Metropolitan Transport Corporation vs A. Nagarathinam and Others

R. Subbiah, J.—Challenging the award (6.3.2006) passed by the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes),

Chennai, in M.C.O.P. No. 5492 of 2003, Metropolitan Transport Corporation filed the civil miscellaneous appeal. Feeling dissatisfied with the

compensation awarded by the Tribunal, legal heirs of one deceased Ashok Kumar filed the cross-objection. To avoid confusion, the parties are

hereinafter referred to as arrayed in the civil miscellaneous appeal.

Respondents are the wife, minor son and parents of the deceased Ashok Kumar, who died in a motor accident that had occurred on 24.9.2003

involving the appellant Corporation bus bearing registration No. TN 01-N 3536. They filed a claim petition before the Tribunal that on 24.9.2003,

while the said Ashok Kumar was riding a motor cycle bearing registration No. TN 20-A 0167 along with a pillion rider at moderate speed on

M.T.H. Road from Ramapuram towards Avadi, the appellant Corporation bus came in a rash and negligent manner from the opposite direction at

hectic speed on wrong side of the road and hit the motor cycle and as a result of which the rider of the two-wheeler was thrown out and he

succumbed to the injuries. The pillion rider also died due to the injuries sustained by him. Since the accident had occurred due to rash and negligent

driving of the driver of the appellant Corporation bus, respondents made a claim as against the appellant for a sum of Rs. 40,00,000 as

compensation stating that deceased was the proprietor of two companies, namely, M/s. Ashok Enterprises and M/s. Ashok Security Services and

thus, earning Rs. 20,000 and Rs. 10,000 per month respectively. Apart from that, he was doing agriculture operation and earning Rs. 5,000 per

month. Hence, they claimed Rs. 37,50,000 towards loss of pecuniary benefits and Rs. 2,50,000 under different conventional heads, totalling to Rs.

40,00,000.

Resisting the case, the appellant Corporation filed a counter. They denied the manner of accident and loss of income claimed by respondents.

Before the Tribunal, to prove the claim, respondent No. 1 examined herself as PW 1 besides examining PWs 2 to 4 and marked Exhs. P1 to

P13 and on the side of appellant, driver of the bus in question was examined as RW 1, but no document was marked. The Tribunal, after analysing

the evidence both oral and documentary, held that the accident was caused due to rash and negligent driving of the driver of the appellant

Corporation bus and by arriving at such conclusion, Tribunal has awarded Rs. 13,86,000 as compensation. Aggrieved over the award, the present

appeals have been filed.

Heard the learned counsel for both parties.

It is the submission of the appellant that the accident had occurred due to rash and negligent driving of the rider of the motor cycle, who came on

the wrong side of the road and dashed against the appellant Corporation bus, which was coming from the opposite direction. In order to speak

about the manner of accident, driver of the bus was examined as RW 1. Therefore, by relying upon the evidence of RW 1, the Tribunal ought to

have rejected the claim of the respondents.

On a perusal of the award, we find that on the side of respondents, one Sivalingam, an eyewitness to the occurrence, was examined as PW 2,

who had categorically stated in his evidence that accident was the result of rash and negligent driving of the driver of the appellant Corporation bus

alone. So far as PW 2 is concerned, he is an independent witness. In his cross-examination, no favourable reply in favour of the case of appellant

was brought out. Further we find that, apart from RW 1, no other independent witness was examined on their side to corroborate his evidence.

The evidence of RW 1 is a self-interested one. Hence, in the absence of any independent witness and any crucial document, such as rough sketch,

etc., we are unable to appreciate the submission made by the appellant and as such, we do not find any infirmity in the finding arrived at by the

Tribunal with regard to liability.

So far as the quantum of compensation is concerned, as could be seen from the award that in order to prove the income earned by the

deceased, on the side of respondents, Exhs. P6 to P8, Saral forms pertaining to income tax assessment years 2001-2002, 2002-2003 and 2003-

2004 were filed. A perusal of the said documents would show that the annual income of the deceased for the assessment year 2001-2002 is Rs.

58,809; 2002-2003 is Rs. 93,717 and 2003-2004 is Rs. 98,210. The Tribunal, by relying upon these documents, has fixed a sum of Rs. 9,000 as

monthly income of the deceased and thereafter, by deducting 1/3rd expenses towards personal expenses of the deceased and by applying the

multiplier of 18, has arrived at a sum of Rs. 12,96,000 as loss of income to the family.

It is the submission of the appellant that Saral forms would contain the dates of 22.4.2003, 28.4.2003 and 29.5.2003 respectively, which would

show that these documents were created for the purpose of this case. But, the Tribunal, without considering this aspect, by relying upon Exhs. P7

to P8, had fixed the monthly income at Rs. 9,000. It is the further submission of the appellant that even if the annual income mentioned in Saral

forms is taken into consideration as genuine, the average annual income works out to Rs. 83,580 and the monthly income works out to Rs. 6,965.

But the Tribunal has arrived at Rs. 9,000 as monthly income, which is not proper and correct. Therefore, on that account also, the compensation

amount awarded by the Tribunal is liable to be reduced.

On the contrary, it is the submission of the respondents that deceased had died on 24.9.2003. The Saral forms contained the dates of five

months prior to the date of accident. Under such circumstances, there cannot be any valid reason for rejecting the documents and no infirmity

could be found in the calculation made by the Tribunal by placing reliance on those documents. It is the further submission of the respondents that

the Tribunal, while awarding compensation, has failed to include the future prospects of the deceased. Further, The Tribunal had deducted 1/3rd

amount towards personal expenses of the deceased. Since respondents are four in number, the Claims Tribunal ought to have deducted 1/4th

amount towards personal expenses of the deceased instead of 1/3rd amount. Therefore, by fixing a higher sum more than Rs. 9,000 and by

deducting 1/4th amount towards personal expenses of the deceased, amount awarded by the Claims Tribunal has to be enhanced by way of

reassessment. In support of these contentions, they relied on the decision of Hon''ble Apex Court in the case of Santosh Devi Vs. National

Insurance Company Ltd. and Others,

Keeping the said submissions in mind, we have carefully gone through the materials available on record and it is not in dispute that Saral forms

contained the dates of five months prior to the date of accident. In the said circumstances, we are of the opinion that the submission made by the

appellant that the documents could have been created for the purpose of getting compensation has no force. Further we find that even in the

grounds of appeal, no ground has been raised challenging Exhs. P6 to P8. When that being the position, we are not inclined to accept the

submission made by the appellant by rejecting Exhs. P6 to P8, the award passed by the Tribunal has to be modified. With regard to the submission

made by respondents in respect of future prospects, we are of the opinion that average monthly income would be only Rs. 6,965 if calculation is

made based on Exhs. P6 to P8, whereas the Claims Tribunal has fixed Rs. 9,000 as monthly income of the deceased. Under such circumstances,

we are not inclined to add any further amount towards future prospects. However, we are of the opinion that since the claimants are four in

number, by deducting 1/4th amount for personal expenses, the amount could be modified. If we deduct 1/4th amount from Rs. 9,000, balance

amount would be Rs. 6,750 (Rs. 9,000 minus Rs. 2,250). If we apply multiplier of 18, the total loss of amount would be Rs. 14,58,000 (Rs.

6,750 x 12 x 18), which, in our view, could be just and proper compensation. Hence, the sum of Rs. 12,96,000 awarded by the Tribunal towards

loss of pecuniary benefits is hereby enhanced to Rs. 14,58,000. Further, we find that the Tribunal has awarded only a sum of Rs. 20,000 for loss

of consortium to the respondent No. 1, the wife, aged about 25 years at the time of accident. Considering the fact the respondent No. 1 had lost

her husband at her young age, we are of the view that the amount awarded by the Tribunal under this head needs enhancement. Hence, Rs.

50,000 is awarded under this head by adding another sum of Rs. 30,000. That apart, the Tribunal has awarded Rs. 25,000 towards loss of love

and affection. Considering the fact that the respondent No. 2 had lost his father at his tender age, namely, 11 months, the said amount cannot be

said to be an adequate compensation. Hence, the same is hereby enhanced to Rs. 1,00,000. Consequently, the compensation awarded by the

Tribunal for Rs. 13,86,000 is hereby enhanced to Rs. 16,18,000 and the break-up details are as follows:

In view of the above,

C.M.A. No. 1914 of 2007: This appeal fails and is dismissed; however, there will be no order as to costs. Consequently, M.P. No. 1 of 2007 is

also dismissed.

Cross-Objection: This appeal is partly allowed; however there will be no order as to costs. The appellant Corporation is directed to deposit the

entire modified amount of Rs. 16,18,000 with interest at 7.5 per cent per annum from the date of petition till date of deposit, after deducting 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 order. Out of which,

the respondent No. 1 is entitled to Rs. 10,00,000; respondent No. 2 is entitled to Rs. 4,00,000 and respondent Nos. 3 and 4 are entitled to equal

share in the remaining amount. On such deposit being made, respondent Nos. 1, 3 and 4 are permitted to withdraw their entire respective share

with proportionate interest. So far as the respondent No. 2 is concerned, the Tribunal is directed to deposit the minor''s share in any nationalised

bank till he attains majority and respondent No. 1, mother, is permitted to withdraw interest once in three months for the upkeep and maintenance

of the respondent No. 2.