The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonam Division-IV Limited, Pudukottai vs C. Rengiah and Others

C.S. Karnan, J.—The above appeal has been filed by the Appellant/ Tamil Nadu State Transport Corporation, against the decree and judgment dated 23.08.2001 made in M.C.O.P.No.227 of 1998 on the file of the Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate) Pudukkottai, awarded a compensation a sum of Rs.2,10,000/-together with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation.

The short facts of the case are as follows:

On 08.06.1996 at about 07.30 p.m., when the (deceased) Nallammal was boarding the town bus bearing route No.25, at Pudukkottai, New Bus Stand, the 1st respondent''s driver, without giving any signal, took the bus in reverse all of a sudden in a rash and negligent manner. Due to this, the (deceased) Nallammal fell down and sustained injuries. She was immediately taken to Pudukottai Government Hospital, but died on the same night. Hence, the petitioners, who are the legal heirs of the deceased have filed a claim for Rs.5,00,000/-against the respondents. The first respondent is the Managing Director Veeran Alagumuthukon Transport Corporation, Pudukkottai, and the 2nd and 3rd respondents are the sons of the (deceased) Nallammal.

The first respondent in his counter had denied the averments in the claim regarding age, income and occupation of (deceased) Nallammal as well as the manner of accident. It has been stated that while the 1st respondent''s bus was taken on reverse side by its driver, in the bus stand, one of the lady passengers, who had boarded the bus, suddenly tried to alight from the running bus, without informing the Conductor and driver. As a result of this, she lost her balance and had fallen down, sustaining injuries. As such the accident had occurred only due to negligence on the part of the deceased. It was also stated that the claim was excessive.

The 2nd and 3rd respondents filed a memo stating that they have no counter.

On the plea of both the parties, the Tribunal had framed two issues for consideration in this case namely:

(i) whether the accident took place due to the rash and negligent driving of the 1st respondent''s driver?

(ii) whether the first respondent is liable to pay any compensation? If so, what is the quantum of compensation, which the petitioners are entitled to get?

On behalf of the petitioners, two witnesses were examined and three documents were marked as Exs.P1,P2 and P3 namely certified copy of FIR, Certified copy of post mortem certificate and certified copy of Motor Vehicle report. On the respondents side, one witnesses was examined as RW.1 and one document was marked as Ex.R1 namely certified copy of judgment in CC.584 of 1998.

The (deceased) Nallammal had lodged a complainant while she was taking treatment at Government Head Quarters Hospital at Pudukottai. The copy of the FIR prepared on the basis of the complaint is Ex.P1. In the said complaint, the (deceased) Nallammal had stated that at about 07.30 p.m., when she was boarding the town bus on route No.25, the Conductor blew the whistle and the driver took the bus in reverse, all of a sudden. Thereby she had fallen down and sustained injuries. PW.2, Thiru. Appavoo, the eyewitness to the accident had adduced evidence which was in consonance with the averments in the claim regarding manner of accident. RW.1, Rajendran, the Conductor of the 1st respondent''s bus had adduced evidence that at about 07.20 p.m., when the driver of the bus started the town bus on route No.25, which was bound to illupur; a passenger, after noticing that the bus would not go to her native place, all of a sudden, without informing the Conductor or driver, attempted to alight. In the process, she fell down and sustained injuries. In support of his evidence, he had marked Ex.R1. But on Cross examination, RW.1 had admitted that the complaint regarding the accident had not been preferred.

On Scrutiny of Ex.R1, the copy of the judgment in CC.584 of 1998, it is seen that the driver and Conductor of the bus were prosecuted before the Judicial Magistrates Court at Pudukottai and they were acquitted as it was found that the prosecution had failed to prove the case beyond reasonable doubt. However, the Tribunal were of the opinion that merely the acquittal of the Conductor and driver due to contradictions in evidence of eyewitness cannot prove that there was no rash and negligent driving. Hence, the Tribunal, on considering the FIR held that the accident had occurred due to rash and negligent driving of the first respondents bus.

PW.1, the husband of the deceased had adduced evidence that the deceased Nallammal was doing dry fish business and earning a sum of Rs.3,000/-p.m., But no documentary evidence had been furnished in support of this claim. On scrutiny of FIR, it is seen that the deceased was 55 as per Ex.P2, the Post mortem certificate and holding that the notional income of deceased as Rs.2,000/-p.m., adopted a multiplier method of 11 and awarded compensation of Rs.1,76,000/-(Rs.2,000/-x2/3x12x11=1,76,000/-) under loss of income to the petitioners. The Tribunal further awarded a sum of Rs.15,000/-to the 1st petitioner for loss of consortium and Rs.15,000/-each to the 2nd, 3rd and 4th petitioners for loss of love and affection. Further a sum of Rs.4,000/-was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.2,10,000/-as compensation to the petitioners and directed the first respondent to deposit the award together with interest at the rate of 9% per annum from the date of filing the claim till date of deposit within two months from the date of its order. The Tribunal dismissed the petition against the 2nd and 3rd respondents.

Aggrieved by the said award passed by the Tribunal, the appellant/Managing Director, Tamil Nadu State Transport Corporation/(Kumbakonam Division IV) Limited, Pudukottai, (Cause title accepted vide order dated 06.11.2003 made in CMP.No.15538 of 2003), has filed the present appeal to set aside the award passed.

The learned counsel for the appellant has argued in his appeal that the claims Tribunal ought to have considered the judgment in CC.No.584 of 1998 under Ex.R1 acquitting the driver in the Criminal complaint and this is one of the factors to be taken into consideration while considering question of negligence. It was also pointed out the Tribunal erred in assuming that the deceased was doing dry fish business solely on the basis of the complaint Ex.P1 and had erroneously fixed the income of deceased as Rs.2,000/-per month without any basis. It was also argued that the multiplier method of 11 adopted by the Tribunal is erroneous and hence the award of Rs.2,10,000/-granted as compensation to the claimants was excessive and without any basis.

The learned counsel further argued that the age of the deceased was more than 60 and as such only a factor of 8 should be taken as the multiplier. The learned counsel further submitted that the 1st claimant/the husband of the deceased had expired. As such, the claimants are now only 3 in numbers and they are all majors and not depending on the income of the deceased.

In view of the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant and on scrutiny of the impugned award, this Court is of the considered opinion that the deceased''s age was 55 as per post mortem report. As such the multiplier of 11 adopted by the Tribunal is appropriate. The deceased was doing dry fish business. As such, the Court cannot expect income proof for the said business. Therefore, the Tribunal had fixed the income of the deceased as Rs.2,000/-p.m., which is also reasonable. Therefore, the award of Rs.2,10,000/-granted as compensation by the Tribunal is not on the higher side. Besides the award granted under the head of love and affection is slightly on the lower side.

Therefore, this Court enhances the compensation granted under the head of love and affection from Rs.15,000/-to Rs.30,000/-. The award of a sum of Rs.15,000/-granted under the head of consortium to the 1st claimant is set aside, since the 1st claimant had expired. Further, the Tribunal had granted an award of a sum of Rs.4,000/-under the head of funeral expenses which is reasonable. Therefore, this Court confirms the said award.

As per claim petition, the 2nd and 3rd respondents are the sons of the deceased but they have not claimed compensation for the death of their mother. Under the circumstances, this Court directs the respondents/claimants to produce the legal heir certificate before the learned Tribunal. After receipt of the legal heir certificate, the learned Tribunal has to apportion the compensation amount equally amongst the claimants of the deceased.

The legal heirs of the deceased/claimants are permitted to withdraw their apportioned share of compensation amount, as decided by the Tribunal. On the basis of legal heir certificate, lying in the credit of MCOP.No.227of 1998 on the file of Additional District Judge, Pudukottai, after filing a memo along with a copy of this order.

In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the award and decree passed in MCOP.No.227 of 1998 on the file of the Motor Accident Claims Tribunal(Additional Chief Judicial Magistrate) dated 23.08.2001 is confirmed. Consequently, connected miscellaneous petition is closed. There is no order as to costs.