IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.05.2008 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.No.1868 of 2003 Tamil Nadu State Transport Corporation Limited by its Managing Director Pallavan Salai, Chennai-2. ... Appellant Vs. 1.R.Shereen Begam 2.Zamruth Begum 3.Mohammed Usman ... Respondents Prayer: Appeal filed against the Judgment and Decree dated 23.10.2002 made in M.C.O.P.No.853 of 1999 on the file of the Motor Accident Claims Tribunal (Small Causes Court, Chief Judge), Chennai and praying to set aside the same. For Appellant : Mr.G.Muniratnam For Respondents : Mr.Balaji Prasad JUDGMENT
Challenge in this civil miscellaneous appeal is against the award passed in M.C.O.P.No.853 of 1999 dated 23.10.2002 by the Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai.
2.The Tribunal viz., the Chief Judge, Court of Small Causes, Chennai has awarded a compensation of Rs.7,00,000/- on 23.10.2002 along with interest at 9% per annum from the date of filing of the petition till date of payment in favour of the claimants.
3.Aggrieved against the award dated 23.10.2002 passed in M.C.O.P.No.853 of 1999 by the Tribunal viz., the Chief Judge, Court of Small Causes, Chennai, the Tamil Nadu State Transport Corporation, represented by its Managing Director as appellant, has filed the present appeal.
4.The claimants are the wife of the deceased and parents of the deceased have filed the claim petition praying for a compensation of Rs.12,00,000/-.
5.The claim of the claimants in nutshell are as below:-
On 29.08.1998 at about 9.40 hours the deceased Mohammed Irfan was driving the Hero Honda Motor Cycle T.N.22.E.1851, proceeding from east to west at a place V.C. Motor Aarikarai, Wallajah, Vellore District and at that time, the bus bearing Reg.No.TN.23.0867 belonging to the T.N.S.T.C. came from opposite direction, was driven by its driver (west to east) in a rash and negligent manner and knocked down the victim, Motorcyclist and ran over in, resulting in grievous injuries and later succumbing to injuries in the Hospital. The appellant/respondent, being the owner of the bus is vicariously liable for payment of compensation claimed with interest etc.
The appellant/respondent in its counter has taken the pleas that a Hero Honda Motorcycle bearing Reg.No.TN.22.E.1851 came in opposite direction with high speed in a rash and negligent manner and it overtook the bullock cart and at that time the bus TN.23.0867 was coming towards Wallajah and without minding the bus and knowing there was no sufficient space between bullock cart and the bus in a very rash and negligent manner and that the Motor cycle rider hit the yoke of the bullock cart and fell down to his right side without touching the bus and sustained injuries on the head and on the face. The bus driver on seeing the same, applied sudden break and stopped the bus, without touching the Motorcycle rider. The bullock cart lost control turned to right side of the road hit against the bus and broke its headlight and that immediately the Motorcycle rider was taken to Wallajah Government Hospital. It is the categorical stand of the appellant Transport Corporation that there is no fault on the part of the driver of the bus and that the driver of the bus observed the rules of the road and because of the rash and negligent driving on the part of the Motorcyclist, the accident has happened and therefore, the appellant/respondent Corporation is not liable to pay any compensation.
According to the appellant, the passengers of the bus (i) K.Moorthi, residing at Kulathu Street, Anandalai Village & Post, Wallajah (Taluk) and (ii) S.Marimuthu, S/o.Selvam residing at Sengadu Mettur, Wallajah (Taluk) have narrated elaborately in writing in regard to the manner in which the accident happened. The driver of the bus was acquitted in the criminal case in C.C.No.336 of 1998 by the Criminal Court on 06.07.1999. A plea is also taken on behalf of the appellant that the Insurance Company of the Motorcycle TN.22.E.1851 has not been impleaded and therefore, the claim petition is liable to be dismissed in limine.
Before the Tribunal, witnesses P.W.1 to P.W.3 were examined on the side of claimants and Exs.P.1 to P.19 were marked and on the side of respondent, R.W.1 was examined and Ex.R.1 was marked.
After contest, on appreciation of oral and documentary evidence, the Tribunal came to the conclusion that the driver of the bus was negligent and the accident took place due to the negligence of the bus driver and passed an award of Rs.Seven lakhs with interest at 9% per annum from the date of petition till date of payment. Questioning the same, the Transport Corporation has projected the present appeal before this Court.
6.In order to prove the negligence, P.W.2-Sekar has been examined. P.W.2-Sekar is the complainant, as seen from Ex.P.11-FIR. In Ex.P.11-FIR, the driver of the bus Route No.7A, bearing Reg.No.TN.23.0867 is mentioned as an accused. A perusal of the FIR indicates that in Cr.No.414/1998 the Wallajah Police has registered a case under Section 279 and 338 of I.P.C. The date of accident is on 29.08.1998 at 9.40 a.m. and the information lodged with the police is on the same day at 10.45 a.m. In Ex.P.11-FIR, the complainant-Sekar has stated that on 29.08.1998 at about 9.00 a.m. he was proceeding to V.C. Motor and while proceeding at V.C. Motor, Aarikarai towards west the Government bus TN.23.0867 Route No.7A came in the opposite direction, driven by its driver in high speed and negligent manner and had dashed against the Hero Honda Motorcyclist, who was proceeding in front of him and the right side back tyre of the bus ran across the Motorcyclist, as a result of which the Motorcyclist right and left hands were broken and sustained injuries on right leg knee, face, stomach, head etc. The person who lodged the FIR before the Police has been examined as P.W.2 before the Tribunal. It appears that P.W.2-Sekar and one Auto Muniraj have taken the Motorcyclist to the Wallajah Hospital and got him admitted there, as seen from the averments made thereto in Ex.P.11-FIR.
7.P.W.2-Sekar in his evidence (before the Tribunal) has deposed that on 29.08.1998 at about 9.30 a.m. he was proceeding near Wallajah V.C. Motor from east to west in a Cycle and at that time, the Hero Honda Motorcyclist, the victim was proceeding in front of him and at that time the Government bus TN.23.0867 came in high speed in the opposite direction and that the right front side of the bus dashed and the right back wheel ran across the Motorcyclist and that the accident happened due to the negligence of the bus driver and that he took the injured Motorcyclist in an Auto and admitted him at the Wallajah Government Hospital and that he has given the complaint about the accident.
8.On behalf of the appellant Transport Corporation, R.W.1 the driver Gopal, in his evidence has deposed that he drove the bus involved in the accident and that when the bus was proceeding near V.C. Motor Aarikarai on the accident date, and an Auto and bullock cart came on the opposite direction and the Hero Honda Motor Cycle overtook the Auto and dashed against the bullock cart and at that time he stopped his bus and as a result of dashing against the bullock cart, the Motorcyclist hand was severed and he fell on the middle of the road and after rolling himself, the Motorcyclist got entangled in the right side tyre of the bus and that a case was filed against him and that he was acquitted by a Criminal Court as per certified copy of Judgment-Ex.R.1.
9.According to the learned counsel for the appellant, the Tribunal erred in not taking into account of the fact that the Motorcyclist came in a rash and negligent manner overtaking a bullock cart and hit the bullock cart and he fell down and sustained fatal injuries and that the Tribunal was not correct in passing reliance on Ex.P.11-FIR, Ex.P.12-Plan, which were marked through the claimants, without examining the author of the said documents and in any event, the Tribunal should have fixed entyre or atleast contributory negligence on the part of the deceased Motorcyclist. Ex.P.12 is the rough plan of the accident place. Much reliance is placed on the Ex.R.1-Criminal Court Judgment in C.C.No.336 of 1998 dated 06.07.1999, by the learned appellant counsel. Before the Criminal Court, on the side of prosecution P.W.1 to P.W.6 were examined and Exs.P.1 to P.5 were marked and no material object was marked. On the side of accused no one was examined. The person who lodged FIR viz., Sekar was examined as P.W.1 before the Criminal Court. In the Criminal Court Judgment at para 15, it is observed that P.W.1-Sekar has inter alia stated that Motorcyclist got himself injured with the bus involved in the accident and he fell down below the tyre. It is also further mentioned in the said Judgment that P.W.2-Muniraj has stated in his evidence that the back wheel of the bus ran and the Motorcyclist was caught in the process. The learned Judicial Magistrate No.II, Wallajahpettai in the judgment has stated that the act of getting himself caught on the back wheel of the bus shows the negligence of the injured Motorcyclist. The learned Judicial Magistrate No.II, Wallajahpettai in the Judgment in the criminal case has concluded that the accident took place because of the deceased Motorcyclist driving the Motorcycle in high speed and riding the same on the left side of the road without following the rules and therefore, he has been held responsible for the accident and further held that it has not been proved beyond reasonable doubt that the accused, driver of the bus has been responsible for the happening of the accident. In short, the driver of the bus has been acquitted in the criminal case.
10.It is to be pointed out that the driver is acquitted in a criminal case arising out of the accident because it is not established even prima facie that he is not negligent as a higher decree of culpability is very much required to prove the guilt, in the considered opinion of this Court.
11.At this stage, it is significant to point out that in N.K.V.Bros. (P.) Ltd. V. M.Karumai Ammal and Others etc., AIR 1980 Supreme Court at page 1354, it is observed as follows:
“Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there, Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes”.
12.It is useful to refer to the decision Shabbir Ahmed and another V. M.P.S.R.T.C., Bhopal and others, AIR 1984 Madhya Pradesh 173, wherein it is observed that “the evidence in criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself”. Generally speaking, the positive evidence of a witness must be accepted, when there is nothing which could reasonably suggest that he had reason to give any false evidence, in the considered opinion of this Court. As a matter of fact, the Tribunal or a Court should always appreciate the oral evidence in the light of circumstantial evidence brought on record in a given case. No doubt, the evidence of eyewitnesses ought to be scrutinised and should be appreciated in the light of circumstantial evidence in a given case.
13.It is pertinent to point out that in the whole of Ex.P.11-FIR, nowhere it is stated that the Motorcyclist crossed the road. P.W.2-Sekar before the Tribunal has specifically stated in his cross examination that it is incorrect to state that the deceased Motorcyclist while overtaking the bullock cart at that time he dashed against the bus and got himself caught on the back side of the bus. The evidence of P.W.2-Sekar (a person who lodged FIR) before the Tribunal in regard to the manner of the happening of the accident is clear.
14.From Ex.P.5-carbon copy of the Accident Register in respect of the deceased, it is evident that the deceased Mohammed Irfan has sustained injuries stated therein in road traffic accident on 29.08.1998 and referred to GPH, Vellore. Ex.P10 is the postmortem certificate in respect of the deceased Mohammed Irfan, wherein it is mentioned that ‘the deceased would appear to have expired about 18 to 24 hours prior to postmortem due to head injury and crush injury of left forearm with thigh with septic shock’. In Ex.P.13 Motor Vehicle Inspector’s Inspection Report (in respect of bus) it is categorically stated that ‘the accident has not occurred due to mechanical defect in the vehicle’. In Ex.P.14 Motor Vehicle Inspector’s Inspection Report (in respect of motorcycle) it is mentioned that ‘the accident is not due to any mechanical defect of the vehicle’. Ex.P.7 is the certified copy of death certificate dated 23.10.1998, in respect of the deceased, wherein the date of death is mentioned as 03.09.1998. The acquittal of the bus driver by the Criminal Court has no baring for deciding the issue of negligence in the instant claim for compensation case on hand before us, in the considered opinion of this Court. It is needless to state that the Court or a Tribunal is to arrive at a finding of negligence aspect independently on the basis of available material evidence on record and in the light of circumstantial evidence brought on record in the case, besides appreciate the oral evidence. No doubt, it is difficult to accurately observe and precisely communicate what happened.
15.An important fact that cannot be brushed aside in this case is that P.W.2-Sekar, the complainant before the Tribunal has specifically deposed that both the bus and the Motorcycle were coming from the opposite side of each vehicle. In short, the categorical evidence of P.W.2-Sekar before the Tribunal is that the Government bus TN.23.0867 came in high speed in the opposite direction and because of the negligence of the bus driver the accident has occurred. In civil/compensation cases one is concerned with preponderance of probabilities and not proof beyond reasonable doubt. As a matter of fact, the evidence of R.W.1 the bus driver Gopal to the effect that on the opposite side the Hero Honda Motor Cycle which came behind Auto, overtook and hit against the bullock cart and at that time he stopped his bus is only a self-serving and interested testimony, projected for the purpose of the case and therefore, the same is not accepted by this Court and instead the same is discarded.
16.It is not out of place to make a mention that (i)K.Moorthi (ii)S.Marimuthu, passengers whose names were mentioned in the counter of the appellant Corporation, as witnesses, who have elaborately narrated the manner in which the accident had happened, the said two persons were not examined before the Tribunal. Moreover, the evidence of R.W.1, driver to the effect that the Motorcyclist hit against the bus is quite contrary to the averments mentioned in FIR. Therefore, this Court opines that the evidence of R.W.1 before the Tribunal is an improved version regarding the manner of occurrence of accident, which can only be ascribed as unilateral and in short, the same is not reliable, besides untrustworthy. Inasmuch as P.W.2-Sekar, the informant has spoken about the manner of happening of the accident before the Tribunal and since his evidence is of credence in this regard, this Court accepts the same coupled with the circumstantial, substantial evidence brought on record to prove the victim of negligence and in that view of the matter, this Court comes to the inevitable conclusion that the accident took place in lieu of the negligent driving of the driver of the bus and that the driver of the bus R.W.1 is solely held responsible for causing the accident and the finding is recorded accordingly.
17.Dealing with the issue of quantum of compensation, it is to be pointed out that the Tribunal has awarded a sum of Rs.7,00,000/- along with interest at 9% per annum from the date of petition till date of payment, in favour of the claimants/respondents. The Tribunal has adopted a multiplier of 17. After deducting 1/3rd, the Tribunal has determined the monthly loss of income at Rs.3,000/-. The salary of the deceased Mohammed Irfan has been fixed at Rs.4,500/- by the Tribunal. The Tribunal has awarded a sum of Rs.55,000/- towards medical expenditure as per Ex.P.6. Thus, in all the Tribunal has awarded a total compensation of Rs.7,00,000/- for the death of the deceased.
18.In Ex.P.2, the Transfer Certificate the date of birth of the deceased is mentioned as 26.10.1976. In the claim petition, the claimants have mentioned the age of the deceased as 22 years. Considering the fact that the deceased Mohammed Irfan’s age is 22 years and 3 months at the time of his death on 03.09.1998, the determination of age of deceased at the time of accident is fixed as 22 by this Court. P.W.1-Shereen Begum, wife of the deceased in her evidence has deposed that her husband was working in Overseas Leather Chemicals at Ranipet, getting a monthly salary of Rs.4,500/- and that her husband used to give his salary to her and that he died on 29.08.1998 in a road accident and that her deceased husband was the only son to his parents. P.W.3-Iyer Ullah in his evidence has stated that he is working as Manager in Sahin Colours Concern and that his concern is importing chemical materials and supplying the same to the leather companies and that the deceased Mohammed Irfan has worked in their concern as technical executive, getting a monthly salary of Rs.4,500/- and his appointment order is Ex.P.4 and that the deceased was employed in their Ranipet Branch Office. In Ex.P.4-Appointment Order of the deceased dated 27.04.1998 the monthly salary of the deceased is mentioned as Rs.4,500/- inclusive of all allowances. Ex.P.3 is the Diploma Certificate in Leather Technology (Sandwich) of the deceased Mohammed Irfan issued by the State Board of Technical Education and Training, Tamil Nadu.
19.In the Second Schedule to Section 163-A of M.V. Act for the victim of age 22 years the multiplier given is 17. For a Contractor (Bidi) of age 22 years with an income of Rs.900/-, the multiplier adopted is 17 as per decision 2003 (1) ACJ page 542 (M.P.), Pramila and Others V. Sarvar Khan and Others. For a Conductor aged 22 years with an income of Rs.1000/-, the multiplier adopted is 17 as per decision 2003 (2) ACJ page 833 (M.P.), Lalmani Pandey and Others V. Ugratara Bus Service and Others. Therefore, the multiplier of 17 adopted by the Tribunal in regard to the death of Mohammed Irfan is just and prudent, in the considered view of this Court.
20.Admittedly, the first respondent/first claimant is the young wife of the deceased. The second and third respondents are the parents of the deceased. The monthly salary of the deceased Mohammed Irfan as technical executive has been fixed as Rs.4,500/- by the Tribunal as per Ex.P.4-Appointment Order dated 27.04.1998 and the Tribunal has deducted 1/3rd towards personal expenses of the deceased and has arrived at a figure of Rs.3,000/- as monthly dependency, which is quite reasonable and fair one based on the facts and circumstances of the case on hand. It cannot be gainsaid that a Court of law has to assess as best as it can, the loss so suffered. However, many imponderables are to be borne in mind. In assessing the just compensation, the calculation pervades in an area of hypothesis. Therefore, at the rate of Rs.3,000/-, the annual loss of income works out to Rs.36,000/-. By adopting a correct multiplier of 17, then Rs.36,000/- x 17 it comes to Rs.6,12,000/- towards compensation. The award of Rs.18,000/- towards loss of consortium to the first respondent/first claimant, the award for loss of love and affection a sum of Rs.10,000/- and an award of Rs.5,000/- towards funeral expenses, as determined by the Tribunal below are not interfered with by this Court. Equally, a sum of Rs.55,000/- awarded towards medical expenses as per Ex.P.6 is also not interfered by this Court. Thus, the respondents/claimants are entitled to receive a total compensation of Rs.7,00,000/- (Rs.6,12,000/- + Rs.18,000/- + Rs.10,000/- + Rs.5,000/- + Rs.55,000/-). Resultantly, this Court awards a sum of Rs.7,00,000/- (Rupees seven lakhs only) as compensation for the death of the deceased Mohammed Irfan and therefore, this Court comes to the conclusion that a sum of Rs.7,00,000/- granted by the Tribunal as compensation to the respondents/claimants is fair, just and equitable too. The Advocate’s fee fixed at Rs.7,000/- is correct and is not altered by this Court.
21.In the light of the aforesaid detailed discussions and on evaluating the facts and circumstances of the case and on consideration of material available evidence on record and looking it from any point of view, this Court opines that the award of Rs.7,00,000/- passed by the Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai is fair, just, prudent and equitable too, payable by the appellant Corporation. Bearing in mind the rise in prices of essential commodities and taking note of the inflationary trend, this Court opines that the award of interest at 9% per annum by the Tribunal is reasonable and proper in the case on hand.
22.In C.M.P.No.11553 of 2003 this Court has passed an order on 27.08.2003 that ‘there shall be an interim stay as prayed for subject to condition that the appellant Corporation deposits the entire compensation amount awarded including interest and costs to the credit of M.C.O.P.No.853 of 1999 on the file of Motor Accidents Claims Tribunal (Small Causes Court, Chennai), within a period of eight weeks from today, failing which the stay shall stand automatically vacated and ordered notice’. On 26.02.2004 this Court made the interim stay already granted as absolute, in view of the compliance of the conditional order passed earlier and also permitted the respondents/claimants to withdraw 50% of their share with entire accrued interest and costs without furnishing security, etc. It is open to the claimants/respondents to receive the balance amount standing to the credit of the M.C.O.P.No.853 of 1999 on the file of the Motor Accidents Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai, by filing a payment out application as per Civil Rules of Practice, in accordance with law.
In fine, the Civil Miscellaneous Appeal fails and the same is dismissed without costs.
12.05.2008
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To
The Chief Judge, Court of Small Causes,
Motor Accidents Claims Tribunal,
Chennai.
M.VENUGOPAL,J.
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Judgment in
C.M.A.NO.1868 OF 2003
12.05.2008