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Judgment
R. Banumathi, J
C.M.A. No. 134 of 2004 -Feeling dissatisfied with the award of compensation of Rs. 24,50,000/-for the death of deceased Palaniappan, the Appellants-Claimants who are wife, daughters and mother of the deceased have preferred this Appeal.
C.M.A. No. 228 of 2004 - Being aggrieved with the fastening of liability on the Transport Corporation and also the award of compensation of Rs. 24,50,000/-for the death of deceased Palaniappan, Appellant-Transport Corporation has filed this Appeal.
Since both the Appeals arise out of the same order and points for consideration are one and the same, both the Appeals were taken up together and disposed of by this Common Judgment. For convenience, the parties are referred as per their array in C.M.A. No. 134 of 2004.
Brief facts are that on 01.03.2002 while the deceased Palaniappan was proceeding in his motor cycle bearing registration No. TN-47-F 5724 from west to east in Coimbatore-Karur main road and while he was nearing Andavar Timbers, the 1st Respondent''s bus bearing registration No. TN-33-N 1085 coming in the same direction driven by the driver in a rash and negligent manner dashed against the deceased. Due to the impact, deceased sustained multiple injuries and died on the spot. Regarding the accident, criminal case in Crime No. 22/2002 of Karur Police Station was registered u/s 304A IPC against the driver of the bus. At the time of accident, the deceased was aged 51 years and he was the Managing Partner in M/s. Andavar Textiles and Partner in M/s. Amman-A-Fabrics and was getting salary of Rs. 15,000/-per month and Profit and Bonus from M/s. Andavar Textiles at Rs. 1,80,000/-p.a. Likewise, deceased was getting Profit and Bonus from M.s. Amman-A-Fabrics at Rs. 50,000/-p.a. Alleging that the accident was due to rash and negligent driving of the bus driver, the Claimants who are wife, daughters and parents of the deceased have filed the Claim Petition claiming compensation of Rs. 40,00,000/-.
Resisting the Claim Petition, 1st Respondent-Transport Corporation has filed counter contending that the accident was occurred due to rash and negligent driver of the deceased himself. 1st Respondent-Transport Corporation also averred that the compensation claimed by the Claimants is exorbitant.
Before the Tribunal, Claimants 1 to 3, who are wife and daughters of the deceased examined themselves as P. Ws.1 to 3 respectively. One Subramanian, who lodged the FIR was examined as PW4. The Co-Partner in Andavar Textiles viz., Selvaraj was examined as PW5. Exs.P1 to P26 were marked on the side of the Claimants. One Sivakumar, driver of the 1st Respondent-Transport Corporation bus and one Ramasamy, co-passenger of the bus were examined as Rws.1 and 2. Exs.R1 to R3 were marked.
Upon consideration of oral and documentary evidence, Tribunal held that the accident occurred due to rash and negligent driving of the 1st Respondent-Transport Corporation bus driver. Tribunal held that at the time of accident, deceased was getting profit from his business at Rs. 1,50,000/-and also he was getting salary of Rs. 1,80,000/-, totalling Rs. 3,30,000/-p.a. Deducting 1/3rd towards personal expenses and adopting multiplier "11", Tribunal has awarded Rs. 24,20,000/-for "loss of dependency". Totally, Tribunal has awarded Rs. 24,50,000/-as under:
Loss of dependency : Rs. 24,20,000.00 Funeral expenses : Rs. 10,000.00 Loss of love and affection : Rs. 10,000.00 Loss of consortium : Rs. 10,000.00 -------------- Total : Rs. 24,50,000.00 --------------
Being aggrieved by the quantum of compensation, the State Transport Corporation has filed an Appeal in C.M.A. No. 228 of 2004. The learned Counsel for the Appellant Corporation contended that the accident was due to negligence of the deceased and while so, the Tribunal erred in holding that the accident was due to the negligent driving of the Transport Corporation bus, overlooking the specific care taken by the bus driver. It was further contended that the deceased contributed to the accident and the claim is bad for non-joinder of the insurer of the two wheeler, when admittedly the owner of the two wheeler was made as a party. Insofar as the quantum, the learned Counsel submitted that the income taken by the Tribunal at Rs,27,500/-is very mush on the higher side.
The learned Counsel for the claimants contended that for the period of 2001-2002, Andavar Textiles had annual turn over of more than Rs. 1.33 Crores and there were possibilities of earning higher income in future and while so, the income of the deceased taken at Rs. 27,500/-per month is very much low and therefore, the quantum of compensation, awarded to the claimants is necessarily to be enhanced.
By perusal of the records, rival contentions and the judgment of the Tribunal, the following two points arise for consideration:
Whether the Tribunal was right in holding that the accident was due to rash and negligent driving of the bus driver?
Whether the quantum of compensation of Rs. 24,50,000/-is just and reasonable or whether the same is to be enhanced?
Point No. 1: On 1.3.2002, at about 9 a.m, when the deceased was proceeding in his TVS Suxuki Motor Cyle T.N.47-F-5724, in Coimbatore to Karur main road, the bus bearing Registration No. T.N.33 N.1085, proceeding in the same direction from west to east near Andavar Timbers, hit against the deceased Palaniappan. To prove that the accident was due to negligent driving of the bus driver, the claimants have examined the eye witness (PW 4) namely, Subramanian, whose name is not found place in the complaint. In his evidence PW4 has categorically stated that while he was proceeding in Coimbatore - Karur main road in his vehicle, he saw Palaniappan proceeding in his two wheeler and the bus came from west side driven in a rash and negligent manner hit against Palaniappan and Palaniappan was dragged to about 50 feet and the front left side wheel of the bus ran over him and Palaniappan died on the spot. The evidence of PW4 is corroborated by the recitals in Ex.P.1 FIR. PW4 being an eye witness as well as the person who lodged the FIR, his evidence stands on higher footing.
To substantiate the defence that the bus was driven carefully, the Corporation has examined the bus driver as RW1 and another person as RW2, who then travelled in the bus.R Ws.1 and 2 have stated that TVS Suzuki has overtaken the bus on the left side and to avoid hitting a cyclist who was proceeding in front of TVS Suzuki, the TVS Suzuki swerved to the right side and in that way came in the middle of the road and the deceased was solely responsible for the accident.
As rightly pointed out by the Tribunal, such version of RW1 in the witness box that TVS Suzuki has overtaken the bus and to avoid to hit against the cyclist, who has come in the middle of the road, was not reflected in the earlier documents like Ex.B1 complaint sent to the Inspector by the bus driver and Ex.B3 a letter sent by the Manager of the Corporation. In the absence of such version stated in the earlier documents, no weight can be attached to the evidence of RW1 and defence version.
The learned Counsel for the Respondent Corporation contended that the bus driver had lodged the complaint(Ex.R1), which would substantiate the Respondent''s contentions and that the same was not properly appreciated by the Tribunal. Even though RW1 is said to have lodged the complaint, criminal case in Crime No. 221 of 2002 was registered against the bus driver. As seen from Ex.A.5, the Charge Sheet in C.C. No. 132 of 2002 was filed against the bus driver. Registration of criminal case and filing of Charge Sheet against the bus driver would primafacieshow that the bus driver was responsible for the accident.
Drawing our attention to Ex.A.4 Plan, the learned Counsel for the Respondent Corporation contended that the Topo sketch would show that the deceased Palaniappan came in the middle of the road and thereby, the deceased was responsible for the accident and the Tribunal did not properly appreciate the evidence. Of course, in Ex.A.4, the scene of accident is shown in the middle of the road. In our considered view, Ex.A.4 does not reflect the position of the vehicles at the time of impact; but only reflects the position of the vehicles after the impact/accident. Therefore, it cannot be contended that based upon Ex.A.4 inference has to be drawn against the deceased that he was negligent.
We do not find any error in the approach of the Tribunal discarding the evidence of RW1. Assuming that TVS Suzuki so came in the middle of the road and the driver of the bus, who was driving the heavy vehicle, ought to have taken reasonable care and caution in avoiding the accident. Absolutely, there is no evidence forthcoming to show that the driver of the bus has taken such reasonable care and caution. In the absence of any evidence, the Tribunal rightly held that the accident was due to rash and negligent driving of the bus driver. We do not find any reason warranting interference by this Court.
Point No. 2: In his evidence, PW.1 has stated that her husband, Palaniappan was the Managing Director in the Partnership Firm, M/s. Andavar Textiles and that her husband Palaniappan, Nachimuthu and Selvaraj were all three partners. PW.1 has stated that her husband invested Rs. 2,00,000/-and the other partners invested Rs. 1,50,000/-each and that her husband was getting salary of Rs. 15,000/-per month and also getting profit income of Rs. 2,00,000/-per annum.
PW.5 Selvaraj, who is a partner in M/s. Andavar Textiles, has stated that the deceased Palaniappan was the Managing Director and that himself (PW.5) and Nachimuthu were the partners. Ex.A.7 is the unregistered Partnership Deed. Ex.A.17 is the Form-A of M/s. Andavar Textiles in which there was Serial No. 347/85. From Ex.A.17, it is seen that there were at least 12 persons. In his evidence PW.5 has stated that M/s. Andavar Textiles was making good business and made a turnover of Rs. 1,32,66,352.40 for the year 2001-2002. Ex.A.18 is the Form A.12 showing the turnover of M/s. Andavar Textiles of Rs. 1,32,66,352.40 for the year 2001-2002, which was signed by the Commercial Tax Officer, Karur. PW.5 has also stated that from and out of the said huge turnover, the firm has earned profit of Rs. 4,50,000/-, out of which, Palaniappan was entitled to 50%, i.e. Rs. 2,25,000/-. PW.5 has also stated that the deceased Palaniappan was getting salary of Rs. 15,000/-per month. However, having regard to Ex.A.17 and A.18, the Tribunal held that there is nothing to doubt the correctness of Ex.A.7. From the evidence of P Ws.1 and 5 and from Ex.A.18, it is seen that M/s. Andavar Textiles was making good business with annual turnover of about Rs. 1.32 crores. From Ex.A.26, it is seen that the firm had overdraft facility and had taken OD of about 1.4 crores and the same was also paid back. As rightly pointed out by the Tribunal, there are enough materials to show that M/s. Andavar Textiles was making good business. From and out of the turn over of Rs. 1,32,66,352.40, the Tribunal had held that the partnership firm would have got 4 or 5% of profit. Taking the profit at 4%, the Tribunal has observed that the firm would have approximately got profit of Rs. 5,32,000/-. However, based upon the evidence of PW.5, the Tribunal had taken the annual income for the year 2001-2002 as Rs. 4,50,000/-.
Even though P Ws.1 and 5 have stated that the deceased had profit share of 50% from the firm, there is nothing to show that Palaniappan was getting 50% of the profit. Since Ex.A.7 is the unregistered document, based upon the same, it cannot be held that the deceased partner would have got 50% of the total profit. The Tribunal rightly held that Palaniappan would have got equal profit along with other partners, Nachimuthu, Selvaraj (PW.5). Taking the annual income of the firm at Rs. 4,50,000/-, the Tribunal held that the deceased would have earned annual income of Rs. 1,50,000/-from the firm.
In their evidence P Ws.1 & 5, the deceased was getting salary of Rs. 15,000/-per month from the said partnership firm and accepting the same, the Tribunal has arrived at the salary income at Rs. 1,80,000/-. The Tribunal has taken the total income of Rs. 3,30,000/-( salary income Rs. 1,50,000 + income from business 1,80,000).
The learned Counsel appearing for the Appellants/claimants contended that since the turn over was Rs. 1.32 crores, even taking the profit at 4% annual income ought to have been taken at Rs. 5,32,000/-, from and out of which, the income of the deceased must have been taken at 50% i.e Rs. 2,66,000/-as the income from the business, apart from salary of Rs. 1,80,000/-per annum. Even though the deceased is said to have been getting higher income from business also by way of salary, it is pertinent to note that the claimants have not produced any income tax returns of the deceased. If really the deceased was earning more than Rs. 4,00,000/-per annum from the business apart from the salary, nothing prevented the claimants from producing income tax returns of the deceased. In the absence of any proof showing that the deceased was also an income tax Assessee and income tax returns being filed, the contention of the claimants that the deceased was getting the annual income of Rs. 4,50,000/-cannot be accepted. In our considered view, the income taken by the Tribunal, at Rs. 3,30,000/-is reasonable. At the time of the accident, the deceased was aged 51 years. As per the second schedule, the Tribunal has rightly adopted the multiplier 11 and calculated the income at Rs. 36,30,000/-, deducting 1/3rd for personal expenses i.e. Rs. 12,10,000/-. The loss of dependency/pecuniary loss of the family is arrived at Rs. 24,20,000/-, which in our considered view is just and reasonable, calling for no interference.
Insofar as the conventional damages, the Tribunal has awarded Rs. 10,000/-as funeral expenses and the same is maintained. For loss of love and affection, the Tribunal has awarded Rs. 10,000/-each to the daughters/claimants 2 and 3 and also to the mother (4th claimant). The second and third claimants have lost their father at the age of 21 and 19. It is stated that they are yet to be married. Having regard to the age of the second and third claimants, the compensation payable to them for loss of love and affection is enhanced to Rs. 25,000/-each and Rs. 10,000/-for loss of love and affection to the 4th claimant/mother. Insofar as the loss of consortium to the 1st claimant, the Tribunal has awarded the compensation of Rs. 10,000/-and the same is enhanced to Rs. 20,000/-. The compensation of Rs. 24,50,000/-awarded is enhanced to Rs. 25,10,000/-. The Tribunal has awarded interest @ 9%. Following the consistent view taken by the Hon''ble Supreme Court, the rate of interest is reduced to 7.5%.
In the result, the compensation awarded to the claimants in M.C.O.P. No. 481 of 2002 on the file of the Motor Accident Claims Tribunal [Chief Judicial Magistrate], Karur is enhanced from Rs. 24,50,000/-to Rs. 25,10,000/-. In addition to the apportionment of the compensation awarded to the claimants by the Tribunal, the Appellants viz., claimants 2 and 3 shall be entitled to further compensation of Rs. 25,000/-each and the first claimant is entitled to another further sum of Rs. 10,000/-. The compensation amount is payable with interest at the rate of 7.5% per annum. Accordingly, C.M.A.(MD) No. 134 of 2004 is disposed of. No order as to costs.
C.M.A. No. 228 of 2004 is disposed of in terms of our conclusions in C.M.A.(MD) No. 134 of 2004. No order as to costs. Connected Miscellaneous Petition is closed.