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Judgment
R. Mala, J.—This Appeal has been preferred by the Appellant Transport Corporation challenging the award passed by the Tribunal stating that the deceased who died in the accident has also contributed for the negligence for the occurrence of accident and also the quantum awarded by the Tribunal is excessive.
The short matrix of the case runs as follows :
(a) The 1st. Petitioner''s husband and Petitioners 2 to 4''s father is one Rajendran, aged about 48 years. He is a machinery attendant in Ariyalur Cement Factory, Ariyalur and thereby earning Rs. 10,600,- month.
(B). On a fateful day on 6.3.2007 at 7.45 p.m., when the deceased Rajendran was riding his TVS 50 towards eastern side to go to his residence, by keeping extreme left side, a Town bus bearing Registration No. TN-45-N-1551, driven by its driver, in a rash and negligent manner which was coming from the opposite direction, came on wrong side and dashed against the TVS 50 rider. Due to the impact, the deceased Rajendran sustained grievous injury. Immediately he was taken to Ariyalur Government Hospital, where he was referred to Tanjore Government Hospital for further treatment, but in spite of the treatment, he died on 22.3.2007. Since the Petitioners'' family have lost their sole bread winner of the family, they estimated compensation to the tune of Rs. 17,00,000 - and prayed for an award.
(c) Resisting the same, the Appellant Transport Corporation as Respondent filed a detailed counter disputing the manner of the accident, age, avocation and income of the deceased and dependency.
On considering the oral and documentary evidence of PW1 to PW-4 and RW1 and Ex.P-1 to Ex.P15, the Tribunal fastened the negligence on the part of driver of Appellant-Transport Corporation Bus and also awarded Rs. 7,37,560/- as compensation, against which, the Appeal in C.M.A. No. 2929 of 2009 has been preferred by the Transport. Corporation to fix the contributory negligence on the part of the deceased and also the quantum of award passed by the Tribunal is excessive. The Claimants have also preferred a Cross-Objection in Cros.Obj. No. 95 of 2012 challenging the quantum of compensation awarded by the Tribunal is on the lower side.
The learned Counsel for the Appellant-Transport Corporation would submit that the deceased Rajendran is contributed for the negligence, but the Tribunal has not considered the same. The evidence of RW1 who is a conductor of the Appellant-Transport Corporation Bus was not considered by the Tribunal. Hence he prayed to fix the contributory negligence on the part of the deceased Rajendran. He further submitted that the amount awarded by the Tribunal is on the higher side. The Tribunal has wrongly taken the income of the deceased as 7,000/- per month without any document and basis, hence he prayed for reducing the compensation awarded by the Tribunal.
The learned Counsel for the Respondents ''Cross Objectors would submit that the Tribunal ought to have deduct 1/4th of the salary of the deceased towards his Personal Expenses, since he ought to have maintain more than four dependants. He also submitted that 30% future prospects has to be considered while computing loss of income to the family and by applying the multiplier of 13, the resultant amount would be Rs. 16,21,760/- hence he prayed for enhancement. of the compensation to the tune of 17,00,000/- and prayed for an order.
Considered the rival submissions made on both sides and perused the materials available on record.
Negligence:
In respect of negligence is concerned, PW2, one Kasirajan is an eyewitness. In his evidence, he has deposed that the deceased Rajendran was proceeding from west to east on left hand side in TVS 50, at that time, a bus which came from east to west, driven by its driver in a rash and negligent manner, dashed against. the said Rajendran. In his cross-examination, he has stated that the accident took place at 7 p.m. The deceased was proceeding from Northern side of the road and PW2 was standing on the Southern side of the road. He denied the suggestion posed to him that the deceased alone gone on wrong side and clashed against the bus. It is pertinent to note that the same has been corroborated by PW4-Subramani who is also an eye witness to the accident.
On the side of the Respondent, the conductor of the vehicle was examined as RW1. In his evidence, he has stated that at the time of accident he was sitting in Conductor Seat and witnessed the occurrence. He deposed that the rider of the TVS Champ came in high speed and dashed against the vehicle head light and fell down. He fairly conceded that he has not filed any document to show that on the date of the accident, he was on duty as a conductor. To prove the same, the trip sheet has not been filed before the Tribunal. Further he fairly conceded that in respect of the accident, the Transport Corporation''s Engineer has prepared Rough Sketch and Report, but the same has not been filed before this Court, since the vital document has been suppressed, this Court, by invoking Section 114(g) of Indian Evidence Act, draws adverse inference. Further no reason has been assigned for non-examination of driver of the Appellant-Transport Corporation Bus also. On the basis of Complaint given by PW2-Kasirajan, Ex.P1-FIR has been registered against the driver of the Bus. After investigation, charge-sheet hits been filed against the driver of the Appellant/Transport Corporation Bus which was evidenced by Ex.P13. The alteration report has been marked as Ex.P1 4, which shows the offence under Section 279, 338 of IPC have been altered to Section 304-A of IPC on 22.3.2007. From Ex.P13, it is seen that charge sheet was filed against the driver for the offence under Sections 279 & 304-A of IPC. Since the driver of the Appellant-Transport Corporation Bus who is a vital witness was not examined and the vital documents were not filed before the Tribunal, this Court. has drawn adverse inference. The only evidence available is PW2, PW4, Ex.P1� Ex.P13 & Ex.P14.
On the basis of oral evidence of PW2, PW4, Ex.P1, Ex.P13 & Ex.P14, this Court is of the view that while the deceased was proceeding from west to east on the northern side, the Appellant-Transport Corporation Bus, which was, coining from the opposite direction, gone on wrong side and dashed against the deceased Rajendran. The Tribunal, on considering this aspect in a proper perspective, came to the correct conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the Appellant-Transport Corporation Bus and the same does not warrant any interference.
Quantum:
Now this Court has to decide whether the quantum of compensation awarded by the Tribunal is higher in side or not ?
The learned Counsel appearing for the Appellant/Transport Corporation would submit that to prove the age and income of the deceased, no document has been filed. The Tribunal, fixed the monthly income of the deceased at Rs. 27,000/- per month, after discarding the documents Ex.P10 and Ex.P15 and after deducting Rs. 2,333/- towards his Personal Expenses and by adopting the multiplier of 13, it arrived the Loss of Income to the family at Rs. 7,28,052/- without any basis and prayed for reducing the compensation.
Resisting the same, the learned Counsel for the Respondents/Cross Objectors relied upon the judgment of the Apex Court reported in Sarla Verma & others v. Delhi Transport Corporation and another, 2009 (2)TN MAC 1 (SC), and submitted that if the number of dependency i.e. Family members are 4 to 6, 4-1/4 deduction should be made towards Personal and Living Expenses of the deceased. In the present case in hand, the members are four in number, hence 1/4 deduction should be made.
He also relied upon the decision of this Court reported in Managing Director, Tamil Nadu State Transport Corporation, Karaikudi v. D. Yasothai and others, 2011 (2) TN MAC 761, wherein 1/4 deduction towards Personal Expenses of the deceased has been made on the basis of Sarla Verma & others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC).
The learned Counsel appearing for the Respondents Cross Objectors would further submit that. PW3 one Ganesan was examined to prove the income of the deceased. The deceased Rajendran is a Government Servant employed under Tancem. His Identity Card-Ex.P12 Was filed to show that he was working as a Machine Attender in Ariyalur Cements Works. Ex.P10 and Ex.P15 are salary receipts of deceased Rajendran. He further submitted that the future prospects has not been considered by the Tribunal. While calculating the income of the deceased future prospects of 30%should be added to the salary of the deceased, hence he prayed for enhancement of compensation amount.
Ex.P12 is Identity Card of the deceased, which shows that the date of birth of the deceased as 9.6.1962 and he was employed under Tamil Nadu Cements Corporation Limited and his designation was mentioned as Mazdoor. The accident had occurred on 6.3.2007. So the age of the deceased is 44 years and 9 months. So considering the age of the deceased as 45, the appropriate multiplier would be 14 as per Sarla Verma 7 others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC).
Now this Court has to decide as to whether the monthly salary of Rs. 7,000/- taken by the Tribunal while calculating the loss of income is fair and proper? Ex.P10 and Ex.P15 are the Salary Certificates which show that in the month of February 2007, he received a total salary of 10,600/-, out of which, Rs. 7,950/- was deducted and his take home salary was Rs. 2,660/- Ex.P15 is the replica of Ex.P10. To prove Ex.P10 and Ex.P15, PW3-Ganesan was examined.
He is Assistant Manager, Ariyalur, Cement Factory. He had deposed that the deceased Rajendran was employed as a machinery attendant and his monthly salary was Rs. 10,600/- in February 2007 In his cross-examination, he had deposed that the deceased Rajendran studied up to V Standard and the deceased would have been promoted upto 7th grade and the deceased would get pension ranging from Rs. 1,000 to Rs. 1,500/- per month, if he is alive.
Future Prospectus:
At this juncture, it is appropriate to consider the decision of the Apex Court relied upon by the learned Counsel for the Appellant reported in Sarla Verma 7 others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC), in which, it was stated that an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years and the addition should be only 30% it the age of the deceased was 40 to 50 years. Here, the Petitioner is below 45 years. In Sarla Verma''s case, it is held as follows :
"In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words ''actual salary'' should be read as ''actual salary less tax''). The addition should be only 30%if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to sandardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the Courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
As per the decision cited supra, this Court is of the view that future prospective of 30% should be added for calculating Loss of Dependency. As per Ex.P10 and P15, the salary of the deceased is Rs. 10,600/- Even though, his take home salary is less, Ex.P10 = Ex.P15 is proved by PW3-Assistant manager, Ariyalur Cement Factory. So the monthly salary of the deceased is accepted as Rs. 10,600/- The age of the deceased is 45 years. Hence by adding 30% of his monthly income as future prospectus, as per Sarla Verma 7 others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1(SC)it would be Rs. 13780/- (30% of 10,600+10,600 = Rs. 13780)
Deductions:
As per the Dictum of the Apex Court reported in Sarla Verma 7 others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC), it was stated that if the number of dependants in the family is 4 to 6, then 1/4 deduction shall be made for personal and living expenses of the deceased. In Para 14 of the above decision it is held: as follows :
"14. Though in some cases the deduction to be made towards Personal and Living Expenses is calculated on the basis of units indicated in Trilok Chandra, the general practise is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards Personal and Living Expenses of the deceased, should be one-third (1/3rd) where the number of dependant family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members if 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six)"
In the present case on hand, the dependants are four in number. Hence 1/4th deduction shall apply. As already discussed in Para 18, the monthly income of the deceased was calculated as 13,780/-. Now by deducting 1/4 of monthly income, i.e., 13,780 x 1/4 = 3,445 (13,780 - 3,445= 10,335/-), finally Rs. 10,335 - would be taken as loss of income to the family of the deceased.
Further PW3 had deposed that if the deceased is alive, he would get Pension in between Rs. 1,000 and Rs. 1,500/- So this Court deducts Rs. 1,500/- from Rs. 10,335/- which comes to Rs. 8,835/-. Therefore a sum of Rs. 8,835/- would be the Loss of Monthly Income to the family. By applying appropriate multiplier i.e., ''14'', the loss of annual income to the family would be calculated as Rs. 8,835 x 12 x 14 = Rs. 14,84,280/-, which is rounded off to Rs. 14,84,300/- This Court awards Rs. 14,84,300/- towards Pecuniary Loss to the Family.
The Tribunal has awarded Rs. 2,000/- towards Funeral Expenses, which is just and proper and hence. it is hereby confirmed. For Loss of Consortium, the Tribunal has awarded Rs. 5,000/-, it is very meagre and hence this Court enhances the same from Rs. 5,000/- to 10,000/- The Tribunal has awarded Rs. 2,000/- for Loss of Love and Affection and the same has been enhanced to Rs. 10,000/- to each of the Petitioners 2 to 4/Respondents 2 to 4 Thus in total this Court awards Rs. 30,000/- towards Loss of Love and Affection. Further, this Court also enhances the amount of Rs. 2,500/- awarded by the Tribunal under the head ''Loss of Estate,'' to Rs. 10,000/-. Apart from that, this Court awards Rs. 2,000/- for Transportation Charges.
The amounts apportioned under the different heads are tabulated below:
Pecuniary Loss to the Family
Rs. 14,84,300/-
Funeral Expenses
Rs. 2,000/-
Loss of Love and Affection
(Rs. 10,000/- each to Petitioners 2 to 4)
Rs. 30,000/-
Loss of Consortium
Rs. 10,000/-
Loss of Estate
Rs. 10,000/-
Transportation Charges
Rs. 2,000/-
Rs. 15,38,300/-
Thus in total, this Court awards a sum of Rs. 15,38,300/- as compensation to the Claimants with interest as awarded by the Tribunal. Out of the compensation the amounts apportioned to each Petitioner is as follows ;
1st Petitioner/Wife
Rs. 4,00,000/-
2nd Petitioner/daughter
Rs. 4,00,000/-
3rd Petitioner/daughter
Rs. 4,00,000/-
4th Petitioner/minor son
Rs. 3,38,300/-
Each Petitioner is entitled to compensation as apportioned above along with interest as awarded by the Tribunal.
In fine,�
�The Appeal preferred by the Transport Corporation in C.M.A. No.2929 of 2009 is dismissed.
�The Cross Appeal preferred by the Claimants in Cross-Objection No. 95 of 2012 is partly allowed with costs.
�This Court enhances the compensation awarded by the Tribunal from Rs. 7,37,560/- to Rs. 15,38,300/- with interest as awarded by the Tribunal along with proportionate costs.
�The Appellant Transport Corporation is directed to deposit the enhanced amount with interest as awarded by the Tribunal along with proportionate costs into the credit of M.C.O.P. No. 274 of 2007, on the file of Motor Accident Claims Tribunal, District Judge, Perambalur, within a period of six weeks from the date of receipt of a copy of this order.
�On such deposit, each of the Petitioners 1 to 3 are permitted to withdraw the compensation of Rs. 4,00,000/- along with interest awarded by the Tribunal.
�The share of the minor/4th claimant, i.e., Rs. 3,38,300/- along with interest awarded by the Tribunal is directed to be deposited in any one of the Nationalised Banks till he attains majority and the 1st Claimant/mother of the minor is entitled to receive the interest on the said amount. once in three months.
Consequently, connected M.P. No. 1 of 2009 in No. 2929 of 2009 is closed.