R. Banumathi, J.@mdashBeing aggrieved by 90% negligence and liability fastened upon the bus bearing registration No. TN-36 L 7679 insured
with Appellant-Insurance Company and also quantum of compensation of Rs. 14,50,000/- awarded for the death of Murugesh @ Murugesan in a
road traffic accident on 13.5.2008, the Appellant-Insurance Company has filed the appeal. Brief facts are that on 13.5.2008 deceased Murugesh
@ Murugesan was riding Hero Honda motorcycle bearing registration No. TN-30 R 3966 on Sankari-Bhavani Main Road, towards Bhavani
along with pillion rider. At about 6.45 P.M., when he was nearing Veeramathi Lathe Workshop at Mekkadu, the bus bearing registration No. TN-
36 L 7679, owned by the 5th Respondent and insured with the Appellant-Insurance Company driven by its driver in a rash and negligent manner
and dashed against the motorcycle. Due to the impact, Murugesh @ Murugesan sustained grievous injuries and died on the spot and the pillion
rider Kozhi @ Nagaraj sustained injuries. Regarding the accident, a criminal case was registered against the bus driver in Crime No. 417 of 2008
under Sections 279, 337 and 304(A) of I.P.C. of Sankari Police Station. At the time of accident, deceased Muruesh @ Murugesan was working
as Work Assistant in Maga Nagar Telephone Nigam Limited, Mumbai (Government of India Enterprises) and was earning Rs. 15,000/- per
month. Alleging that the accident was due to rash and negligent driving of the bus driver, the Claimants who are wife, sons, minor daughter of the
deceased have filed Claim Petition claiming compensation of Rs. 20,00,000/-.
2. Resisting the Claim Petition, Appellant-Insurance Company has filed the counter contending that on the date of accident, deceased was riding
the motor cycle along with two persons by consuming alcohol and tried to overtake the lorry which was going in front of the motorcycle and came
on the wrong side and dashed against the bus proceeding on the opposite side and thus the deceased himself invited the accident. It is averred that
the accident occurred due to the fault of the deceased and the Appellant-Insurance Company is not liable to pay compensation to the Claimants.
Appellant-Insurance Company also denied age, occupation, monthly income of the deceased and that the compensation claimed is excessive.
3. In the same accident, the pillion rider Kozhi @ Nagaraj sustained injuries and he filed M.C.O.P.No. 287 of 2008. In the Tribunal,
M.C.O.P.No. 276 of 2008 and 287 of 2008 were taken up together and joint trial was conducted. Before the Tribunal, the pillion rider/eye-
witness Kozhi @ Nagaraj was examined as P.W.1. 1st Claimant Suseela examined herself as P.W.2. Dr. Krishnamurthy, who treated injured
P.W.1 and issued Ex. P20-disability certificate was examined as P.W.3. Exs. P1 to P22 were marked on the side of Claimants. On the side of
Appellant-Insurance Company, the then Manager of Appellant-Insurance Company viz., Mohan was examined as R.W.1. The driver of the bus
was examined as R.W.2. Exs. R1 to R6 were marked.
4. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the bus driver.
However, Tribunal observed that travelling by three persons in the motorcycle is not permissible and it would be appropriate to apportion 10%
liability upon the motorcyclist and fastened the liability at the ratio 90% to the bus driver and 10% to the motorcyclist. Insofar as quantum of
compensation, Tribunal has taken the monthly income of the deceased at Rs. 15,000/- and deducting one-third for personal expenses and
adopting multiplier ""13"", Tribunal has calculated the loss of dependency at Rs. 15,60,000/-. Adding conventional damages, Tribunal has calculated
total compensation at Rs. 16,25,000/- as under:-
Deducting 10% i.e. Rs. 1,62,500/- upon the deceased, Tribunal has awarded Rs. 14,62,500/-, rounded off to Rs. 14,50,000/- payable by the
owner and insurer of the bus jointly and severally.
5. Mr. J. Chandran, learned counsel for Appellant-Insurance Company has submitted that Tribunal erred in considering the evidence of R.W.1 and
R.W.2, who were categorically stated that at the time of accident, the motorcycle was driven by the deceased along with two persons under the
influence of alcohol and caused the accident and that Tribunal ought to have dismissed the Claim Petition and exonerated the Appellant-Insurance
Company from liability. It was submitted that Tribunal ought to have atleast fixed the contributory negligence of 50% towards triple driving and
consumption of alcohol. The total compensation of Rs. 14,50,000/- awarded by the Tribunal is on the higher side and prayed for reduction.
6. Per contra, taking us through the award of Tribunal, Mr. S. Kalyanaraman, learned counsel for Claimants submitted that based on the consistent
evidence adduced by the Claimants, Tribunal has apportioned the liability upon the bus at 90% and that the compensation awarded by the Tribunal
is just and reasonable and the same has to be confirmed.
7. In his evidence, the eye-witness/injured, P.W.1 Kozhi @ Nagaraj has stated that on 13.5.2008, deceased Murugesh @ Murugesan was riding
the Hero Honda Plus motorcycle bearing registration No. TN-30 R 3966 from Sankari to Pachampalli and he was travelling as pillion rider. When
the motorcycle was nearing Veeramathi Lathe at Mekkadu, the bus bearing registration No. TN-36 L 7679 which was coming on the opposite
direction driven by its driver in a rash and negligent manner and while trying to overtake the lorry, dashed against the motorcycle and caused the
accident. P.W.2-Suseela, wife of deceased Murugesh @ Murugesan has reiterated the evidence of P.W.1.
8. The then Manager of Appellant-Insurance Company was examined as R.W.1. In his evidence, R.W.1 has stated that on the date of accident,
three persons were travelling in the motorcycle and the motorcycle was driven by deceased and when the deceased was trying to overtake the
lorry which was going in front of the motorcycle, the deceased came in the wrong side and dashed against the bus. R.W.1 has stated that the
accident was due to rash and negligent driving of the deceased. The driver of the bus viz., Velmurugan was examined as R.W.2. In his evidence,
R.W.2 has stated that on the date of accident, he drove the bus from Bhavani to Sankari. At that time, the motorcycle coming on the opposite
direction, by overtaking the lorry dashed against the bus. R.W.2 further stated that the rider and other two persons travelling in the motorcycle was
in a drunken mood and that the accident was due to rash and negligent riding of the motorcyclist.
9. To prove that the accident was due to rash and negligent driving of the bus driver, Claimants have produced Ex. P1-FIR in Crime No. 417 of
2008 under Sections 279, 337, 304(A) of Sankari Police Station registered against the bus driver. By perusal of Ex. P1-FIR, it is seen that the
criminal case was registered against the bus driver. Ex. P5 charge-sheet was also laid against the bus driver.
10. Contention of Appellant-Insurance Company is that at the time of accident, three persons were travelling in the motorcycle by influencing
alcohol. To prove that at the time of accident they were under the influence of alcohol, Appellant-Insurance Company has not produced any
documents. By perusal of Ex. P10-post mortem certificate, it is seen that the Doctor who conducted the autopsy on the body of deceased has not
noted anything about the alcohol found in the body of the deceased.
11. Upon consideration of oral and documentary evidence, Tribunal has rightly held that the accident was due to rash and negligent driving of the
bus driver. However, Tribunal held that for travelling of three persons in the motorcycle, it would be appropriate to fix 10% liability and fixed the
liability upon the bus at 90%. The said finding of the Tribunal is based on facts and evidence and the same is confirmed.
12. Insofar as quantum of compensation In her evidence, P.W.2 has stated that at the time of accident her husband was working as Assistant in
Maga Nagar Telephone Nigam Limited and was earning Rs. 15,043/- per month. Tribunal has taken the monthly income of the deceased at Rs.
15,000/- per month. Deducting one-third for personal expenses (Rs. 15,000 Rs. 5000 = Rs. 10,000/-), Tribunal has calculated the loss of
contribution to the family at Rs. 10,000/- per month and Rs. 1,20,000/- per annum. Considering the avocation of the deceased, the monthly
income taken by the Tribunal at Rs. 15,000/- and one-third deduction made towards personal expenses by the Tribunal is maintained.
13. At the time of accident, deceased was aged 48 years. Ex. P10 is the post-mortem certificate, wherein the age of the deceased was mentioned
as 48. As per Second Schedule to M.V. Act, for the age group 45-50 the proper multiplier to be adopted is 13. Adopting multiplier 13, Tribunal
has calculated the loss of dependency at Rs. 15,60,000/- (Rs. 1,20,000 x 13) and the same is maintained.
14. Insofar as conventional damages, Tribunal has awarded Rs. 25,000/- for ""loss of consortium"", Rs. 30,000/- for ""loss of love and affection"",
Rs. 5,000/- for ""funeral expenses"" and another Rs. 5,000/- for ""transport charges"", which in our considered view is reasonable warranting no
interference and the same are maintained. Thus the total compensation of Rs. 16,25,000/- arrived at by the Tribunal is maintained. After arriving at
the total compensation at Rs. 16,25,000/-, Tribunal deducted 10% liability i.e. Rs. 1,62,500/- upon the deceased and arrived the compensation at
Rs. 14,62,500/-, rounded of to Rs. 14,50,000/- payable to the Claimants. Therefore, we are of the view that the total compensation arrived by the
Tribunal at Rs. 14,50,000/- is reasonable and the same is maintained.
15. In so far as interest, Tribunal has awarded interest at the rate of 7.5% p.a. from the date of filing of Claim Petition and the same is maintained.
The compensation of Rs. 14,50,000/- is to be apportioned amongst the Claimants on pro rata basis as apportioned by the Tribunal. 16. In the
result, the compensation of Rs. 14,50,000/- awarded by the Tribunal in M.C.O.P.No. 276 of 2008 dated 29.4.2011 on the file of Motor
Accident Claims Tribunal (Subordinate Judge), Sankari at Salem is confirmed and the appeal is dismissed.
It was stated before us that Appellant-Insurance Company has deposited 50% of the compensation awarded by the Tribunal and the Claimants 1
to 3 are said to have withdrawn 50% of the amount deposited along with proportionate accrued interest. Claimants 1 to 3 are permitted to
withdraw the balance 50% of the deposited amount lying in the Court deposit, immediately after the receipt of copy of this judgment.
Appellant-Insurance Company is directed to deposit the remaining 50% of the compensation along with accrued interest within a period of eight
weeks from the date of receipt of copy of this judgment. On such deposit, the Claimants 1 to 3 are permitted to withdraw the same along with
proportionate accrued interest.
4th Respondent minor 4th Claimant is said to have attained majority. 4th Claimant is permitted to withdraw her share, after filing necessary
application before the Tribunal to declare herself as Major. Consequently, connected M.P. is closed. No costs.
