Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.08.2014 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.M.A(MD)No.557 OF19991.Adhimoolam(died) 2.Lalitha 3.Rajesh Kumar, minor, (Second appellant is appointed as guardian for the third appellant vie order of this Court made in M.P(MD)No.4 of 2006 in C.M.A.No.557 of 1999) (Appellants 2 and 3 are brought on record as legal representatives of the deceased sole appellant vide order of this Court made in M.P(MD)No.1 to 3 of 2006 in C.M.A.No.557 of 1999) ..Appellants .versus The General Manager, Southern Railway Government of India, Thavangere, Chitra Durga District, Karnataka State..Respondent PRAYER Civil Miscellaneous Appeal filed under Order 43 r/w Section 110-D of Motor Vehicles Act against the judgement and decree made in M.C.O.P.No.260 of 1985, dated 23.4.1987 on the file of the Motor Accident Claims Tribunal(I Additional District Judge),Trichy.
!For Appellants : M/s.PT.S.Narendravasan ^For Respondent : M/s.S.Manohar Spl.Counsel for Railways :JUDGMENT
The Civil Miscellaneous Appeal has been orginally filed by the deceased sole appellant as against the judgement and decree made in M.C.O.P.No.260 of 1985, dated 23.4.1987, on the file of Motor Accident Claims Tribunal(I Additional District Judge),Trichy.
After the death of the sole appellant, the appellant 2 and 3 have been impleaded as his legal heirs during the pendency of the appeal.
2.Heard the submissions made by the learned counsel for the appellants and learned counsel for the respondent and perused the materials available on record.
3.For the sake of convenience, the claimant in the main O.P referred as the deceased appellant, the respondent in the above O.P referred as respondent and the legal heirs of the deceased sole appellant referred as appellant 2 and 3 hereafter.
4.The deceased claimant filed a claim petition for compensation of Rs.1 lakh for the death of one Ramasamy in a motor accident occurred on 8.4.1985.
According to the appellant/claimants, on 8.4.1985 at about 7.00 p.m.While the deceased Ramasamy was walking on Amma Mandapam road from south to north, the respondent/bus bearing Registration No.MYH6316was driven by its driver in a rash and nelgigent manner and dashed against the deceased, in which the deceased died.
It is also averred in the claim petition that at the time of accident, the age of the deceased 55 and earned Rs.25/- per day.
Therefore as son of the deceased, the decease sole claimant namely Mr.Aathimoolam/fiRs.appellant herein has filed claim petition claiming compensation of Rs.1 lakh from the respondent.
5.On the side of the respondent filed a detailed counter in which denied the averments made in the claim petition regarding the negligence aspect and also other details given in the claim petition.
According to the respondent, the driver of the respondent's vehicle was driven in a careful manner and only due to negligence of the deceased, the accident was occurred.
Further, the respondent has stated in the counter that the age of the deceased was 70 years and he was not doing any business and also not earned any income and therefore the deceased appellant/fiRs.appellant herein is not entitled to any compensation.
6.Before the Tribunal on the side of the deceased sole appellant examined four witnesses as P.W.1 to P.w.4 and marked five documents as Ex.P1 to Ex.P5.
On the side of the respondent examined one witness as R.W.1 and no document has been marked.
The tribunal discussed about the oral and documentary evidence and finally held that the accident was occurred only due to the rash and negligent driving of the respondent's vehicle driver and therefore the respondent is liable to pay comepnsation.
7.With regard to the quantum of compensation, the Tribunal has fixed the age of the deceased as 55 years as mentioned in Ex.P3-Post-mortem Certificate.
With regard to the income of the deceased, the tribunal has fixed a sum of Rs.200/-p.m and adopted multiplier of 5 and finally awarded a sum of Rs.12,000/- for loss of income and Rs.3000/- for pain and suffering and totally awarded a sum of Rs.15,000/- as compensation.
8.The learned counsel for the appellants mainly contended that during the period of accident, the age of the deceased was only 55 and he was doing business and earned minimum income of Rs.750/-p.m.But the tribunal has wrongly fixed the income as Rs.200/-p.m and hence the monthly income has to be enhanced.
Further the learned counsel appearing for the appellants submitted that the tribunal has wrongly adopted multiplier as 5 instead of correct multiplier 11.
Further, the learned counsel appearing for the appellants submitted that the Tribunal has not awarded any amount towards loss of income and funeral expenses.
The learned counsel pointed out that instead of the above said amount, the Tribual has wrongly awarded Rs.3000/- under the head of pain and suffering.
9.The learned counsel for the respondent would submit that the accident occurred in the year 1985 and during the above said period, the income of the deceased only 200/-p.m as fixed by the tribunal considering the age of the deceased and therefore no need to interfere with the above said income fixed by the Tribunal.
But the learned counsel not seriously objected that multiplier is wrongly taken as 5 instead of 11.
10.On a perusal of record and from both sides contentions, this Court is of the view that the income of the deceased is to be fixed as Rs.750/- p.m., instead of Rs.200/- fixed by the Tribunal, considering the period of accident.
Further from the above said income, one third to be deducted towards personal and living expenses of the deceased and two third amount to be taken for calculating the loss of income to the appellants.
From the evidence, it is revealed that the age of the deceased 55 at the time of accident.
Therefore the correct multiplier to be adopted as 11 considering the age of the deceased 55.
Therefore the loss of income is calculated as Rs.500 x 12 x 11 = Rs.66,000/-.
As rightly pointed out by the learned counsel for the appellants, the tribunal has wrongly awarded a sum of Rs.3000/- under the head of pain and suffering and the tribunal has failed to award any amount towards love and affection.
Therefore the appellants are not entitled to any amount for pain and suffering but Rs.3000/- to be awarded for love and affection and Rs.2000/- for funeral expenses and totally a sum of Rs.71,000/- to be awarded as just comepensation to the claimants and hence the award of the Tribunal is to be modified accordingly.
11.In the result, the Civil Miscellaneous Appeal is allowed and the award passed by the Tribunal is enhanced from Rs.15,000/- to Rs.71,000/- with same interest and costs.
Further the appellants are not entitled to any interest for the delay period as per the order of this Court in the condone delay application in bringing the legal representatives on record.
No costs.
To The Motor Accident Claims Tribunal (I Additional District Judge).Trichy.