The Managing Director v. Thirumathi Prema

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.12.2018

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI CMA.Nos.1173 to 1177, 2580 of 2015 and M.P.Nos.1 to 1 of 2015 C.M.A.No.1173/2015 The Managing Director, Tamilnadu State Transport Corporation, Thiruvannamalai Region.

.. Appellant/Respondent 3(in all) Vs.

1.Prema 2.Vinothkumar 3.Vijayakumar 4.Murugavelan (minor) 5.Ellammal ..Respondents 1 to 5/Petitioners 6.Parameswaran 7.Reliance General Insurance Co. Ltd., Haddows Road, Chetpet, Chennai.

(minor R4 is rep. By mother and next friend, 1st respondent) .. Respondents 6 & 7/Respondents 2 & 3 (R6 set exparte before the Tribunal) CMA 1174 of 2015

1. GOVINDAMMAL

2. SATHISHKUMAR (MINOR)

3. MAHALAKSHMI (MINOR)

4. MUNNIYAMMAL .. Respondent 1 & 4/Petitioner

5. PARAMESWARAN 6 RELIANCE GENERAL INSURANCE CO LTD HADDOWS RD CHETPET CHENNAI.

..Respondents 5 & 6/Respondents 1 & 2 (Minors 2 & 3 rep by mother and guardian 1st Respondent GOVINDAMMAL )

CMA 1176/2015

1. K.RANI 2 MUTHAMIZH 3 ISWARIYA (Minor) 4 VEERARAGHAVAN ( MINOR ) (MINORS 3 & 4 REP BY MOTHER &GUARDIAN K.RANI 1ST RESPONDENT) ..Respondent 1 to 4/Petitioner 5 PARAMESWARAN 6 RELIANCE GENERAL INSURANCE CO LTD HADDOWS RD CHETPET CHENNAI.

..Respondent 5 &6/ Respondents 1 & 2 CMA 1177/2015

1. V.VASANTHA 2 V.DEVI 3 V.RADHA ( MINOR) Minor R3 REP BY MOTHER & GUARDIAN R1- V.VASANTHA .. Respondent 1 to 3/Petitioners 4 PARAMESWARAN 5 RELIANCE GENERAL INSURANCE CO LTD HADDOWS RD CHETPET CHENNAI.

.. Respondent 4 & 5/Respondent 1 & 2 CMA 1177/2015

1. S. SANGEETHA 2 NITHESH (MINOR) 3 VASANTHA R2 Minor rep by his mother and Guardian S. SANGEETHA .. Respondents 1 to 3/Petitioners 4 PARAMESWARAN 5 RELIANCE GENERAL INSURANCE CO LTD HADDOWS RD CHETPET CHENNAI.

.. Respondents 4 & 5/Respondent 1 & 2 CMA

1. S.SANGEETHA 2 S.VENKATESAN( MINOR) (Minor rep by mother and Guardian S.SANGEETHA 3 VASANTHA .. Respndents 1 to 3/Petitioners

4 PARAMESWARAN 5 RELIANCE GENERAL INSURANCE CO LTD HADDOWS ROAD CHETPET CHENNAI.

.. Respondents 4 & 5/Respondent 2 & 3 Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 27.11.2014 made in M.C.O.P.No.1185 of 2010, 1197 to 1199 of 2010, 91 of 2011 & 92 of 2011 respectively on the file of the III Additional District Court, (Motor Accidents Claims Tribunal, Poonamallee), Tiruvallur.

For Appellant : Mr.K.J.Sivakumar For R1 to R4 : Mr.K.Varadhakamaraj in CMA1174 & 1175 and RR1 to 3 in CMA 1176/15 & CMA 1177/15 For R7 : Mr.S.Arunkumar in CMA 1173/15 and for R6 in CMA 1174, 1175/15 and for R5 in Cma 1176/15, 1177/15 C O M M O N J U D G M E N T These Civil Miscellaneous Appeals have been filed against the award dated 27.11.2014 made in M.C.O.P.Nos.1185, 1197, 1198, 1199 of 2010, 91 and 92 of 2011 on the file of the III Additional District Court, (Motor Accidents Claims Tribunal, Poonamallee), Tiruvallur.

2.All the appeals arise out of the same accident and common award and hence, they are disposed of by this common judgment. 3.The parties are referred to as per their rank in the respective claim petitions for the sake of convenience. 4.All the appeals are filed by the 3rd respondent-Transport Corporation challenging the common award of the Tribunal made in M.C.O.P.Nos.1185, 1197, 1198, 1199 of 2010, 91 and 92 of 2011 on the file of the III Additional District Court, (Motor Accidents Claims Tribunal, Poonamallee), Tiruvallur.

5.The claimants in all the appeals filed the claim petitions, claiming various amounts as compensation for the death which occurred in the accident that took place on 05.08.2010.

6.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the bus belonging to the 3rd respondent-Transport Corporation and directed the 3rd

respondent to pay the compensation to the claimants in all the claim petitions and awarded various amounts as compensation. 7.Against the said common award dated 27.11.2014 made in M.C.O.P.Nos.1185, 1197, 1198, 1199 of 2010, 91 and 92 of 2011, the 3rd respondent-Transport Corporation has come out with the present appeals.

8.The learned counsel appearing for the 3rd respondent/appellant contended that in the claim petitions, claimants have stated that the accident occurred due to the rash and negligent driving by the driver of both the vehicles. One of the claimants lodged complaint and has stated that the accident occurred only due to the negligence of the driver of the car belonging to the 1st respondent. FIR was registered only against the driver of the car and after investigation, the Charge Sheet also was laid against the driver of the car, confirming the facts in the FIR. There is no materials in FIR and Charge Sheet to show that the driver of the bus belonging to the 3rd respondent/appellant is responsible for the accident. The Tribunal without properly appreciating the averments in the claim petitions, FIR, Charge Sheet and evidence of R.W.

2, erroneously held that the driver of the bus is solely responsible for the accident. The evidence on record clearly shows that the driver of the car is only responsible for the accident. In any event, the negligence ought to have been fixed on both the drivers. The various amounts awarded by the Tribunal are excessive and contrary to the well established judicial pronouncement of this Court as well as the Hon'ble Apex Court and prayed for allowing all the appeals.

9.Notice was served on the 1st respondent in all the claim petitions before the Tribunal and he remained exparte before the Tribunal. Hence, notice to the 1st respondent is dispensed with. 10.The learned counsel appearing for the 2nd respondentInsurance Company contended that 2nd respondent examined R.W.1, an officer from their Company to show that there was no policy issued to the car belonging to the 1st respondent. The policy produced by the claimants and marked as Ex.P8 is a fake policy. The learned counsel appearing for the 2nd respondent also submitted that R.W.1 has deposed that policy produced by the claimants are fake one and the Tribunal has failed to frame issues and appreciate the evidence of R.W.1.

11.Heard the learned counsel appearing for the 3rd respondent as well as the 2nd respondent and perused the materials available on record.

12.From the materials available on record, it is seen that the claimants in the claim petitions have stated that the

accident occurred only due to rash and negligent driving by both the drivers. One of the claimants who was travelling in a car, behind the offending vehicle has lodged a complaint that the accident occurred only due to rash and negligent driving by the driver of the car. The Police, after registering the FIR, investigated the matter and laid Charge Sheet. The Tribunal erroneously did not accept the FIR as well as the Charge Sheet. According the Tribunal, the person who lodged the complaint was travelling behind the offending car and he would not have seen the accident. At the same time, the Tribunal accepted the evidence of very same person as well as other persons as eye witness. The reason given by the Tribunal for not accepting the FIR lodged by one of the claimants is erroneous.

Further, in the claim petitions, the claimants have stated that both the drivers are responsible for the accident. The Tribunal failed to consider this contradiction. The evidence of P.Ws.1 to 6 are not reliable. The 3rd respondent has examined the driver of the bus as R.W.2, who deposed that the accident occurred only due to rash and negligent driving by the driver of the car. The Tribunal rejected the said evidence of R.W.2 on the ground that departmental enquiry was initiated against R.W.2, driver of the bus. Such a departmental enquiry will not be a reason for rejecting the evidence of R.W.2 in the face of FIR, Charge Sheet and pleadings.

Considering the materials on record and the fact that two vehicles were involved in the accident, the finding of the Tribunal that only the driver of the bus belonging to the 3rd respondent-Transport Corporation/appellant was responsible for the accident is erroneous and is liable to be set aside and is hereby set aside. Based on the evidence on record, both the drivers of the car belonging to the 1st respondent as well as the bus belonging to the 3rd respondent-Transport Corporation are equally responsible for the accident and respondents 1 and 2 are together liable to pay 50% of the compensation and appellant is liable to pay 50% of the compensation awarded. 13.

As far as the contention of the learned counsel appearing for the appellant that insurance policy produced for the car was not genuine is concerned, the said plea was not taken by the appellant in the counter statement. Whether the policy is genuine or not is a question of fact which can be decided only after considering the evidence let in by the parties. Therefore, it is not open to the learned counsel appearing for the appellant to raise such a plea in appeal. 14.As far as the quantum of compensation awarded by the Tribunal is concerned, the Tribunal contrary to the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC [Sarla Verma & others vs. Delhi Transport Corporation & another] as well as 2017(2)TNMAC 609 (SC) [National Ins. Co. v.

liable to be modified. The claimants have stated that the deceased were doing various works respectively, but they have not produced any evidence to substantiate the same. In the absence of any evidence with regard to avocation and income of the deceased, the Tribunal has fixed the notional income of the deceased at Rs.4,500/- per month and the same is proper. The deduction applied and the multiplier adopted in calculating the loss of income in all the claim petitions are erroneous and also the amounts awarded under different heads are excessive and the same are modified as follows:

15.C.M.A.No.1173/2015 [M.C.O.P.No.1185/2010]: Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '15', for the deceased who was aged 34 at the time of accident, the loss of income is calculated as Rs.6,07,500/-[Rs.4,500 x 12 x 15 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to the claimants 2 to 4 are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.50,000/- granted under the head of loss of consortium is reduced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows: S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 5,76,000/- 6,07,500/- enhanced 2.

Mental agony 50,000/- - Set aside 3.

Loss of consortium 50,000/- 40,000/- reduced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to claimants 2 to 4 90,000/- - Set aside 6.

Loss of love and affection to 5th claimant 10,000/- 10,000/- confirmed 7.

Loss of estate - 15,000/- granted

Total 7,91,000/- 6,87,500/- Reduced by Rs.1,03,500/- 16.C.M.A.No.1174/2015 [M.C.O.P.No.1197/2010]: Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '14', for the deceased who was aged 45 at the time of accident, the loss of income is calculated as Rs.5,67,000/-[Rs.4,500 x 12 x 14 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to claimants 2 & 3 are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.30,000/- granted under the head of loss of consortium is enhanced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows: S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 4,68,000/- 5,67,000/- enhanced 2.

Mental agony 50,000/- - Set aside 3.

Loss of consortium 30,000/- 40,000/- enhanced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to claimants 2 & 3 2,00,000/- - Set aside 6.

Loss of love and affection to 4th claimant 10,000/- 10,000/- confirmed 7.

Loss of estate - 15,000/- granted Total 7,73,000/- 6,47,000/- Reduced by Rs.1,26,000/- 17.C.M.A.No.1175/2015 [M.C.O.P.No.1198/2010]: Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '14', for the deceased who was aged

42 at the time of accident, the loss of income is calculated as Rs.5,67,000/-[Rs.4,500 x 12 x 14 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to claimants 3 & 4 are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.30,000/- granted under the head of loss of consortium is enhanced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows: S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 5,40,000/- 5,67,000/- enhanced 2.

Mental agony 50,000/- - Set aside 3.

Loss of consortium 30,000/- 40,000/- enhanced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to 2nd claimant 30,000/- 30,000/- confirmed 6.

Loss of love and affection to claimants 3 & 4 1,10,000/- - Set aside 7.

Loss of estate - 15,000/- granted Total 7,75,000/- 6,67,000/- Reduced by Rs.1,08,000/- 18.C.M.A.No.1176/2015 [M.C.O.P.No.1199/2010]: Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '14', for the deceased who was aged 45 at the time of accident, the loss of income is calculated as Rs.5,67,000/-[Rs.4,500 x 12 x 14 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to the claimants 2 and 3 are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.50,000/- granted under the head of loss of consortium is reduced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows:

S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 4,68,000/- 5,67,000/- enhanced 2.

Mental agony 50,000/- - Set aside 3.

Loss of consortium 50,000/- 40,000/- reduced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to 2nd claimant 50,000/- - Set aside 6.

Loss of love and affection to 3rd claimant 1,00,000/- - Set aside 7.

Loss of estate - 15,000/- granted Total 7,33,000/- 6,37,000/- Reduced by Rs.96,000/- 19.C.M.A.No.1177/2015 [M.C.O.P.No.91/2011]:

Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '18', for the deceased who was aged 25 at the time of accident, the loss of income is calculated as Rs.7,29,000/-[Rs.4,500 x 12 x 18 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to the 2nd claimant are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.30,000/- granted under the head of loss of consortium is enhanced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows: S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 6,48,000/- 7,29,000/- enhanced 2.

Mental agony 30,000/- - Set aside

3.

Loss of consortium 30,000/- 40,000/- enhanced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to 2nd claimant 1,00,000/- - Set aside 6.

Loss of love to 3rd claimant 10,000/- 10,000/- confirmed 7.

Loss of estate - 15,000/- granted Total 8,33,000/- 8,09,000/- Reduced by Rs.24,000/- 20.C.M.A.No.2580/2015 [M.C.O.P.No.92/2011]:

Fixing the monthly income of the deceased at Rs.4,500/- and deducting 1/4th towards personal expenses of the deceased and applying the multiplier of '17', for the deceased who was aged 30 at the time of accident, the loss of income is calculated as Rs.6,88,500/-[Rs.4,500 x 12 x 17 x 3⁄4]. The amounts granted towards mental agony, loss of love and affection to the 2nd claimant are set aside. A sum of Rs.15,000/- is granted towards loss of estate. The sum of Rs.30,000/- granted under the head of loss of consortium is enhanced to Rs.40,000/-. The amounts granted under all other heads are confirmed. Thus, the compensation granted by the Tribunal is modified as follows: S.No Description Amount awarded by Amount awarded by this Court Award confirmed or Tribunal enhanced or (Rs) (Rs) granted 1.

Loss of income 6,12,000/- 6,88,500/- enhanced 2.

Mental agony 30,000/- - Set aside 3.

Loss of consortium 30,000/- 40,000/- enhanced 4.

Funeral expenses 15,000/- 15,000/- confirmed 5.

Loss of love and affection to 2nd claimant 1,00,000/- - Set aside

6.

Loss of love to 3rd claimant 10,000/- 10,000/- confirmed 7.

Loss of estate - 15,000/- granted Total 7,97,000/- 7,68,500/- Reduced by Rs.28,500/- 21.In the result - (i)All the Civil Miscellaneous Appeals are partly allowed, modifying the award of the Tribunal, details as follows - MCOP / CMA Nos.

Amount Awarded by Amount Awarded by the Tribunal this Court 1185 of 2010 / Rs.7,91,000/- Rs.6,87,500/- 1197 of 2010 / Rs.7,73,000/- Rs.6,47,000/- 1198 of 2010 / Rs.7,75,000/- Rs.6,67,000/- 1199 of 2010 / Rs.7,33,000/- Rs.6,37,000/- 91 of 2011 / Rs.8,33,000/- Rs.8,09,000/- 92 of 2011 / Rs.7,97,000/- Rs.7,68,500/- (ii)The 2nd respondent-Insurance Company and the 3rd respondent-Transport Corporation/appellant are each directed to deposit 50% of the modified award amount in all the claim petitions/CMAs, less the amount already deposited, if any, along with interest and costs to the credit of the respective claim petitions, on the file of the III Additional District Court, (Motor Accidents Claims Tribunal, Poonamallee), Tiruvallur, within a period of six weeks from the date of receipt of copy of this judgment;

(iii)On such deposit being made, the major claimants are permitted to withdraw the modified award amount, less the amount

already withdrawn, if any, along with accrued interest and costs, as per the ratio of apportionment fixed by the Tribunal, by making necessary applications before the Tribunal. The shares of the minor claimants are directed to be deposited in any one of the Nationalized Bank, till they attain majority. The guardian of the minor claimants shall withdraw interest once in three months for the welfare of the minor claimants. No costs. Consequently, connected Miscellaneous Petitions are closed. (iv)The 2nd respondent-Insurance Company as well as the 3rd respondent-Transport Corporation are permitted to withdraw the excess amount, if any lying to the credit of the claim petitions along with proportionate interest and costs.

Sd/- Assistant Registrar(CCC) //True copy// Sub Assistant Registrar gsa To The III Additional District Judge, (Motor Accidents Claims Tribunal, Poonamallee), Tiruvallur.

+1cc to Mr.S.Arunkumar, Advocate SR.No.89719 +6cc to Mr.P.Selvaraj, Advocate SR.No.89544, 89545, 89541, 89540, 89542, 89543 +6cc to Mr.K.J.Sivakumar, Advocate SR.No.89758, 89757, 89756, 89755, 89754,89753 CMA.Nos.1173 to 1177, 2580 of 2015 and M.P.Nos.1 to 1 of 2015 GJ II (CO) GMY(24/04/2019)