Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
03. 12.2014 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI Civil Miscellaneous Appeal (MD) No.303 of 2011 & Miscellaneous Petition (MD) No.1 of 2011 Managing Director, M/s.Tamil Nadu State Transport Corporation, Pudukkottai. ... Appellant Vs. 1.P.Simon Peter 2.Minor Paul Pradeep 3.Minor Jennifer Sofia (Respondents 2 and 3 represented through the first respondent, as their father & guardian) ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the Judgment and Decree, dated 27.11.2009, passed in M.C.O.P.No.1221 of 2007, by the Motor Accident Claims Tribunal (III Additional Subordinate Judge), Tiruchirapalli. !For Appellant : Mr.S.C.Herold Singh ^For Respondents : Mr.A.Saravanan Date of reserving the Judgment :
21. 11.2014 Date of pronouncing the Judgment :
03. 12.2014 :JUDGMENT
This Civil Miscellaneous Appeal has been filed against the Judgment and Decree, dated 27.11.2009, passed in M.C.O.P.No.1221 of 2007, by the Motor Accident Claims Tribunal (III Additional Subordinate Judge), Tiruchirapalli.
2. The appellant is the respondent in M.C.O.P.No.1221 of 2007 on the file of Motor Accident Claims Tribunal (III Additional Subordinate Judge), Tiruchirapalli and the respondents are the petitioners therein. The respondents filed M.C.O.P.No.1221 of 2007 claiming compensation of Rs.25,00,000/- for the death of the wife of the first respondent and mother of the respondents 2 and 3 in the accident took place on 13.11.2006.
3. According to the respondents, the deceased Lukkas Mary travelled in the pillion of Motorcycle bearing Registration No.TN-45-AB-2936 driven by one Irudayaraj Leo carefully and cautiously keeping to his left side on the Pudukkottai Manaparai Road at Keelathaniyam to go to Melathaniyam Indian Overseas Bank. At that time, a bus bearing Registration No.TN-55-N-0271, belonging to the appellant driven by its driver at an unconditional speed and in a rash and negligent manner, came to his extreme right side of the road and dashed the motorcycle and the said Irudayaraj Leo and Lukkas Mary. Due to the said impact, the rider of the motorcycle fell on the western side of the road and escaped with minor injuries. The pillion rider Lukkas Mary fell on the road and was dragged by the bus to a distance of more than 20 feet. As a result, she died on the spot due to the injuries suffered in the accident. The accident was purely caused due to the rash and negligent driving by the driver of the bus. A case was registered against him for offences punishable under Sections 279 and 304-A IPC, in Crime No.107 of 2006 and is being investigated by the Karaiyur Police. At the time of accident, the deceased Lukkas Mary was aged only 46 years. She is survived by the respondents. During her life time, she was the Headmistress of Panchayat Union Middle School in Konnayampatti attached to Ponnamaravathi Union. She was M.A., B.Ed., graduate with the diploma in Teacher Education. The deceased Lukkas Mary was getting salary of Rs.16,341/- per month. She had twelve years of remaining service and she would have get more salary, promotion, gratuity and provident fund. The first respondent lost the loving wife and the respondents 2 and 3 lost their affectionate mother. The entire comfortable life was shattered and the respondents are put to shock and mental agony. The children have lost their comfortable living and bright future. For all these reasons, the respondents have claimed a sum of Rs.25,00,000/- as compensation together with interest @ 12% p.a.
4. The appellant filed counter affidavit before the Motor Accident Claims Tribunal, denying it's liability to pay the compensation. According to the appellant, the accident took place due to rash and negligent driving of the driver of the motorcycle. The accident took place, where the road is curved, 10 feet away from the bus stop. The driver of the bus slowed down and was carefully driving the bus at the curve of the road. The driver of the motorcycle was driving the motorcycle at high speed, more than 80 kilometers in a rash and negligent manner. On seeing the bus, he suddenly applied the brake on turning. The pillion rider fell on the road and died, because of sudden brake applied by the driver of the motorcycle [Irudayaraj Leo].. There was no damage to the motorcycle or to the bus. The respondents have not impleaded the owner of the motorcycle and other necessary parties. The driver of the motorcycle is only responsible for the accident and therefore, the appellant is not liable to pay any compensation to the respondents. The appellant also did not admit the age, occupation and salary of the deceased, as alleged by the respondents.
5. The Tribunal framed necessary points for consideration. The first respondent examined as PW1. The driver of the motorcycle-Irudayaraj Leo was examined as PW2. One Sevugan was examined as PW3. Exs.P1 to P17 were marked on behalf of the respondents. On the side of the appellant, three witnesses were examined and Exs.R1 to R4 were marked.
6. The Tribunal, considering all the materials on record and written arguments filed by the appellant and the respondents, concluded that the accident took place due to the negligent driving of both the drivers. The Tribunal placing reliance on the Judgments reported in 2002 (3) TAC216and 2005 (1) TNMAC452 held that not impleading the owner of the motorcycle will not vitiate the claim of the respondents. The Tribunal relying on the Judgments cited and relied on by the respondents, awarded a total sum of Rs.20,76,772/- as compensation, i.e., Rs.10,76,772/- to the first respondent and Rs.5,00,000/- each to the respondents 2 and 3.
7. Against the said Judgment and Decree dated 27.11.2009, passed in M.C.O.P.No.1221 of 2007, the present civil miscellaneous appeal is filed.
8. Heard Mr.S.C.Herold Singh, learned counsel for the appellant and Mr.A.Saravanan, learned counsel for the respondents.
9. The learned counsel for the appellant contended that the Tribunal ought to have seen that the accident took place only due to rash and negligent driving by Irudayaraj Leo - PW2, the driver of the motorcycle. The Motor Vehicle Inspector has given a report that there was no damages to the motorcycle and there is only scratches on the middle of the bus, which shows that the driver of the motorcycle is responsible for the accident. The bus stop was only 100 meters away from the place of accident, hence, the driver of the vehicle was driven the bus slowly and carefully. The Tribunal having concluded that the accident took place due to negligent driving of both the drivers, the Tribunal erred in fixing the liability only on the appellant. The Tribunal failed to take into account the death benefits and the pension, which the respondents received due to death of the deceased from the Government.
10. Per contra, the learned counsel for the respondents argued that the Tribunal has considered all the materials in proper perspective and awarded just and proper compensation and not excessive. He contended that the appellant has not made out any case to set aside or interfere with the order of the Tribunal.
11. We have carefully perused all the materials on record and considered the arguments of the learned counsel for the appellant as well as the respondents.
12. The issues to be decided in the appeal are: (i) Whether the Tribunal erred in fixing the liability only on the appellant; and (ii) Whether the compensation awarded is just and proper compensation or excessive. Issue No.(i):
13. The learned counsel for the appellant contended that the accident took place only due to the negligent driving by PW2, the driver of the motorcycle. The appellant also contended that not impleading the owner of the motorcycle vitiate the entire proceedings and the claim petition ought to have been dismissed. In any event, fixing liability only on the appellant is not proper. He also relied on the Judgment reported in 2002 (3) TAC216before the Tribunal. The Tribunal considering the said Judgment, has held that the same is not applicable to the facts of the case. The Tribunal held that the Judgments reported in 2002 (3) TAC216and 2005 (1) TNMAC452 relied on by the respondents apply to the facts of the present case. There is no infirmity in the said conclusion. It is well settled that when two vehicles are responsible for an accident, claim can be made on any one of the owner of the vehicles. The Tribunal has applied the ratio in proper perspective and held that the claim can be made only against the appellant. There is no ground to set aside the said findings. Issue No.(ii):
14. As to the quantum of compensation, it is well settled that the compensation awarded must be just compensation and it should not be excessive. This issue was considered by the Hon'ble Apex Court on various occasions and guidelines and formulas are issued to the Tribunals/Courts, in respect of procedure/steps to be followed to arrive at uniformity and consistency in awarding compensation. These guidelines which have been issued as per the Motor Vehicles Act, is a welfare legislation and the victims should not made to suffer because of the wrongful act committed by the other. The issue of just compensation was thoroughly considered by the Hon'ble Apex Court in the Judgment reported in 2009 (6) SCC121[Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another]., wherein at paragraph 19, steps to be followed by the Tribunal to determine the compensation has been set out and the said paragraph reads as under:- "19.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps: Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the "loss of dependency" to the family. Thereafter, a conventional amount in the range of Rs.5000 to Rs.10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added."
15. In the aforesaid decision of the Honourable Apex Court, the method for adopting the multiplier to arrive at a just compensation as held in the previous Judgments, has been laid down and the same would read thus:
"2. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas [1994 (2) SCC176:
1994. SCC (Cri) 335]., Trilok Chandra [1996 (4) SCC362 and Charlie [2005 (10) SCC720:
2005. SCC (Cri.) 1657]., which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
16. Here, in the case on hand, the Tribunal, considering the documentary evidence let in on the side of the claimants, determined the age of the deceased as 46 years and therefore, the age of the deceased as fixed by the Tribunal is hereby confirmed as the appellant has not disputed the same.
17. As to the income of the deceased, the Tribunal taking note of Ex.P.8 - the Salary Certificate of the deceased, fixed her monthly income at Rs.16,341/- and thereafter, added 30% of her future salary i.e., Rs.4,902/- and therefore, the Tribunal fixed the monthly income of the deceased at Rs.21,243/- (Rs.16,341+Rs.4,902/-) and we also find no reason to interfere with the same.
18. Further, the Tribunal, after taking into account the family members of the deceased, deducted 1/3rd amount (Rs.7,081/-) towards her personal and living expenses and the monthly contribution to the family of the deceased, is determined at Rs.14,162/- and the annual income would be Rs.1,69,944/- (Rs.14,162/- x 12).
19. In regard to the multiplier, the Tribunal, as per the guidelines laid down in Sarla Verma's case, adopted the multiplier '13', with which, no interference is warranted.
20. The Tribunal also deducted a sum of Rs.12,500/- towards income tax and fixed the annual income of the deceased at Rs.1,57,444/- (Rs.1,69,944/- - Rs.12,500/-). Thereafter, the Tribunal, has computed the total loss of income, as Rs.20,46,772/- (Rs.1,57,444/- X13.
21. Since, the Tribunal has fixed the age and income of the deceased on the basis of the documentary evidence available on record and that the multiplier adopted to the age of the deceased is also as per the ratio laid down in Sarla Verma's case, as also, there is no contradictory material evidence to disprove the age and income of the deceased, we find no reason to interfere with the same. In the absence of any evidence to disprove the age and income of the deceased and also taking into account the family circumstances of the deceased and also her age, we are not inclined to interfere with the quantum awarded by the Tribunal and accordingly, it is confirmed in all respects.
22. Apart from the said amount, the Tribunal has awarded a sum of Rs.10,000/- towards loss of life, Rs.10,000/- towards loss of love and affection, Rs.5,000/- towards funeral expenses and Rs.5,000/- towards transport expenses, under the pecuniary damages. Ultimately, the total award of compensation arrived at by the Tribunal as Rs.20,76,772/- (Rs.20,46,772/- + Rs.10,000/- + Rs.10,000/- + Rs.5,000/- + Rs.5,000/-). The rate of interest awarded by the Tribunal at the rate of 7.5% p.a. stands confirmed.
23. In fine, this Civil Miscellaneous Appeal filed by the State Transport Corporation fails and the same stands dismissed. No costs. Consequently, connected M.P.(MD) No.1 of 2011 is closed. (V.D.P.,J.) (V.M.V.,J.) 03.12.2014 Index : yes Internet : Yes smn2 V.DHANAPALAN, J.
AND V.M.VELUMANI, J.
smn2 To 1.The Motor Accident Claims Tribunal, (III Additional Subordinate Judge), Tiruchirapalli. 2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai. Pre-delivery Judgment in C.M.A.(MD) No.303 of 2011 & M.P.(MD) No.1 of 2011 03.12.2014