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2017 DIGILAW 152 (MAD)

Managing Director, TNSTC v. Jamuna Rani

2017-01-10

J.NISHA BANU, R.SUBBIAH

body2017
JUDGMENT : R. Subbiah, J. Both the appeals have been filed as against the award dated 21.02.2014 made in M.C.O.P. No.167 of 2011 by the Motor Accidents Claims Tribunal/Special District Judge, Thanjavur. 2. C.M.A.(MD).No.543 of 2014 has been filed by the Transport Corporation questioning the entire liability fixed by the Tribunal on the driver of the appellant/Transport Corporation bus as well as the quantum of compensation awarded by the Tribunal. 3. C.M.A.(MD).No.206 of 2016 has been filed by the claimants seeking enhancement of the compensation awarded by the Tribunal. 4. Since both the appeals have been filed against one and the same award, these appeals were heard together and are disposed of by way of this common judgment. 5. For the sake of convenience, the parties are referred as per their rank in M.C.O.P.(MD).No.167 of 2011 and C.M.A.(MD).No.206 of 2016. The appellants/claimants 1 to 5 are the wife, minor son, minor daughter, mother and father of the deceased Srikanth @ Palanivel respectively. 6. The case of the claimants before the Tribunal is that on 14.10.2010 the deceased drove his 407 type load vehicle bearing Registration No.TN-51-Z-8716 and stopped the same at 01.15 a.m. near S.V.R. Shop, Ayyampettai Bye-pass Road, situated on Thanjavur - Kumbakonam Road and after switching on the parking light, both the deceased and one Rajamurthy, who travelled along with the deceased in the vehicle, alighted from the van, came to the rear side of the vehicle and opened the rear side door of the van. Then, they were engaged in unloading the goods from the van. At that time, a Transport Corporation bus bearing Registration No.TN-49-N-1685, which came from north to south direction on the said road in a rash and negligent manner, dashed against the front side of the van, due to which the deceased and Rajamurthy, who were unloading the goods in the rear side of the vehicle, sustained serious injuries and the deceased viz., Srikanth @ Pazhanivel died on the spot. 7. The claimants 1 to 5, who are the legal heirs of the deceased, filed a claim petition before the Motor Accidents Claims Tribunal as against the Transport Corporation claiming a sum of Rs. 75 lakhs as compensation. 7. The claimants 1 to 5, who are the legal heirs of the deceased, filed a claim petition before the Motor Accidents Claims Tribunal as against the Transport Corporation claiming a sum of Rs. 75 lakhs as compensation. The claim of the appellants/claimants was resisted by the respondent Transport Corporation by contending that on the date of the accident, the bus bearing Registration No.TN-49-N-1685 was driven by its driver by observing the Motor Vehicles Rules in a careful manner at a slow speed. At that time, another vehicle, which came from the opposite direction in a hectic speed and rash and negligent manner, crossed the median line and came to the wrong side of the road. In order to avoid the accident, the driver of the bus slowed the bus and went on the left side of the road. While doing so, the bus hit the van bearing Registration No.TN-51-Z-8716 which was parked on the wrong side of the road, without switching on the parking light. In that process, the deceased, who was unloading the goods from the van, was hit by the bus and died on the spot. According to the respondent/Transport Corporation, the deceased himself invited the accident by parking the vehicle on the wrong side of the road. Therefore, it cannot be said that the driver of the bus was solely responsible for the accident. Further, the quantum of compensation awarded by the Tribunal is on higher side. Thus, the Transport Corporation sought for dismissal of the claim petition. 8. In order to prove the claim, on the side of the appellants/claimants, the wife of the deceased was examined as PW1. One Ramar (PW2) was examined as eyewitness. One Mr.Chandrasekaran, who was the Marketing Executive of the Thanjavur District Co-operative Milk Producers Union Ltd., was examined as PW3, in order to prove the income of the deceased. On the side of the respondent Transport Corporation, the driver of the bus was examined as RW1. After analysing the entire evidence, the Tribunal has come to the conclusion that the accident is a result of rash and negligent driving of the driver of the Transport Corporation bus and thus, fixed the entire liability on the respondent Transport Corporation. Thus, by coming to such a conclusion, the Tribunal has calculated the compensation under different heads and passed an award for a sum of Rs. 7,87,000/-. Thus, by coming to such a conclusion, the Tribunal has calculated the compensation under different heads and passed an award for a sum of Rs. 7,87,000/-. The break up details of the amount awarded by the Tribunal is as follows: Rs. Loss of income 6,72,000/- Loss of consortium for 1st claimant 25,000/- Loss of love and affection for 2nd and 3rd claimants (Rs.25,000/- each) 50,000/- Loss of love and affection for 4th and 5th claimants (Rs.15,000 each) 30,000/- Funeral expenses 10,000/- Total 7,87,000/- 9. Now, it is the contention of the learned counsel for the Transport Corporation that at the time of the accident, the load van in which the deceased came to the spot, was parked on the left side of the road, without switching on the parking light. Therefore, the driver of the respondent Transport Corporation cannot be held responsible. In order to prove this defence, on the side of the Transport Corporation, the driver of the bus alone was examined as RW1. He is an interested witness. Since there is no corroboration from any other independent source, the evidence of RW1 cannot be accepted. On the other hand, on the side of the claimants, one Ramar was examined as PW2, who is an independent witness. He has categorically stated in his evidence that the accident was caused only due to the rash and negligent driving of the driver of the Transport Corporation bus. Therefore, this Court is not inclined to accept the submission of the Transport Corporation that the driver of the bus was no way responsible for the accident. 10. So far as the quantum of compensation is concerned, the main submission of the learned counsel for the appellants/claimants is that the deceased was earning a sum of Rs. 7,60,000/- per annum, by taking contract work from Thanjavur District Cooperative Milk Producers Union. In this regard, the claimants have produced Ex.P7. It was only the Income Tax Recovery and remittance details for the year 2009-2010 from the amount sanctioned to the contractor viz., the deceased by the Thanjavur District Co-operative Milk producers Union Ltd. 11. This Court is of the view that the amount given for the work done under contract cannot be taken as the personal income, because the contract work may involve other expenditure, like labour charges, material cost, fuel, vehicle maintenance, etc. This Court is of the view that the amount given for the work done under contract cannot be taken as the personal income, because the contract work may involve other expenditure, like labour charges, material cost, fuel, vehicle maintenance, etc. The personal income can be proved only through the Income Tax returns. In this case, the claimants have not produced any tangible evidence, like Income Tax particulars, etc. to prove the income of the deceased. Hence, the submission of the learned counsel for the claimants that the deceased was earning a sum of Rs. 7,60,000/- per annum, cannot be accepted. 12. However, the Tribunal, considering the present day cost of living, avocation and the number of family members of the deceased, fixed a sum of Rs. 6,000/- as monthly income of the deceased. The said amount fixed by the Tribunal appears to be very reasonable. The Tribunal, considering the age of the deceased, rightly fixed the multiplier No.14. The Tribunal, after deducting 1/3rd of the income i.e. Rs. 2,000/- for personal expenses, calculating the income per annum and multiplying the same with the multiplier No. 14, has arrived at Rs. 6,72,000/- (Rs.4000 x 12 x 14) as loss income. Thereafter, the Tribunal, by awarding a sum of Rs. 25,000/- towards Loss of Consortium to the first claimant and Rs. 25,000/- each towards the loss of love and affection to the 2nd and 3rd claimants and Rs. 15,000/- each towards the loss of love and affection to the 4th and 5th claimants and Rs. 5,000/- towards funeral expenses, has arrived at a total compensation at Rs. 7,87,000/-. 13. We find that the Tribunal, as per the judgment reported in Sarala Varma and others v. Delhi Transport Corporation and another reported in 2009 (2) TNMAC 1 (SC), ought to have added 30% of the monthly income of the deceased for future prospects along with the monthly income of the deceased. But, the Tribunal has failed to do so. Hence, we are of the view that by adding 30% of the monthly income of the deceased along with the monthly income of the deceased, the amount awarded by the Tribunal is to be enhanced. 14. If 30% of the monthly income of the deceased i.e., Rs. 1,800/-, added with the monthly income of the deceased fixed by the Tribunal, it comes to Rs. 7,800/- ( Rs. 6,000/- + Rs. 1,800/-) per month. 14. If 30% of the monthly income of the deceased i.e., Rs. 1,800/-, added with the monthly income of the deceased fixed by the Tribunal, it comes to Rs. 7,800/- ( Rs. 6,000/- + Rs. 1,800/-) per month. Considering the number of the claimants, we are of view that instead of deducting 1/3rd of the income of the deceased, it would be appropriate to deduct 1/4th of the income of the deceased for his personal expenses to arrive at a just compensation. If 1/4th of the amount deducted from Rs. 7,800/-, it comes to Rs. 5,850/- and then, the annual loss of income comes to Rs. 70,200/- (Rs.5850/- x 12). If multiplier 14 is applied, the total loss of income comes to Rs. 9,82,800/- (Rs.70,200/- x 14). Thus, the loss of income awarded by the Tribunal is enhanced to Rs. 9,82,800/-. 15. Considering the age of the deceased and the claimants, this Court is of the view that the amount awarded by the Tribunal under the other heads viz., Loss of consortium and Loss of love and affection are very meagre. Hence, the amount awarded by the Tribunal under the head of "Loss of Consortium" to the first claimant is enhanced to Rs. 50,000/-. Considering the fact that the minor claimants viz., 2nd and 3rd Claimants/Appellants 2 and 3 have lost their father at their tender age, the amount awarded by the Tribunal under the head of "Loss of Love and Affection" in respect of the minor claimants is enhanced to Rs. 50,000/- each. Similarly, the 4th and 5th claimants have lost their son at their old age. Hence, the amount awarded by the Tribunal under the head of "Loss of Love and Affection" in respect of the 4th and 5th claimants is enhanced to Rs. 29,000/- each. The amount awarded by the Tribunal under the head of "funeral expenses" appears to be reasonable and hence, the same is confirmed. Consequently, the total amount of Rs. 7,87,000/- awarded by the Tribunal is enhanced to Rs. 12,00,000/-as under: Rs. Loss of income 9,82,800.00 Loss of consortium (C1) 50000 Loss of love and affection (C2 & C3) 1,00,000.00 Loss of Love and Affection (C4 & C5) 58000 Funeral expenses 10000 (C - Claimant) 12,00,800.00 rounded off to Rs. 12,00,000/- 16. In fine: (i) C.M.A.(MD).No.543 of 2014 is dismissed. Consequently, M.P.(MD)No.1 of 2014 is also dismissed. No costs. 12,00,000/-as under: Rs. Loss of income 9,82,800.00 Loss of consortium (C1) 50000 Loss of love and affection (C2 & C3) 1,00,000.00 Loss of Love and Affection (C4 & C5) 58000 Funeral expenses 10000 (C - Claimant) 12,00,800.00 rounded off to Rs. 12,00,000/- 16. In fine: (i) C.M.A.(MD).No.543 of 2014 is dismissed. Consequently, M.P.(MD)No.1 of 2014 is also dismissed. No costs. (ii) C.M.A.(MD).No.206 of 2016 is allowed. The compensation awarded by the Tribunal is enhanced to Rs. 12,00,000/- (Rupees twelve lakhs only). The respondent/Transport Corporation is directed to deposit the entire award amount with 7.5% interest per annum from the date of petition till the date of deposit, less the amount already deposited, if any, before the Tribunal, within a period of six weeks from the date of receipt of a copy of this judgment. Out of which, the 1st claimant is entitled to get Rs. 5,00,000/-; the minor claimants viz., the 2nd and 3rd claimants are entitled to get Rs. 2,50,000/- each and the 4th and 5th claimants are entitled to get Rs. 1,00,000/- each. On such deposit being made, the claimant Nos.1, 4 and 5 are permitted to withdraw their entire respective share with proportionate interest and costs. So far as the 2nd and 3rd claimants are concerned, the Tribunal is directed to deposit their respective share in any Nationalised bank, till they attain majority and on such deposit, the first claimant, who is the mother of the minor is permitted to withdraw the interest accrued therein once in three months for the upkeep and maintenance of the minor claimants.