Pallavan Transport Corporation Ltd. (Metro) vs P. Murthy and etc.

Sengottuvelan, J.—All the abovesaid four appeals arise out of the Award passed by the Motor Accidents Claims Tribunal, Madras, in O.P.

No. 275 of 1980 and O.P. No. 318 of 1980.

The facts of the case are briefly as follows : --

On 10-5-1980, at about 2.30 p.m. the Pallavan Transport Corporation bus bearing registration number M.S.N. 343 while, proceeding from west

to east in the Pycrofts Road, and while entering Kamaraj Salai, dashed against the van bearing Registration number T.N.O. 2913, as a result of

which, Vijayan, traveling in the van died and the driver of the van Murthy lost his right hand. The said Murthy filed O.P. No. 275 of 1980 claiming

a sum of Rs. 70,000/- as compensation for loss of his right hand. Similarly, the legal representatives of the deceased, Vijayan, filed O.P. No. 318

of 1980, claiming rupees one lakh as compensation for the loss of support on account of the death of Vijayan. The Motor Accidents Claims

Tribunal, after considering the evidence in the case, came to the conclusion that the collision had occurred on account of the rash and negligent

driving of the driver of the bus M.S.N. 343 and on that basis awarded a compensation of Rs. 40,000/- to the driver of the van Murthy in O.P. No.

275 of 1980 and a sum of Rs. 54,000/- to the legal representatives of the deceased Vijayan in O.P. No. 318 of 1980. The Pallavan Transport

Corporation filed two appeals one in C.M.A.NO. 466 of 1982 against the award passed in O.P. No. 275 of 1980 and the other in C.M.A. No.

467 of 1982 against the award passed in O.P. No. 318 of 1980. The van driver Murthy, in his turn filed C.M.A. No. 353 of 1983 in respect of

the disallowed portion of his claim. The legal representatives of the deceased Vijayan also filed CM. A. No. 429 of 1986 in respect of the

disallowed portion of their claim. In view of the fact that the accident is one and the same, all the above cases are taken up together for

consideration.

The first question to be considered is whether the accident had occurred as a result of the rash and negligent driving of the driver of the Pallavan

Transport Corporation bus bearing registration number M.S.N. 343. The claimant Murthy, and one Kuppan, a cyclist who happened to follow the

van, were examined as P.W, 4 and P.W. 7, respectively to show how the accident had occurred. A plan of the scene of occurrence is also

marked as Ex. P. 2. From the evidence of P.W. 4 and P.W. 7 and the plan Ex. p. 2, it is seen that at the time of accident the Pallavan Transport

Corporation bus was coming from west to east in the Pycrofts Road and entering the main road Kamaraj Salai to take turn towards North and the

collision had taken place in the junction. On a perusal of Ex. P. 2, the plan of the scene of occurrence, and the circumstance the van had started

from P.W.D. Office nearby, it cannot be said that the van was driven at a high speed or on the wrong side of the road. Further, when the bus

entering the main Highway ahead, a duty is cast upon the driver to look into the Highway for any on coming traffic. If that had been done, this

accident could have been avoided. According to the evidence of the abovesaid two eye-witnesses as well as the other circumstances of the case, it

is clear that the driver of the Pallavan Transport Corporation bus is at fault and the Motor Accidents Claims Tribunal is right in coming to the

conclusion that the accident had occurred as a result of the rash and negligent driving of the bus driver.

The second question that will have to be considered in these appeals relates to the mode of ascertainment of compensation by the Tribunal. In

so far as Murthy, the driver of the van T.N.O. 2913 is concerned, the Tribunal had fixed his monthly salary at Rs. 448/-. He is aged, 24 years.

Even after sustaining the loss of his right hand he continues his employment as a peon in the same department and continues to work and draw

salary. He deposed as P.W. 4 that this salary of Rs. 448/- had been reduced to Rs. 250/- per month on account of demotion from his previous

employment as driver to the present employment as Peon. The Tribunal while considering his evidence observed that any reduction in salary is not

likely since such reduction is possible only in cases of disciplinary action and consequent reduction in rank and no such reduction could have been

made when he continues his employment as a Peon on compassionate grounds. The view taken by the Tribunal will have to be accepted in view of

the fact that P.W. 4 has failed to support his testimony regarding the reduction of salary by producing the pay certificates, etc., that may be

available with him. Though there may not be any reduction in earnings, taking into consideration the possibility of his working for a further period of

25 years and also the loss of his right hand the Tribunal found that there is a loss of earning capacity to the tune of 80 per cent. We will have to see

whether the conclusion of the Tribunal that there is a loss of earning capacity to the tune of 80 per cent is correct. P. Ws. 3 and 4, the two doctors

examined in this case, testify the fact that the right hand of Murthy was amputated leaving a stump of 7"" from the shoulder joint. Even according to

the Schedule to the Workmen''s Compensation Act, amputation below shoulder with a stump less than 8"" from up to acromion is rated at 80 per

cent. Hence the percentage of loss of earning arrived at by the Tribunal is correct.

We have already accepted the conclusion of the Tribunal that the reduction in salary is not likely. The Tribunal assessed 80 per cent of salary

from Rs. 448/- per month and arrived at Rs. 360/- per month. Capitalising Rs. 360/- per month for a period of 25 years, the Tribunal arrived at

the compensation at Rs. 55,100/-. The Tribunal rejected the claim of Rs. 500/- for transport charges to the hospital and Rs. 500/- for extra

nourishment on the ground that there was no evidence regarding the same. The Tribunal awarded Rs. 900/- towards pain and suffering and arrived

at the total compensation at Rs. 56,000/-. After making 20 per cent allowance to uncertainties in his life and other contingencies, the Tribunal

awarded the lump sum compensation of Rs. 40,000/- to Murthy. The only contention raised on behalf of the Pallavan Transport Corporation is

that the Tribunal is not right in awarding compensation on the basis of loss of earnings at 80 per cent when Murthy is actually continuing the service

and drawing salary as before and hence really there is no loss. But it will have to be remembered that Murthy is continuing his service only on

compassionate grounds and in any moment he can be ousted, from service on account of the disability he had undergone. In any event the

continuance of the employment of Murthy on compassionate ground cannot lessen the liability of the tortfeasor. Under the circumstances the

Tribunal is right in arriving at the compensation payable at Rs. 40,000/-on the basis of 80 per cent loss of earnings and there are no grounds to

interfere with the said conclusion arrived at by the Tribunal.

So far as Vijayan, the deceased is concerned, he was aged 25 years and his salary was assessed by the Tribunal at Rs. 339/- per month at the

time of accident. After making an allowance of Rs. 100/- per month towards his maintenance, the Tribunal arrived at the loss of support to the

dependants at Rs. 239/- per month. In so far as his age is concerned, according to the evidence adduced on behalf of the claimants is that he was

aged 25 at the time of accident whereas the doctor P.W. 6 estimated his age as 30. The Tribunal took the view that he should be aged 28 at the

time of accident and on that basis the Tribunal came to the conclusion that the deceased would have supported his family for a period of 30 years.

By multiplying Rs. 239/- by 12 the Tribunal arrived at the loss of support per annum at Rs. 2868/ and the total loss at Rs. 86,040/-. The Tribunal

reduced the said sum to Rs. 54,000/- after deducting 20% on account of lump sum payment, Rs. 10,000/- received from the Government on

account of his death while in harness and Rs. 1,000/- received on account of the accidental death from the Collector of Madras. On behalf of the

claimants it is contended that the Tribunal erred in deducting Rs. 10,000/- received from the Government under the Family Benefit Scheme and Rs.

1,000/- from the Collector of Madras under the Chief Minister''s relief fund, which is an ex gratia payment. There is force in this contention since

the Family Benefit Scheme and the ex gratia payment are available to all Government servants who died while they are in service. This has nothing

to do with the accident, whereas the compensation to be awarded under the provisions of the Motor Vehicles Act relates to the damages caused

on account of the accident. Further the compensation amount represents the loss which the tortfeasor had caused to the estate of the deceased.

Deducting the abovesaid amounts from the amount of compensation arrived at will amount to relieving the tortfeasor of his liability. The amount

payable under the Family Benefit Scheme and the ex gratia payment are not intended for such purpose. Therefore, the Tribunal is not right in

deducting the amount received under the Family Benefit Scheme and the ex gratia payment from the amount awarded towards compensation.

The wife of late Vijayan has claimed Rs. 5,000/- towards the loss of consortium and another Rs. 5,000/- for the loss of predominantly happy

life. This has been negatived by the Tribunal. The fact that the wife of Vijayan had lost the company of her husband for the rest of her life is a

matter to be compensated. Though there may not be any separate compensation for loss of consortium and for loss of predominantly happy life yet

the wife of Vijayan is at least entitled to a compensation for both the loss of consortium and the loss of predominantly happy life. Taking into

consideration the status of the deceased a sum of Rs. 2,000/- can be fixed as compensation payable in this regard. As far as the claim of Rs.

1,000/- towards suffering is concerned the Tribunal rejected the same on the ground that Vijayan met with his death without regaining his

consciousness and hence there is no pain and suffering involved in this regard. The finding of the Tribunal in this regard does not appear to be

incorrect.

In the result the award passed by the Tribunal in favour of Murthy in O.P. No. 275 of 1980 for a sum of Rs. 40,000/- is confirmed and the

award passed in favour of the legal representatives of the deceased Vijayan in O.P. No. 318 of 1980 is modified by enhancing the compensation

to Rs. 67,000/-. The said amounts will bar interest at 9 per cent per annum from the date of application till the date of realisation. Pending the

appeal, the third appellant in C.M.A. No. 429 of 1986 died. Hence the compensation awarded in CM.A. No. 429 of 1986 will be equally divided

into two shares and one share is allotted to the first appellant Remaining minor''s share (2nd appellant) will be deposited in a Nationalised Bank till

the minor attains majority and the mother of the petitioner at liberty to withdraw the interest accruing thereon from time to time for the benefit and

maintenance of the minor. Consequently CM.A. Nos. 466 and 467 of 1982 and 353 of 1983 are dismissed and CM.A. No. 429 of 1986 is

allowed in part as indicated above. There will be no order as to costs in all the appeals.