Madras High Court

A.Patrick Lazar vs Managing Director on 9 April, 2021

                                                                             C.M.A.No.3080 of 2012

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 09.04.2021

                                                        CORAM:

                                   THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 C.M.A.No.3080 of 2012

                     1. A.Patrick Lazar
                     2. Ruby Lazar                                             ... Appellants

                                                            Versus
                     Managing Director,
                     State Express Transport Corporation Ltd.,
                     Pallavan Salai,
                     Chennai - 600 002.                                        ... Respondent

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, against the order and decree dated 29.10.2011 made in
                     M.C.O.P.No.2093 of 2008 on the file of the Motor Accident Claims
                     Tribunal, Additional District Judge ( IV Fast Track Court) Chennai.
                                           For Appellants     : Mr.K.Varadhakamaraj

                                           For Respondent     : Mr.K.J.Sivakumar

                                                    JUDGMENT

This appeal is laid as against the judgment and decree dated

29.10.2011 made in M.C.O.P.No.2093 of 2008 on the file of the Motor

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Accident Claims Tribunal, Additional District Judge (IV Fast Track Court)

Chennai, thereby awarded the compensation to the tune of Rs.2,42,000/-

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status before the Tribunal.

3. The case of the claimants is that they are the parents of the

deceased. The deceased was a student and part time Assistant Technical

Instructor in Spectrum PBO Private Limited, Little Mount, Chennai and was

earning Rs.7,000/- per month. While being so, on 21.09.2006, when the

deceased was travelled as a pillion rider in the motor cycle along with

another person, who was the rider of the motor cycle, the bus owned by the

respondent was going in front of the motor cycle and the driver suddenly

applied the break. As a result the motor cycle driven by the rider collided

with the bus due to which, the deceased died on the spot. The accident was

occurred only due to the rash and negligent driving of the respondent's bus

driver. Therefore, the claimants filed claim petition seeking compensation at

Rs.11,00,000/-.

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4. Resisting the same, the respondent filed counter stating that the

respondent bus driver never drove the vehicle in rash and negligence

manner. The deceased and the another drove the two wheeler in a rash and

negligence manner without maintaining distance between the bus and two

wheeler and they themselves dashed against the bus and died on the spot.

Therefore, the respondent is not liable to pay any compensation to the

claimants. The respondent further stated that the deceased is student and

simultaneously the claimants also claimed that he was working as Assistant

Technical Instructor and it could not be possible for the deceased to have

part time job.

5. On the side of the claimants, they examined P.W.1 and P.W.2

and marked Ex.P.1 to Ex.P.9. On the side of the respondent neither oral nor

documentary evidence was let in. On the basis of the evidence available on

records and also considering the submission made by the learned counsel

appearing on either side, the Tribunal found that the negligence on the part

of the respondent and also on the part of the rider of the motor cycle and

fixed liability at 75% as against the respondent and awarded compensation

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of Rs.2,42,000/- and also deducted the 25% of the compensation. Being not

satisfied with the quantum of the compensation awarded by the Tribunal, the

claimants came forward with the present appeal.

6. The learned counsel appearing for the claimants submits that

the deceased was working as part time Assistant technical Instructor in

Spectrum BPO Private Limited, Chennai and his salary certificate has been

marked as Ex.P.5. Even then, the Tribunal did not consider the same and

fixed notional income at Rs.3,000/-, when there is absolutely no contra

evidence produced by the respondent. The Tribunal also failed to consider

the future prospect of the deceased, when the deceased died at the age of 22

years. The Tribunal found that the accident took place only on the rash and

negligence driving of the respondent's bus driver and even then fixed 25%

liability on the rider of the motor cycle. The Tribunal also ought to have

deducted 1/3rd income for the personal expenses of the deceased, instead of

that the Tribunal deducted ½ of the income towards personal expenses of

the deceased.

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7. Per contra, the learned counsel appearing for the respondent

contended that the deceased are tort-feasors and they themselves drove the

motor cycle in rash and negligence manner. They could not even control

their vehicle and hit the back side of the bus with high speed. Therefore,

they themselves invited their death and both the rider and pillion rider of the

motor cycle died on the spot. Hence, the respondent is not at all liable to pay

any compensation to the claimants.

8. Heard Mr.K.Varadhakamaraj, learned counsel appearing for the

claimants and Mr.K.J.Sivakumar, learned counsel appearing for the

respondent.

9. The claimants are the parents of the deceased. The deceased

and another were ridding the motor cycle on 21.09.2006. The respondent's

bus was driven by the driver on the same road and he applied sudden break

and stopped the bus. When the deceased and another were ridding the motor

cycle on the same direction of the bus and due to the sudden stop of the bus,

they hit the bus and sustained grievous injury and also died on the spot. At

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the same time, the deceased and another should have maintained the

distance between the bus and two wheeler, as per the traffic rules. Without

even noticing the sudden break of the bus, they hit the bus on the back side

and sustained grievous injury and died on the spot. Therefore, the Tribunal

rightly fixed the negligence on the part of the bus driver at 75% and 25%

negligence on the part of the rider of the motor cycle.

10. Insofar as the quantum of compensation is concerned, the

claimants marked Ex.P.5, the salary certificate. It revealed that the deceased

was working in Spectrum BPO Private Limited, Chennai, for the monthly

salary of Rs.7,000/-. Simultaneously, they also claimed that the decease was

a student. However, the Tribunal has taken the monthly salary only at

Rs.3,000/-. Further the Tribunal also failed to consider the future prospects

of the deceased, when he died at the age of 22 years. Therefore, the

claimants are entitled for compensation under the head of future prospects.

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11. Insofar as the deduction is concerned, the deceased is a

bachelor at the time of his death and as such, the Tribunal rightly deducted

50% towards his personal expenses. The Tribunal has taken multiplier of 13.

When the deceased died at the age of 22 years, the multiplier has to be taken

at 18. At the same time, the multiplier also has to be taken into account at

40% of the income towards the future prospects, since the deceased was a

student and he was working as part time Assistant Technical Instructor. The

salary has to be taken into account at Rs.4,500/- per month. Accordingly the

pecuniary loss by the claimants is calculated as follows :-

= [(Rs.4,500/- + 40%) X 12 X18] - 50%

= [(Rs.4,500/- + 1,800) X 12 X18] – 50%

=[6,300 X 12 X18] - 50%

= 13,60,800 - 50% = 6,80,400

Accordingly, a sum of Rs.6,80,400/- has to be awarded under the head of

loss of pecuniary benefits to the claimants.

12. Insofar as the other heads, the Tribunal awarded a sum of

Rs.3,000/- towards funeral expenses and Rs.5,000/- towards love and

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affection. This Court is inclined to grant a sum of Rs.15,000/- towards

funeral expenses and a sum of Rs.25,000/- towards love and affection. The

Tribunal failed to award any compensation towards loss of estate.

Therefore, this Court is inclined to award a sum of Rs.15,000/- towards loss

of estate. The claimants are entitled 75% of the award amount after

deducting 25% from the total compensation.

13. Accordingly the compensation awarded by the Tribunal stands

modified as under :-

                      Sl.No               Heads              Awarded by the        Awarded by this
                                                               Tribunal                Court
                      1            Loss of Pecuniary            2,34,000               6,80,400
                      2            Funeral expenses               3000                  15,000
                      3            Loss of estate                  Nil                  15,000
                      4            Love and affection             5,000                 25,000
                                                    Total      2,42,000/-              7,35,400
                                         Deduction 25%                                 1,83,850
                                                                                       5,51,550

14. In the result the Civil Miscellaneous Appeal is partly allowed

as follows:-

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(i) The award passed by the Tribunal is enhanced from Rs.2,42,000/-

to Rs.5,51,550/-.

(ii) The award amount will carry the interest at the rate of 7.5% per

annum from the date of the claim petition till the date of deposit.

(iii) The claimants are entitled to get the modified award amount as follows:-

                                                First claimant      - Rs. 3,00,000/-
                                                Second claimant     - Rs. 2,51,550/-

(iv) The respondent is directed to deposit the award amount, less

the amount, if any, already deposited, along with accrued interest within a

period of six weeks from the date of receipt of copy of this Judgment.

(v) On such deposit, the claimants are permitted to withdraw the

amount awarded as above by filing proper application before the Tribunal.

(vi) The claimants shall pay requisite Court fee before the receipt of

the copy of the judgment for the enhanced compensation.

(vii) There shall be no order as to costs.

09.04.2021 Index:Yes/No Internet: Yes/no Speaking/Non-speaking Order rts

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3080 of 2012

G.K.ILANTHIRAIYAN, J.

rts