The Assistant Executive Engineer, Agriculture Engineering Department and Others vs Rajathi and Others

S. Manikumar, J—Being aggrieved by the judgment and decree, made in MCOP. No. 483 of 2012, on the file of the Motor Accidents Claims Tribunal, Additional District Court/Special Court for E.C. & NDPS Act Cases, Pudukkottai, finding the driver of a Borewell Lorry, bearing registration No. TMN 4212 @ TMG 4212, under the control of the Assistant Executive Engineer, Agriculture Engineering Department, Tanjore, as negligent, for causing the accident, which resulted in the death of one Sivanantham, and the quantum of compensation of Rs. 25,31,000/- with interest @ 7.5% per annum, awarded to the wife, minor sons, minor daughter and parents of the deceased, the present Civil Miscellaneous Appeal has been filed.

That on 05.07.2011, about 07.00 P.M, when the breadwinner of the family, Sivanantham, was proceeding to Meikkudipatti, in his Hero Honda motor cycle, bearing registration No. TN.55.J.0846, from south to north, by observing the traffic rules, on the left side of Gandarvakottai-Tanjore road, near Konapuli, a Borewell Lorry bearing registration No. TMN 4212 @ TMG 4212, under the control of the Assistant Executive Engineer, Agriculture Engineering Department, Tanjore, driven by its driver in a rash and negligent manner, dashed against the motor cycle, from behind and in the result, the motor cyclist, Sivanantham, fell down, sustained grievous injuries and died on the spot.

According to the respondents/claimants, the accident occurred solely due to the rash and negligent driving of the driver of the Borewell Lorry. At the time of accident, the deceased was aged 43 years. He was working as a Junior Assistant in Gandarvakottai Taluk Co-operative Housing Society and earned Rs. 16,117/- per month. They claimed compensation of Rs. 30,00,000/-.

The Assistant Executive Engineer, Agriculture Engineering Department, Tanjore, and the District Collector, Tanjore, defended the claim. In their counter affidavit, they denied the manner of accident, as alleged. According to them, the Borewell Lorry was driven, at a moderate speed, on Gandarvakottai-Tanjore road. It was the motor cyclist, who rode the vehicle, in a rash and negligent manner and without making any sign, he entered the main road, from the subway. According to them, it was the deceased, who was negligent in causing the accident. It was also their submission that the rider had no valid licence and therefore, the respondents/claimants did not implead the insurer of the vehicle. Without prejudice to the same, they disputed the age, avocation and the monthly income of the deceased.

Before the Claims Tribunal, the 1st respondent/wife examined herself as PW1. She reiterated the manner of accident. She has marked Ex. P1-FIR, Ex. P2-Postmortem Certificate, Ex. P3-Driving Licence of RW1, Ex. P4-Death Certificate of Sivanantham, Ex. P5-Legal heirship Certificate and Ex. P6-Salary Certificate of the deceased. PW2 is the eye-witness to the accident. He has also deposed that the accident occurred, only due to the rash and negligent driving of the driver of the Borewell Lorry. The driver of the Borewell Lorry, bearing registration No. TMN 4212 @ TMG 4212, examined as RW1, has adduced the evidence, denying the manner of accident. No document has been marked on the side of the appellants.

On analysis of oral and documentary evidence, adduced by both parties, the Claims Tribunal, held that the accident occurred, due to the rash and negligent driving of the driver of the Borewell Lorry bearing registration No. TMN 4212 @ TMG 4212.

As regards the age of the victim, upon considering Ex. P2-Postmortem Certificate of the deceased and Ex. P4-Death Certificate of the deceased, the Claims Tribunal, has determined the age of the deceased as 43, at the time of accident. For determining the quantum of compensation, after considering the oral testimony of PW1/Wife, that at the time of accident, the deceased was working as a Junior Assistant in Gandarvakottai Taluk Co-operative Housing Society and earned Rs. 16,117/- per month and corroborated evidence in Ex. P6-Salary Certificate, issued by the Special Officer, Gandarvakottai Taluk Co-operative Housing Society, the Claims Tribunal fixed the monthly income of the deceased, at Rs. 16,117/- per month and consequently, computed the annual income at Rs. 1,93,404/-. As the deceased had a permanent job and that he was less than 50 years, considering his retirement age, 58 years, the Claims Tribunal added a further sum of 20%, towards his monthly salary and worked out the annual income at Rs. 2,32,084/-, rounded to Rs. 2,32,000/-.

The deceased is survived by his wife, minor sons, minor daughter and parents, numbering six dependants. The Tribunal deducted 1/4th towards the personal and living expenses of the deceased and arrived at a figure of Rs. 1,74,000/-. Having regard to the decision of the Supreme Court in 2009 (2) TNMAC 1 (SC), and the age of the deceased, ''43'' at the time of accident, the Tribunal applied ''14'' as multiplier, for the purpose of computing the loss of contribution to the family. Accordingly, the Tribunal worked out the same to Rs. 24,36,000/- (Rs. 1,74,000X14).

In addition to the above, the Claims Tribunal awarded Rs. 25,000/- towards loss of consortium, Rs. 60,000/- towards loss of love and affection and Rs. 10,000/- towards funeral expenses. Altogether, the Tribunal awarded compensation of Rs. 25,31,000/- with interest @ 7.5% per annum and accordingly, apportioned the same to the legal representatives.

Though Mr. C. Selvaraj, learned Special Government Pleader appearing for the appellants, assailed the finding of the Claims Tribunal, fixing negligence, on the driver of the Borewell Lorry, this Court is not inclined to accept the said submission, for the reason that the oral testimony of PW1, is duly corroborated by Ex. P1-FIR. Moreover, PW2, eye-witness, himself has given the complaint, dated 06.07.2011 and the same has been registered in Crime No. 182 of 2011 on the file of Gandarvakottai Police Station, Pudukkottai District, against the driver of the Borewell Lorry. The evidence of the respondents/claimants is duly corroborated by Ex. P1-FIR and on the contra, there is no supporting evidence to RW1.

It is well settled that in claims cases, the test to find out negligence, is only preponderance of probability and strict proof of evidence, as required in criminal proceedings, is not necessary. Testing the finding of the Tribunal, on the principles of preponderance of probability, this Court does not find any infirmity or perversity, warranting reversal of the abovesaid finding. Hence, the finding of the Tribunal, regarding negligence, is confirmed.

PW1/wife of the deceased, has deposed that at the time of accident, the deceased was working as a Junior Assistant in Gandarvakottai Taluk Co-operative Housing Society and earned Rs. 16,117/- per month and the same has been corroborated by Ex. P6-Salary Certificate, issued by the Special Officer, Gandarvakottai Taluk Co-operative Housing Society. Based on the same, the Tribunal fixed Rs. 16,117/- as the monthly income of the deceased and accordingly, worked out the annual income at Rs. 1,93,404/-.

Determination of age of the deceased as 43 years, on the basis of Ex. P2-Postmortem Certificate and Ex. P4-Death Certificate, cannot be said to be faulty, in view of the judgments in Fakeerappa and Another Vs. Karnataka Cement Pipe Factory and Others, (2004) 1 ACC 494 : (2004) ACJ 699 : (2004) 2 JT 432 : (2004) 137 PLR 210 : (2004) 2 SCALE 428 : (2004) 2 SCC 473 : (2004) 2 SCR 369 : (2004) AIRSCW 7475 : (2004) 1 Supreme 1059 and The Managing Director, Tamil Nadu State Transport Corporation Vs. Mary, Inikko and Maria Kensy, (2006) 1 ACC 394 : (2005) 5 CTC 515 .

Since the deceased had a permanent job, considering his age of retirement, ''58'', the Tribunal added 20% of his income towards the future prospects and as per the decision of the Apex Court in Smt. Sarla Verma & Ors. v. Delhi Transport Corporation and another reported in 2009 (2) TNMAC 1 (SC), the Tribunal applied ''14'' multiplier and computed the loss of dependency at Rs. 24,36,000/-. Dependency of 6 persons has not been seriously disputed. That be the case, as per Sarla Verma''s case, the Tribunal should have deducted only 1/4th from the contribution of the deceased. But the respondents/claimants have not questioned the same. We do not find any error in computation of loss of dependency. Hence, the award of Rs. 24,36,000/- under the head, ''loss of dependency'' is confirmed.

In addition to the above, the Tribunal has awarded Rs. 25,000/- towards loss of consortium. Wife of the deceased aged 34 years at the time of accident. ''Consortium'', as per Best v. Samuel Fox reported in (1952) AC 716, means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc.,". Therefore, the award made under the head, ''loss of consortium'', cannot be said to be on the higher side and the same is confirmed. Further, the Tribunal has awarded Rs. 60,000/- towards loss of love and affection for the minor sons, minor daughter and parents. At the time of accident, the minor children of the deceased aged 13, 12 and 9 respectively and they have lost the love and affection of their father at the young age. Parents also have lost the love and affection of their son. The compensation under the said head is also not on the higher side. Hence, it is confirmed. Conventional damages of Rs. 10,000/- is sustained. Rate of interest at 7.5%, awarded by the Tribunal is confirmed, in view of the judgment in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, (2005) ACJ 1441 : AIR 2005 SC 2985 : (2005) 3 CTC 373 : (2005) 4 JT 531 : (2005) 140 PLR 650 : (2005) 6 SCC 236 : (2005) AIRSCW 2542 : (2005) 4 Supreme 87 .

The total compensation of Rs. 25,31,000/- awarded to the family, consisting of six dependants, for the death of their sole breadwinner, in our opinion, cannot be said to be excessive or bonanza, warranting interference by this Court.

The appellants are directed to deposit the entire award amount with proportionate accrued interest and costs, less the amount already deposited, if any, to the credit of MCOP. No. 483 of 2012 on the file of the Motor Accidents Claims Tribunal, Additional District Court/Special Court for E.C. & NDPS Act Cases, Pudukkottai, within a period of six weeks, from the date of receipt of a copy of this judgment. On such deposit, respondents 1, 5 and 6/claimants are permitted to withdraw their respective shares with proportionate accrued interest and costs, by making necessary application, before the Tribunal. The Tribunal is directed to deposit the shares of the respondents 2 to 4/minor claimants, in any one of the Nationalised Banks, in Fixed Deposit, till the minors attain majority. The interest accruing on such deposit, is permitted to be withdrawn, by the 1st respondent/mother and guardian of minors, once in three months, directly from the bank.

In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, M.P(MD) No. 1 of 2015 is closed.