T. Mathivanan, J@mdashImpugning the award, dated 10.12.2014 and made in the Motor Accident Claim Petition in M.C.O.P. No. 197 of 2012, the Tamil Nadu State Transport Corporation (Villupuram Division - II), who is the respondent herein, has preferred this civil miscellaneous appeal.
2. Heard Mr. P. Paramasivadoss, learned Standing Counsel for the appellant/Transport Corporation.
3. When the appeal came up for admission, based on the nature of the claim as well as on the submissions made by the learned Standing Counsel for the appellant/Transport Corporation, we have made up our mind to dispose of this appeal at the stage of admission itself.
4. The respondents 1 to 5 being the wife, minor children and parents of the victim Mahendran, have filed a claim petition in M.C.O.P. No. 197 of 2012 on the file of the Motor Accident Claims Tribunal (I Additional District Court), Vellore, claiming a sum of Rs. 13.00 lakhs towards the loss due to the death of the victim in a road traffic accident.
5. It is manifested from the records that on 23.10.2011 at about 12.00 noon, opposite to Lakshmi Theatre at Anna Salai, a passenger Bus bearing registration No. TN 23 N 1438, which was driven by its driver in a rash and negligent manner, had hit against the rear side of the cycle which was ridden by the deceased.
6. Soon after the accident, he was removed to Adukkamparai Government Hospital and after first aid, he was shifted to the Government Medical College and Hospital at Vellore, where he had succumbed to injuries on 27.10.2011 while he was on treatment.
7. The Tribunal, after evaluating the evidences both the oral and documentary, has arrived at the compensation of Rs. 12,73,460/- on all heads, and directed the appellant/Transport Corporation to deposit the said amount to the credit of the claim petition in M.C.O.P. No. 197 of 2012 with interest at the rate of 7.5% from the date of petition within a period of one month.
8. Mr.P. Paramasivadoss, learned Standing Counsel has challenged the award on the grounds of negligence as well as quantum.
9. It is obvious to note here that with reference to the negligence, the first respondent/first claimant, who is none other than the wife of the deceased, had examined herself as P.W.1. One Srinivasan, who is the elder brother of the deceased Mahendran as well as the eye witness for the occurrence, was examined as P.W.2.
10. In fact, P.W.2 had lodged a complaint before the concerned police in respect of the occurrence. Admittedly, P.W.1 had not witnessed the occurrence directly.
11. What P.W.2 would depose is that he had been working in Lakshmi Theatre and on the fateful day at about 12.00 noon his brother Mahendran came and met him and after chatting, the later had proceeded in his cycle to Alankar Theatre, where he was working.
12. While so, the bus bearing Registration No. TN 23 N 1438 driven by its driver in an hectic speed coupled with negligence had dashed against the rear side of the cycle and as a result of which, the deceased Mahendran had sustained injuries over his left eye brow and occipital region.
13. Mr. P. Paramasivadoss, learned Standing Counsel appearing for the appellant Transport Corporation has adverted to that no credence could be attached to the evidence of P.W.2 as he is closely related to the deceased and therefore, he has urged this Court to discard his evidence on the ground that he might have had keen interest in getting more compensation in favour of the respondents/claimants.
14. He has also argued that the respondents/claimants had never chosen to examine any independent witness to prove the alleged rashness and negligence on the part of the driver of the offending vehicle.
15. In this connection, we would like to refer the contention made by the learned Standing Counsel for the appellant/Transport Corporation. In their counter statement, they have contended that the occurrence was taken place solely on the basis of the negligence of the deceased himself because he had made a sudden cross on the road from left side to right side without minding the on coming vehicle and on seeing him crossing the road in a cycle, the driver of the vehicle had tried at his level best to avoid the accident, however, he could not avert it as the cyclist came and hit against the front portion of the bus.
16. In order to substantiate their contention, the appellant/Transport Corporation had examined the conductor of the bus instead of the driver, who was sitting on the steering wheel at the relevant time. The conductor, who was on duty at the material time is not competent to speak about the alleged negligence of the deceased and therefore, we find that the evidence of R.W.1 has lost its evidentiary value.
17. On the other hand, though P.W.2 happens to be the elder brother of the deceased, his evidence cannot be brushed aside solely on the ground that he is closely related to the deceased. On the other hand, we find that his evidence is unassailable because there are several judicial pronouncements holding that a related witness will not leave the real culprit to escape from the cob-web of the law.
18. Secondly, with reference to quantum, we find that the compensation awarded by the Tribunal is well within the amplitude of Motor Vehicles Act which does not require our interference for the following reasons.
a. Though the respondents/claimants have claimed that at the time of occurrence, the deceased was aged about 32 years, they have not chosen to produce any documentary evidence relating to his age. However, Ex.P.3 Post mortem certificate would go to show that the deceased was aged about 33 years at the relevant period. The Tribunal has, therefore, determined the age of the deceased as 33 years at the time of occurrence.
b. With regard to the income of the deceased, the respondents/claimants have claimed that he was earning a sum of Rs. 9000/- per month as he was working in a cinema theatre. For the purpose of proving this fact, the respondents have produced Ex.P.10 Income Certificate issued by the Deputy Tahsildar. But the author of the Income certificate, viz., Deputy Tahsildar has not been placed in the box as a witness.
c. Besides this, though the respondents/claimants have claimed that the deceased was earning a sum of Rs. 9000/-, his employer was not summoned and examined as one of the witnesses to substantiate their claim and therefore, the Tribunal has rightly rejected Ex.P.10 income certificate and based on the prevailing circumstances, the Tribunal has concluded the monthly income of the deceased at Rs. 4000/-, which is very reasonable.
d. Out of Rs. 4000/-, the Tribunal has deducted 1/4th towards personal expenses of the deceased and the 3/4 remainder would be a sum of Rs. 3000/-.
e. With the death was occurred at the age of 33 of the deceased, as per Sarla verma''s case 50% of future prospects was taken into account by the Tribunal and therefore, a sum of Rs. 2000/- was added with the 3/4 remainder, i.e., Rs. 3000/-. Thus, the total income was determined at Rs. 5000/-.
f. As afore stated, since the age of the deceased was 33 years at the time of his death the multiplier 17 was adopted as per the II Schedule to Section 163-A of the Motor Vehicles Act.
g. Accordingly, the Tribunal has determined the dependency of the family at Rs. 10,20,000/- (3000 + 2000 x 12 x 17), which according to our view, this amount could be allowed to remain without any defacement.
19. Apart from the above said amount, the Tribunal has also awarded certain amounts under the following heads.
20. Totally, it comes to Rs. 12,73,460/-.
21. In so far as the compensation of Rs. 50000/- towards mental shock and agony is concerned, the learned Standing Counsel has argued that when an amount of Rs. 1.00 lakh was awarded towards the loss of love and affection, and a sizeable compensation is awarded towards the loss of dependency, a separate amount of Rs. 50000/- under the head of shock and agony ought not to have been awarded and therefore, the said amount, i.e., Rs. 50000/- had to be necessarily deleted.
22. We have considered his argument. In this regard, we seek the assistance of the decision of the Apex Court in Jayakodi and others vs. Branch Manager, National Insurance Co.Ltd., and another (2010 ACJ 697).
23. In this case, while speaking on behalf of a three Judges Bench of the Apex Court, Hon''ble Mr. K.G. Balakrishnan, Chief Justice of India (as he then was) has observed in paragraph No. 4 as under:-
"4. Claims Tribunal was not, however, justified in awarding Rs. 1,00,000/- (at the rate of Rs. 50,000/- to each parent) towards shock and mental agony suffered on account of the death of their son. The High Court committed the same error by awarding Rs. 30000/- under this head. When a person dies in a motor accident and his dependent legal representatives claim compensation, the general damages is made up of the loss of dependency plus a token sum for loss to estate. In the event of a claimant being a spouse another token amount is awarded as loss of consortium. Actual expenditure incurred for transporting the dead body and the funeral, are also awarded by way of special damages. Nothing is awardable under the head of shock and mental agony of parents or other legal representatives. (See
24. In the above decision, His Lordship has made reference to
25. In this case, the Division Bench of the Apex Court in paragraph No. 4 has observed as under:-
"4. Thereafter, the High Court proceeded meticulously to examine every item of compensation included in the award. The High Court held that award of 5000/- under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained. This is only the different way of looking at the same thing which is legally permissible. Muthukrishnan lived for 19 days since the accident and he was throughout under a shadow of death. He had suffered severe injuries. He must have suffered continuous pain and compensation was admissible for pain and suffering, suffered by the deceased. Therefore, the amount of Rs. 5000/- which the High Court held inadmissible, is legitimately admissible under another head and therefore by changing the head we restore the amount of Rs. 5000/- awarded by the Tribunal."
26. Keeping in view of the observations made by the Hon''ble Apex Court in the above cited two decisions, we are of the considered view that no compensation could be awarded under the head of mental shock and agony when the general damages have been made up by awarding sizeable compensation under the head of loss of dependency and therefore, the amount of Rs. 50000/- awarded by the Tribunal under the head of mental shock and agony in inadmissible and is legitimately admissible under an another head, viz., ''consortium''.
27. We have considered the submissions made by Mr.P. Paramasivadoss, learned Standing Counsel and we are in fair agreement with his submission for the reason that a separate amount of Rs. 1.00 lakh was awarded towards loss of love and affection and therefore, another amount of Rs. 50000/- under the head of mental shock and agony need not be awarded. Accordingly, this amount may be taken out from the line and added with the consortium awarded to the first respondent/first claimant as the amount awarded by the Tribunal under this head is insufficient.
28. It is significant to note here that a sum of Rs. 50000/- alone was awarded towards the loss of consortium to the first respondent/first claimant being the wife of the deceased, which is insufficient because at the time of the death of her husband, she was aged about only 28 years. In her tender age, she had lost her husband, who was aged about 33 years and therefore, the amount of Rs. 50000/- towards loss of consortium, which in our opinion, is inadequate and hence, we find that it could be enhanced to Rs. 1,00,000/.
29. Keeping in view of the above facts, the appeal filed by the Transport Corporation, Villupuram Division is dismissed confirming the quantum of award passed by the Tribunal with the slightest modification with out disturbing the quantum as detailed hereunder:-
30. The appellant Transport Corporation is directed to transfer the above said amount to the credit of the claim petition in M.C.O.P. No. 197 of 2012 on the file of the Motor Accident Claims Tribunal at Vellore, through Internet, with interest at the rate of 7.5% p.a., from the date of the claim petition, within a month''s time. After the amount is credited, the respondents 1,4 and 5 are at liberty to withdraw their respective shares as directed by the Tribunal and the shares of the minors, viz., the respondents 2 and 3 shall be invested in any one of the nationalised bank in a fixed deposit scheme, till they attain majority. The first respondent/first claimant being the mother and guardian of the minors is entitled to withdraw the interest accrued on the minors'' share once in three months and the same shall be utilised for the welfare of minors.
With the above directions, the appeal is dismissed. However, there will be no order as to costs. Connected M.P. is also dismissed.
