break-up details of the deceased salary, coupled with the oral testimony of P.W.3, the Tribunal fixed the monthly income of the deceased at Rs.30,000/-and after deducting one-third towards personal expenses, Rs.20,000/-has been fixed as monthly contribution to the family. 7. Before the Tribunal, the age of the deceased was claimed at 28 years and in support of the claim, Ex.P10 - copy of the driving licence of the deceased has been marked, wherein the date of birth of the deceased is mentioned as 09.10.1982. Taking note of the same and applying the second schedule of Section 163-A of the Motor Vehicles Act and as per the guidelines given by the Apex Court in Sarlaverma Case, reported in 2009 (2) TN MAC 1 (SC), the Tribunal fixed the age of the deceased at 28 years. Accordingly, the Tribunal arrived at the loss of dependency at Rs.43,20,000/-. Adding a sum of Rs.10,000/- towards funeral expenses, Rs.15,000/- towards loss of love and affection and Rs.10,000/-towards loss of consortium, the Tribunal awarded total compensation of Rs.43,55,000/-, to be payable at 7.5 % p.a. Out of the said amount of compensation, the Tribunal held that the first claimant/wife is entitled to a sum of Rs.28,00,000/-, 2nd claimant/son is entitled to a sum of Rs.10,55,000/-and the 3rd and 4th claimants are each entitled to a sum of Rs.2,50,000/-, with accrued interest. 8. 8. Learned counsel for the appellant Corporation mainly contended that the award of compensation at Rs.43,55,000/- with interest at 7.5% p.a. is without any basis and material evidence on record and the compensation is highly excessive and it is against the principle laid down by the Supreme Court in various decisions and therefore, the award is liable to be set aside. 9. On the other hand, learned counsel for the respondents / claimants would submit that the Tribunal, after carefully analysing the oral and documentary evidence, applied the proper multiplier and arrived at a just and reasonable compensation and therefore, it cannot be found fault with. 10. We have considered the submissions made by the learned counsel on either side and perused the records. 11. Perusal of the records would show that at the time of accident, the deceased was working as Regional Sales Engineer, Department of Sales, in Thermik Technologies SDN.BHD India, Division Office at Chennai and by examination of P.W.3, the said fact has been established and it has also not been disputed by the appellant/Corporation. 12. It is claimed that at the time of accident, the deceased was earning a sum of Rs.40,000/-and in support of the said claim, Exs.P6, P8 and P9 have been marked. On careful scrutiny of the material evidence available on record, including the oral testimony of P.W.3, the Regional Engineer, the Tribunal has fixed the monthly income of the deceased at Rs.30,000/-. and after deducting one-third towards personal expenses, the Tribunal fixed a sum of Rs.20,000/-as the monthly contribution to the family. 13. As regards the age of the deceased, the Tribunal has taken into consideration the copy of the driving licence possessed by the deceased at the time of accident. In the claim petition, the age of the deceased Dinesh Kumar is mentioned as 28 years at the time of accident. In order to prove the same, the copy of the driving licence has been marked as Ex.P10 on the side of the claimants. In Ex.P10, the date of birth of the deceased has been mentioned as 09.10.1982. Therefore, the Tribunal has come to the conclusion that the deceased Dinesh Kumar has just completed 28 years, but not exceeding 30 years. Accordingly, the Tribunal fixed the age of the deceased as 28 years. 14. In Ex.P10, the date of birth of the deceased has been mentioned as 09.10.1982. Therefore, the Tribunal has come to the conclusion that the deceased Dinesh Kumar has just completed 28 years, but not exceeding 30 years. Accordingly, the Tribunal fixed the age of the deceased as 28 years. 14. As regards the multiplier to be adopted, the Tribunal followed the guidelines given by the Supreme Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC) wherein the Hon'ble Supreme Court, compared the multiplier indicated in various decisions with the multiplier mentioned in the second schedule of Section 163-A of Motor Vehicles Act and identified a table. The relevant portions in the said judgment read as under: "19. In New India Assurance Co. Ltd. vs. Charlie [ 2005 (10) SCC 720 ], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [ 2005 (6) SCC 236 ] and UP State Road Transport Corporation vs. Krishna Bala [ 2006 (6) SCC 249 ]. This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [ 2005 (6) SCC 236 ] and UP State Road Transport Corporation vs. Krishna Bala [ 2006 (6) SCC 249 ]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) : Age of deceased Multiplier Scale as envisaged in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and others, 1994(2) SCC 176 Multiplier Scale as adopted by U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996 (4) SCC 362 Multiplier Scale in U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996(4) SCC 362 as clarified in New India Assurance Company Ltd. v. Charlie and another, 2005 (10) SCC 720 Multiplier Specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to M.V. Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Upto 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above 65 years 5 5 5 5 5 20. Tribunals/courts adopt and apply different operative multipliers. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable. 21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 14.1. Following the above principle, the Tribunal fixed the multiplier as 18. After taking into consideration all the relevant factors, the Tribunal has arrived at the just and reasonable compensation of Rs.43,20,000/- towards loss of dependency. 14.1. Following the above principle, the Tribunal fixed the multiplier as 18. After taking into consideration all the relevant factors, the Tribunal has arrived at the just and reasonable compensation of Rs.43,20,000/- towards loss of dependency. The amount awarded under other heads, viz., funeral expenses, loss of love and affection and loss of consortium, are also notional and cannot be construed as excessive. Therefore, we have no other option except to confirm the award of the Tribunal, which is in conformity with the rule of law. 15. In the result, the compensation awarded by the Tribunal in M.C.O.P.No.969 of 2011 at Rs.43,55,000/- payable with interest at 7.5% per annum is confirmed and the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 16. At the time of admission of the appeal, the appellant Corporation has been directed to deposit 75% of the award amount together with accrued interest and costs. The Appellant/Corporation is now directed to deposit the entire award amount together with interest and costs, less the amount already deposited if any. On such deposit, respondents 1, 3 and 4 are permitted to withdraw their respective shares of compensation, as apportioned by the Tribunal. In so far as the share of the minor second respondent/second claimant is concerned, the same shall be deposited in any one of the nationalised banks under reinvestment scheme till the minor attains majority. The first claimant/mother of the minor second claimant is entitled to withdraw the interest accrued on the said deposit once in three months directly from the bank.