(Prayer: This civil Miscellaneous appeal is filed under Section 173 of the Motor Vehicles Act 1988 against the fair and decreetal order dated 12.10.2010 passed in M.C.O.P.No.60 of 2008 by the learned Chief Judicial Magistrate, Motor Accident Claims Tribunal, Chengalpattu.)
1. What is the use of declaration of beneficial nature of the Motor Vehicles Act by the Hon'ble Supreme Court in so many judgments, especially in National Insurance Company Limited Vs. Swaran Singh reported in (2004) 3 SCC 297, Lingamma and another vs. United Insurance Company Limited reported in 2009 ACJ 2020, Sohanlal Passi vs. reported in AIR 1996 SCC 2627.
2. The provisions of the Motor Vehicles Act have been enacted to render social welfare and to console, comfort and compensate the victims of the road accidents. It is also intended for speedy disposal of those matters. That is the reason why, the Parliament thought it fit to constitute a Special Tribunal and prescribe summary procedure to dispose of the claims, keeping at bay the rigid provision of law of evidence and civil procedure code. When such is the position as per the statute enacted by the Parliament and judgments given by the Hon'ble Supreme Court, here is a case, wherein the Transport Corporation, which is the instrumental of the State Government, belatedly filed an appeal on 9th April 2012 against the award dated 12.10.2010 i.e. 1 years after passing of the award in favour of the claimants. Meanwhile, the claimants, especially first respondent wife, who lost her husband filed execution petition to execute the award. After receiving notice only, the Transport Corporation, which was sleeping like a Ripwan Winkle over the matter, woke up and filed this appeal belatedly. The aforesaid belated act of the transport corporation would only exhibit lethargic attitude and apathy of the officials even in pursuing the appeal challenging the award passed against them.
3. As stated above, the Transport Corporation has filed this appeal assailing the award dated 12.10.2010, both on the question of negligence as well as quantum.
4. On 14.9.2007, while the husband of the first respondent was riding his TVS Champ, was hit on the rear side by the Transport Corporation bus, driven rash and negligently. As a result, the rider of the vehicle was run over by the bus and he died. The claim petition was filed by the respondents 1 to 3 and the same was resisted by the appellant transport corporation contending that the deceased was responsible for the accident as he was having his cellphone with ear phone while riding the two wheeler and therefore he could not turn left side and turned right. As there was a big Corporation steel dustbin kept on the road, when the bus was coming near the deceased, he hit the left middle portion of the bus and fell down. The accident was only due to negligent riding of the rider of the two wheeler and also use of the cell phone while driving. On enquiry, the Tribunal found that the accident occurred because of rash and negligent driving of the bus driver and based on the evidence, determined the loss of income at Rs.10,47,132/- and including conventional damages, awarded a sum of Rs.11,02,132/- as compensation to the claimants.
5. Mr.S.Swaminathan, learned counsel appearing for the appellant would submit that the Tribunal did not take into consideration, the evidence of the bus driver, who was examined as RW1 and the tribunal went by Ex.P1 - F.I.R filed against the driver of the bus. As RW1 was the eye witness to the accident, his version should have been believed by the tribunal and it should not have believed the version of PW2. Therefore, he seeks for interference with regard to the negligent aspect. Secondly, he would submit that the multiplier adopted as per the age of the deceased by the Tribunal is 17, whereas it should be 16, as per judgment of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 (1) ACJ 1298. Thirdly, he would submit that the amount of Rs.25000/- each awarded by the tribunal towards loss of consortium and loss of love and affection are on the higher side.
6. Per contra, Mr.R.Chandrasudan, learned counsel appearing for the respondents/claimants would contend that the Tribunal, taking note of filing of the FIR against the bus driver and also based on the evidence of eye-witness PW2, rightly found that the bus driver was responsible for the accident. As far as the quantum is concerned, he would submit that though the compensation awarded appears to be reasonable, the Tribunal has not taken into account the future prospects. In this regard, he relied upon the very same judgement i.e. Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 (1) ACJ 1298, which has been relied on by the learned counsel for the appellant.
In this case, Ex.P1, FIR was filed against the driver of the transport corporation bus. PW2, Mr.Mugundan, eye-witness to the accident categorically deposed in his evidence that while he was standing in the bus stop, he witnessed the accident, which was caused due to the rash and negligent driving of the driver of the bus. PW2's evidence is also in consonance with PW1's evidence. Though RW2 had stated that only to avoid the steel dustbin, two wheeler rider who was having cell phone in his ear, turned right and got hit by the bus, the Trial court rightly believed the evidence of PW2, basing on the FIR filed against the bus driver. If really, the rider of the two wheeler was responsible for the accident, nothing prevented the bus driver to lodge a complaint narrating the correct facts and no such complaint was given. One important aspect is that even though the bus driver was shown as first respondent in the claim petition, he remained exparte curiously. However, he was examined as witness by the appellant transport corporation. If really the bus driver had good defence, he could have contested the matter. Therefore, the conclusion reached by the Tribunal that the accident occurred due to the negligence of the bus driver cannot be interfered with and the same is confirmed.
The deceased was a diploma holder in Engineering as proved by Exs.P7, P8, P9 and Ex.P12 series. Salary certificate of the deceased would prove that he was earning Rs.7699.75 per month. Therefore, the Tribunal rightly determined the monthly income at Rs.7700/- and after deducting 1/3 towards personal expenses, Rs.5133/- was determined as loss of income. The annual loss of income would be Rs.5133 X 12 = 61,596/-.
Ex.P7, transfer certificate issued by Saint Michaels Polytechnic, would disclose that the date of birth of the deceased was 15.9.1975. Even as per Ex.P3 postmortem report, the age of the deceased was proved to be 32 years. The Tribunal adopted multiplier 17 as per the second schedule of the Motor Vehicles Act and calculated Rs.10,47,132/- as loss of dependency. However, as rightly pointed out by the learned counsel appearing for the appellant, as per judgement of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 (1) ACJ 1298 for the age 32, proper multiplier should be 16. Therefore, this court determines the loss of dependency as Rs.9,85,536/- ( 5133 x 12 x 16 ).
9. CONSORTIUM :
The Tribunal has awarded a sum of Rs.25000/- towards loss of consortium. The age of the first respondent wife at the time of accident was only 27 years. The death of husband is irreparable loss and it cannot be compensated by money. That too at the age of 27, loss of husband would definitely cause physiological agony and physiological hardship and would also cause social stigma. Therefore, Rs.25000/- awarded by the Tribunal towards loss of consortium is enhanced to Rs.50,000/-.
10. LOVE AND AFFECTION :
The minor child, second respondent was aged about 2 1 /2 years is not in a position to enjoy the father's love and affection, care and guidance throughout her life. Therefore, Rs.25,000/- awarded towards loss of love seems to be low. In view of that, for loss of love and affection Rs.50000/- is awarded to the second respondent. The third respondent mother is entitled to a sum of Rs.10,000/- towards loss of love and affection. The amount of Rs.5000/- awarded towards funeral expenses is confirmed. Since no amount was awarded towards transportation, Rs.1596/- is awarded. The award of the Tribunal Rs.11,02,132 is confirmed in the following manner.
|1) Loss of dependency||Rs.9,85,536/-|
|2) Loss of consortium to the 1st respondent||Rs. 50,000/-|
|3) Loss of love and affection to the 2nd respondent||Rs. 50,000/-|
|4) Loss of love and affection to the 3rd respondent||Rs. 10,000/-|
|5) Funeral expenses||Rs. 5,000/-|
|6) Transportation||Rs. 1,596/-|
11. The rate of interest at 7.5% awarded by the Tribunal remains unaltered. The ratio adopted for apportionment of the compensation by the Tribunal is confirmed.
12. It is very unfortunate that, even the claimants got award as early as on 12.10.2010, the Transport corporation, took its own sweet time to file the appeal after the claimants filed the execution petition to execute the award. The claimants already suffered because of loss of the bread winner of the family and even after getting the award, they are unable to enjoy the fruits of the award because of the act of the appellant transport corporation, which definitely prejudice the rights of the victims. Though heavy costs has to be slapped on the Transport Corporation for filing the belated appeal, however, this court is not awarding cost, taking a lenient view.
13. Though E.P.No.5 of 2011 has been filed by the claimants, so far no amount has been deposited by the Transport Corporation. In view of that, the appellant Transport Corporation is directed to pay the entire amount along with costs through ECS to the account of the first respondent within a period of six (6) weeks from the date of the receipt of a copy of this order and the share of the second respondent minor which is directed to be deposited in a Nationalised Bank, under reinvestment scheme, till the minor attains majority.
14. In the result, the Civil Miscellaneous Appeal is disposed in the above terms in so far as the main issue in the appeal is concerned. No cost. CMP is closed. However, main appeal is kept pending to pass appropriate orders along with CMA No.3264 of 2014 with regard to the queries raised by this Court on 10.07.2014, in the public interest.
Dismissed. No costs. Consequently the connected Miscellaneous Petition is closed.