Fathima v. The Managing Director, State Express Transport Corporation Ltd., Chennai.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.M.A.No.736 of 2017 1.Fathima 2.Irudhaya Selvaraj ....Appellants/Claimants Vs The Managing Director, State Express Transport Corporation Ltd., Anna Salai, Chennai 600 002.
...Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 12.04.2012 made in M.C.O.P.No.467 of 2011 on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Vellore.
For Appellants : Mr.K.Varadha Kamaraj For Respondent : Mr.K.Kathiresan
J U D G M E N T
(This case has been heard through Video Conferencing) Heard the learned counsel for the appellant and the respondent.
2.It is the case of fatal accident, where the claimant being not satisfied with the quantum of compensation awarded by the Tribunal has preferred this appeal seeking enhancement of compensation.
3.On 19.03.2007, while Arul Selvam the driver of the Eicher Van bearing Registration No.TN-33-Q-7774 was proceeding from Chennai to Bangalore near Konavattam, opposite to G.S.Mahal, the Tamilnadu Transport Corporation bus bearing Registration No.TN01-N-6662 coming from the opposite direction dashed against the Eicher Van, as a result, Arul Selvam sustained grievous head injury and died on the spot. A case was registered against the
bus driver for his rash and negligent driving. The mother and the father of the deceased has preferred the claim petition seeking a compensation of Rs.25,00,000/-.
4. The Transport Corporation filed their counter stating that the accident occurred only due to the negligent act of the Eicher van driver. The claim of Rs.25,00,000/- as compensation is highly excessive and without basis. The proof of income and the age are bound to be proved by the claimants. 5.The Tribunal, on considering the evidence placed before it had notionally fixed the monthly income of the deceased Arul Selvam as Rs.4,500/- and after deducting 50% towards his personal expenditure, applied multiplier "13" taking the average age of the claimants, a total sum of Rs.4,03,000/- was awarded as compensation and awarded 7.5% interest from the date of filing the petition i.e.,16.08.2011 till the date of deposit. 6.In this appeal, the claimants have pointed out that the fixation of notional income at Rs.4,500/- is very less.
The deceased, as a driver was earning around Rs.6,000/- p.m. with batta of Rs.100/- per day. The future prospects of the deceased was not taken note by the Tribunal. The compensation awarded by the Tribunal under the other heads is also not in commensuration with the dictum of the Hon'ble Supreme Court. 7.Learned counsel for the respondent would submit that the avocation of the deceased was not proved by the claimants. Except the driving license, they have not produced any document to show that the deceased was gainfully employed as a driver and earning sum of Rs.6000/- per month. Therefore, the Tribunal has rightly considered the notional income of Rs.4,500/- and awarded fair and just compensation.
8.Heard the learned counsels on either side and perused the records.
9.The Tribunal has fixed negligence on the part of the Corporation bus driver based on the criminal prosecution launched against him by the police, after due investigation. Therefore, the defense of contributory negligence on the part of the deceased has to be rejected. Regarding the income of the deceased, the very fact that the accident occurred while he was driving the van and he was engaged by the owner of the van as a driver is a fact speak for itself. The Tribunal has rightly fixed the notional income of Rs.4,500/- per month though there was no evidence for his income taking into consideration the notional income of a freelance driver driving in the year 2007. However, while fixing the notional income, the Tribunal has omitted to take note of the future prospects. Hence, 40% of the
notional income is added towards the future prospects for computing the loss of income.
10. Likewise, the Tribunal has taken the average age of the claimants for fixing the multiplier. This issue has been subsequently settled by the Hon'ble Supreme Court and the age of the deceased alone is taken into account for ascertaining the multiplier instead of the average age of the claimants. The deceased in this case was 35 years at the time of accident, therefore multiplier "16" is applied instead of "13". Accordingly, the award passed by the Tribunal is enhanced as below:
Compensation under Various Heads Award passed by this Court Loss of income Rs. 6,04,800/- (4500+1800)X16X12X1/2) Loss of love and affection Rs. 40,000/- (Rs.20,000/- each) Funeral expenses Rs. 5,000/- Total Rs. 6,49,800 /-
11. Accordingly, the award of Rs.4,03,000/- is enhanced to Rs.6,49,800/- with 7.5% p.a. The appeal against the award has been filed with a delay of 1349 days and the subsequent delay of 427 days and 144 days in representation. The award of the Tribunal dated 12.04.2012 has been challenged in C.M.A. belatedly and numbered after five years. The delay is caused by the claimants. So, the Corporation cannot be burdened with payment of interest for the delay period caused by the claimants. Hence, the claimants are entitled for interest only for the period from 16.08.2011 to 12.04.2012 and from 03.03.2017 till date of deposit. The award amount shall be deposited by the Transport Corporation within a period of 12 weeks from the date of receipt of copy of the order. On such deposit, the claimants/appellants 1 and 2 are permitted to withdraw the award amount and apportion equally among themselves.
12. Accordingly, the Civil Miscellaneous Appeal is partly allowed. No order as to costs.
Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar
vri To The Motor Accidents Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Vellore.
Copy to:
The Section Officer, V.R.Section, High Court, Madras.
+1cc to Mr.K.Varadha Kamaraj, Advocate, S.R.No.1287 +1cc to Mr.K.Kathiresan, Advocate, S.R.No.1172 CMA No.736 of 2017 NMI(CO) CB(27/08/2021)