The Managing Director State Express Transport Corporation (Tamil Nadu) Ltd v. Sheshadrinathan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938** ## **MACA.No. 2597 of 2016 ()** **-------------------------** ## **AGAINST THE AWARD IN OPMV 702/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM DATED 07-01-2016** **APPELLANT(S)/1ST RESPONDENT:** **--------------------------** **THE MANAGING DIRECTOR STATE EXPRESS TRANSPORT CORPORATION (TAMIL NADU)LTD, CHENNAI-02.** ## **BY ADV. SRI.SUBHASH CYRIAC** ## **RESPONDENT(S)/APPLICANTS AND 2ND RESPONDENT:** **--------------------------------------------** ## **1. SHESHADRINATHAN, S/O.LATE NARAYANA IYYER TC 55/581, VNRA-107, VINAYAKA NAGAR, PAPPANAMCODE P.O, THIRUVANANTHAPURAM-695 018.** ## **2. AKHILA SUDARSHAN, D/O.LATE VALLIYAMMAL RESIDING AT -DO- -DO-** ## **3. SANKARA NARAYANAN, S/O.SESHADRINATHAN** **310 B (C), MAYOOR VIHAR, PHASE II, NEW DELHI, PRESENTLY RESIDING AT: TC 55/581, VNRA-107, VINAYAKA NAGAR, PAPPANAMCOD P.O, THIRUVANANTHAPURAM-695 018.** ## **4. R. SUNDER, S/O.LATE RAMASWAMY IYER** **TC 55/581, VNRA-107, VINAYAKA NAGAR, PAPPANAMCODE P.O, THIRUVANANTHAPURAM-695018.** **5. AISWARYA LEKSHMI, D/O.LATE GEETHA GOMATHY RESIDING AT -DO- -DO-** ## **MACA.No. 2597 of 2016 ()** **6. PAVITHRA (MINOR), D/O.LATE GEETHA GOMATHY RESIDING AT -DO- -DOREPRESENTED BY HER FATHER AND NATURAL GUARDIAN THE 4TH APPLICANT.** **7. N. HUMAYUN NAINAR, S/O.NAINAR MUHAMMAD DOOR NO.1/365, SANATHATTA COLONY, MEENAKSHI NAGAR, KAIMANGALAM P.O., MADURAI, TAMIL NADU, PIN-625 025.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2597 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of September, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal filed by the owner of the vehicle involved in the accident, is directed against the judgment and award dated 7.1.2016 in O.P.(M.V.)702/2012 passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents 1 to 6 herein were the petitioners therein. The 7[th] respondent herein was the second respondent therein and it was he who drove the vehicle involved in the accident that led to the filing of the claim petition. The said claim petition was filed seeking compensation for the death of one Valliyammal who was then a sexagenarian. She was a pedestrian. On 18.11.2011 while she was walking from Vinayaka Nagar to Niramankara Junction along Karamana - Pappanamcode public road the bus bearing registration No.TN-01-N-7824 belonging to the 1[st] respondent therein/the appellant herein, knocked her down. She sustained serious injuries and succumbed to them. It is in M.A.C.A.No.2597 of 2016 2 the said circumstances that the aforesaid claim petition was filed under Section 166 of the Motor Vehicles Act. On a careful evaluation of the evidence on record consisted only of documentary evidence viz., Exts.A1 to A10 on the side of the petitioners therein the Tribunal passed the impugned award for an amount of Rs.2,70,000/- with interest at the rate of 9% per annum from the date of petition till realization. The appellant herein/the 1[st] respondent who is the owner of the offending vehicle was fastened with the liability to compensate the petitioners. This appeal has been filed on being aggrieved by the fastening of the liability as also challenging the quantum of compensation. 2. We have heard the learned counsel appearing for the appellant. 3. Admittedly, the offending vehicle belonged to the appellant at the time of the accident. The appellant did not dispute the accident. Though the appellant took up the contention before the Tribunal that the accident occurred solely due to the negligence of the deceased Valliyammal the Tribunal repelled the said contention and categorically M.A.C.A.No.2597 of 2016 3 arrived at the conclusion that the accident occurred solely due to the negligence of the 7[th] respondent herein viz., the employee of the appellant herein who was driving the vehicle at the time of the accident. To arrive at the said conclusion the Tribunal relied on Ext.A1 which is the copy of the FIR in crime No.4569/2011 registered in connection with the accident in question and Ext.A7 which is the copy of the Final Report laid in the said crime after investigation. As per Ext.A7 final report the 7[th] respondent was accused of commission of offences punishable under Sections 279 and 304(A) of the Indian Penal Code. In the light of the decision of a Division Bench of this court in **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** production of police charge sheet registered in connection with an accident is a prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the M.V Act seeking compensation for the injuries sustained in the accident concerned. Evidently, the claimants/respondents 1 to 6 herein have produced the FIR and also the Final Report in the aforesaid crime and thus in M.A.C.A.No.2597 of 2016 4 the light of the decision it is to be taken that the petitioners had adduced evidence which is prima facie sufficient proof of negligence on the part of the 7[th] respondent herein. Obviously, the respondents including the appellant herein had not adduced any rebuttal evidence. It is to be noted that before the Tribunal on the side of the respondents no evidence whatsoever, either oral or documentary, was adduced. When that be the position in the light of the decision in Pazhaniammal's case (supra) we do not find any reason to hold that the Tribunal went wrong in finding that the accident occurred solely due to the negligence of the 7[th] respondent, the driver of the vehicle involved in the accident. Since the appellant herein is the owner of the vehicle in question and it was being driven by the appellant's employee, it can only be said that the Tribunal had correctly held that the appellant is vicariously liable. There is no case for the appellant that the vehicle was having valid licence coverage at the time of the accident. In such circumstances, there is absolutely no reason to interfere with the finding that the appellant herein is liable M.A.C.A.No.2597 of 2016 5 to pay compensation to the claimants/ respondents 1 to 3 herein. 4. Now, the sole question survives for consideration is whether the Tribunal has granted exorbitant compensation warranting an appellate interference. In this regard it is to be noted that the Tribunal granted a total compensation of Rs.2,70,000/- and the claim petition was filed under Section 166 of the M.V.Act seeking compensation for the death. The victim was the wife of the 1[st] respondent and mother/grandmother of respondents 2 to 6. The Tribunal took the monthly income of the deceased for quantifying the compensation payable under the head 'loss of dependency' as Rs.4,000/-. For the said purpose the multiplier was taken as '5'. 5. The learned counsel for the appellant contended that the fixation of the monthly income is on the higher side. While considering the sustainability of such a contention certain aspects have to be considered. True that the deceased was 71 years at the time of the accident. But, at the same time the evidence on record would reveal that she M.A.C.A.No.2597 of 2016 6 was walking by the side of the road while being knocked down by the vehicle in question. It would prima facie suggest that even at that age she was a unhealthy person. The accident occurred on 18.11.2011. Evidently she is now survived by her husband and children and grandchildren. They lost her services. There is no retirement age for a housewife. She works in the house as long as she is physically capable of doing so. Old ladies working in the house are a common feature in our society. While computing the compensation definitely the services rendered by her to her family has to be equated in terms of money. Taking note of all such circumstances we do not find any reason to hold that fixation of Rs.4,000/- for the aforesaid purpose by the Tribunal is highly exorbitant warranting an appellate interference. In the light of the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** and taking into account the age of deceased Valliyammal the multiplier applicable is '5'. The Tribunal has correctly adopted the multiplier as 5. Obviously, she is survived by M.A.C.A.No.2597 of 2016 7 her husband and two children. During the pendency the daughter died. Thus it is evident that the deceased was a married lady and there were three dependants for her at the time of death. In such circumstances in the light of the decision of the Hon'ble Apex Court in Sarla Varma's case (supra) 1/3[rd] of the income has to be deducted towards personal and living expenses of the deceased while computing the compensation payable under the head dependency. The learned counsel contended that being adult persons, the 2[nd] and 3[rd] applicants before the Tribunal ought not have been treated as dependants. On going through the impugned judgment it is evident that no reason whatsoever was assigned for treating only the widower as the dependant. There is absolute absence of any evidence to show that the daughter was residing separately and in fact the facts discernible from the impugned judgment would reveal that she was actually residing along with her parents. She is an adult is no reason in such circumstances to deny her the compensation under the aforesaid head. Whatever that be, in the light of the decision of the Hon'ble M.A.C.A.No.2597 of 2016 8 Apex Court in Sarla Varma's case (supra),we do not find any reason to hold that the reduction on account of the aforesaid reason ought to have been more than 1/3[rd] of the income. In such circumstances, we do not find any reason to uphold the contention of the learned counsel that the reduction on that count ought to have been 50%. That apart, on going through the schedule of compensation attached to the impugned judgment we find that towards loss of consortium only an amount of Rs.50,000/- was granted. Why the 1[st] respondent herein should be denied of the benefit of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** was not stated in the impugned judgment. Going by the dictum of the said decision, the minimum amount of compensation in a claim for compensation for death filed under Section 166 of the M.V. Act towards loss of consortium to the surviving spouse shall be Rs.1 lakh. It is also to be noted that the accident occurred on 18.11.2011 at 4.05 a.m. She breathed her last only from the hospital. Only an amount of Rs.8,000/was granted under the head pain and sufferings. Taking M.A.C.A.No.2597 of 2016 9 into all such aspects we are of the view that the quantum of compensation granted for the death of Valliyammal to respondents 1 to 6 is nothing but a just compensation. At any rate, it cannot be taken as exorbitant compensation. In such circumstances we also do not find any merit in the contention that the amount of Rs.2,70,000/- granted to respondents 1 to 6 for the death of Valliyammal is exorbitant warranting appellate interference. Resultantly, this appeal is liable to fail and accordingly it is dismissed. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/