JUDGMENT
Swamikannu, J.
1. This Appeal coming on for hearing on Thursday the 26th day of March 1987 upon perusing the petition of Appeal, the order of the Lower Court, and the material papers in the case, and upon hearing the arguments of Mr. R. Balasubramaniam, Advocate for the Appellant, and of Mr. K. Venkataraman for M.V. Natarajan, Advocate for the respondents 1 to 3 and 4th respondent not appearing in person or by Advocate, case having stood over for consideration till this day, the Court delivered the following Judgment:
This appeal by the Thanthai Periyar Transport Corporation, Villupuram, is directed against the Award dated 22.9.1979 in claim Petition No. 275 of 1978 on the file of the Motor Accidents claim Tribunal, Cuddalore, which was disposed of by a common order along with claim Petition No. 312 of 1978.
2. claim Petition No. 275 of 1978, out of the order in which the present appeal has arisen, was filed by respondents 1 to 3 herein under Section 110-A of the Motor Vehicles Act, before the Tribunal for a compensation of Rs. 40,000/- for the death of one Balaniswami in a motor accident at about 11-30 A.M. on 26.3.1978 at Kannikapuram Village.
3. The victim, Palaniswami, aged about 32 years at the time of his death, was a driver in the lorry M.D.M. 7576 belonging to one K.A. Subbayyan of Kuttiappa Transport at Villupuram, earning about Rs. 600/- per month. On 26.3.1978 at about 11.30 A.M., Palaniswami was driving the lorry from Palladam to Madras. Proceeding near Kannikapuram village on the G.S.T. Road, the bus bearing registration number T.M.N. 702, belong to the appellant herein, driven by one Syed Anwar Basha (the fourth respondent herein) from Tindivanam to Mylum in a rash and negligent manner in an attempt to overtake a cyclist who was going ahead, dashed against the lorry. On account of the said collision, the driver of the lorry M.D.M. 7576 sustained fatal injuries and died instantaneously. A spare driver in the lorry, by name Ayyasamy was also injured in the accident. Further, one Meerabai Ammal, who was travelling in the said bus belonging to the appellant also sustained injuries. For her injuries she had prayed for a compensation of Rs. 21,000/-, and that was the subject-matter of claim Petition No. 312 of 1978 which was tried along with claim Petition No. 275 of 1978.
4. Chinnammal, the wife of deceased Palaniswami, and her two minor daughters aged about 4 and 2 years respectively, claimed a sum of Rs. 40,000/- as compensation for the death of Palaniswami.
5. The fourth respondent herein, the driver of the appellant’s bus, T.M.N. 702, in his statement denied the age and earnings of deceased Palaniswami. According to him, on 26.3.1978, he was driving the bus from Tindivanam to Mylum at a moderate speed of 40 kilo meters per hour along the left side of the road, i.e. on the eastern side. When he was coming near the village of Kannikapuram, the lorry driven by deceased Palaniswami came from the opposite direction in a rash and negligent manner and dashed against his bus while avoiding a cyclist going along the road. Thus, the accident, according to him, had been caused, not due to any rash or negligent driving of the bus, but on account of the rashness and negligence on the part of Palaniswami in driving his lorry. He denied liability to pay any compensation to the claimants. He also characterised the compensation claimed as excessive. He also pleaded that if at all, the compensation was payable only by the appellant herein.
6. The appellant inter alia contended in its statement that on 26.3. 1978 when its bus was driven in a careful and diligent manner by the fourth respondent, near Thenpasar village, one of the two cyclists proceeding in front of the bus, suddenly overtook the other cyclist and in that process fell down on the road. The driver, 4th respondent, applied brakes to the bus and turned it towards the right side. At that time, the lorry coming in the opposite direction, driven in a negligent manner, hit against the bus. Due to the impact Palaniswami who was travelling on the top of the cabin of the lorry died on the spot. It is not true that Palanaiswami was driving the lorry at the time of the accident, but it was one Ayyasamy who was driving the lorry at that time. It also contended that deceased Palaniswami was not holding a valid licence to drive, nor was he earning Rs. 600/- per month as alleged by the claimants. The owner of the lorry, MDM- 7576 and the insurance company, according to the appellant, are necessary parties to the petition for compensation and hence the petition was bad for non-joinder of necessary parties.
7. The following points were framed by the Tribunal for consideration:
1. Whether the accident has happened due to the rash and negligent driving of the bus, TMN – 702?
2. Whether the petitioners are entitled to compensation and if so, for how much?
3. Whether the petitions are bad for non-joinder of parties?
4. Whether the delay in filing the petition C.P. No. 312 of l978, can be condoned? and
5. To what reliefs are the parties entitled?
8. As both the claim petitions arose out of the same accident, on a joint memo by the parties both the petitions were heard together, evidence being recorded in C.P. No. 275 of 1978 and treated as evidence in the other petition too. On behalf of the claimants concerned in this appeal, Chinnammal, the wife of deceased Palaniswami as well as the other injured Meerabai Ammal were examined as P. Ws, 3 and 4, in addition to two other witnesses, viz., P.Ws. 1 and 2. They filed Exhibits A-1 to A-9 as documentary evidence in substantiation of their case. The documents relied on by the claimants were a certified copy of first information report in the concerned criminal case and the Motor Vehicles Inspector’s report (Exhibits A-1 and A-2 respectively). The wound certificate relating to the injuries sustained by Meerabai Ammal, the other victim (Exhibit A-3), the extract of the birth register regarding the age of Palaniswami (Exhibit A-4), the goods vehicle record (Exhibits A-5 to A-7), the driving licence of Palaniswami 9 Exhibit A-8) and a Photostat copy the driving licence of the spare driver Ayyasamy (Exhibit A-9). The appellant did not examine any witness on its side, nor did it file any document in support of its case. On the evidence on record the Tribunal determined the points framed by it in both the petitions. As already stated, we are concerned only with respect to the Award of Rs. 40, 000/- granted in claim Petition No. 275 of 1978, since that alone has been challenged in this appeal. Claimants 1 to 3 are respondents 1 to 3 and the first respondent driver before the Tribunal is the fourth respondent in this appeal preferred by the second respondent before the Tribunal.
9. On behalf of the appellant, it is inter alia contended by Mr. R. Balasubramaniam, learned Counsel, that the Tribunal has not properly appreciated the evidence on record and as such, the Award suffers from many infirmities including the question of liability for the accident and with respect of the quantum of compensation awarded to the claimants. It is contended that the amount of compensation awarded is excessive and is not based on any proper data. The Tribunal ought to have found that the evidence of the claimants’ witnesses is highly interested and full of contradictions and ought to have dismissed the petition as against the appellant.
10. In support of his contentions, Mr. Balasubramaniam, learned Counsel for the appellant, referred to the decision reported in Managing Director, Thiruvalluvar Transport Corporation, Madras, v. M. Janapdhanam 1986 T.L.N.J. 194 for the proposition that the assessment of damages should be on the fair consideration of the monthly income of the deceased and that in assessing damages, factors like uncertainties of life and the fact of accelerated payment that the claimants would be getting as lump sum amount and, but for the accident it would have been available to the claimants in driblets over a period of number of years, should be taken into consideration while assessing the quantum of the compensation awardable to the claimants. It was held in Manjushri Raha v. B.L. Gupta 1977 A.C.J. 134 by the Supreme Court that allowance must be made for uncertainities and the total figure must be scaled down accordingly. In the decision in Joki Ram v. Naresh Kantha F.B it was held that the compensation assessed under Section 110-B must be just and therefore, the guiding star is what were the earnings of the deceased, taking into consideration also the prospective benefits in the form of increments or promotions. After making deductions for the benefits which may accrue to the dependents as a result of the death and also the amount which the deceased was expected to have spent on his own- person, it is this estimate which will have to be multiplied by the number of years by which the life of the deceased was cut short due to the accident. The result would be, the fair capitalised amount of compensation to which the dependents may be entitled, and every endeavour should be made to make a reasonable conjecture, and not a wild speculation, as pointed out in Municipal Corporation of Delhi v. Subhagwanti and C.K.S. IYER v. T.K. NAIR .
11. In Managing Director, Thiruvalluvar Transport Corporation, Madras, v. M. Jampdhanam 1986 T.L.N.J. 194 a Bench of the Court has had opportunity to refer to the World Development Report, 1985, and observe as follows:
In this country, as per the suggestion of the World Development Report, 1985′, the average expectation of life is 55 years as found in the report of 1985. The petitioner was aged 40, and therefore, the multiplier of 15 is adopted, Assessing the loss at Rs. 300/- as fixed by the Tribunal, for 15 years the total amount would be Rs. 54,000/- though he may not have better prospects and earned more, in which event, the loss would be more.
12. The points that arise for consideration in the appeal are:
1. Whether the liability on the appellant has been properly proved by the claimants respondents herein? and
2. If point No. 1 is found in the affirmative, whether the compensation awarded by the Tribunal is just and adequate?
13. In the instant case, on behalf of the claimants one Shanmugam was examined as P.W.1. He would depose that he was a lorry driver at Palladam, driving the lorry, T.N.S. 6256, named as “Padhamani” belonging to one Ponnuswami of Palladam. On 25.3.1978, he and Palaniswami loaded their lorries with tobacco and were proceeding from Palladam to Madras Palaniswami drove the M.D.M. 7576 and he (P.W.1) followed him with his lorry. At. 11.30 A.M. the next day, they were proceeding northwards on the Trichy-Madras Trunk Road, one mile north of Couteripet cross-road. There was a distance of 100ft. in between the two lorries. The lorry M.D.M. 7576, driven by the deceased Palaniswamy, was going on the left side of the road, i.e. western side. Then the bus belonging to the appellant herein, which was coming fast from north to south, dashed against the lorry, M.D.M. 7576. P.W. 1 stopped the lorry and went and saw the other lorry. Palaniswami, the driver, had died on the spot. There was a spare driver by name Ayyaswami in the lorry. He had sustained injuries on his leg and right hand. P.W. 1 took him to Tindivanam hospital and got him admitted. At the time of the accident there were no cyclists on the road. He denied that Palaniswami had driven the lorry rashly or negligently. A criminal case had been filed against Ayyaswami who drove the lorry M.D.M. 7576. He would contradict himself and state that he did not know whether a criminal case had been filed against Ayyaswami and would further say that he had not given evidence in the criminal case. He also denied that the lorry was driven by Ayyaswami and that deceased Palaniswami was seated on the top of the cabin of the lorry, and would further add that P.W.2 did not go in another lorry along with Palaniswami’s lorry at all. On behalf of the claimants, the cleaner of the said lorry was examined as P.W.2. According to him, he was the cleaner of the lorry, M.D.M. 7576, of which deceased Palaniswami was the driver. On the day of the accident, they loaded their lorry with tobacco and were proceeding towards Madras. Another lorry, T.N.S. 6256 named “Radhamani”, was also coming along with them with a load of tobacco, closely following, and that lorry was driven by P.W.1. After they passed Villupuram they were proceeding northwards, on the left side of the road, at a speed of 35 to 40 kilometers per hour. P.W.2 was seated on the left side of the driver’s seat and behind him, was seated the spare-driver Ayyaswami. At that time, the appellant’s bus was coming from the opposite direction. When it came at a distance of 10 ft. from the lorry, it suddenly turned to the right side and dashed against their lorry. There were no cyclists on the road at that time. As soon as the impact took place, he fell unconscious. P.W.1 gave him water. On regaining consciousness, he found Palaniswami dead and Ayyaswami, injured and suffering. He and P.W.1 lifted Ayyaswami, brought him and placed him in the lorry, T.N.S. 6256, and took him to the hospital at Tindivanam. According to him, no cyclist came in front of the appellant’s bus. He denied that the cyclists who were going in front of the bus came across the road and in order to avoid them, the appellant’s bus turned to the rightside. The respondents herein produced before the Tribunal Exhibit A-5, the certified copy of the goods vehicle record dated 25.3.1978 of the lorry T.N.S. 6256 driven by P.W.1, to show that the said lorry had proceeded from Palladam to Madras on that day with tobacco load and the record for the return journey from Madras to Palladam on the 27th and 28th, which have been marked as Exhibits A-6 and A-7 respectively. They had also produced certified copies of the first information report, the Motor Vehicles Inspector’s report and the wound certificate which have been marked as.
Exs. A-1 to A-3 respectively. On the basis of these records, it was contended that these records would show that the evidence of P.Ws. 1 and 2 that the lorry, T.N.S. 6256 was following the lorry M.D.M. 7576 from Palladam to Madras should be true. They had also produced a photo state copy of the driving licence of Ayyaswami, which was marked as Exhibit A-9, to show that he was holding a valid licence for driving a heavy motor vehicle. As the appellants would contend that Palaniswami was not a driver at all, but only a passenger travelling on the top of the cabin, the claimants, in order to refute the same, had produced before the Tribunal a duplicate driving licence of Palaniswami issued by the Additional Licensing Authority, Chengalpattu. The claimants thus contended that the oral and documentary evidence lot in by them would show that the accident was due to the rash and negligent driving of the appellant’s bus, T.M.N. 702.
14. It is relevant to note that the earliest report regarding the earliest report regarding the occurrence is Ex. A-1 given by P.W.1 Shanmugham. He has stated in his report as follows:
15. It may be noted that P.W.1 had not stated in the complaint that the lorry had been driven by Ayyaswami. He had not mentioned anything about the driver or cleaner of the said lorry. The well-settled proposition of law is that the information report is not an encyclopaedia and it will have to be taken with all its infirmities, only as an information on the basis of which investigation had been started by the investigating officers. Merely on the ground that the name of the deceased who died at the accident had not been given as Palaniswami in Exhibit A-1, the statement of P.W.1 that deceased was the driver of the said lorry, cannot be rejected as false. Further, it is seen from Exhibit A-8 that deceased Palaniswami was holding a licence for driving heavy motor vehicles. Therefore, the Tribunal was correct in having disbelieved that the driver of the lorry, Ayyaswami, would have asked another qualified driver like himself to travel on the top of (sic) cabin of the lorry, as contended by the appellant, especially when there was a vacant driver’s seat itself on the left side of the cleaner and also a full seat behind him, as would (sic) seen from the evidence of P.W.2. The said circumstance leads to the irresistible conclusion that the contention of the claimants that the accident had happened due to the rash and negligent driving of the bus T.M.N. 702 should be true. The tribunal is correct in having found the said point accordingly.
16. So far as the quantum of the compensation is concerned, the claimants prayed for a compensation of Rs. 40,000/- towards pain and suffering of deceased Palaniswami. Admittedly, Palaniswami had died on the spot of the accident and so, he could not have had any pain or suffering. Pain and suffering had disappeared with his death and so, the claimants would not be entitled to any compensation under that head. The age of the deceased Palaniswami has been given in the petition as 32 years. His wife, the first respondent herein, would depose that his age was 33 at the time of the accident. She produced before the Tribunal Ex. A-4, a certified extract of the birth register issued by the Sub Registrar of Palladam. That showed that he was born on 8.11.1945. So, on the date of the accident Palaniswami had completed 32 years of age. Even taking the vicissitudes of life, he would have lived at least for another twenty years, but for the untimely accident. This conclusion, we arrive at, following the principle laid down by a Bench of this Court in Managing Director, Thiruvalluvar Transport Corporation, Madras, v. M. Janapdhanam 1986 T.L.N.J. 194. The evidence shows that the deceased was earning Rs. 600/- a month as a driver. His wife would say that he was getting Rs. 600/- inclusive of batta. But, she has not been able to say how much he drew as salary and how much as batta. Another driver, P.W.2, would state that the deceased was getting Rs. 500/- per month, but he too was not able to say how much salary and how much batta the deceased was drawing. The Tribunal has held that he would certainly have been receiving Rs. 250/- as salary and a sum of Rs. 5/- as daily batta, making in all a sum of Rs. 400/- per month, and this, I don’t think, is unreasonable. Out of the said amount, if a sum of Rs. 200/- is taken to have spent by the deceased for his own maintenance, he would have been able to spare for his family the balance of Rs. 200/-. Thus, he would have Contributed to the family the balance of Rs. 200/-. Thus, he would have contributed to the family at the rate of Rs. 2,400/- per annum. The loss of dependency for twenty years, as found above, at this rate would come to Rs. 48,000/-, Giving allowance for the lump sum payment, the compensation for loss can be fixed at Rs. 43,200/- as has been done by the Tribunal. As a result of the accident, the wife of the deceased has lost the consortium of her husband for a period of at least twenty years and so, the Tribunal is correct in having awarded Rs. 40,000/- as compensation for the same. Thus, the claimants would be entitled to Rs. 47,200/-. But, since they had claimed only a sum of Rs. 40,000/- in the petition as compensation, the Tribunal awarded this sum of Rs. 40,000/- as compensation.
17. The Tribunal is correct in having found that the accident had happened only due to the rash and negligent driving of the appellant’s bus, and not due to that of the lorry, M.D.M. 7576. The claimants were therefore right in not impleading the driver of the lorry as a party to the petition and the petition is not bad for non-join or of the necessary party.
18. In the result, I confirm the award of the Tribunal, both with respect to the liability of the appellant as well as on the quantum of compensation awarded by the Tribunal which is not, in any way, excessive, taking into consideration all the aspects of the case in the light of the heads under which the claims were made. There is no infirmity in the award passed by the Tribunal. Hence the appeal bears no merit and is dismissed, but, in the circumstances, there will be no order as to costs.
