Manju Mandirathil v. Tamil Nadu State Transport Corporation Limited & Y. Inba Bright

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY &** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930** ## **MACA.No.615 of 2006** **-------------------------OPMV.1024/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM** **....................** ## **APPELLANT/APPLICANT:** **-----------------------------** **MANJU MANDIRATHIL, D/O. LATE RAJENDRA PRASAD, T.C.1/1942, `KALPANA', HIGH SCHOOL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.NAGARAJ NARAYANAN SRI.N.NARAYANAN NAIR SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------** **1. THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, (MADURAI DIVISION III), RANITHOTTAM, NAGARCOIL P.O., KANYAKUMARI DISTRICT, TAMIL NADU.** **2. Y. INBA BRIGHT, S/O. S. YOVAN, ALANCOTTAI, GANAPATHIPURAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU.** **BY S.C. SRI.SUBASH CYRIAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, ALONG WITH MACA NO.614 OF 2006 & CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.Nos.614, 615, 616, 619, 621, 1045, 1187, 1198, 1831 & 1916 of 2006 --------------------------------- ## **COMMON JUDGMENT** Balachandran, J. The claimant in O.P.(MV)Nos.791/01, 1024/01, 807/01, 1026/01 and 577/01 is the same. She was travelling along with her mother and brother in the car bearing Reg.No. KL-4/C 7227 driven by her father Rajendra Prasad on 10.11.2000 from south to north along the Nagarcoil-Panagudy Public Road. When the car reached near the Electricity Board Office, Panagudy, bus bearing Reg.No.TN-74/N 0813 owned by the first respondent Tamil Nadu State Transport Corporation and driven by the second respondent, which came in the opposite direction, collided with the car, in which the appellant and members of her family were travelling. Due to the impact of the collision, the car got completely damaged and the father, brother and mother of the MACA 614/06 & con. cases 2 claimant sustained fatal injuries and succumbed to the injuries. The appellant also sustained serious injuries in the accident. 2. The appellant filed O.P.(MV)Nos.791/01, 1024/01 and 807/01 claiming compensation for the death caused respectively to her father, mother and brother, O.P.(MV)No.1026/01 claiming damages for the injuries caused to her and O.P.(MV)No.577/01 for damages caused to the car, which was a 1995 model Maruti Zen car. The claim was opposed by the respondents filing written statements, inter alia, disputing the age, occupation and income of the deceased persons as also of the claimant and disputing also the allegations of negligence attributed to the second respondent. They contended that the accident occurred due to the negligence of the driver of the car. They further contended that the compensation claimed is exorbitant. The Tribunal, considering the evidence adduced at trial, found that there is negligence contributed by the drivers of the car and the bus in the MACA 614/06 & con. cases 3 proportion 50-50 and awarded to the appellant a compensation of Rs.1,37,200/- in O.P.(MV)No.791/01 for the death of her father, that being 50% of the compensation arrived at, awarded compensation of Rs.1,68,000/- by way of damages for the death of her mother in O.P.(MV)No.1024/01, without, however, deducting 50% for the contributory negligence, awarded Rs.1,91,000/- in O.P.(MV)No.807/01 towards damages for the death of her brother without deducting 50% for the contributory negligence and also awarded a compensation of Rs.1,42,210/- by way of damages in O.P.(MV)No.1026/01 for the injuries sustained to her without deducting 50% towards contributory negligence. In O.P.(MV)No.577/01, an amount of Rs.1,62,500/- was assessed as damages to the car involved in the accident, but awarded an amount of Rs.81,250/- as damages that being 50% of the damage assessed, 50% having been deducted for the contributory negligence. 3. Against the award in O.P.(MV)No.791/01, M.A.C.A.No.619/06 is filed by the claimant and MACA 614/06 & con. cases 4 M.A.C.A.No.1045/06 is filed by the first respondent, as against the award in O.P.(MV)No. 1024/01, M.A.C.A.No.615/06 is filed by the claimant and M.A.C.A.No.1831/06 is filed by the first respondent, as against the award in O.P.(MV)No. 807/01, M.A.C.A.No.616/06 is filed by the claimant and M.A.C.A.No.1187/06 is filed by the first respondent, as against the award in O.P.(MV)No. 1026/01, M.A.C.A.No.621/06 is filed by the claimant and M.A.C.A.No.1916/06 is filed by the first respondent and as against the award in O.P.(MV) No.577/01, M.A.C.A.No.614/06 is filed by the claimant and M.A.C.A.No.1198/06 is filed by the first respondent. 4. In the appeals filed by the claimant, she claims further enhancement of compensation assailing mainly the fixation of notional income except in M.A.C.A.No.614/06, in which the contention is that compensation assessed is low. Deduction of 50% for contributory negligence is also assailed in M.A.C.A.Nos.619/06 and 614/06. In MACA 614/06 & con. cases 5 the appeals filed by the first respondent attack is mainly on the finding of the Tribunal that 50% of the negligence is contributed by the second respondent, who was the driver of the bus owned by them, as according to them, the accident occurred solely due to the negligence of the driver of the car. It is contended that the Tribunal, however, has not effected deduction of 50% in compensation in awards passed in O.P.(MV)Nos.1024/01, 807/01 and 1026/01 as has been done in O.P.(MV)Nos.791/01 and 577/01 and that even in the event of contributory negligence having been found, apportionment of liability should have been made in the awards in those cases as well. It is true that in the event of the deceased father of the claimant having contributed 50% of the negligence in causing the accident, the entire compensation should not have been ordered to be paid by the first respondent in O.P.(MV)Nos.1024/01, 807/01 and 1026/01. 5. It is vehemently contended before us by the learned counsel for the Tamil Nadu State Transport MACA 614/06 & con. cases 6 Corporation in the appeals filed by them that even going by the scene mahazar there was sufficient space left on the western side of the road for the Maruti Zen Car, which was proceeding towards north to pass by and that in fact, the car has moved towards east without keeping its left and that has resulted in the collision between the car and the bus owned by them. On the other hand, it is the argument of the counsel for the claimant that the bus, which was proceeding from north to south, was not keeping its left, namely, the eastern side of the road, but had left six feet width of tar road on its left and has moved towards west on a road which is having 24 feet width only and that the bus was proceeding towards west of the road, which lies north-south and that has caused the accident and that the bus driver, the second respondent is solely responsible for the accident. 6. It is worthy to note that the scene mahazar shows and is also the admitted case that the road, where the accident has taken place, is one that MACA 614/06 & con. cases 7 lies north-south straight with clear view towards north as also towards south fairly to a long distance and the width of the road also was 24 feet. The Apex Court in **Bijoy Kumar Dugar v. Bidyadhar Dutta** (AIR 1006 SC 1255) has held that when there is head on collision between two vehicles, drivers of both the vehicles should be held to have contributed equally to the accident. In the instant case, the accident has taken place on a high way which was lying straight from north to south with clear visibility both towards north and towards south fairly to a long distance. One or the other of the drivers could have avoided the accident which has taken place almost on the middle of the road, had they been careful and had not contributed any part of negligence from their side. In the above view, we hold that apportionment of negligence made by the Tribunal in equal proportion cannot be faulted and has to be upheld. 7. In **O.P.(MV)No.791/01** , in respect of the death of the father of the claimant, the deceased MACA 614/06 & con. cases 8 was an Ex-service man aged 59 and Exhibit A8 is the Pan Card in his name. It is the case of the claimant that her father was engaged in financial business and was earning a monthly income of Rs.5,000/-. The Tribunal has taken only Rs.3,275/as the monthly income and deducting one third for personal expenses, two third of the income has been taken as the value of dependency and appropriate multiplier 8 has been taken to quantify the damages on account of dependency. The figure so arrived at is Rs.2,48,200/-. Appropriate amount has been awarded for loss of estate, love and affection, pain and sufferings, clothing, funeral and transport expenses, etc. and an aggregate amount of Rs.2,74,400/- has been fixed as the damages and 50% thereof has been awarded to the appellant. The amount comes to Rs.1,37,200/-. There is no reason at all to interfere with the said award. Consequently, M.A.C.A.No.619/06 filed by the claimant and M.A.C.A.No.1045/06 filed by the first respondent deserve only to be dismissed. MACA 614/06 & con. cases 9 8. In **O.P.(MV)No.1024/01,** claim is advanced for damages on account of the death of the mother of the appellant. The Tribunal has fixed the dependency compensation at Rs.1,32,000/- fixing the notional income of the deceased at Rs.1,500/- per month. The annual income of a non-earning member has been fixed as per the schedule at Rs.15,000/as early as in 1994, when the schedule was enacted. The accident, in the instant case, has taken place after six years, on 10.11.2000. The services of a house wife in the family cannot be under estimated as has been observed even by the Apex Court and considering the circumstances of the case at least an amount of Rs.2,500/- should have been fixed as the monthly income of the deceased to arrive at the dependency compensation. Hence, the dependency compensation will be Rs.2,20,000/- as against Rs.1,32,000/- fixed by the Tribunal. The excess amount on that account comes to Rs.88,000/- and including the amounts awarded by the Tribunal on other counts as well, the total compensation, MACA 614/06 & con. cases 10 therefore, comes to Rs.2,56,000/-. The claimant shall be entitled only to 50% thereof, as 50% has to be deducted towards negligence contributed by her father, who was driving the car, wherein, she was a passenger. Consequently, the compensation to which the claimant would be entitled is Rs.1,28,000/-. Thus, M.A.C.A.No. 615/06 filed by the claimant as also M.A.C.A.No. 1831/06 filed by the first respondent deserve to be allowed in part. 9. In **O.P.(MV)No.807/01** filed by the claimant for damages for the death of her brother, the Tribunal has awarded a total compensation of Rs.1,91,000/- fixing the dependency compensation at Rs.1,60,000/- estimating the monthly income of the deceased at Rs.2,000/- and without deducting 50% for the contributory negligence found by the Tribunal. The estimation of income, the multiplier adopted, etc., considering the relationship of the sister and brother and the likelihood of the dependency diminishing after a few years as also the estimation of damages on other counts, cannot MACA 614/06 & con. cases 11 be faulted, but at the same time, deduction of 50% of the compensation on account of contributory negligence has not been effected by the Tribunal. The claimant is entitled only 50% of the quantified amount, as 50% has to be deducted for contributory negligence as has been found by the Tribunal. Hence, the compensation to which the claimant would be entitled is only Rs.95,500/- being 50% of the total compensation fixed and awarded by the Tribunal. Consequently, M.A.C.A.No.616/06 filed by the claimant deserves to be dismissed and M.A.C.A. No.1187/06 filed by the first respondent deserves to be allowed in part. 10. In **O.P.(MV)No.1026/01** , the claim advanced is for the injuries suffered by the claimant herself. She was aged 24 and it is her case that she was employed in the financial business of her father, though there was no evidence on that aspect. Permanent disability certified under Exhibit A24 is 18% and without assigning proper reason, the Tribunal has refused to take 18% as MACA 614/06 & con. cases 12 permanent disability, but has accepted only 12% for the purpose of awarding the compensation. Loss of earning power has been estimated by the Tribunal fixing the notional income of the claimant at Rs.2,000/- and adopting the multiplier 17, which cannot, however, be faulted. Considering the injuries sustained by the claimant, the treatment undergone by her and the disabilities caused to her, we are of the opinion that permanent disability is 18% as certified by Exhibit A24 Certificate. Hence, loss of earning power works out to Rs.73,440/- as against Rs.48,960/- fixed by the Tribunal. Compensation o other counts awarded by the Tribunal are reasonable and does not deserve to be interfered with. The total compensation, therefore, will stand enhanced to Rs.1,66,690/- as against the amount fixed by the tribunal at Rs.1,42,210/-. After deducting 50% of the amount towards negligence contributed by the father of the claimant who was driving the car in which the claimant was a passenger, the compensation payable MACA 614/06 & con. cases 13 to the claimant will stand diminished by 50% of the compensation. The total amount due is, hence, only Rs.83,345/-. Thus, M.A.C.A.No.621/06 filed by the claimant and M.A.C.A.No.1916/06 filed by the first respondent deserve to be allowed in part. 11. **O.P.(MV)No.577/01** relates to the claim for damages caused to the car involved in the accident. The Tribunal has assessed the compensation on account of the damages caused to the car at Rs.1,62,500/- and awarding also the professional charges to be paid to PW2 and reducing 50% from the said amount towards contributory negligence from the part of the driver of the car, the compensation awarded is Rs.81,250/-. The compensation so awarded is reasonable and the claimant is entitled to that much amount and no interference at all deserves to be made in the said award. Consequently, M.A.C.A. No.614/06 filed by the claimant and M.A.C.A. No.1198/06 filed by the first respondent deserve to be dismissed. MACA 614/06 & con. cases 14 In the result, M.A.C.A.Nos.614/06, 616/06 and 619/06 filed by the claimant and M.A.C.A.Nos. 1045/06 and 1198/06 filed by the first respondent are dismissed. M.A.C.A.No.615/06 filed by the claimant and M.A.C.A.No.1831/06 filed by the first respondent as against the award in O.P.(MV)No. 1024/01 are allowed in part and the compensation payable to the claimant is fixed at Rs.1,28,000/-. M.A.C.A.No.1187/06 filed by the first respondent as against the award in O.P.(MV)No.807/01 is allowed in part and the compensation to which the claimant is entitled is fixed at Rs.95,500/-. M.A.C.A.No. 621/06 filed by the claimant and M.A.C.A.No. 1916/06 filed by the first respondent as against the award in O.P.(MV)No.1026/01 are allowed in part. The compensation to which the claimant is entitled by way of damages is fixed at Rs.83,345/-. The award passed in O.P.(MV)No.577/01 is confirmed. Thus, the total compensation of Rs.7,19,660/awarded by the Tribunal in all the above claim petitions stands modified and reduced to MACA 614/06 & con. cases 15 Rs.5,25,295/- with 9% interest per annum from the date of application till its deposit, effecting a deduction of Rs.1,94,365/- in the aggregate. The above amount with interest as aforesaid when deposited by the Tamil Nadu State Transport Corporation shall be disbursed in the manner directed by the Tribunal. Amount, if any, deposited in excess can be received back by the Tamil Nadu State Transport Corporation. **==> picture [186 x 13] intentionally omitted <==** 17[th] September, 2008 **==> picture [253 x 12] intentionally omitted <==** tkv