Dismissed

The Managing Director v. J. Prema (40

Madras HC20 Aug 2015CMA/3177/2010

Case brief

AI extract

What is this about?

In an appeal against a Motor Accidents Claims Tribunal award, the Court upheld the finding of the bus driver's negligence. While confirming negligence, the Court adjusted the compensation quantum, correcting the income multiplier per Indian precedents and increasing damages for funeral expenses and loss of affection.

What did the court decide?

Modified the compensation award forfeiting excess future prospects addition and increasing funeral/consortium damages; dismissed the appeal.

The Managing Director Vs J. Prema (40 — Motor Accident Claims | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE: 20.08.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR

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and

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THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM

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C.M.A. No.3177 of 2010
and
M.P.No.1 of 2010
The Managing Director,
Tamilnadu State Transport Corporation Ltd.,
Salem – 7,
12, Ramakrishna Road,
Salem – 7. .. Appellant
Vs.
1. J.Prema
2. Vinoth Kannan J.
3. J.Kaviarasan
4. Minor J.Kalaivani
[4 th minor petitioner rep. By 1 st petitioner]
5. Thangamma .. Respondents

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Prayer: Appeal under Section 173 of the Motor Vehicles Act, 1988 against the Decree and Judgment passed by the Motor Accidents Claims Tribunal (1^st Additional District Judge), Salem, in MCOP No.1752 of 2007 dated 12.11.2009.

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For Appellant : No Appearance For Respondents : Mr.R.Jaikumar (for R1 to R3) for M/S.J.Fenn Walter Associates

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JUDGMENT

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(Order of the Court was made by S.MANIKUMAR, J.)

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Being aggrieved by the judgment and decree made in MCOP No.1752 of 2007 dated 12.11.2009, on the file of the Motor Accidents Claims Tribunal (1^st Additional District Judge), Salem, awarding a sum of Rs.13,94,250/- as compensation to the legal representatives of the deceased, the present appeal is filed.

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On 19.08.2015, there was no representation for the transport Corporation. Hence, registry was directed to post the matter on 20.08.2015. Today, also there is no representation.

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Mr.R.Jaikumar, learned counsel for the respondents made submissions to sustain the award.

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Record of proceedings shows that while entertaining the appeal on 22.11.2010 in M.P.No.1 of 2010 in CMA No.3177 of 2010, this Court has granted interim stay on condition that the petitioner/appellant deposits the entire award amount together with interest and costs, as awarded by the Tribunal, less the amount already deposited, to the credit of MCOP No.1752 of 2007, on the file of the Motor Accidents Claims Tribunal (I Additional District Court), Salem, within eight weeks from the date of receipt of the order.

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Going through the impugned judgment, we find that in a accident which occurred on 07.11.2007, a 46 year old watchman in Panchayat Union Middle School, Ayodiapattinam, Salem, died. Wife, children and mother of the deceased filed MCOP No.1752 of 2007 on the file of Motor Accidents Claims Tribunal (I Additional District Court), Salem, claiming compensation of Rs.15,00,000/-.

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According to them on 07.11.2007, about 8.45pm, when the deceased/cyclist was proceeding on Saradha College Road, a transport corporation bus, bearing Regn.No.TN-30-N-0127, driven in a rash and negligent manner, dashed against a cyclist/watchman, the deceased. He sustained grievous injuries. On the way to Government Mohan Kumaramangalam Hospital, Salem, he died. In this connection, a case in Cr.No.413 of 2007 under Sections 279 and 304-A, has been registered on the file of Salem City Police Station. It is the further contention of the legal representatives that as a Watchman in Panchayat Union Middle School, Ayodiapattinam, Salem, he earned Rs.10,000/- per month.

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Before, the claims tribunal, the transport corporation has disputed the manner of accident. Reiterating the averments, PW1/wife, has adduced evidence. PW2, is stated to be the eye

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witness. PW3, is the Headmistress of Panchayat Union Middle School, Ayodiapattinam, Salem. Ex.P1, FIR, Ex.P2, Postmortem Report, Ex.P3, Death Certificate, Ex.P4, Legal Heir certificate, Ex.P5, Salary certificate, Ex.P6, Attendance Certificate and Ex.P7, Salary Register, have been marked.

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On behalf of the appellant Transport Corporation, both the driver and conductor of the above said bus have been examined as RW1 & RW2, respectively, and no document has been marked.

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On evaluation of pleadings and evidence, the claims tribunal came to the conclusion that the driver of the bus bearing Regn.No.TN-30-N-0127, was negligent in causing the accident.

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Having regard to the oral testimony of PW1/wife and PW3, Headmistress of Panchayat Union Middle School, Ayodiapattinam, Salem, the claims tribunal has accepted the contention as regards avocation viz., watchman in Panchayat Union Middle School, Ayodiapattinam, Salem, and on the basis of Ex.P5, Salary certificate, Ex.P6, Attendance Register and Ex.P7, Salary Register, fixed the monthly income as Rs.7,674/-.

¶23

Further, taking note of the facts that the deceased was a Government Servant, the possibility of pay revision and he had 12 years of service, the claims tribunal, has taken the average of the income earned and future prospects (double the income earned), as per the decision rendered in 2009 S.A.R. (Civil) 592 and arrived at the income of the deceased at Rs.11,511/[average of Rs.7,674/- + Rs.15,348/= Rs.11,511/-]. Thereafter, following the judgment of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, reported in 2009 (2) TN MAC 1 (SC), by applying '13' multiplier and deducting ¼ towards the personal and living expenses of the deceased, computed the loss of contribution to the family as Rs.13,46,748/- and rounded off the same to Rs.13,46,750/-.

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In addition to the above, the tribunal has awarded Rs.2,500/- towards funeral expenses and transportation, Rs.15,000/- towards consortium and Rs.30,000/- towards loss of loss and affection to the respondents/claimants. In all, the tribunal has awarded a sum of Rs.13,94,250/- with interest at the rate of 7.5% from the date of claim till the date of realisation.

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Though, the transport corporation has assailed the correctness of the finding fixing negligence on RW1, driver of the bus bearing Regn.No.TN-30-N-0127, on the grounds inter alia that the tribunal has failed to consider that it was the cyclist who caused the accident, and further contended that the tribunal

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has failed to appreciate the testimony of RW1 and RW2, driver and conductor, respectively, this Court is not inclined to accept the said contention, for the reason that the oral testimony of PW1, wife of the deceased, is duly corroborated by Ex.P1, FIR. Secondly, the testimony of PW2, Eye witness has been found to be cogent and trustworthy. Though, in the chief examination, RW1, driver, has deposed that it was the cyclist, who fell down on his own and RW2, Conductor, has deposed that both of them, have lodged a complaint with the police, RW2, conductor of the bus, in his cross examination has contradicted the same, by stating that no police complaint was given. Added to that, he has also deposed that he did not know as to how the accident occurred. Thus, on evaluation of the testimony of RW1 and RW2, Driver and Conductor of the transport Corporation bus, the claims tribunal came to a categorical conclusion that the witness examined on behalf of the transport corporation have made self contradictory statements, as regards the manner of accident, and no complaint has been filed.

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At this juncture, this Court deems it fit to extract a portion of the testimony of RW1 and RW2, from the impugned judgment. “vjpu;kDjhuu; jug;gpy; vrh/1.2 Mf Kiwna nkw;go ngUe;jpd; Xl;Ldu; kw;Wk; elj;Jdu; tprhuiz bra;ag;gl;Ls;shu;fs;/ ,UtUnk j';fs; rhl;rpaj;jpy; rk;gt ehs;. ,lk;. neuj;jpy; irf;fpspy; te;jtu; jhu; nuhL tpspk;gpy; irf;fps; rf;fuk; VWk; nghJ epiy jLkhwp fPnH tpGe;jjhy; tpgj;J Vw;gl;lJ vd;Wk; vdnt tpgj;jpw;F mtu; jhd; bghWg;g[ vd;Wk; Twpa[s;shu;/ Xl;Ldu; FWf;Ftprhuizapy; ,J rk;ke;jkhf jhDk; elj;JdUk; fhty; epiyaj;jpy; g[fhu; brhd;djhf rhl;rpak; mspj;Js;shu;/ vrh/2 elj;j jd; FWf;Ftprhuizapy; ,Jrk;ke;jkhf nghyPrpy; g[fhu; bfhLf;ftpy;iy vd;Wk;. tpgj;J vg;go ele;jJ vd;W jdf;F bjhpahJ vd;Wk; vrh/1d; Kuzhf rhl;rpak; mspj;Js;shu;/”

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Thus, on evaluation of the evidence adduced on both sides, the claims tribunal having found that the testimony of PW1 was duly corroborated by the testimony of PW2 coupled with Ex.P1, First Information Report and on the contra, the evidence adduced by the transport corporation was self contradictory and not substantiated, held that the driver of the state transport corporation was alone negligent in causing the accident. Testing the finding on the principles of preponderance, this Court is of the view that there is no case for reversal. Hence, finding of

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negligence is confirmed.

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On the quantum of compensation, it could be seen that PW1/wife has adduced evidence that the deceased was a watchman in a Panchayat Union Middle School, Ayodiapattinam, Salem, and earned Rs.7,674/-per month. To substantiate her contention, she has also examined PW3, Headmistress of the Panchayat Union Middle School, Ayodiapattinam, Salem,, who had categorically stated that on the date of accident, the deceased was working as a night watchman. Ex.P5, Salary certificate, Ex.P6, Attendance Register and Ex.P7, Salary register, have been marked to substantiate the avocation and income.

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Upon perusal of the above documents, the claims tribunal has also noticed that the name of the deceased, avocation, income earned by him, during October 2007 have been categorically mentioned. Cross examination by the transport corporation did not elicit any contrary material. Thus, accepting the contention of the respondents, the claims tribunal has taken the income from the Salary Certificate, Rs.7,674/- and also added future prospects and thus arrived at the income of the deceased as Rs.11,511/-.

¶34

The deceased was aged 46 years. Taking note of the multiplier to be applied for the age group of person between 46 and 50, as per the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, reported in 2009 (2) TN MAC 1 (SC) the tribunal has applied '13' multiplier. On the date of accident, there were five dependants. Therefore, the claims tribunal has deducted ¼ towards the personal and living expenses of the deceased and accordingly, computed the loss of contribution to the family as Rs.13,46,750/-. In addition to the above, the claims tribunal has awarded Rs.30,000/-towards loss of love and affection, Rs.15,000/-, towards Consortium and Rs.2,500/- towards funeral expenses and transportation. Altogether, the claims tribunal has awarded Rs.13,94,250/- as compensation with interest, at the rate of 7.5% per annum from the date of claim till the date of realisation.

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The deceased was aged 46 years. As per the decision in Sarla Varma [cited supra], future prospects that should have been taken into consideration by the claims tribunal is only 30%. But the claims tribunal has added 50% to the income earned, for the purpose of computing the loss of dependency. It cannot be accepted in the light of the above decision.

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Applying Sarla Varma's case, 30% of the income drawn by the deceased is Rs.2,302/-. If that is added towards future prospects for the purpose of computing the loss of contribution of the family, then the monthly income to be determined is Rs.9,976/- There is no quarrel over application of '13'

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multiplier. Claimants are five in number. Therefore, the claims tribunal has rightly deducted ¼ towards the personal and living expenses of the deceased. Now, following Sarla Varma's case the loss of contribution to the family works out to Rs.11,67,192/- (Rs.7,482/- x 13 x 12).

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In addition to the above the claims tribunal has awarded a sum of Rs.15,000/- under the head loss of love and affection to the widow, aged 40 years, which is a pittance. Hence, a sum of Rs.1,00,000/- is awarded as consortium to the widow. At the time of accident, Respondent No.4/minor was aged 16 years and therefore, a sum of Rs.1,00,000/- is awarded towards loss of love and affection to the respondents 2 to 4.

¶40

While consolidating the claim of compensation under the heads funeral expenses and transportation, the claims tribunal has awarded Rs.2,500/-, which in the opinion of the Court is very low. Therefore, a sum of Rs.20,000/- is awarded under the head funeral expenses, Rs.5,000/- is awarded for Transportation and the balance amount Rs.2,058/- is awarded for other conventional damages. Thus, the award of the tribunal is confirmed and it is apportioned as hereunder.

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Loss of contribution to	the	family : Rs.11,67,192/-
Loss of consortium		: Rs. 1,00,000/-
Loss of love and affecti	on	: Rs. 1,00,000/-
Funeral expenses		: Rs. 20,000/-
Transportation		: Rs. 5,000/-
Conventional damages		: Rs. 2,058/-

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As stated supra, on 22.11.2010, this Court had already directed the appellant/petitioner to deposit the entire award amount with proportionate interest and costs to the credit of the MCOP. At the time of filing of the claim petition in the year 2007, Respondent NO.4/J.Kalaivani was 16 years. By this time, she would have attained the age of majority. Therefore, there would not be any difficulty in granting a direction to the respondents/claimants to withdraw the entire award amount by making necessary applications to the claims tribunal. Accordingly, it is open to the respondents/claimants to seek for disbursement of the award amount, by making necessary applications.

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The Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.

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-s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
To
1. Motor Accidents Claims Tribunal,
1 st Additional District Judge, Salem.
2. The Section Officer,
VR Section, High Court, Madras.
+1 cc to Mrs.Fennwalter Associates sr.44348
C.M.A. No.3177 of 2010
aa29/10/2015

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The Managing Director v. J. Prema (40

Case brief

What is this about?

What did the court decide?

The Managing Director v. J. Prema (40

Case brief

What is this about?

What did the court decide?

What the court decided

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