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Judgment
C.S. Karnan, J.—The above appeal has been filed by the appellant/petitioner against the decree and judgment passed by the Motor
Accident Claims Tribunal, Chief Small Causes Court Judge, Chennai in MCOP No. 514 of 2001 dated 28.10.2001 dated 28.10.2004 awarding
a compensation of Rs. 3,76,000/- with 9% interest per annum.
The short facts of the case are as follows:
On 13.10.2000, at about 20.30 hours, the deceased Nayeem Ahamed Ansari, was riding a motorcycle bearing registration No. TN-04-Z-5085
from Bells road to his residence at Government Estate, Anna Salai, Chennai-2 along Wallajah Salai from east to west direction. While so, as he
was proceeding opposite to Kalaivanar Arangam, the respondent''s bus bearing registration No. TN-01-N-1685 (Route No. 11-H), which was
driven by its driver in a rash and negligent manner with high speed, came from behind and dashed against the two wheeler, in which the rider of the
motorcycle sustained serious injuries and died on the spot. Regarding this accident, the Traffic Investigation Officer attached to Anna Square
Police Station, Chennai-5, registered a criminal case in Cr. No. 335/T1/2000 against the driver of the bus. The accident was caused solely due to
the rash and negligent driving of the driver of the bus. So, the driver and owner of the bus is vigorously and statutorily liable to pay compensation to
the petitioners, being the sole surviving legal heirs and dependants on the deceased with interest and costs. The petitioners have therefore claimed a
compensation of Rs. 7,00,000/-.
The respondent/transport corporation filed a counter statement and resisted the claim of the petitioners. The respondent states that on
13.10.2000, the bus route No. 11-H, bearing registration No. TN-01-N-1685 was on its trip from Parrys to Ayyapanthangal, at about 20.10.
hours. While the bus was proceeding on Wallajah Salai, the deceased, riding motorcycle, on right side of the bus, lost his balance and due to the
insufficient space on the centre median and crossed the right centre body of the bus, fell down and sustained fatal injuries. Thus, the deceased was
responsible for the accident and so the respondent is not liable to pay compensation. The Bus driver was cautious and had driven the bus
observing all traffic rules in accordance with law. The respondent further submits that in any event, the above said accident occurred due to
contributory negligence of the deceased. Further, the claim of compensation is also high.
The Motor Accident Claims Tribunal framed three issues namely 1) Whether the accident happened due to the rash and negligent driving of the
driver of the bus bearing registration No. TN-01-N-1685? 2) Whether the petitioners are entitled for compensation as prayed for? 3) To what
relief?
The petitioners were examined as PW1 and PW2 and marked Ex.P1 to Ex.P6. The respondent was examined as RW1. The respondent has
not marked any documents. As per the evidence of PW2, he witnessed the accident on 13.10.2000 at about 08.30 p.m. The deceased was riding
the motorcycle bearing registration No. TN-04-Z-5085 and the driver of the Metropolitan Transport Corporation bus, route No. 11-H, bearing
registration No. TN-01-N-1685 drove the vehicle in the same direction, dashed behind the motorcycle and the motor cyclist dashed against the
centre median line and caused the accident. The rider of the motorcycle died on the spot. PW2 lodged a report. In the cross examination he stated
that the motorcycle was proceeding towards west and the accident happened in the straight road. There is a bus stop at a distance of 25 feet from
the site of the accident. PW2 is not an interested witness. As per Ex.P1, FIR was registered on the complaint given by PW2. In the first
information report also it is stated that the driver of the bus drove the vehicle in a rash and negligent manner, dashed on the rear side of the
motorcycle and caused the accident.
The driver of the bus was examined as RW1. As per the evidence of RW1, in the site of the accident, the rider of the motorcycle was
responsible for the accident. The petitioners have not filed the driving licence of the deceased. Similarly the site plan is also not filed by the
petitioners. The petitioners ought to have filed the above documents to prove that the deceased was having valid driving licence to ride the
motorcycle and also to prove the manner of accident.
Considering the evidence adduced by both sides, it is concluded that the deceased was also responsible for contributory negligence of the extent
of 25%. The driver of the bus is responsible for 75% of the negligence.
Regarding the second issue, it was found from the evidence of PW1 that the deceased was employed as Auto Consultant and earning Rs. 200/-
per day. As per Ex.P5, transfer certificate, the deceased was born on 03.08.1976 and hence it was proved that the age of deceased was 24
years. As per Ex.P5, the deceased studied upto X standard. As per Ex.P6, salary certificate, it is stated that the deceased was employed as a
Commission Agent in Abbas Auto Consultant and was earning Rs. 100 to Rs. 200 on an average per day. There is no other evidence regarding
income of the deceased. The author of the income certificate i.e. Ex.P6 was not examined. However, there is no contra evidence regarding the
alleged self employment and income of the deceased. As per the judgment of this Court reported in B. Anandhi Vs. R. Latha and Another, , for a
coolie worker aged about 27 years, it will be reasonable to fix the daily income at Rs. 100/-. In the present case, it will be reasonable to fix the
income of Rs. 150/- per day and monthly income is at Rs. 4,500/- and in the above sum 1/3rd Rs. 1,500/- is deducted for personal expenses of
the deceased. Hence, the monthly dependency is arrived at Rs. 4,500-Rs.1,500 = Rs. 3,000/-The first claimant namely, the father of the deceased
has died. The second claimant mother is the only claimant.
As per Division Bench judgment of this Court in the case of United India Insurance Company Limited v. Mrs. Subramanian and Anr. in CMA
No. 1717 of 2004 and CMP No. 9424 of 2004 dated 25.06.2004, (unreported jugdement), for the claimant parents of the deceased boy, aged
about 11 years, the multiplier of 18 was adopted.
As per the Division Bench judgment of the Honurable Supreme Court reported in 2002(4) LW 584 ( H.S. Ahammed Hussain and Anr. v.
Irfan Ahammed and Anr.), it has been decided that the appropriate method of assessment of compensation is the method of capitalisation choosing
a multiplier appropriate to the age of the deceased or the age of the dependants, which ever is lower. In the present case, the second claimant is
aged about 49 years. As per second schedule, the multiplier of 13 shall be applied, as it is the lower multiplier, considering the age of the
deceased. Hence it will be reasonable to apply the multiplier of 13 and monthly dependency was already calculated at Rs. 3,000/. The loss of
pecuniary benefits is calculated as 3000X12X13 = 4,68,000/-. In the above sum, 25% is deducted for contributory negligence on the part of the
deceased. Hence, the petitioner is entitled for only Rs. 4,68,000 '' Rs. 1,17,000 = Rs. 3,51,000/- for loss of pecuniary benefits. The petitioner is
also entitled for Rs. 10,000/- for loss of love and affection, Rs. 10,000/- for loss of expectation of life and Rs. 5,000/- for funeral expenses. In
total, the petitioners are entitled for Rs. 3,76,000/- for death of the deceased. The Tribunal directed the respondent to deposit the above award
with 9% interest per annum from the date of petition i.e. 25.10.2000 to date of deposit, with proportionate costs, within two moths. The second
petitioner is entitled to receive the entire accrued interest and costs of the share amount at the first instance for family expenses and the remaining
amount shall be deposited in any one of nationalised bank for a period of three years in fixed deposit. The claim petition for the first petitioner is
dismissed since the first petitioner died during the pendency of proceedings. Court fee for the award amount is Rs. 3,132.50. Excess Court fee
shall be refunded to the petitioner after appeal time. Advocate fees Rs. 10,520/.
The learned Counsel for the appellant, in his appeal, argued that the Tribunal has erred in fixing 25% contributory negligence on the part of the
deceased. The accident occurred in a straight road, Wallajah road, opposite to Kalaivanar Arangam. The deceased was riding a motorcycle and
the bus came from behind him and dashed against the motorcycle, in the result, the deceased had died on the spot. Under the circumstances, there
cannot be any contributory negligence on the part of the deceased. The learned Counsel further pointed out that at the time of accident, the
deceased was 24 years old and was working in an automobile shop. In the said accident, the driving licence of the deceased was lost. Hence, it
could not be produced before the Tribunal. The accident sketch was not furnished on the claimants by the Traffic Investigation Officer and hence
the same was not marked. The learned Counsel further pointed out that the learned Tribunal ought to have fixed the entire liability on the first
respondent/driver. The compensation awarded for loss of love and affection as Rs. 10,000/- and Rs. 10,000/- for loss of expectation of life were
on the lower side and funeral expenses of Rs. 5,000/- granted by the Tribunal as against the claim of Rs. 10,000/- was also on the lower side.
For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that the learned Tribunal has fixed
25% contributory negligence on the part of the deceased in the said accident. The claimants are duty bound to establish their case with crystal clear
evidence without any lacuna regarding the contributory negligence. Negligence point can be decided on the basis of sketch of the accident site. The
sketch only can disclose the tyre marks. So, in the absence of sketch, the claimant/appellant cannot challenge the negligence point. The claimants
are seeking remedy i.e. compensation against the respondent. So, it is necessary that the claimants have to prove their case with adequate
evidence. In the claimants case, lacunae arises on the point of negligence. As such, this Court declines to accept the contributory negligence point
raised by the learned appellant counsel.
Tribunal had granted Rs. 10,000/- for loss of love and affection; Rs. 10,000/- for loss of expectation of life and Rs. 5,000/- for funeral
expenses. This Court, upon considering the facts and circumstances of the case decides to enhance the amount of compensation under the said
head as below;
1) Rs. 20,000/- is awarded for loss of love and affection;
2) Rs. 20,000/- is awarded for loss of expectation of life and
3) Rs. 10,000/- is awarded for funeral expenses.
As such, an additional amount of Rs. 25,000/- is granted as compensation by this Court. This additional amount will carry an interest at the
rate of 7.5% per annum. The Court further directs the respondent corporation to deposit the enhanced balance compensation amount with interest
at the rate of 7.5% into the credit of MCOP No. 514 of 2001, within a period of 6 weeks from the date of receipt of this order. As the accident
happened in the year 2001, it is open to the appellant/claimant to receive the balance amount lying to the credit of MCOP No. 514 of 2001 on the
file of Motor Accident Claims Tribunal, Chief Small causes Court Judge, Chennai by filing necessary payment out application in accordance with
law. Resultantly, the civil miscellaneous appeal is allowed in above terms and consequently, the award passed by the Motor Accident claims
Tribunal, Chief Small Causes Court Judge, Chennai in MCOP No. 514 of 2001 is modified. The parties are directed to bear their own cost in this
appeal.