Madras High Court
The Managing Director vs Allis on 10 October, 2023
C.M.A(MD)No.431 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A(MD)No.431 of 2021
and
C.M.P.(MD) No.3895 of 2021
The Managing Director,
Tamil Nadu State Express Transport Corporation,
Chennai. ... Appellant
.vs.
1.Allis
2.Sonia Christy
3.Allwin Raja
4.Nagaraja ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the award and decree made in
MCOP.No.222 of 2012 dated 2702.2020 on the file of the Motor
Accident Claims Tribunal/Additional Sub Court, Tenkasi.
For Appellant :Mr.P.Prabhakaran
For R1 to R3 :Mr.T.Selvakumaran
For R4 : Given up
1/9
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C.M.A(MD)No.431 of 2021
JUDGMENT
This Civil Miscellaneous Appeal is filed challenging the award
passed in MCOP.No.222 of 2012 on the file of the Motor Accident
Claims Tribunal/Additional Sub Court, Tenkasi.
2.The learned counsel for the appellant/Transport Corporation
challenges this appeal on the grounds of i) liability and ii) quantum. It is
the submission of the learned counsel for the appellant that P.W1, the
wife of the deceased, alone was examined as a witness to speak about the
accident. Even as per the averments made in the claim petition, it is not
specifically stated that the first petitioner/wife had seen the accident. It is
averred that she was dropped by her husband at a place and then, he
moved away and met with an accident. In that case, it was not possible
for P.W1 to see the accident. Another submission is that the accident had
happened due to sudden crossing of the deceased in his cycle and he
contributed to the accident.
3.With regard to quantum, it is submitted that the learned Tribunal
fixed the monthly income of the deceased at Rs.8,000/- without any
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C.M.A(MD)No.431 of 2021
basis. Assuming that this amount is right, it fixed the future prospects at
Rs.2,000/- and Rs.8,000/- and then again ordered Rs.2,000/-. It is
patently wrong. The monthly income adopted at Rs.12,000/- for the
deceased is not correct and in accordance with law. The Tribunal had
awarded Rs.40,000/- towards loss of consortium and again awarded Rs.
90,000/- towards loss of love and affection. This is also wrong and
excessive. On these grounds, the learned counsel for the appellant
challenges the award.
4.In response, the learned counsel appearing for the respondents 1
to 3 submitted that the accident happened due to rash and negligent
driving of the Driver of the respondent Corporation. P.W1 had really seen
the accident and therefore, she was examined as a witness. The claim that
the deceased has suddenly crossed the road is not correct. The accident
had happened because of the rash and negligent driving of the transport
Corporation's Driver. The future prospects was given taking into
consideration the 10% increase once in 3 years. It is his submission that
every petitioner is entitled for loss of consortium.
5.Considered the rival submissions and perused the records.
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C.M.A(MD)No.431 of 2021
6.It is seen from the pleadings and submissions of the learned
counsel appearing for the parties that on 26.12.2011, the deceased had
travelled in his bicycle along with his wife/the first respondent. He
dropped his wife near Sastha temple and proceeded further in Tirunelveli
to Tenkasi road from west to east on the left side of the road. At that
point of time, the Driver of the bus, bearing Reg.No. TN 01 N 6928 had
come from the opposite direction in a rash and negligent manner and hit
against her husband. As a result of which, he sustained injuries and died.
Her husband was earning a sum of Rs.15,000/- per month by working in
a Beedi Company. The claimants/respondents 1 to 3 are dependant on the
income of the deceased for their living. Because of the sudden death of
the deceased, they find difficulty to make a living. Thus, the claim
petition was filed.
7.As already stated, the claim petition was resisted by the
appellant/respondent stating that the deceased had also contributed to the
accident and that the quantum is excessive. This Court perused Ex.B1,
FIR and Ex.B5, Rough Sketch. It is seen from the allegations made in the
FIR and the Rough Sketch that the accident had happened on the
northern extreme of west to east road. As per the case of the claimants,
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C.M.A(MD)No.431 of 2021
the deceased after dropping her wife near Sastha temple proceeded from
west to east keeping the left side of the road ie., northern side of the road.
The place of the Sastha temple is also shown in the Rough Sketch. From
that, it is possible to see the accident site. Therefore, it is possible that
P.W1 could have witnessed the accident.
8.This is evidence that when the deceased was going keeping left
side of the road from west to east direction, the Driver had driven the bus
bearing Reg.No TN 01 N 6928 in a rash and negligent manner hit against
her husband. It is apparent that the Driver of the aforesaid bus had driven
the bus to the wrong side of the road and hit against the deceased head
on. Though P.W1 was examined with regard to the accident and she filed
proof affidavit narrating how the accident had happened, except the bald
suggestion that she had not seen the accident, no question is asked
penetrating her evidence with a view to raise doubts in her evidence with
regard to the manner in which the accident had happened. Therefore, this
Court is of the view that the Tribunal had rightly found that the accident
had happened because of the rash and negligent driving of the Driver of
the bus bearing Reg.No. TN 01 N 6928. The submissions of the learned
counsel for the appellant in this regard are rejected.
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C.M.A(MD)No.431 of 2021
9.With regard to quantum, the Tribunal had taken Rs.8,000/-
towards monthly income of the deceased. The accident had happened in
2011. The sum of Rs.8,000/- cannot be considered as excessive for a
person aged about 47 years at the time of accident. However, this Court
finds that after taking 25% of Rs.8,000/- towards future prospects, again
Rs.2,000/- was ordered to arrive at a monthly income of Rs.12,000/- on
the reason that for every 3 years 10% increase can be given. For arriving
this conclusion, no reason has been given. Therefore, this part of the
finding of the learned Tribunal is not correct and set aside. Taking the
deceased monthly income at Rs.8,000/- with 25% towards future
prospects, the monthly income of the deceased is fixed at Rs.10,000/-.
From this 10,000/-, 1/3rd of the amount has to be deducted towards
personal expenses of the deceased and it comes to Rs.3,333/- and thus,
the monthly income of the deceased is fixed at Rs.6,666/-. The deceased
was aged about 47 years at the time of accident. Therefore, the proper
multiplier for computing loss of dependency is 13 and when calculated,
it comes to Rs.10,39,896/-. Thus, the loss of dependency fixed at Rs.
12,48,000/- is modified as Rs.10,39,896/- (6,666 x 12 x 13). With regard
to loss of consortium, the Hon'ble Apex Court in National Insurance
Company Limited Vs. Pranay Sethi and others reported in 2017(2) TN
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C.M.A(MD)No.431 of 2021
MAC 609 (SC) has found that the claimants are entitled for consortium
of Rs.40,000/-. Thus, this Court is of the view that the petitioners are
entitled for loss of consortium at Rs.40,000/- each. When they are
awarded compensation under the head of loss of consortium, they are not
entitled for compensation under the head of loss of love and affection.
Thus, a sum of Rs.90,000/- awarded under the head of loss of love and
affection is set aside.
10.In fine, the compensation awarded by the Tribunal is modified
as under:-
S.No Head Awarded by Awarded by Enhanced
the tribunal this Court
1 Loss of Income Rs.12,48,000/- Rs.10,39,896/- Reduced
2 Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
3 Funeral Expenses Rs.15,000/- Rs.15,000/- Confirmed
4 Loss of Rs.40,000/- Rs.1,20,000/- Enhanced
Consortium (Rs.40,000/-
each
petitioner)
5 Loss of Love and Rs.90,000/- - -
Affection
Total Rs.14,08,000/- Rs.11,89,896/- Rs.2,18,104/-
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C.M.A(MD)No.431 of 2021
11.In fine, this Civil Miscellaneous Appeal is partly allowed
reducing the compensation from Rs.14,08,000/- to Rs.11,89,896/- with
interest at the rate of 7.5% p.a.from the date of claim petition till the date
of realization. The appellant/Transport Corporation is directed to deposit
the modified enhanced award amount with accrued interest and costs,
less the award amount already deposited, if any, within a period of eight
weeks from the date of receipt of a copy of this order. On such deposit
being made, the claimants are entitled to withdraw their share amount
along with proportionate accrued interest and cost, less the amount
already withdrawn, if any by filing proper petition before the Tribunal.
No costs. Consequently, connected Miscellaneous Petition is closed.
Index :Yes/No 10.10.2023
Internet :Yes/No
NCC :Yes/No
Speaking :Yes/No
mm
To
The Additional Subordinate Judge,
Tenkasi.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.431 of 2021
G.CHANDRASEKHARAN,J.
mm
C.M.A(MD)No.431 of 2021
10.10.2023
https://www.mhc.tn.gov.in/judis
