Susila, Thilagavathi and Dhanalakshmi vs The Managing Director, Chokkalingam and The Branch Manager

R. Karuppiah, J.—The appellants/claimants filed this civil miscellaneous appeal as against the award and decree dated 28.02.2003 made in MCOP No. 132 of 1999 and for enhancement of compensation. The appellants/claimants filed claim petition for Rs. 3,00,000/- as compensation for death of one Gobinath @ Gopalakrishnan in a motor accident. In the claim petition, it is stated that on 25.04.1998, the deceased and his friends travelled in a van bearing registration No. TN 65 A 1391 belonging to the second respondent. The van was proceeding to Kodaikanal Road from Ramnad. When the van came near Bathlagundu Kodaikanal Road by keeping extreme left, the first respondent transport corporation bus bearing registration No. TN 57 N 1013 was driven by its driver in a rash and negligent manner and driving from opposite side with high speed and without giving any horn and proper light signal, dashed against the van. In the above said accident, the deceased sustained injuries and taken to Government Hospital, Periyakulam, where he succumbed to injuries. It is further stated in the claim petition that the deceased was 20 years old at the time of accident and he was studying and also working as Paper Agent by selling daily newspapers, weekly magazines, and periodicals and earning a sum of Rs. 3,000/- per month. The claimants are sisters of the deceased. The deceased was a bachelor and therefore, the claimants claimed compensation of Rs. 3,00,000/- from the first respondent transport corporation bus, the second respondent, the owner of the van and the third respondent, who is the insurer of the second respondent vehicle.

The first respondent transport corporation filed a detailed counter in which they denied the manner of accident stated in the claim petition. According to the first respondent, on the date of accident, the deceased was travelling in the second respondent van bearing registration number TN 65 A 1391 and the above said vehicle was proceeding from Ramnad to Kodaikanal. When the vehicle was nearing Bathlagundu-Kodaikanal road, the driver of the van drove the vehicle in a rash and negligent manner with an uncontrollable speed. The transport corporation bus bearing registration No. TN-57-N-1013 was proceeding with 60 passengers in a normal speed on the Periyakulam to Bathlagundu road and at 10.30 p.m. the second respondent van came on the opposite side in a rash and negligent manner and also in a zig zag manner on the wrong side of the road. On noticing the above said condition, the driver of first respondent bus driver tried his level best to avoid the accident, in spite of it, the accident had happened. Therefore, the second respondent, the owner of the van and the third respondent as the insurer of the van are alone jointly and severely liable for the accident. The first respondent also denied the age, income, education and occupation and also averred that the claim of compensation is excessive.

The second respondent, who is the owner of the van remained exparte before the Tribunal.

The third respondent insurance company filed a separate counter, in which it is stated that the driver of the van was not responsible for the accident and therefore, the respondents 2 and 3 are not liable to pay compensation. Further, the claimants should prove the age, income and legal heir particulars. Further, it is averred that the claim is excessive.

The Tribunal has tried the above OP with other connected four OPs. Before the Tribunal, on the side of the claimants, 6 witnesses as PW 1 to PW 6 were examined and also marked 34 documents as Ex. P1 to Ex. P34. On the side of the first respondent, the driver of the bus, namely Mohamed Ismail was examined as RW 1 and no document was marked. On the side of the third respondent insurance company no oral and documentary evidence adduced and marked.

Considering the oral and documentary evidence, the Tribunal has discussed in detail and finally held that the accident was occurred only due to rash and negligent driving of the first respondent transport corporation Bus driver i.e. RW 1 and therefore the first respondent alone is liable to pay compensation and the respondents 2 and 3 are not liable to pay compensation. With regard to quantum of compensation, the Tribunal has fixed the age of the deceased as 21 years as per Ex. P27-postmortem certificate and Ex. P28-College Transfer Certificate. The Tribunal has also held that since the claimants are not proved the avocation of the deceased and hence awarded Rs. 50,000/- as no fault liability and also awarded Rs. 5,000/- towards funeral expenses and Rs. 20,000/- towards love and affection and totally Rs. 75,000/- was awarded as compensation. Aggrieved with the above said quantum of compensation awarded by the Tribunal, the appellants/claimants filed this appeal for enhancement of compensation.

The learned counsel for the appellants/claimants rightly pointed out that to prove the negligence, on the side of the claimants, eyewitness, PW 3 was examined and the claimants also marked Ex. P1-copy of the First Information Report, Ex. P21-Rough Sketch, Ex. P22-copy of charge sheet and Ex. P23-copy of motor vehicle Inspector report. Per contra, on the side of the first respondent, transport corporation only, the driver of the bus one Mohamed Ismail was examined as RW 1, but no documents was marked on the first respondent side. The Tribunal has discussed in detail about the oral and documentary evidence adduced on the side of the claimants and also considered the fact that the due to the accident, disciplinary proceeding was also initiated as against RW 1, the driver of the first respondent transport corporation bus and he was suspended for one month on the ground that the accident had occurred due to his negligence and finally, the Tribunal rightly held that the accident was occurred only due to the rash and negligent driving of the driver of the first respondent transport bus. No interference need in the above said finding.

With regard to quantum of compensation, the learned counsel for the appellants/claimants submitted that the Tribunal has failed to consider that the claimants are sisters of the deceased and they are dependent on the income of the deceased and therefore, the claimants are entitled to claim compensation as per the Motor Vehicles Act. The learned counsel further submitted that the Tribunal ought to have fixed the minimum monthly income, even if not produced any documents. But the Tribunal has failed to fix any monthly income. Therefore the award passed by the Tribunal is not correct.

As rightly contended by the learned counsel for the appellants/claimants, the Tribunal ought to have fixed the monthly income considering the age, family circumstances (i.e.) claimants are sisters of the deceased, and other factors. Therefore, considering the pleadings in the claim petition and oral and documentary evidence adduced on the side of the claimants, the monthly income of the deceased is to be fixed at Rs. 1,500/- per month. The claimants are 3 in numbers and therefore, 1/3 is to be deducted towards the personal and living expenses of the deceased and 2/3 is to be taken for calculation of loss of income i.e. Rs. 1,000/-. It is not in dispute the age of the deceased is 21 at the time of the accident. Therefore, the correct multiplier is 18. Thus, the total loss of income is calculated as 1000 x 12 x 18 = 2,16,000/-.

The Tribunal has awarded Rs. 20,000/- towards love and affection. This Court find it just and reasonable to award Rs. 10,000/- each of the claimants towards love and affection. The Tribunal has awarded a sum of Rs. 5,000/- towards funeral expenses and the same needs no interference and the same is to be confirmed. The Tribunal has not awarded any amount towards transport charges. Therefore, this Court award Rs. 2,000/- towards transport charges. Thus the award passed by the Tribunal is modified and enhanced as hereunder:-

In the result, the Civil miscellaneous Appeal is partly allowed and the award passed by the Tribunal is modified and the compensation is enhanced form Rs. 75,000/- to Rs. 2,53,000/- with 7.5% interest from the date of petition till the date of realisation. The claimants are entitled to equal share in the above said compensation. The first respondent shall pay the award amount along with interest and proportion costs, within a period of two months from the date of receipt of a copy of this judgment.