Tamil Nadu State Transport Corporation Ltd., Vs. 1)m.Bojan - Court Judgment

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.01.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A(MD)No.1319 of 2014 and M.P(MD)No.3 of 2014 Tamil Nadu State Transport Corporation Ltd., Pudukkottai Region, Rep.by its General Manager, Pillai Thanneer Pandal, Pudukkottai..Appellant versus 1)M.Bojan 2)B.Rajammal 3)B.Saravanakumar ..Respondents Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and award made in MCOP.No.1497 of 2013 dated 24.10.2013 on the file of the Motor Accidents Claims Tribunal, Special District Court, Tiruchirappalli.

!For Appellant : Mr.D.Sivaraman ^For Respondents/Caveators : Mr.N.Sudhagar Nagaraj :

JUDGMENT

With the consent of both sides, the appeal itself is taken up for final hearing.

2.On 13.03.2011 one Jayaganesh travelled in a Bus bearing registration No.TN-55-N-0443 belonging to the appellant Transport Corporation.

The aforesaid Bus was operated between Trichy Central Bus Stand and Airport and the deceased went to Airport in the said Bus.

When the Bus was nearing the Airport, the driver of the Bus applied brake suddenly, due to the impact, the said Jayaganesh fell down from the Bus and succumbed to injuries on the next day namely, 14.03.2011.

Parents and brother of the deceased filed MCOP.No.1497 of 2013 on the file of the Motor Accidents Claims Tribunal, Special District Court, Tiruchirappalli, claiming compensation of Rs.12,00,000/- contending that the accident which resulted in the death of Jayaganesh, had occurred only due to the rash and negligent driving of the driver of the Transport Corporation Bus.

The claim was contested by the appellant Transport Corporation.

3.It was the case of the appellant that; (i) the death of Jayaganesh was not due to the accident on the ground that the FIR was registered on 18.04.2011 and no postmortem was done; (ii)the deceased by travelling in the footboard of the bus had invited the accident; and (iii)the multiplier to compute the dependency compensation should be taken based on the age of the mother of the deceased namely, '50' and in such case, the appropriate multiplier is '13' as per the Second Schedule to Section 163-A of the Motor Vehicles Act.

4.Heard both sides.

5.The fiRs.ground of the appellant is that the death of Jayaganesh was not due to the accident.

The said ground is based on the fact that FIR was registered belatedly after a month and fortified by the fact that no Post- mortem Certificate was produced.

It is true that FIR was registered belatedly.

It is also true that Post-mortem Certificate was not produced, but that would not help the appellant in any way, as they themselves have admitted the accident.

In fact, the counter affidavit filed before the Tribunal itself discloses the same.

Hence, the fiRs.ground of attack is rejected.

6.The second ground of the appellant is that by travelling in the Footboard of the Bus, the deceased himself had invited the accident.

In this case, the claimants did not choose to examine any eye-witness.

Four witnesses have been examined on the side of the claimants as PWs1 to 4.

PW1 is the father of the deceased.

PW2 is the brother of the deceased.

PW3 is the employer of the deceased.

PW4 is the Doctor who treated the deceased immediately after the accident.

PW4 deposed that it was a case of Brain death due to the accident.

In these circumstances, it is for the appellant to let in appropriate evidence to prove the negligence of the deceased.

7.In my view, the proper witness is the Conductor of the Bus to depose as to whether the deceased had travelled in the Footboard in spite of his advice, but it is a fact that the Conductor of the Bus was not examined.

To some extent, the evidence of the RW1-Driver of the Bus could be relied on, but however, he was not certain as to how the accident had happened.

The following passage extracted from the evidence of the RW1-Driver of the Bus indicates that he was not aware as to how the accident happened.

"rk;gtk; bjhlh;ghf muR Bghf;Ftuj;J fHf Xl;Leh; kPJ gjpt[ bra;ag;gl;Ls;s Kjy; jfty; mwpf;if krhM1 Mtzkhf jhf;fy; bra;ag;gl;Ls;sJ.

vjph;kDjhuh;fs; jug;gpy; tpgj;jpy; rk;ge;jg;gl;l BgUe;J Xl;Leh; vkrh1 Mf tprhhpf;fg;gl;L kDtpy; Twg;gl;l rk;gtj;jpd; bghGJ gf;fthl;L fz;zho Kyk; ghh;j;;J bkJthf tz;oia naf;fpajhft[k;, gpd;g[wk; rj;jk; Bfl;L brd;W ghh;j;jbghGJ gpd;g[wk; goapy; Vwp nUe;jth; fhy; jLkhwp tpGe;Jtpl;lhh; vd;W BgUe;jpy; gazk;bra;j gazpfs; Twpajhft[k;, mtUf;F fhak; Vw;gltpy;iy vd;W gazpfs; Twpdhh; vd;w tifapy; rhl;rpak; mspj;Js;shh;."

Hence, I am of the view that the appellant has failed to discharge their burden of proof about the negligence on the part of the deceased.

Therefore, the second ground of attack is also rejected.

8.The last ground of the appellant is that the Tribunal has committed an error in applying multiplier of 18, based on the age of the deceased.

It is admitted by both sides that there are judgments to the effect that multiplier has to be taken based on the age of the mother of the deceased who is normally younger than the father of the deceased.

Therefore, it is an area where there is a controversy.

9.If the age of the deceased namely, 25 is taken, then the proper multiplier as per the schedule is '18'.

If the age of the mother of the deceased namely, 50 is taken, then the multiplier as per the schedule will be '13'.

However, I am not inclined to interfere with the same for the following reasons:- As rightly contended by the learned counsel appearing for the respondents/claimants, the amount awarded to the claimants towards loss of love and affection is only Rs.30,000/- (Rs.10,000/- each to the claimants) while it is admitted that Rs.1,00,000/- is normally awarded for the loss of love and affection.

Further, it is admitted by way of Ex.P7-ITI Certificate of the deceased Jayaganesh that the deceased had possessed ITI qualification and he was a trained Welder.

It was also their case that the deceased went to the Airport to receive his Friend, who was coming from Malaysia.

It is the case of the claimants that the deceased was earning Rs.9,000/- per month.

To prove the said fact, PW3-employer of the deceased was examined, but no convincing documents were produced for his employment and the payment of salary according to the Tribunal.

But the Tribunal has recorded that the deceased was a qualified person in possessing ITI Certificate in Welder Training.

The following passage from the award would indicate that the claimants have established that the deceased was in possession of technical qualification in Welding.

"kDjhuh;fs; jug;gpy; jhf;fy; bra;ag;gl;Ls;s MtzA;fspy; nUe;J nwe;JBghd egh; bty;lh; bjhHpw;fy;tp goj;J bjhHpw;gapw;rp bgw;w egh; vd;gij epUgpf;Fk; tifapy; mike;Js;s epiyapy; Bkw;fz;l tptuA;fis ghprPyidf;F vLj;Jf;bfhz;L mtUila khj tUkhdk; U.5,000 vd;W jPh;khdpf;fg;gLfpwJ."

In these circumstances, the Tribunal has fixed the monthly earnings of the deceased at Rs.5,000/-.

In my view, the fixation of monthly income of the deceased at Rs.5,000/- is too low and even an unskilled worker gets more than Rs.6,000/- now-a-days.

10.In Managing Director versus TNSTC, Coimbatore versus Valliammal, 2011 (1) TN MAC793 this Court fixed the monthly income of an agricultural coolie at Rs.4,500/-, considering the cost of rise in price and cost of living.

In Sr.Ramachandrappa versus The Manager, Royal Sundaram Alliance Insurance Company Ltd., 2011 (2) TNMAC190SC, the Supreme Court, having regard to the wages of a labourer, during the relevant period (1994 - between Rs.100 to Rs.150/- per day).determined the monthly income at Rs.4,500/-.

11.As rightly contended by the learned counsel appearing for the respondents/claimants, in a recent judgment M.Sengabagam versus V.Vinod Kumar, 2013 (2) TN MAC450(DB).a Division Bench of this Court held that the claimants did not produce evidence to ascertain the income of the deceased.

However, considering the fact that the deceased was an agriculturist and a businessman in that case, income of Rs.6,000/- was fixed by the Division Bench.

Therefore, I am of the view that the Tribunal was not correct in fixing Rs.5,000/- as monthly income of the deceased.

12.If the aforesaid aspects are taken together, the arguments of the appellant relating to multiplier lose its significance.

Hence, I do not find any infirmity in the award when the Tribunal determined the compensation at Rs.8,69,000/- for the death of Jayaganesh who breathed his last at the age of 25 yeaRs.The total compensation awarded by the Tribunal cannot be said to be excessive or bonanza warranting interference of this Court.

13.The appellant is directed to deposit the entire award amount with proportionate interest and costs to the credit of MCOP.No.1497 of 2013 on the file of the Motor Accidents Claims Tribunal, Special District Court, Tiruchirappalli, within a period of six weeks from the date of receipt of a copy of this order, less the amount already deposited, if any.

On such deposit, the respondents/claimants are permitted to withdraw the same in their respective shares by filing proper application before the Tribunal.

14.In the result, the Civil Miscellaneous Appeal is dismissed.

No costs.

Connected miscellaneous petition is closed.

07.01.2015 Index : Yes Internet : Yes NB2 To Motor Accidents Claims Tribunal, Special District Court, Tiruchirappalli.

D.HARIPARANTHAMAN, J.

NB2 C.M.A(MD)No.1319 of 2014 and M.P(MD)No.3 of 2014 07.01.2015