Madras High Court
Tamilnadu State Transport Corporation vs Jayanthi on 1 August, 2024
CMA.(MD)No.743 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01/08/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.743 of 2021
and
CMP(MD)No.6772 of 2021
Tamilnadu State Transport Corporation,
by its Managing Director,
Kumbakonam. : Appellant/Respondent
Vs.
1.Jayanthi
2.Naresh
3.Minor Dinesh
(Minor 3rd Respondent rep. by
it through his mother Jayanthi)
4.Ramamirdham
5.Saminathan : Respondents/Petitioners
PRAYER:- Civil Miscellaneous Appeal is filed under
section 173 of the Motor Vehicles Act, 1988, to set aside
the impugned award passed in MCOP No. against the order
passed in MCOP No.74 of 2019 on the file of the MACT
(Additional Sub Court), Kumbakonam, dated 11/02/2020.
For Appellant : Mr.P.M.Vishnuvarthanan
For R1 to R4 : Mr.R.Ilayaraja
For 5th Respondent : Died
JUDGMENT
This Civil Miscellaneous Appeal is filed seeking to
set aside the award passed in MCOP No.74 of 2019, dated
11/02/2020 by the Motor Accident Claims Tribunal
(Additional Sub Court), Kumbakonam.
https://www.mhc.tn.gov.in/judis
2.The facts in brief:-
On 20/01/2019 at about 03.35 pm, the deceased
Murugesan was travelling in the footboard of the Bus
bearing registration No.TN-68-N-0742, which belongs to
the appellant herein from Thiruvalansuzhi Bus Stop. He
tried to get into the Bus, but could not, due to the hand
grip. The appellant Bus driver drove the vehicle in a
rash and negligent manner. As a result of which, he was
thrown out from the footboard, sustained grievous
injuries and taken to the Government Hospital,
Kumbakonam, later to the Thanjavur Government Medical
College Hospital, but died.
3.A case in Crime No.19 of 2019 was registered by
the Swamy Malai Police Station for the offences under
sections 279 and 304(A) IPC. He was aged about 44 at the
time of the occurrence and working as salesman in Narasus
Coffee Company and earning a monthly salary of
Rs.25,000/-. Claiming compensation of Rs.50,00,000/-, the
claim petition was filed by the dependents.
4.That was resisted by the appellant herein by
filing counter contending that it was the own making of
the deceased himself; He was travelling in the footboard,
in-spite of warning given by the crew members. Apart
from that, other customary denials were also made.
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5.Before the Tribunal, on the side of the claimants,
3 witnesses were examined and 16 documents were marked.
On the side of the appellant Transport Corporation, one
witness was examined and no document was marked.
6.At the conclusion of the enquiry process, the
Tribunal recorded a finding with regard to the first
aspect of negligence, both contributed to the occurrence
and contributory negligence was fixed at the ratio of
10:90. 10% on the deceased and 90% upon the appellant
driver.
7.Regarding the compensation, the age of the
deceased was taken as 47, on the basis of the entry made
in the postmortem report. His monthly income was fixed at
Rs.9,036/- on the basis of the salary certificate issued
by the competent person. 25% was taken as future
prospects and Rs.11,250/- was assessed as monthly income.
1/4th was deducted towards personal and living expenses.
Multiplier '13' was adopted and the Loss of Dependency
was fixed at Rs.13.16.250/-. That that, conventional
amounts were added as indicated in the tabulation given
hereunder under:-
Loss of Dependency Rs.13,16,250/-
Loss of Consortium Rs. 40,000/-
https://www.mhc.tn.gov.in/judis
Loss of Love and Rs. 25,000/-
Affection
Parental Consortium Rs. 50,000/-
Filial Consortium Rs. 50,000/-
Funeral expenses Rs. 15,000/-
Loss of estate Rs. 15,000/-
Damages to cloths Rs. 1,000/-
Transport Charges Rs. 5,000/-
Total Rs.15,17,250/-
8.Challenging the negligent aspect as well as the
quantum, this appeal is preferred.
9.Heard both sides.
10.The learned counsel appearing for the appellant
would submit that since the deceased was a footboard
traveller, fixation of 10% contributory negligence upon
him is very meagre; it ought to have been reasonably
fixed by the Tribunal. Apart from that, it is also
contended that there was no proper income for the
deceased; Taking Rs.9,036/- is not proper.
11.Per contra, the learned counsel appearing for the
respondents would submit that it was reasonably fixed, so
no interference is called for on the aspect of negligence
as well as quantum also.
https://www.mhc.tn.gov.in/judis
12.Regarding the contributory negligence, it is even
admitted by the claimants themselves that the deceased
was travelling in the footboard, but their contention is
that due to heavy crowd, he could not get inside the Bus
and had the driver of the Bus drove the vehicle with care
and caution, he would not have been thrown out. But the
footboard traveller is not permitted. The crew members
allowed the deceased to travel in the footboard, equally
he is responsible for the occurrence. Fixing 10:90 in the
facts and circumstances case, cannot be considered to be
improper. The responsibility is more upon the crew
members than the passengers. If heavy crowd, he ought not
to have permitted to travel in the Bus. So, fixation of
90% upon the appellant cannot be found fault and 10%
upon the deceased considered to be reasonable and fair.
13.Regarding the compensation, as mentioned above,
it is the case of the claimants that the deceased was
working as salesman in Narasus Coffee Company. Even
though the Tribunal has stated that the salary
certificate is produced, but perusal of the records does
not indicate the availability of the salary certificate.
It was admitted by the owner that no document is produced
by him to show that the deceased is working as Salesman
in Narasus Coffee Company, Kumbakonam. In the absence of
https://www.mhc.tn.gov.in/judis
any such documentary evidence to show the profession and
the income, taking the notional income will be
reasonable. Taking Rs.9,036/- fixed by the Tribunal as
notional income considering the age and the the family
circumstances is reasonable, that is also adopted by this
court. Considering the age, 25% was added towards future
prospects. 1/4th was deducted towards personal and living
expenses. Multiplier '13' was adopted as indicated above.
The Loss of Dependency was fixed at Rs.13,16,000/-. So,
it requires no interference.
14.Regarding the consortium and Loss of love and
affection separate heads were awarded as compensation,
which is not proper. The first petitioner is the wife of
the deceased. So she is entitled for Rs.40,000/- towards
spouse consortium. The claimants 2 and 3 are the
childrens. So, they are entitled Rs.40,000/- each towards
parental consortium. Since, a Memo has been filed stating
that the 5th claimant who is the father of the deceased
reported reported to be dead, only the 4th claimant being
the mother of the deceased alone is entitled to
Rs.40,000/-.
15.The award of the Tribunal is recalculated as per
the tabulation given hereunder:-
https://www.mhc.tn.gov.in/judis
Head Award of the Award of this
Tribunal Court
Loss of Dependency Rs.13,16,250/- Rs.13,16,250/-
Loss of consortium Rs. 40,000/- Rs. 40,000/-
Loss of Love and Rs. 25,000/- -
Affection
Parental consortium Rs. 50,000/- Rs. 40,000/-
Filial consortium Rs. 50,000/- Rs. 80,000/-
Funeral expenses Rs. 15,000/- Rs. 15,000/-
Loss of estate Rs. 15,000/- Rs. 15,000/-
Damaged clothes Rs. 1,000/- Rs. 1,000/-
Transport charges Rs. 5,000/- Rs. 5,000/-
Total Rs.15,17,250/- Rs.15,12,250/-
Less 10% negligence on Rs.13,65,525/- Rs.13,61,250/-
the part of the deceased
16.In the result, this Civil Miscellaneous Appeal is
partly allowed. The award of the Tribunal is modified as
Rs.13,61,250/-. The appellant is directed to pay the
above said modified amount together with interest at the
rate of 7.5% p.a., from the date of petition till the
date of deposit. On such deposit the claimants are
entitled to get their share as per the apportionment of
the Tribunal. No costs. Consequently connected
Miscellaneous Petition is closed.
01/08/2024
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Motor Accident Claims Tribunal/
Sub Court, Kumbakonam.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
01/08/2024
https://www.mhc.tn.gov.in/judis
