Thiruvalluvar Transport Corporation Ltd. vs Sunitha Jose, Karel C. Jose minor rep. by mother and guardian Sunita Jose and E.L. Wilson and R. Boopalan

M. Karpagavinayagam, J.—C.M.A. Nos. 184 and 185 of 1992 are being disposed of in this Common Judgment as both the appeals arise

out of single accident. The claimants filed O.P. No. 177 of 1987 for the death of one Jose and O.P. No. 178 of 1987 for the injury sustained by

one Wilson claiming compensation of Rs.6 lakhs and Rs.50,000/- respectively. The Tribunal on consideration of the materials awarded

compensation of Rs.3,52,500/- in the fatal case and Rs.35,400/- in the injury case. As against this award, the appellant Tiruvalluvar Transport

Corporation has filed these Appeals.

The brief facts are as follows:-

On 31.5.1987 at about 1.00 a.m., the deceased Jose was riding on the motor cycle near Thayampalayam, the injured Wilson was sitting as a

pillion rider. At about 1''O Clock, when the deceased crossed Kangeyam by driving the motor cycle in a slow speed towards the west, a bus

bearing registration No. TML 9543 belonging to the appellant Corporation which came in the opposite direction towards the eastern side with a

high speed by driving the vehicle in a rash and negligent manner, hit against the motor cycle, with the result both the rider as well as the pillion rider

sustained very serious injuries. Both were taken to the Erode General Hospital. Even before they were taken to the hospital, the deceased Jose

had given a complaint to the Avinasi Falayam Police Station against the driver of the bus who was examined as R.W.1, at 2.30 p.m. When he was

on the way to hospital, he died. Wilson who was the pillion rider was admitted in the hospital and took treatment for about six months. He had

fracture and for one year he was not able to do any work.

On the side of the claimants, P.Ws.1 to 4 were examined through whom Exs.P.1 to P.26 were marked. On the side of the

appellant/Corporation R.W.1., the driver was examined. After taking into consideration of the materials, the award referred to above was passed.

The learned counsel for the appellant would submit that the Tribunal did not consider the materials in the proper perspective and wrongly held

that the stand taken by the driver while he was examined as R.W.1 was completely different from the stand taken in the counter. I have gone

through the statement, counter and other records. On perusal, it is clear that the finding with reference to the contradictory stand taken by the

appellant is correct. Moreover, the Tribunal had discussed the evidence of the eye witness PW2 and accepted the same which is quite consistent

with the statement given by the deceased which is marked as Ex.P1. So in the light of these materials, I do not find any merit in the contention

urged by the learned counsel for the appellant that the bus driver was not negligent.

Regarding the quantum, on the strength of the decisions of the Apex Court in General Manager, Kerala State Road Transport Corporation,

Trivandrum Vs. Mrs. Susamma Thomas and others, and U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, the

counsel for the appellant would urge that the Tribunal is wrong in adopting the multiplier of 30 years, as the theory of longevity cannot be invoked

and the maximum multiplier would be 18 years. As regards this position, there is no dispute. In my view it is more appropriate as held by the Apex

Court in both the decisions referred to above to adopt the multiplier theory alone and as such Tribunal is not proper in adopting the longevity

theory. Therefore, the quantum fixed by the Tribunal could be suitably modified. The Tribunal by adopting the multiplier of 30 years calculated the

amount of compensation at Rs. 337,500/- (towards the loss of consortium and towards the loss of love and affection Rs. 15,000/- was added.)

So, this amount fixed by the Tribunal can be modified as follows:-

The total annual income assessed by the Tribunal is Rs.20,000/- on the basis of the evidence let in by the claimants. After deducting 25% towards

the personal expenses, the Tribunal assessed the income as Rs.15,000/-. If multiplier of 18 is adopted, the total amount comes to Rs.2,70,000/-.

Admittedly, the age of the wife who was examined as P.W.1 was at that time 22 years. So, in my opinion, she is entitled to Rs.20,000/- towards

loss of consortium. The deceased had only one child through P.W.1, the child was aged about one year. Therefore, towards loss of love and

affection the child is entitled to Rs.15,000/-. They claim Rs.2000/- towards transport and damages to the clothes and articles. There is no

discussion under this head in the award passed. So I deem it proper to hold that the claimants are entitled to have Rs.2000/- towards the transport

and damage to the clothes and articles. The claimants are also entitled to another Rs.4000/- for funeral expenses. Therefore, the total for these

heads would come to Rs. 3,11,000/-. So as indicated above the award is modified to the effect that the claimants are entitled to get the amount of

Rs. 3,11,000/- which the respondent is liable to pay the amount along with the interest at 12% per annum from the date of application till the date

of realisation. Out of the total compensation of Rs.3,11,000/-, the 1st claimant is entitled to Rs. 1,75,000/- and the second respondent is entitled

to Rs. 1,36,000/-. In other aspects, the order passed by the Tribunal is sustained. The appeal in C.M.A. No. 184 of 1992 is partly allowed.

As regards the claim by the injured, the tribunal awarded Rs.35,000/- as against the claim of Rs.50,000/-. It is seen from the evidence that the

injured sustained two fractures in the right leg. It is also established that those fractures are grievous in nature. Exs.P19 and P22 would reveal that

the claimant/injured sustained the permanent disability on his right leg. So on the basis of that, the tribunal fixed Rs.900/- as income per month and

on considering the documents filed by the claimant with reference to the medical expenses, the Tribunal awarded the amount of Rs.5000/- and

Rs.5,400/- was awarded towards loss of income for six months, but towards loss of pain and sufferings, Rs. 10,000/- was awarded and for

permanent disability Rs.15,000/- was awarded. So total amount as fixed by the Tribunal is Rs.35,400/-. Therefore, it cannot be said that there is

no material to show that the compensation was correctly fixed by the Tribunal. Under those circumstances, I do not find any merit in this appeal.

So, the appeal in C.M.A. No. 185 of 1992 is dismissed.