BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/04/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.1046 of 2000 Tamil Nadu State Transport Corporation, (Madurai Division IV) Ltd., rep. By its Managing Director, Dindigul. .. Appellant Vs. 1.Balammal 2.Pappathi 3.Rojammal .. Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 16.03.2000 made in M.C.O.P.No.37 of 1998 on the file of the Motor Accident Claims Tribunal (Sub Court), Palani. !For Appellant : Mr.D.Sivaraman For Mr.Rajnish Pathiyil ^For Respondents : Mr.S.R.Malaichamy :JUDGMENT
This Civil Miscellaneous Appeal is directed against the award dated
16.03.2000 passed by the Motor Accident Claims Tribunal (Sub Court), Palani in
M.C.O.P.No.37 of 1998 directing payment of a sum of Rs.90,000/- together with an
interest at the rate of 12% from the date of claim till realisation and costs
for the death of one Aarayee, the mother of the claimants, in an accident
alleged to have taken place on 17.07.1997 at about 05.45 a.m.
2. The respondents herein/claimants preferred a claim on the file of the
Motor Accident Claims Tribunal (Sub Court), Palani by filing M.C.O.P.No.37 of
1998 praying for an award against the appellant/respondent for the death of
their mother who died in a motor accident that took place on 17.07.1997 at about
05.45 a.m.
3. It was contended by the respondents/claimants in their claim petition
that the deceased, a pedestrian, was knocked down by the bus bearing
Registration No.TN-57-N-0636 belonging to the appellant/respondent, while she
was proceeding on the edge of the road, after having crossed the road from east
to west; that the driver of the above said bus drove the same in a rash and
negligent manner dashed against the deceased and knocked her down; that the
accident occurred due to his fault in driving the offending vehicle; that after
the impact, the deceased was dragged along with the bus to some distance in
which her body was smashed and she died instantaneously; that a criminal case
was registered against the driver of the bus in Crime No.166 of 1997 on the file
of the Aayakkudi Police Station for an offence punishable under Section 304(A)
IPC and that hence the appellant/respondent, as the owner of the offending
vehicle, should be held liable to pay compensation to the respondents/claimants,
as they alone were the legal representatives and dependants of the deceased.
With the further contention that the deceased was a coolie and was having a
monthly income of Rs.1,500/-, the respondents/claimants assessed the damages at
Rs.2,82,500/-, but restricted their claim to Rs.1,75,000/-.
4. In order to prove their claim, the respondents/claimants examined two
witnesses as P.W.1 and P.W.2 and relied on two documents marked as Exs.A-1 and
A-2.
5. The appellant/respondent filed a counter statement and resisted the
claim, denying the petition averments regarding the manner in which the accident
took place, the age, occupation and income of the deceased, nature of dependency
and the reasonableness of the amounts claimed as compensation. Incorporating a
further contention that the amount claimed by the claimants was highly excessive
and exorbitant, the appellant/respondent had prayed for the dismissal of
M.C.O.P. with costs. In support of the defence case of the
appellant/respondent, only one witness was examined and no document was marked.
6. After the conclusion of evidence, the Tribunal heard the arguments
advanced on either side, framed the necessary questions for determination,
scrutinised the materials on record and on such scrutiny, held that the driver
of the bus belonging to the appellant/respondent was at fault and that the
accident occurred due to the rash and negligent driving of the bus bearing
Registration No.TN-57-N-0636 by its driver, mulcted the liability on the
appellant/respondent as the owner of the offending vehicle, assessed the
compensation at Rs.90,000/- and passed an award directing the
appellant/respondent to pay the above said amount to the respondents/claimants
as compensation with an interest at the rate of 12% from the date of claim till
realisation. The Tribunal has also directed the appellant/respondent to pay
costs.
7. Aggrieved by and challenging the said award both on the question of
negligence as well as quantum of compensation, the owner of the offending
vehicle has brought forth this appeal before this Court.
8. Mr.D.Sivaraman, learned counsel, advancing arguments on behalf of the
appellant, would contend that the Tribunal committed an error in arriving at a
conclusion that the accident was the result of negligence on the part of the
driver of the bus bearing Registration No.TN-57-N-0636 belonging to the
appellant/respondent; that the Tribunal ought to have held that the deceased in
her attempt to cross the road without noticing the oncoming motor vehicle acted
negligently and invited the unfortunate accident; that the Tribunal ought to
have held that the negligence on the part of the deceased alone was the cause of
accident and hence the respondents/claimants were not entitled to claim
compensation on the basis of the theory of fault and that the Tribunal ought to
have rejected the claim of the respondents/claimants, as they being the married
daughters of the deceased, were not the dependants of the deceased. The learned
counsel for the appellant contended further that even assuming that the
respondents/claimants were the dependants of the deceased and that the accident
occurred due to the fault of the driver of the appellant/respondent, the
assessment of compensation by the Tribunal at Rs.90,000/- was excessive and
hence the same should be reduced in the hands of this Court.
9. This Court heard the submissions made by Mr.S.R.Malaichamy, learned
counsel for the respondents/claimants in reply to the above said contentions
made on behalf of the appellant and paid its anxious considerations to the same.
10. It is a fact not in dispute that an accident took place on 17.07.1997
at about 05.45 a.m. near Kanakkanpatti on Dindigul-Palani Main Road, in which
one Aarayee, a pedestrian, was hit by the bus bearing Registration No.TN-57-N-
0636 belonging to the appellant/respondent and died on the spot. It is also not
in dispute that the respondents/claimants are the daughters of the above said
Aarayee. The first respondent/first claimant, who figured as P.W.1, did not
venture to pose herself as an eye witness to the occurrence to speak about the
alleged negligence on the part of the driver of the offending vehicle, viz., the
bus belonging to the appellant/respondent. On the other hand, an independent
witness, by name, Raja was examined on the side of the claimants as P.W.2. It
was his clear testimony that while he along with one Singaravelu was walking on
the Palani-Dindigul Main Road, after answering nature’s call in the morning
hours, the bus bearing Registration No.TN-57-N-0636 belonging to the
appellant/respondent came there driven by its driver at a high speed without
sounding the horn and with rashness and negligence, dashed against the deceased
Aarayee and ran over her causing instantaneous death on the spot. It is the
further evidence of P.W.2 that after hitting the deceased and running over her,
the said bus proceeded further and capsized in a road side manure pit. P.W.2 has
clearly deposed to the effect that it was the rash and negligent driving of the
bus by its driver which led to the unfortunate accident. Though he was
meticulously cross-examined, his credibility remained unshaken.
11. On the other hand, the evidence of R.W.1, the driver of the offending
vehicle does not inspire the confidence of the Court. Admittedly a case was
registered on the file of Aayakkudi Police Station against the driver of the bus
in Crime No.166 of 1997 for an offence punishable under Section 304(A) IPC.
R.W.1 has also admitted the same. If at all the deceased acted negligently and
got entangled in the accident in her attempt to cross the road unmindful of the
oncoming vehicle, the driver of the bus would have chosen to lodge a complaint
regarding the accident before ever any other person could lodge a complaint.
The evidence of P.W.2 that the offending bus after hitting and running over
Aarayee, proceeded further and fell into a road side manure pit remains
unchallenged. The same has not been disputed by putting any suggestion to the
effect that the bus did not fall into the manure pit as deposed by P.W.2. Having
failed to do so, belated attempt was made by making R.W.1 speak to the effect
that the bus did not fall into the manure pit. When such a clear evidence was
adduced on behalf of the claimants through P.W.2, who happened to be the
informant to the police for the registration of the criminal case, which
evidence seeks corroboration from the contents of Ex.A.1, the
appellant/respondent, who wants to challenge the evidence of P.W.2 as well as
the contents of Ex.A.1, could have obtained certified copies of observation
mahazar and rough sketch prepared by the Investigating Officer and produced the
same. But the appellant/respondent has not chosen to do so. The Tribunal, on a
proper scrutiny and proper appreciation of evidence adduced on both sides, has
come to a correct conclusion that the bus belonging to the appellant/respondent
was driven by its driver in a rash and negligent manner and that the negligence
on the part of the driver of the said vehicle was the cause of the accident. The
finding of the Tribunal regarding the negligence aspect does not suffer from any
error or infirmity and the same deserves confirmation in the hands of this
Court.
12. The other contention raised by the learned counsel for the appellant
that the respondents/claimants being the married daughters of the deceased
Aarayee were not her dependants and hence they should be held disentitled to
claim compensation for the death of Aarayee does not deserve acceptance by this
Court and the same has got to be rejected as untenable for the following
reasons:
It is not in dispute that the respondents/claimants, three in number, are
the daughters of the deceased Aarayee and that they had been given in marriage
prior to the death of Aarayee. But simply because a daughter was given in
marriage to another family, one cannot come to a conclusion that the married
daughters will not be either dependants or persons deriving benefits from their
parents. In accident cases, damages are awarded not only based on loss of
dependency but also for loss of benefits. Even in the case of absence of
dependency, the excess amount after deducting the personal expenses of the
deceased, can be taken as either accrual the state of the deceased or the
benefits received by the legal representatives. In fact, as per Section 166(1)
of the Motor Vehicles Act, in case of death, all or any of the legal
representatives of the deceased can file an application for compensation. But as
per the proviso, where all the legal representatives of the deceased have not
joined in any such application for compensation, the application shall be made
on behalf of or for the benefit of all the legal representatives of the deceased
and the legal representatives who have not so joined shall be impleaded as
respondents to the application. A reading of the entire Section 166 of the Motor
Vehicles Act will show that in case of death arising out of a motor vehicle
accident, the legal representatives are entitled to claim compensation. In this
case, the respondents/claimants, being the daughters of the deceased, are
admittedly legal representatives of the deceased Aarayee. Clear evidence has
also been adduced to the effect that the husband of Aarayee had pre-deceased
her. It is also the clear testimony of P.W.1 that all the respondents/claimants
were receiving support from their mother Aarayee and that they had lost support
after her death. Under these circumstances, the contention of the learned
counsel for the appellant/respondent that the respondents/claimants were neither
legal representatives nor dependants of the deceased Aarayee and hence should be
non-suited for making the claim, has got to be rejected as untenable.
13. The respondents/claimants have given the age of the deceased as 45
years. The first claimant is her eldest daughter. According to the petition
averments, the first respondent/first claimant Balammal was aged about 32 years
on the date of filing of the claim petition. If it is so, accepting the petition
averment that the deceased was aged about 45 years would amount to accepting
that she gave birth to the first child at the age of 13. This Court is not
inclined to accept the same in the absence of any concrete material. Therefore
the reliance made by the Tribunal on the post mortem certificate Ex.A.2 to fix
the age of the deceased is not proper. Assuming that the deceased might have got
married earliest at the age of 17 and given birth to the first child at the age
of 18, we can safely arrive at the conclusion that the deceased had completed
the age of 50 years as on the date of her death. In the absence of any concrete
evidence regarding the income, we can adopt the notional income, namely,
Rs.15,000/- per annum. If Rs.5,000/- representing 1/3 of the said amount is
deducted towards personal expenses, the balance amount of Rs.10,000/- shall be
the annual loss of benefit and dependency occasioned to the
respondents/claimants. Considering the fact that the deceased had crossed the
age of 50 and the claimants are her married daughters, adopting multiplier 8 in
this case shall be reasonable. Multiplying the multiplicand Rs.10,000/- by the
selected multiplier 8, we can get a sum of (Rs.10,000 x 8) = Rs.80,000/-
representing the compensation for loss of benefit and dependency occasioned to
the respondents/claimants. Without following any such procedure, the Tribunal
seems to have arbitrarily awarded a sum of Rs.50,000/- alone for the death of
Aarayee. Perhaps the Tribunal keeping in mind the loss of dependency might have
awarded the said amount. As indicated above, the same is highly inappropriate
and inadequate. Hence the same should be enhanced to Rs.80,000/-. The Tribunal
seems to have awarded a sum of Rs.5,000/- towards funeral expenses; which is not
unreasonably low or excessive. Hence the same has got to be confirmed.
14. On the other hand, for the loss of love and affection alone, the
Tribunal seems to have awarded a sum of Rs.35,000/- which is definitely
excessive and hence liable to be reduced. Taking into account the age of the
deceased and the fact that all the claimants are her married daughters, this
Court is of the view that it shall be suffice to award a sum of Rs.5,000/- alone
for loss of love and affection. In addition to that at least a sum of Rs.5,000/-
could be awarded for loss of expectation of life. If all these amounts are put
together, the total amount of compensation that can be reasonably awarded comes
to Rs.95,000/-. The above said amount is, in fact, slightly more than the amount
awarded by the Tribunal. Therefore, by no stretch of imagination, the total
amount awarded by the Tribunal as compensation can be termed either excessive or
exorbitant. Hence the challenge made to the award by the appellant/respondent
cannot be sustained and the interest of justice requires confirmation of the
award and dismissal of the appeal with costs.
15. In the result, the award of the Tribunal stands confirmed and
accordingly, this Civil Miscellaneous Appeal is dismissed with costs.
SML
To
The Motor Accident Claims Tribunal
(Sub Court),
Palani.