Madras High Court
The Managing Director vs M.Chittamma on 3 February, 2023
C.M.A.No.4501 of 2019
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.4501 of 2019,
Cross Objection No.9 of 2023
and
C.M.P.No.25451 of 2019
The Managing Director, APSTRC,
Rep. by Depot Manager,
APSRTC, Sri Kaalahasti,
Chittoor District, AP.
...Appellant in CMA.No.4501/19
Respondent in Cross Obj.No.9/23
Vs.
1.M.Chittamma
2.K.Saiprakash
3.Minor K.Sureka
4.Minor K.Vihnuprasad
5.K.Ranamma
[Minors 3 and 4 are represented by
their mother/ 1st respondent]
...Respondents in CMA.No.4501/19
Cross Appellants in Cross Obj.No.9/23
1/14
https://www.mhc.tn.gov.in/judis
C.M.A.No.4501 of 2019
Prayer in C.M.A.No.4501 of 2019: Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, to set aside the order/ decree passed by
the subordinate Judge, Motor Accident Claims Tribunal, Tirutani, in
M.C.O.P.No.89 of 2016 dated 13.10.2017.
Prayer in Cross Objection No.9 of 2023: Cross Objection filed under
Order 41 Rule 22 of the Code of Civil Procedure to set aside the award
passed in M.C.O.P.No.89 of 2016 dated 13.10.2017 on the file of the
subordinate Judge, Motor Accident Claims Tribunal, Tirutani,
For Appellant in CMA.No.4501 of 2019 and
Respondent in Cross Obj.No.9 of 2023 : Mrs.G.V.Shoba
For Respondents in CMA.No.4501 of 2019 and
Cross Appellants in Cross Obj.No.9 of 2023 : Mr.K.R.Ponnusamy
for M/s.Anand & Suryas
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The Transport Corporation is on appeal aggrieved by the award of
the Motor Accident Claims Tribunal, Tirutani granting a sum of
Rs.28,78,000/- for the death of one Venkatesh in a road accident that
occurred on 05.03.2016.
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C.M.A.No.4501 of 2019
2. According to the claimants, the bus belonging to the appellant
Transport Corporation bearing Reg.No.AP-29-Z-0021 driven by its driver in
a rash and negligent manner came in opposite direction and dashed against
the deceased who was riding the two wheeler. Claiming that the accident
occurred due to the rash and negligent driving of the driver of the bus and
that the deceased was earning a sum of Rs.25,000/- per month, the
claimants, who are the parents, wife and children of the deceased sought for
compensation of Rs.36,00,000/-.
3. The claim was resisted by the Corporation contending that the
accident did not occur in the manner suggested by the claimants. The
deceased who was riding the two wheeler also contributed to the accident.
The quantum of compensation claimed was termed as excessive.
4. Before the Tribunal, the 1st claimant was examined as PW.1,
one Umapathy, eye witness was examined as PW.2 and the employer of the
deceased was examined as PW.3. Exs.P1 to P11 were marked on the side of
the claimants. The driver of the bus was examined as RW1. The judgment
of the criminal Court acquitting the driver was marked as Ex.R1.
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C.M.A.No.4501 of 2019
5. The Tribunal upon consideration of the evidence placed before it
concluded that the accident occurred due to the rash and negligent driving of
the driver of the bus. The Tribunal relied upon the evidence of PW.2 and the
contents of Ex.P1 - First Information Report, Ex.P2 - charge sheet and
Ex.P5 - Rough Sketch to conclude that the negligence was on the part of the
driver of the bus.
6. On the quantum, the Tribunal took the income of the deceased
at Rs.750/- per day, as deposed by PW.3 employer. It took the total number
of working days at 24 days per month and arrived at the monthly income at
Rs.18,000/-, it adopted a deduction of 1/4th towards personal expenses and a
multiplier of '14'. On the said basis, the Tribunal arrived at the loss of
dependency at Rs.22,68,000/-. The Tribunal awarded a sum of
Rs.1,00,000/- for loss of consortium for the wife / 1 st claimant and
Rs.5,00,000/- for loss of love and affection for all the five claimants, at
Rs.1,00,000/- each. It also awarded a sum of Rs.10,000/- towards funeral
expense. Thus, the total compensation awarded by the Tribunal worked out
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C.M.A.No.4501 of 2019
to Rs.28,78,000/-. Aggrieved by the award, the Transport Corporation filed
an appeal and the claimants have filed a cross objection seeking
enhancement.
7. We have heard Mrs.G.V.Shoba, learned counsel appearing for
the Transport Corporation and Mr.K.R.Ponnusmy for M//s.Anand and
Suryas, learned counsel appearing for the claimants.
8. Mrs.G.V.Shoba, learned counsel appearing for the Transport
Corporation would draw out attention to the contents of the First
Information Report to contend that the deceased came out of the petrol bunk
which was situate on the left suddenly and crossed over to the right side,
resulting in the bus driver being unable to control the vehicle and thus
caused the accident due to his own negligence. She would also contend that
from the evidence, some negligence should have been apportioned to the
driver of the two wheeler. She would also submit that the Tribunal ought not
to have adopted Rs.750/- per day as income, in the absence of any
documentary evidence to establish such income.
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C.M.A.No.4501 of 2019
9. Contending contra Mr.K.R.Ponnusamy, learned counsel
appearing for the claimants would submit that though in the First
Information Report it is stated that the deceased came out from the petrol
bunk, the other evidence on record particularly Ex.P5 sketch and the
evidence of the eye witness PW.2 would demonstrate that the accident
occurred only due to the negligence of the driver of the bus. He would also
point out that the contention now urged by the Transport Corporation to the
effect that the deceased two wheeler rider emerged from the petrol bunk all
of a sudden, was never put forth before the Tribunal. In order to buttress his
contention he would refer to the evidence of the driver who was examined as
RW1.
10. On the quantum, the learned counsel for the claimants would
submit that the Tribunal having accepted the evidence of the owner that he is
paying Rs.750/- per day to the deceased ought to have fixed the monthly
income at Rs.25,000 /- and not at Rs.18,000/-.
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C.M.A.No.4501 of 2019
11. We have considered the rival submissions. True there is a
statement in the First Information Report that the deceased came out of the
petrol bunk, but, it does not say that the deceased suddenly came out of the
petrol bunk. Ex.R5 sketch shows that the accident has occurred on the
extreme right side of the road, which is wrong side for the bus. If the
contention of the Transport Corporation that the two wheeler emerged from
the petrol bunk which is on the left side of the road and collaided with the
bus, the accident must have happened on the left side of the road and
damage would have caused to the left side of the bus.
12. The MV Report marked as Ex.P6 shows that the damage to
the bus was on the right side only. Further the evidence of PW.2 is to the
effect that the deceased was riding the two wheeler from Tirupathi to Pallipat
and the bus was proceeding in the opposite direction. The spot where the
accident occurred is shown in Ex.P5 plan is the proper side for the two
wheeler and wrong side for the bus.
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C.M.A.No.4501 of 2019
13. Additional factor that should be pointed out is that the
evidence of the driver of the bus was RW1, he had never spoken about the
two wheeler coming out of the petrol bunk suddenly. His proof affidavit is
to the effect that the deceased drove his two wheeler in the opposite direction
and dashed against the bus. Even in the cross examination of PW.2 no
suggestion has been put by the learned counsel for the Transport
Corporation to the effect that the two wheeler emerged from the petrol bunk
suddenly, thereby causing the accident. In the absence of any suggestion to
PW.2 and in the light of the evidence of PW.1 we are unable to accept the
counsel for the Transport Corporation to the effect that the emergence of two
wheeler from the petrol bunk suddenly was the cause of the accident. We
are therefore unable to fault the Tribunal for having come to the conclusion
that the driver of the bus was responsible for the accident.
14. Adverting to the quantum, the Tribunal has accepted the
evidence of PW.3 employer to the effect that he was paying Rs.750/- per day
as wages to the deceased who was working as a painter. The accident has
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C.M.A.No.4501 of 2019
occurred during the year 2016 and the wages of Rs.750/- to a skilled worker
is very reasonable. However, it cannot be taken that a skilled worker works
for all 30 days. There must be some allowance for holidays. Therefore, the
Tribunal was justified in fixing 24 working days per month. We do not see
any reason to interfere with the discretion exercised by the Tribunal.
15. While the Tribunal has rightly deducted 1/4th towards personal
expenses and applied multiplier '14', it had not added any amount towards
future prospects as mandated by the Hon'ble Supreme Court in National
Insurance Co. Ltd Vs. Pranay Sethi and others reported in 2018 (1) LW
331. As per the judgment of the Hon'ble Supreme Court 25% has to be
added towards future prospect on the facts of this case. If 25% is added to
Rs.18,000/-, the monthly income would be Rs.22,500/-. If we are to deduct
1/4th towards personal expenses and adopt a multiplier '14',
22,500 x ---- = 5625 [22500-5625 = 16875]
16875 x 12 x 14 = 28,35,000
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C.M.A.No.4501 of 2019
16. As already pointed out, the Tribunal has awarded a sum of
Rs.1,00,000/- to the claimant for loss of consortium and another
Rs.5,00,000/- to the claimants 1 to 5 for loss of love and affection. This is
clearly against the dictum of Hon'ble Supreme Court. Thus, the 1st claimant
would be entitled to Rs.40,000/- towards loss of consortium. The claimants
2 to 5 would be entitled to Rs.40,000/- each towards loss of love and
affection. The Tribunal has not awarded anything towards loss of estate and
transportation. A sum of Rs.15,000/- towards loss of estate and Rs.5,000/-
towards transportation is awarded. The award of Rs.10,000/- towards
funeral expenses is confirmed. Thus, the compensation is worked out as
follows:-
Heads Award Amount
Loss of Dependency Rs.28,35,000/-
Loss of Consortium Rs. 40,000/-
Loss of Love and Affection Rs. 1,60,000/-
(Rs.40,000/- for each claimants 2 to 5)
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 10,000/-
Transportation Rs. 5,000/-
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C.M.A.No.4501 of 2019
Heads Award Amount
Total Rs.30,65,000/-
17. In fine, the Civil Miscellaneous Appeal is dismissed and the
cross objection is allowed in part fixing the compensation payable at
Rs.30,65,000/-. The award will carry interest at 7.5% per annum. The
compensation is apportioned as follows:-
The 1st claimant would be entitled to Rs.11,87,000/- with
proportionate interest.
The claimants 2 to 4 would be each entitled to
Rs.5,00,000/- with proportionate interest and
The 5th claimant would be entitled to Rs.3,78,000/- with
proportionate interest.
18. It is stated that the Corporation has deposited 50% of the
award amount. The Corporation is granted eight (8) weeks time to deposit
the balance amount as per the enhanced award. The shares of the minor
claimants is directed to be deposited in an interest bearing Fixed Deposit in
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C.M.A.No.4501 of 2019
any Nationalized Bank with auto renewal clause, till they attain majority.
On attaining majority, the minor claimants are permitted to withdraw their
shares upon production of proof for attaining majority before the Tribunal.
The other claimants are permitted to withdraw their respective shares. No
costs. Consequently, the connected miscellaneous petition is closed.
(R.S.M.,J.) (S.S.K.,J.)
03.02.2023
dsa
Index : No
Internet : Yes
Neutral Citation : No
Speaking order
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C.M.A.No.4501 of 2019
To:-
The Subordinate Judge,
Motor Accident Claims Tribunal,
Tirutani.
https://www.mhc.tn.gov.in/judis
C.M.A.No.4501 of 2019
R.SUBRAMANIAN, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
dsa
C.M.A.No.4501 of 2019 and
Cross Objection No.9 of 2023
03.02.2023
https://www.mhc.tn.gov.in/judis
