JUDGMENT
M. Karpagavinayagam, J.
1. Pillathal, the widow and two minor children of the deceased, the claimants are the appellant herein.
2. For the death of the deceased Vellaichamy, due to the negligence of the driver of the lorry belonging to the first respondent herein, the claimants filed a claim petition seeking compensation of Rs. 1,50,000/-.
3. The Tribunal dismissed the claim petition, which resulted in the present appeal before this Court.
4. Vellaichamy, the deceased in this case was aged about 36 years at the time of accident. He was working in Central Government as a Mail Man, R.M.S., M.A. Division Madurai. Pillathal, the first claimant is his wife and Selvapandian and Kavitha are his son and daughter respectively. They were residents of Manalur, Thirupuvanam Taluk.
5. On 3/4.6.1982 in mid-night at about 2.00 a.m., the deceased Vellaichamy was riding on his bicycle alongwith one Mahalingam, who was sitting in the carrier, from Thirupuvanam to Manalur. At that time, the lorry bearing Registration No. MDE 5097 came in a rash and negeligent manner and dashed against the cycle. Due to this, both the deceased Vellaichami and Mahalingam sustained severe injuries. They were taken to Government Rajaji Hospital, Madurai for treatment. The deceased died later at the hospital itself.
6 The claimants filed the claim petition for the compensation of Rs. 1,50,000/- making the owner of the lorry as first respondent, the driver as second respondent and the Insurance Company with which the lorry was insured as third respondent.
7. The owner of the vehicle, the first respondent filed a counter stating that his lorry was not involved in the accident. The driver of the lorry, the second respondent remained absent. So, he was set ex-parte. The Insurance Company, the third respondent filed a counter stating that the criminal case filed in respect of the accident ended in acquittal and that, therefore, respondents are not liable to pay the compensation.
8. During the course of enquiry before the Tribunal, on the side of the claimants, P.W. 1 Pillathal, P.W. 2 Mahalingam, the injured witness and P.W. 3 Karuppiah, the eye witness were examined and Exs. A1 to A6 were marked. On the side of the respondents, the driver’of the lorry Subramani was examined as R.W. 1 through whom Ex. R1, the judgment of Criminal Court was marked.
9. The Tribunal, after enquiry, rejected the claim and dismissed the petition on the following reasons:
(i) P.W. 2, eye-witness would state that when they came in a cycle from East to West, the lorry came behind them and dashed against the cycle and sped away. But, in the claim petition, it is stated that the lorry came from West to East and the deceased alongwith P.W. 2 went from East to West. Moreover, P.W. 2 has not given the registration number of the lorry. So, the evidence of P.W. 2 is not useful for the claimants.
(ii) P.W. 3, another eye-witness was examined-in-chief on 16.9.1992. Thereafter, an application was filed to recall for cross-examination. This was allowed. However, P.W. 3 did not choose to be present before the Court. Therefore, on 15.12.1992 the Counsel for the claimants made an endorsement that the whereabouts of P.W. 3 are not known and that, therefore, his chief-examination need not be considered. In view of this endorsement, the evidence of P.W. 3 in-chief has also become valueless.
(iii) The driver of the lorry was examined as R.W. 1. He would state that he came back to Madurai on 3.6.1982 at 12.00 mid-night itself and there was no accident on that day and in the criminal case he was acquitted. The acquittal judgment is Ex. R1. In view of this judgment, there is no proof to show that the vehicle in question was involved in the accident.
10. The learned Counsel appearing for the appellants/clamaints, while assailing the impugned order, would contend that the Tribunal has not taken into consideration the evidence of P.W. 2 in the proper perspective, and P.W. 2’s evidence alone is sufficient to hold that the claimants’ plea is proved.
11. On the other hand, the Counsel for the owner of the vehicle would submit that P.W. 2’s evidence does not show the identity of the lorry and as such, the finding of the Tribunal is correct.
12. The Counsel for the Insurance Company the third respondent herein, though would submit in support of the impugned order, would ultimately contend that in the event of this Court holds that the vehicle in question had involved in the accident, the Insurance Company would be liable to pay the amount of compensation on behalf of the owner of the vehicle.
13. I have given my anxious consideration to the contentions urged by the Counsel for the respective parties and carefully scrutinised the materials available on record.
14. On a careful consideration, I am of the view that the impugned order is liable to be set aside, as there are materials to show that the claimants have proved their case so as to entitling them to get the compensation claimed. The reasons are as follows.
15. P.W. 2 is the injured eye-witness. He only gave the statement to the police which was registered as F.I.R. The F.I.R. has been marked as Ex. P1. The case was registered in Crime No. 197/82 and the charge-sheet was filed against the driver of the lorry in question. The charge-sheet copy was marked as Ex. P. 3.
16. In the FIR Ex. P1, P.W. 2 Mahalingam would clearly state that he came alongwith the deceased Vellaichami in a cycle and when he was sitting in the cycle carrier, near Kannappan Thope, a lorry came towards eastern side and dashed against the cycle, as a result of which, both of them were thrown out of the cycle and the lorry sped away from the scene. However, he had not given the registration number of the lorry.
17. But, in the charge-sheet Ex. P3, it is stated that the lorry bearing the name ‘Irukkankudi Mari Thunai’ and No. MDE 5097 came in a rash and negligent manner and dashed against Vellaichami and Mahalingam and caused injuries, which resulted in the death of the said Vellaichami.
18. This would show that only during the course of investigation, the identity particulars of the lorry were detected by the police and the charge-sheet was filed. But unfortunately, when P.W. 2 was examined before the Tribunal, he would state in the cross-examination that he was not able to see the registration number of the lorry, as he was a semi-conscious state after the impact. The relevant evidence is this:
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In view of this admission, the evidence of P.W. 2 would not be sufficient to hold that the vehicle in question had been involved in the accident.
19. But, the contradiction pointed out by the Tribunal to the effect that P.W. 2 would state that the lorry came from East to West which is contrary to the claim petition, may not make out much, as this is only a minor variation, which would not make the Court to come to the conclusion that his evidence has to be rejected in toto.
20. Though it can be said that the identity particulars of the lorry have not been established, it is clear that at the relevant time and date and at the relevant place, when they were going in a cycle, the lorry proceeding to Madurai came at a high speed, hit against them and sped away.
21. Now, let us see whether any other evidence is available, in order to find out whether the lorry in question had involved in the accident.
22. P.W. 1, the first claimant, the wife of the deceased, admittedly, is not the eye-witness, though in the claim petition, the registration number and other particulars have been mentioned. That may not be enough to conclude that this vehicle had involved.
23. But, the claimants have examined P.W. 3 as another eye-witness. Unfortunately, the Counsel for the claimants made an endorsement on 15.12.1992 before the Tribunal that since P.W. 3 is not available for cross-examination, his evidence need not be considered. Only due to this endorsement, the Tribunal had no occasion to consider the credit-worthiness as P.W. 3, who had been examined only in-chief.
24. It cannot be debated that if the evidence of P.W. 3 has been eschewed, then the other materials available would not be sufficient to establish the identity of the lorry. However, it shall be stated that the approach of the Tribunal to conclude the case of the respondents that the vehicle was not involved, is correct on thee basis of the acquittal judgment of Criminal Court, is quite erroneous.
25. The acquittal of the accused, the driver of the lorry, in respect of the offence under Section 304-A, I.P.C. by the Criminal Court is only on the basis of the materials placed before the Criminal Court. The issue before the Criminal Court is as to whether offence under Section 304-A, I.P.C. has been proved beyond reasonable doubt or not. This issue is entirely different from the issue framed by the Tribunal in regard to the accident cases for fixing the liability and compensation. In other words, the appreciation and analysis of the materials available on record by the Tribunal is quite different from that of the Criminal Court.
26. Under such circumstances, the Tribunal cannot merely accept the case of the respondents, the owner of the vehicle and the Insurance Company on the basis of the judgment of the Criminal Court. Either conviction or acquittal in a criminal case, in my view, cannot be taken to be a guiding factor for the assessment of liability to be fixed by the Tribunal.
27. As already indicated, if no other evidence is available to establish the identity of the lorry, then there is no other alternative for the Tribunal to hold that the identity was not established. But, in my opinion, the fact that the accused was acquitted in a case for the offence under Section 304-A, I.P.C. cannot be taken to be a ground to dismiss the claim petition.
28. In the light of the said situation, let us now see whether the evidence of P.W. 3, in the absence of cross-examination, could be considered or not.
29. As indicated earlier, in the light of the endorsement made by the Counsel for the petitioners, the evidence of P.W. 3 had not been considered by the Tribunal. There cannot be any dispute with regard to the same. When the witness was produced by the claimants to prove their claim, the evidence of the said witness should have been subjected to the cross-examination too.
30. According to the Tribunal, despite several hearings, P.W. 3 did not appear before the Court for cross-examination. This* made the Counsel for the claimants to make such an endorsement.
31. But, the question is, merely because such an endorsement had been made by the Counsel for the claimants praying the Tribunal that the evidence of P.W. 3 need not be considered, as he is not available for cross-examination, whether such an endorsement would put an embargo on the Tribunal from considering the evidence of P.W. 3, in the light of the facts and circumstances of the case?
32. The diary extract shows that P.W. 1, the first claimant was examined in-chief and cross on 12.8.1992 and 17.8.1992. When P.W. 1 was examined on 17.8.1992, she was cross-examined by the Counsel for the owner of the vehicle, the first respondent and the Insurance Company, the third respondent separately. Since the driver, the second respondent was set ex-parte earlier, she was not cross-examined on behalf of the second respondent. The matter was adjourned to 27.8.1992. Again, it was adjourned to 7.9.1992. From 7.9.1992 it was adjourned to 16.9.1992. On that day, both P.W. 2 and P.W. 3 were present and examined-in-Chief. The Counsel for the respondents 1 and 3 reported ‘no cross’. Therefore, the matter was adjourned for respondents’ evidence to 23.9.1992.
33. On 23.9.1992, the third respondent, that is, the Insurance Company alone filed an application to re-open the case and to re-call P.W. 2 and P.W. 3 for cross-examination. This petition was numbered as I.A. No. 481 of 1992 on 24.9.1992, and allowed on 28.9.1992. The case was posted for appearance of P.Ws. 2 and 3 for cross-examination by third respondent’s Counsel on 1.10.1992. From 1.10.1992 it was adjourned to 20.10.1992. On that day P.Ws. 2 and 3 appeared. However, a petition was filed on behalf of the third respondent to adjourn the matter to 6.11.1992. On 6.11.1992 there was no sitting. Hence, it was adjourned to 25.11.1992. On 25.11.1992 P.W. 2 was present and cross-examined by the Counsel for the third respondent. Then, it was posted for cross-examination of P.W. 3 on 2.12.1992. On 2.12.1992 time was sought for producing P.W. 3. So, it was adjourned to 15.12.1992. On 15.12.1992 the Counsel for the petitioners made endorsement that whereabouts of P.W. 3 are not known and that the chief-examination of P.W. 3 need not be considered. Then, the Court recorded that petitioners’ side evidence was over and adjourned the matter for respondents’ evidence to 22.12.1992.
34. The above list of dates would make it clear that when P.W. 3 was examined on 16.9.1992, no cross was reported by the Counsel for both the respondents 1 and 3 and later on the application filed by the third respondent alone, P.W. 3 was recalled and P.W. 3 appeared on 20.10.1992 before the Tribunal and on that date, the Counsel for the third respondent did not cross-examine him and the matter was again adjourned to some other date and on subsequent date P.W. 3 was not present and consequently, there was an endorsement by the Counsel for the petitioners on 15.12.1992.
35. Thus, it is evident that the opportunity for cross-examination given to the owner of the vehicle, first respondent was not availed of on 16.9.1992. As a matter of fact, the Counsel for the first respondent reported ‘no cross’. Only on the application of the Counsel for the third respondent, the case was re-opened for cross-examination of P.Ws. 2 and 3 and though on 20.10.1992 both P.Ws. 2 and 3 appeared, the Counsel for the; third respondent did not avail the opportunity for cross-examination. However, on 25.11.1992 P.W. 2 was present and cross-examined by the third respondent. These factors would clearly show that the owner of the vehicle did not choose to cross-examine P.W. 3 at any point of time.
36. Even the endorsement made by the Counsel for the claimants/petitioners cannot give rise to the situation that the chief-examination of P.W. 3 shall not be acted upon in respect of the other respondents also, who reported ‘no cross’. It is noticed, in this context, the driver, the second respondent remained ex-parte and the owner, the first respondent did not choose to file any application for recalling P.W. 3.
36(a). It is held in Mt Horil Kuer v. Rajah Ali AIR 1936 Patna 34, that the deposition of a witness in-chief need not always be ignored, since there was no cross-examination on account of certain circumstances.
37. Under those circumstances, in my view, the evidence of P.W. 3 can certainly be considered, in order to find out whether the vehicle belonged to the first respondent driven by the second respondent was actually involved in the accident.
38. P.W. 3 Karuppiah was one of the occupants of the lorry alleged to be involved in the accident. According to him, at about 2.30. a.m. when the lorry MDE 5097 was nearing Kappanna Thope, he heard a big sound and when he turned back, he found that two persons fell down from the cycle and sustained injuries. But, the lorry driver drove the lorry fastly without stopping and reached Madurai and there he washed the blood-stains found in the left side front wheel. He would also state that after the accident, the vehicle was hidden and concealed in Kuttithoppu area. The following is the extract of his evidence:
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39. This evidence as well would corroborate the materials given by P.W. 2 in his deposition and Ex. P1, the F.I.R. The time and place of the occurrence have been clearly given in the F.I.R. as well as in the deposition given by P.W. 2.
40. Moreover, when R.W. 1, the driver was cross-examined, it was specifically suggested that the vehicle was concealed for a number of days in a secluded place. Probably, this was the reason that the police was not able to seize the lorry to enable the Motor Vehicles Inspector to conduct inspection on the vehicle. Ex. P4, the Motor Vehicles Inspector’s report would show that though the occurrence had taken place on 4.6.1982, the inspection of the vehicle was made only on 7.7.1982.
41. It is to be remembered, at this stage, the driver remained ex-parte. The Counsel for the owner of the vehicle did not choose to cross-examine P.W. 3, when he would specifically state that he travelled in his lorry as occupant and the lorry was involved in the accident. But, it is strange to see that the driver, who is the second respondent and was set ex-parte, was allowed to be examined as R.W. 1 on behalf of the respondents and his evidence has been relied upon by the Tribunal. This is quite unfortunate.
42. Once it is concluded that the evidence of P.W. 3 can be acted upon even in the absence of cross-examination, since the respondents 1 and 2 did not choose to cross-examine him, then there is no difficulty in holding that the identity of the lorry in question has been clearly established by the evidence of P.W. 3 which has been sufficiently corroborated by Exs. P1 and P3 and the evidence of P.W. 2.
43. Under these circumstances, the finding rendered by the Tribunal that it was not proved that the vehicle in question was involved in the accident is liable to be set aside and accordingly, it is set aside. Consequently, the first respondent would be liable to pay the compensation.
44. As admitted by the Counsel for the third respondent before this Court, on behalf of the owner of the vehicle, who insured the vehicle with the Insurance Company, the liability to make the payment of compensation would be fastened on the Insurance Company.
45. Let us now come to the aspect of quantum.
46. In the claim petition, the claimants would seek the compensation of Rs. 1,50,000/-. Towards loss of earning, they claimed Rs. 1,30,000/-. For the mental agony and suffering, they claimed Rs. 20,000/-. The Tribunal, since it has concluded that the claimants’ plea was not proved, did not care to assess the value of the damages. Therefore, this Court has to consider the materials to work out for computing the proper compensation.
47. According to P.W. 1, the wife of the deceased, he was working as a Mail Man in R.M.S. in Central Government service. He was getting about Rs. 1,360/- per month. At the time of death, the age of the deceased was 36 years. The age of the wife when the husband died was about 25 years, the age of the minor son was 6 years and age of the minor daughter was 5 years.
48. According to Ex. P5, Pay Certificate, the monthly salary of the deceased was Rs. 583.43. He was working as Mail Man, R.M.S. ‘MA’ Division, HRO, Madurai. This pay certificate had been issued by the LSG Accountant, R.M.S. Division, Ministry of Communication, Department of Posts, Madurai. Ex. P6, the extract from the First Page of the Service Book also would clearly show that he was working as a Mail Man in the Railways.
49. Under these circumstances, the deceased being a permanent employee in the Railways was getting a regular income and he had also got chances for promotion in due course.
50. In the above circumstances, on the basis of the gross salary that he would get in course of time, the amount of Rs. 500/- can be safely fixed as monthly contribution for the family. The annual dependency would be Rs. 6,000/-. The maximum multiplier is 18. If it is multiplied by 18, the amount comes to Rs. 1,08,000/-. Towards loss of consortium for the wife Rs. 20,000/- can be added. There are two children. So, another Rs. 20,000/- can be fixed for loss of love and affection. For the funeral expenses, Rs. 2,000/- can be given. Thus, the total amount comes to Rs. 1,50,000/-.
51. Therefore, the claimants would be entitled to the entire amount of Rs. 1,50,000/- as claimed. On behalf of the owner of the vehicle, the Insurance Company, the third respondent is liable to pay the compensation of Rs. 1,50,000/- alongwith interest @ 12% per annum from the date of application till the date of payment.
52. In the result, the appeal is allowed. No costs.