Madras High CourtLingasamy vs R.Philips on 10 December, 2013Author:R.MahadevanBench:R.MahadevanIN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:  10.12.2013

CORAM

THE HON'BLE MR.JUSTICE R.MAHADEVAN

C.M.A.No.2734 of 2010

1. Lingasamy
2. Kannammal							Appellants

		vs. 

1. R.Philips
2. The Managing Director,
   TNSTC (Coimbatore Division II),
   Chinnamalai Road,
   Erode. 								Respondents
	
	Civil Miscellaneous Appeal against the award passed in M.C.O.P.No.201 of 1998(F.T.C. No.64 of 2001) dated 14.6.2002 on the file of the Motor Accidents Claims Tribunal (Additional District and Sessions Judge), Erode at Dharapuram.

	For appellants	: Mrs.R.Meenal

	For R2		: Mr.A.Babu
JUDGMENTThis is an appeal filed by the claimants, who are parents of the deceased Anandan, seeking enhancement of compensation awarded to the tune of Rs.2,02,000/= as against the claim of Rs.24,00,000/=.2. It was contended by the claimants/appellants that their son was riding a TVS Suzuki Motorcycle bearing registration No.TN 37L 5087 at Thiruppur-Dharapuram Main Road on 8.6.1997 at about 6.15 pm and at that time,  the bus bearing registration No.TN 33 N 0749, belonging to the second respondent-Transport Corporation, driven in a rash and negligent manner, came in the opposite direction and dashed against the deceased and thereby causing severe injuries and death to him.  Hence, the appellants had filed the claim petition.3. The second respondent-Transport Corporation filed counter and contested the claim both on the ground of liability and quantum.  According to the second respondent, the accident did not occur due to the negligence on the part of their driver and the claim made is an exaggerated one.4. The Tribunal, based on the oral and documentary evidence, found that the accident occurred only due to the rash and negligence on the part of the driver of the bus and awarded a sum of Rs.2,02,000/= under various heads.5. Learned counsel for the appellant would submit that the loss of income arrived by the Tribunal is very meager and the amount awarded towards loss of love and affection is also very low and hence, they may be enhanced.6. Learned counsel for the Transport Corporation would submit that the award passed by the Tribunal is only on proper analysis of the evidence  and the amounts awarded are also proper and in accordance with law and it need not be enhanced.7. With regard to liability, it has been clearly found by the Tribunal that the acquittal of the driver of the Transport Corporation in the criminal case, connected with the accident, cannot have any bearing on the claim petition and the acquittal was only based on benefit of doubt and the Transport Corporation has not chosen to file rough sketch and observation mahazar filed in the criminal case for better appreciation and on the contrary, the evidence of PW3, an eyewitness to the accident and rash and negligent driving of the driver of the bus, corroborates with the FIR and hence, this court need not go into the question of liability.8. On the question of quantum, the Tribunal, disbelieving the claim of Rs.10,000/= as the monthly income of the deceased, fixed a notional income of Rs.15,000/= per annum as per schedule II of the Motor Vehicles Act as it found that the owner of the company, in which the deceased was working, filed another claim petition wherein he   disclosed his monthly income as Rs.3000/= and therefore, such a person could not have paid Rs.10,000/= as salary to his employee viz., the deceased in this case.9.  Such a hypothetical  view taken by the Tribunal with regard to the income of the deceased cannot be upheld in view of the decision rendered by a Division Bench of the Hon'ble Apex Court inKISHAN GOPAL & ANOTHER v. LALA & OTHERS(2013-5-LW 205).10.Inthe said decision, parents of a ten years old boy, had approached the Honourable Apex Court after having failed before the Tribunal and the High Court in getting compensation for the death of their son.  They contended that their son was assisting them in their agricultural occupation.The Honourable Supreme Court, referring to the decision inLATA WADHWA & OTHERS v. STATE OF BIHAR AND OTHERS((2001) 8 SCC 197),  wherein the contribution of the child, in the age group of 10 to 15, to the family, was enhanced to Rs.24,000/= per annum from Rs.12,000/= per annum fixed by the court below,  held as under:-"We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/=.  Further, the deceased boy, had he been alive, would have certainly contributed substantially to the family of the appellants by working hard.  In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/= ..."11.In the same decision, the Honourable Apex Court, relying on the legal principleslaid down inSARLA VERMA v. DELHI TRANSPORT CORPORTION (2009-5-LW561), awarded a sum of Rs.50,000/= under conventional heads.12. I am of the view that the present case stands on a better footing as the victim of the present case, who was 25 years  old at the time of the accident, was said to have been the sole bread winner of his family and taking care of his parents at their old age.   Therefore, certainly, it cannot be inferred that he was without any income.  But, the poor claimants, who lost their only hope in life, could not prove the income of their son properly.  Therefore, this court has no other option except to consider the notional income alone which can be fixed as Rs.30,000/= per annum aslaid down bythe Honourable Supreme Court in  the decision rendered in 2013-5-LW 205.13. Taking into consideration the notional income as Rs.30,000/= per annum, the loss of income is arrived at Rs.3,40,000/= and following theratiolaid down inSARLA VERMA's case, the loss of love and affection is enhanced to Rs.25,000/= each to the claimants while confirming the award on other heads and accordingly, the total compensation comes to Rs.4,02,000/=.  The enhanced compensation also carries the interest at 9% per annum.    Out of the award, the first appellant is entitled to get a sum of Rs.2,65,000/=  and the second appellant is entitled to get a sum of Rs.1,37,000/=. The second respondent-Transport Corporation is directed to deposit the entire award amount deducting the amount already deposited by them within a period of four weeks from the date of receipt of copy of this order.  On such deposit, the appellants are entitled to withdraw the same by filing appropriate application.In the result, the civil miscellaneous appeal is allowed in part.  No costs.10.12.2013.Index: Yes.Internet: Yes.ssk.To
Additional District and Sessions Judge, 
Erode at Dharapuram.R.MAHADEVAN, J.Ssk.C.M.A.No.2734 of 201010.12.2013.