How is loss of dependency computed where the claimants prove no income for the deceased?

This Civil Miscellaneous Appeal is directed against the award made in M.C.O.P.No.995 of 2017, dated 05.11.2019, on the file of the Motor Accident Claims Tribunal cum Special District Judge, to deal with MCOP Cases, Tiruchirappalli.

The appellant / State Transport Corporation who was mulcted with liability to pay compensation of Rs.10,21,600/- with interest and costs to the respondents 1 to 4 / claimants for the death of Mookkan, consequent to an accident occurred on 10.08.2017, challenged the liability mulcted on its and also the quantum of compensation awarded at by the Tribunal.

For the sake of convenience and brevity, the parties will be referred as per their status and ranking in the trial Court.

The case of the claimants is that on 10.08.2017 at about 06.15 hours while the said Mookkan was walking extreme mud portion of the NH road in front of E-Mettupatty Bus Stop near Selvaraj house towards tea shop, a bus bearing Registration No.TN-01-N-8069 belonging to the appellant/Transport corporation, which came in a rash and negligent manner and without obeying the traffic rules, dashed against the said Mookkan, as a result of which, the said Mookkan was thrown out and sustained serious injuries and died on the spot itself and that the accident occurred only due to the rash and negligent driving of the bus driver.

The defence of the Transport Corporation is that when the respondent bus was proceeding in the Trichy-Madurai National Highway 45 at about 06.15 hours on 10.08.2017, while nearing a E.Mettupatti bus stop, one pedestrian who was walking in the left side of the road, suddenly crossed the road from left to right side of the road, that the bus driver applied sudden break and stopped the bus to avoid the accident, but before even the bus was stopped, the pedestrian ran and came in contact with the respondent bus, dashed himself on the bus and fell down, that the accident occurred only due to the negligence and carelessness on the part of the pedestrian and that the bus driver was not at fault.

During trial, the claimants examined the first claimant as P.W.1 and one Mariappan alleged to be the occurrence witnesses as P.W.2 and exhibited 8 documents as Exs.P.1 to P.8. The Transport Corporation examined its driver – G.Senthil as R.W.1 and exhibited the duty cum identity card issued to the bus driver as Ex.R.1. The learned trial Judge, upon considering the pleadings and evidence both oral and documentary and on hearing the arguments of both sides, passed the impugned order dated 05.11.2019, holding that the accident occurred only due to the rash and negligent driving of the bus driver and directed the transport corporation to pay compensation of Rs.10,21,600/- with interest and costs. Aggrieved by the impugned award, the Transport Corporation has preferred the present Civil Miscellaneous Appeal.

The learned Counsel for the appellant would mainly contend that the deceased suddenly attempted to cross the Highways and voluntarily invited the accident, but the Tribunal without considering the evidence available on record, has fastened the liability on the appellant Corporation and is liable to be set aside.

The learned Counsel for the claimants would submit that P.W.2 occurrence witness has categorically deposed about the manner of the accident and the Tribunal considering the evidence available on record has come to a finding that the accident occurred only due to the rash and negligent driving of the bus driver and that therefore, the said finding cannot be faulted.

It is pertinent to note that on the basis of the complaint lodged F.I.R., came to be registered in Cr.No.229 of 2017, for the offences under Sections 279 and 304 -A I.P.C., on the file of the Viralimalai Police Station against the bus driver. As already pointed out, P.W.2 – eyewitness gave evidence with regard to the manner of the accident reiterating the claim petition contentions. P.W.2 has deposed that while the deceased was walking on the extreme mud portion of the road, the bus driver drove the vehicle in a rash and negligent manner and dashed against the said Mookkan and caused the accident. Though P.W.2 was subjected to cross-examination by the respondent Corporation side, nothing was elicited in their favour and the evidence of P.W.2 regarding the mode of accident remained unshaken. No doubt, the respondent Corporation examined its driver as R.W.1, who in turn deposed in tune with the defence taken by the respondet Corporation. As rightly contended by the learned Counsel for the claimants, the respondent has not chosen to examine the conductor of the bus or any other person who allegedly witnessed the occurrence. The Tribunal has rightly observed that R.W.1 is an interested witness and the respondent has not produced any evidence to corroborate the version of R.W.1 with regard to the mode of accident. The Tribunal considering the entire evidence available on record, has come to the conclusion that the accident occurred only due to the rash and negligent driving of the bus driver and that the same cannot be found fault with.

The learned Counsel for the appellant Corporation would then contend that the claimants have not produced any evidence to prove the age of the deceased nor the income of the deceased, but the Tribunal without any basis, fixed the age and income and arrived at the total compensation of Rs.10,21,600/-, which is very much excessive and that therefore, the same is liable to be interfered with.

The Tribunal, as rightly contended by the learned Counsel for the claimants, reling on the postmortem certificate, has fixed the age of the deceased as 59 years and the same has not been disputed by the respondent's side before the Tribunal. No doubt, though the claimants have alleged that the deceased was running a Saloon in the name and style of Sathesh Saloon and was earning Rs.25,000/- per month, except producing the identity card in the name of deceased Mookkan issued by the General Secretary of Barber Employment Welfare Society, they have not produced any other evidence to prove the profession nor the monthly income of the deceased. But the Tribunal considering the age of the deceased and his avocation and the date of accident, has fixed the monthly income at Rs.10,500/- and the same cannot be said to be excessive. The Tribunal, taking note of the decision of the Hon'ble Supreme Court in National Insurance Company Ltd., Vs. Pranay Sethi and others reported in 2017(2) TNMAC 609, has rightly added 10% of the income towards the future prospects and after such addition, the income would come to Rs.11,550/-. The Tribunal, considering the number of dependents, has rightly deducted 1/3rd of the income towards personal and living expenses of the deceased and after such deduction, the income would be Rs.7,700/-. As per the decision of the Hon'ble Supreme Court in Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009(2) TNMAC 1 (SC), the Tribunal has rightly applied the multiplier “9” and arrived the loss of dependency at Rs.8,31,600/- and the same cannot be found fault with. The Tribunal has rightly awarded Rs.40,000/- to the first claimant towards spousal consortium and Rs.40,000/- each to the claimants 2 to 4 – children of the deceased towards parental consortium. The Tribunal has also awarded Rs.15,000/- for funeral expenses and also Rs.15,000/- for loss of estate and the same cannot be faulted.

Considering the above, the total compensation of Rs.10,21,600/- awarded by the tribunal appears to be just, fair and reasonable and the same cannot be said to be excessive. Except the above, the appellant has not canvassed any other ground to impugn the award. Consequently, this Court concludes that the Civil Miscellaneous Appeal is devoid of merits and the same is liable to be dismissed.

In the result, the Civil Miscellaneous Appeal is dismissed. The appellant/Transport Corporation is directed to directed to deposit the entire award amount along with accrued interest and costs, to the credit of above said M.C.O.P.No.995 of 2017, on the file of the Motor Accident Claims Tribunal / Special District Court to deal with MCOP cases, Tiruchirappalli, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this Judgment and on such deposit, the claimants are entitled to withdraw their amount as apportioned by the Tribunal along with proportionate interest and costs on due application before the Tribunal. Consequently, the connected Civil Miscellaneous Petition is closed. The parties are directed to bear their own costs.