The Managing Director, Tamil Nadu State Transport Corporation Limited vs Rakkammal and Others

T. Mathivanan, J.—Challenge is made in this appeal to the award of Rs. 1,10,000/-dated 30.04.2008 and made in M.C.O.P. No. 141 of 2006, on the file of the Motor Accidents Claims Tribunal (Principal District Court), Pudukottai by the Respondent/Tamil Nadu State Transport Corporation.

The facts which giving rise to this Civil Miscellaneous Appeal may be summarized briefly as follows:

That on 13.10.2005, at about 04.30 a.m, when the deceased Karuppiah was proceeding in his cycle on the left side of Aranthangi-Karaikudi Main Road, a passenger bus bearing Registration No. TN-55-0326 belonging to the Appellant/Transport Corporation came from the opposite direction in a hectic speed and dashed against the deceased and as a result of which, he had sustained severe injuries on all over his body. Soon after the occurrence, he was removed to Aranthangi Government Hospital. Then he was referred to Thanjavur Medical College Hospital. While he was on the way, he had succumbed to injuries. The deceased was aged about 65 years at the time of occurrence. Hence, the claimants being the wife and children had filed a claim petition in M.C.O.P. No. 141 of 2006, before the Motor Accidents Claims Tribunal (Principal District Court), Pudukottai, claiming a sum of Rs. 8,00,000/-.

The Appellant/Transport Corporation had resisted the claim petition on various grounds.

On evaluation of the evidences available on record, the claims Tribunal had proceeded to pass and award of Rs. 1,10,000/-in the following heads.

loss of income to the family Rs. 75,000/-

loss of consortium in respect of the first respondent/claimant Rs. 10,000/-

loss of love and affection in respect of the respondents/claimants 2 to 8 Rs. 20,000/-

for transportation charges Rs. 3,000/-

for funeral expenses Rs. 2,000/-

------------- Rs. 1,10,000/- -------------

Challenging the award, the Appellant/Tamil Nadu State Transport Corporation stands before this Court with this appeal.

The learned Counsel for the Appellant has submitted that the appeal is filed questioning the quantum alone. He has also added that the Tribunal, without giving 1/3rd deduction towards the personal and living expenses of the deceased, had proceeded to pass an award of Rs. 1,10,000/-, which is liable to be set aside.

On the other hand, the learned Counsel for the Respondents/claimants would contend that the Motor Accidents Claims Tribunal has committed a serious error in fixing the annual income of the deceased at Rs. 15,000/-as if, the deceased was a non-earning person. He has also contended that the Tribunal has lost sight upon the oral evidences adduced on behalf of the Respondents/claimants and there was also no contra evidence to discredit the evidences adduced on behalf of the Respondents/claimants. When such being the case, the claims Tribunal without proper approach to the oral evidences with regard to the avocation of the deceased in selling milk has proceeded to find that the deceased was a non-earning member. He has also added that even at the time of occurrence, he was proceeding in his cycle to sell the milk. He would further submit that as guided by the Honourable Supreme Court in various decisions, the minimum monthly income of Rs. 3,000/-ought to have been fixed by the Tribunal while arriving at the quantum. In support of his contention he has placed reliance upon the following decisions:

1) United India Insurance Company Limited, 38, Anna Salai, Chennai-2 v. Padmavathi and Ors. reported in 2009 (1) TN MAC 427.

2) The Managing Director v. Padhmavathi and Ors. reported in 2009 (1) TNMAC 450.

3) Meghawati v. Raja Ram Yadav and Ors. reported in 2009 (1) TN MAC 236 (Del).

4) National Insurance Company Ltd. Vs. Khimlibai and Others, .

In United India Insurance Company Limited, 38, Anna Salai, Chennai-2 v. Padmavathi and Ors. reported in 2009 (1) TN MAC 427, a learned Single Judge of this Court has held that considering the cost of living and rise in price, the income of the deceased fixed by the Tribunal at Rs. 4,000/-per mensum at the age of 48 years at the time of occurrence is not excessive. The learned Single Judge has also referred to the decision in B. Anandhi v. Latha reported in 2002 ACJ 233, in which a sum of Rs. 3,000/-was fixed towards the monthly income of the deceased, as he was working as a coolie as well as an agriculturist.

In The Managing Director v. Padhmavathi and Ors. reported in 2009 (1) TN MAC 450, the age of the deceased was 55 years at the time of occurrence. He was a barber by profession and was claiming his monthly income around Rs. 6,000/-. In this case, the learned Single Judge of this Court has fixed his monthly income at Rs. 4,500/-based on the evidence available on record.

In Meghawati v. Raja Ram Yadav and Ors. reported in 2009 (1) TN MAC 236 (Del), the age of the deceased was 54 years and was getting Rs. 1,275/-towards the pension per mensum, as he took premature retirement. He had claimed that in the firm of his son he was getting Rs. 4,000/-per mensum. However, the Tribunal had assessed the net income at Rs. 1,275/-. In this connection, the learned Single Judge of Delhi High Court has held that the deceased was able bodied person aged about 54 years, as such he would have earned at least minimum wages prescribed under law. Hence, on the basis of prevailing minimum wages as applicable for unskilled worker, the monthly income of the deceased was fixed at Rs. 2,680/-. While pronouncing the judgment, the learned Single Judge has also observed that "the Apex Court in plethora of cases has held that while assessing the income of the deceased in Motor Accident Cases, the Tribunals should bear in mind that the same should be assessed on the basis of the cogent and the reliable evidence produced and duly proved on record". The learned Single Judge has also observed that "the thumb rule is that where there is no cogent evidence on record to prove the monthly income at the time of accident, then the minimum wages notified under the Minimum Wages Act prevalent at the time of accident can be taken into consideration.

On coming to the instant case on hand, ex-facie from the evidence of P.W.1, being the wife of the deceased, it reveals that the deceased was aged about 65 years at the time of occurrence. He was doing business on milk as well as doing agricultural work and thereby earning a sum of Rs. 4,000/-per mensum. She has also stated that they were having two acres of land.

P.W.2 has also corroborate the evidence of P.W.1 and depose that the deceased was doing business on milk and that he had also witnessed the occurrence directly. However, the claims Tribunal had not even considered the evidence of P.W.1 & 2, as their evidences were not supported by any documentary evidence. As observed in the above cited cases, in the absence of cogent evidence in respect of monthly income, the prevailing wages as well as minimum wages, which has been prescribed by the Minimum Wages Act have to be taken into consideration for fixing the monthly income for the purpose of arriving at a just compensation. Here, the age of the deceased was 65 years at the time of occurrence. It was not disputed. It is also established that when he was proceeding in his cycle, he happened to met with a vehicular accident, which resulted in his loss of life. It is revealed from the testimonies of P.W.1 and 2 that the deceased was a man of able-bodied and from their evidences it can easily be presumed that he would have definitely earned not less than Rs. 3,000/-per mensum.

Accordingly, this Court has determined the monthly income of the deceased at Rs. 3,000/-and in consequent there of this Court is of view that the view taken by the Tribunal that the deceased was a non-earning person is found to be erroneous and liable to be set aside. On the basis of the monthly income of Rs. 3,000/-, the annual income of the deceased would be Rs. 36,000/-. As observed in the foregoing paragraphs, since the deceased was aged about 65 years, as per the second schedule to Section 163A of the Motor Vehicles Act, 1988, "5" is the appropriate multiplier. On application of this multiplier system, the loss of income of the family would be Rs. 1,80,000/-. The first Respondent/claimant is the wife of the deceased, whereas the Respondents/claimants 2 to 5 and 7 are the daughters of the deceased, the Respondents/claimants 6 and 8 are the sons of the deceased. It also appear that the Respondents 2 to 8 are married.

The learned Counsel for the Respondents/claimants has however contended that instead of giving 1/3 deduction, 1/4 deduction might be given as decided in National Insurance Company Ltd. Vs. Khimlibai and Others, . In this case, a Division Bench of the Honourable Supreme Court has observed that "it stands proved that the deceased had left behind a large family to be looked after, who all were dependent on his income. To reiterate, his widow, sons, daughter and the aged parents - total eight members in the family. Keeping in mind the family background, the High Court has deducted 1/4th amount as the amount in which the deceased would have spent on himself. In our opinion, the High Court committed no error in deducting only 1/4th amount from the total income of the deceased to wards the expenses which would have been incurred on himself.

On coming to the instant case on hand, it is undisputedly established that the Respondents/claimants 2 to 8 are married. No evidence is adduced to establish the fact that the Respondents/claimants 2 to 8 are living in a joint family along with the first Respondent/claimant. Under this circumstance, it cannot be heard to say that the Respondents/claimants 2 to 8 were depending upon the income of the deceased.

However, considering the nature of the case and the status of the first Respondent/claimant being the wife of the deceased Karrupiah, this Court is of view that 1/3rd deduction is the appropriate one towards the personal and living expenses of the deceased. The annual income has been determined at Rs. 1,80,000/-. After giving 1/3rd deduction towards the personal and living expenses of the deceased 2/3rd remainder would be Rs. 1,20,000/-. Besides this, the first Respondent/claimant is entitled to get Rs. 10,000/-towards the consortium which has been granted by the Tribunal. Towards loss of love and affection of the Respondents/claimants 2 to 8, the Tribunal has awarded a sum of Rs. 20,000/-and this can also be allowed. Besides this, they are also entitled to get a sum of Rs. 5,000/-towards funeral expenses. Totally, the Respondents/claimants 2 to 8 are entitled to get a sum of Rs. 1,55,000/-. The Appellant-Insurance Company is directed to pay this amount with interest at the rate of 7.5% p.a from the date of petition till date of realisation, within a period of six weeks from the date of receipt of a copy of this order.

In the result, the Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is also closed. No costs.