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TAMIL NADU STATE TRANSPORT versus MOHAMMED JABBAR

High Court of Madras

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Tamil Nadu State Transport v. Mohammed Jabbar - CMA. NPD No.3958 of 2005 [2007] RD-TN 643 (21 February 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 21.02.2007

CORAM

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN

and

THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN

C.M.A. NPD No.3958 of 2005

and

Cross Objection No.9 of 2007

Tamil Nadu State Transport Corporation Ltd.

rep. by its Managing Director

Salem. ..Appellant Vs

1. Mohammed Jabbar

2. Ummahani Begam

3. M.Alijohn ..Respondents Cross Objection No.9 of 2007:

----------------------------

1. Thiru Mohammed Jaffer

2. Tmt.Ummaghani Begam ..Cross Objectors Vs

1. Tamil Nadu State Transport Corporation

[Dharmapuri (Salem Division II)]

rep. by its Managing Director.

2. M.Alijohn ..Respondents PRAYER:

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 25.2.2004 made in M.C.O.P.No.32 of 2001 on the file of the Motor Accidents Claims Tribunal (District Judge), Udhagamandalam. For appellant in CMA.3958/2005 / R1 in Cross Objection.9/2007 : : Mr.R.Thiagarajan for Mr.R.Arunmozhi

For respondents in CMA.3958/2005 / Cross Objectors 1 & 2 and R2 in Cross Objection.9/2007: : Mr.R.Subramanian, Senior Advocate for M/s.Hemalatha & J.Sudha JUDGMENT



(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The appeal is by the Transport Corporation questioning the order of the Tribunal 25.2.2004 made in M.C.O.P.No.32 of 2001 challenging the award on the aspect of negligence as well as the compensation amount.

2. It is seen from the order of the Tribunal that the accident had occurred on 8.5.2001 resulting in the death of one Surbudeen. The claimants are the parents of the deceased. They made a petition claiming compensation for a sum of Rs.2,01,65,000/-.

3. The Tribunal, by order dated 25.4.2004, held that the Transport Corporation driver was negligent and rash in his driving in causing the accident. The Tribunal also referred to the evidence of P.W.3, an eye-witness, who lodged the First Information Report, marked as Ex.A2. The Tribunal rejected the evidence given by the Conductor of the Transport Corporation.

4. The Tribunal considered the age of the deceased as 29 years and taking note of the evidence of the first claimant, namely, the father of the deceased as P.W.1 and the documents filed thereon, it held that the claimant had independent source of income and hence, fixed the earnings at Rs.20,000/- per month. Deducting one-third towards personal expenses, the contribution was arrived at Rs.1,60,000/- per year and applying the multiplier of 18, the Tribunal fixed the total contribution at Rs.27,20,000/-. Under the conventional heads, the Tribunal granted a sum of Rs.2,50,000/- towards loss of love and affection and for the pain and suffering that the parents had undergone. Adding a sum of Rs.5,000/- towards funeral expenses and Rs.2,000/- towards transportation charges, compensation totalling Rs.29,77,000/- were granted, with interest at 9 per annum.

5. Aggrieved of the award and the findings of the Tribunal, the Transport Corporation is on appeal before this Court.

6. It is seen that the deceased was driving his jeep from Tiruppur to Erode. While passing through Kallamputhur around 1 O' clock in the mid-night, the Transport Corporation bus, alleged to have been driven in a rash and negligent manner, dashed against the jeep, resulting in the death of all the occupants except one. Ex.A2 is the First Information Report. The complaint was given by one Ashiq Ahmed, an eye-witness, who was driving the Maruti Van behind the jeep involved in the accident. He stated that when the deceased was going from Tiruppur to Erode, the Transport Corporation bus, coming on the opposite side, dashed against the jeep, thus resulting in the fatal accident. It is stated that he had seen the accident along with Ramachandran, who was driving the Maruti Van.

7. On the side of the Transport Corporation, R.W.1, the Conductor, deposed that while the bus was coming on the opposite side, a lorry was standing on the road and the police were checking the lorry. While attempting to overtake the lorry, the accident occurred. It is relevant to note that the driver of the Transport Corporation bus did not depose in this matter. The Tribunal noted that the driver of the bus did not take necessary caution to see whether there was any clearance for the bus to overtake the stationed lorry. Taking note of the flaws in the evidence of the respondent in considering the fact that the eye-witness who was going behind the jeep involved in the accident had given the complaint immediately, the Tribunal held that the Transport Corporation driver lacked the necessary care while crossing over the stationed lorry; that it was due to the negligence of the driver that the accident occurred. We do not find any contra evidence projected to substantiate the plea that the Transport Corporation driver was not to be blamed for the accident. Going by the evidence of the eye-witness and particularly the evidence of R.W.1 who had not stated anything to attribute negligence on the part of the deceased Surbudeen by driving in a negligent manner, we do not find any reason to disturb this finding. Going by the facts and the evidence, we hold that the driver of the appellant Corporation lacked the normal care that is expected of a driver crossing over a stationed vehicle. Hence, we reject the appeal on this count.

8. On the question of compensation, learned counsel submitted that the Tribunal committed an error in granting the compensation, keeping the contribution at Rs.27,20,000/-. It is seen that P.W.4 was a Chartered Accountant who had audited the accounts of the deceased Surbudeen. It was stated that at the time of the accident, Surbudeen was having income from the business carried on by him. P.Ws.1 and 2, the claimants, deposed that the deceased was earning a sum of Rs.50,000/- per month. He had his income from agriculture, as well as a partner in Ooty Mini Home Needs, Ooty N.V.Hotel, Ooty Meals House, apart from the banian business. P.W.1 stated that the deceased had income from banian business to the extent of Rs.20,000/-. However, the Chartered Accountant, P.W.4, did not file any document in support of the income from the banian business. On the other hand, he had stated that he had no direct knowledge as to the income from this line of business. In the circumstances, the Tribunal rejected the stand of the claimant that the deceased had income to the tune of Rs.20,000/- from banian business. The Tribunal noted that as evidenced by Ex.A21, the evidence of P.W.4, the Chartered Accountant had worked out the monthly income of the deceased at Rs.30,000/- to Rs.35,000/-. The Tribunal also noted that the claimant had not produced any proof for the income received from agriculture. It also noted that the income from the Ooty Meals House and Ooty N.V.Hotel, were subjected to income tax. From the certificate issued, it was seen that the deceased had income for the year 1998-99, 1999-2000 and 2000-2001 at Rs.1,24,044/-, Rs.1,02,600/- and Rs.1,07,285/- respectively. The claimant also filed the necessary challans regarding the payment of income tax. The Tribunal noted Ex.A28 wherein the claimant had disclosed the agricultural income and paid tax thereon. The Tribunal held that since P.W.2 could not prove as to wherefrom the deceased had income from agriculture. It estimated the income from agriculture at Rs.2,000/- per month. Referring to the income from the hotel business, the Tribunal held that the deceased had 60 share in Ooty Meals House; that after the demise of Surbudeen, the parents who were also having shares, did not get any income. With reference to the Ooty Mini Home Needs, Surbudeen had 60% share in respect of the assessment under the sales tax and Ex.A12 was marked; that even after the demise of Surbudeen, the business continued. Hence, the income was estimated at Rs.5,000/- from this business. As regards the other business, namely, Ooty N.V.Hotel, Surbudeen had 30% share and the income was estimated at Rs.3,000/-. As regards the Ooty Meals House, the Tribunal noted Exs.A16, A17 and A18 which evidenced the income tax payment, and considering the income therefrom, the estimated income was fixed at Rs.10,000/- per month. Exs.A24 and A25 related to the sale of jewellery. The claim of income from this was resisted by the appellants saying that the possibility of the earnings for the year 1984-85 to 1987-1989 was to be totally ruled out, considering the fact that the deceased would have been 13 years old at that time. However, the Tribunal noted that the income from that source was shown in the returns filed prior to the death of Surbudeen. Hence, taking an overall view, the Tribunal held that the deceased would have earned an income of Rs.20,000/- every month. Taking note of the age of the deceased and applying the multiplier of 18, the Tribunal arrived at the contribution at Rs.27,20,000/-. It may be noted that except for the income from hotel business, the claimants had not proved the earnings from other sources. It is difficult to accept the case of the claimants solely on the basis of the Chartered Accountant's certificate. Hence, taking a reasonable view, keeping in mind that the deceased had more than one activity or income earning avocation, the contribution to the family could be fixed at Rs.15,000/- per month.

9. Learned counsel for the appellant submitted that the multiplier adopted is not in consonance with the second Schedule and that the multiplier ought to have been taken at 10. However, considering the age of the deceased and the claimants, the multiplier can be fairly fixed at 12 to arrive at a just compensation as under: Loss of contribution

Rs.15,000/- x 15 x 12 : Rs.21,60,000/- Funeral expenses (enhanced from

Rs.5,000/- granted by the Tribunal) : Rs. 10,000/- Loss of love and affection to the father : Rs. 25,000/- Loss of love and affection to the mother : Rs. 25,000/- Transportation charges : Rs. 10,000/- Loss to the estate : Rs. 50,000/- ------------------ Rs.22,80,000/- ------------------ Thus, the total compensation is worked out at Rs.22,80,000/- with interest at 9 per annum.

10. The claimant has filed a cross-objection in this, seeking enhancement of the compensation. However, for the reasons stated above, we do not find any ground to enhance the compensation. Hence, the cross-objection stands dismissed. In the result, the appeal by the Transport Corporation is partly allowed and the Cross Objection is dismissed. There will, however, be no order as to costs. Consequently, C.M.P.No.19546 of 2005 and C.M.P.No.364 of 2007 are closed. ksv

To

The District Judge

The Motor Accidents Claims Tribunal

Udhagamandalam.

[PRV/9708]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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