BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.03.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A. Nos.632 of 2005 and 3824 of 2005 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Villupuram. .... Appellant in CMA No.632/2005 1.Deepa 2.National Insurance Co. Ltd., Villupuram. ....Appellants in CMA No.3824/05 and Respondents 2 & 3 in Claim Petition
6.National Insurance Co. Ltd.,
in CMA 632/05
Tamil Nadu State Transport Corporation,
in CMA 3824/05
Common Prayer:Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the award and decreetal order dated 29.07.2004 in MCOP No.92 of 2001 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Villupuram.
For Appellant : Mr.A.Babu in CMA 632/05 For Respondents : Mr.T.Dhanyakumar for R1 to R4 in CMA 632/05 R5-Dismissed vide order dated 22.4.05 Mr.K.S.Narasimhan for R6 For Appellants : Mr.K.S.Narasimhan in CMA 3824/05 For Respondents : Mr.T.Dhanyakumar for R1 to R4 in CMA 3824/05 Mr.A.Babu for R5 C O M M O N O R D E R CMA NO.632/05:-
The Appellant/First Respondent (Transport Corporation) has projected this Civil Miscellaneous Appeal before this Court as against the Award dated 29.07.2004 in MCOP No.92 of 2001 on the file of the Motor Accident Claims Tribunal, viz., Learned Chief Judicial Magistrate, Villupuram.
2.The Tribunal/Learned Chief Judicial Magistrate, Villupuram while passing the award in MCOP No.92 of 2001 dated 29.07.2004 has among other things observed that ‘the Respondents 1 and 2/Claimants are entitled to claim a sum of Rs.1,00,000/- each as compensation and it has awarded a sum of Rs.45,250/- to the Respondents 3 and 4/Claimants each and also directed the payment of interest together with costs, etc., and in all, awarded a sum of Rs.2,90,000/- as compensation payable by the Appellant/First Respondent (Transport Corporation) to an extent of Rs.2,17,875/- being the 75% share and the balance of 25% has been directed to be paid by the Appellant/Sixth Respondent (Insurance Company).
3.Before the Tribunal/Learned Chief Judicial Magistrate, Villupuram, on behalf of the Respondents 1 to 4/Claimants, Witnesses P.Ws.1 and 2 have been examined and Exs.P1 to P5 have been marked. On the side of the Appellant/First Respondent (Transport Corporation), Witness R.W.1 has been examined and no exhibits have been marked. On behalf of the Appellant/Sixth Respondent (Insurance Company), no one has been examined as witness and no exhibits have been marked.
4.Dissatisfied with the Award dated 29.07.2004 in MCOP No.92 of 2001 passed by the Learned Chief Judicial Magistrate, Villupuram, (Tribunal) in directing the Appellant/First Respondent (Transport Corporation) to pay a sum of Rs.2,17,875/- being the 75% share of compensation to be paid to the Respondents 1 to 4/Claimants.
The Appellants/Respondents 2 and 3 in the claim petition (Insurance Company and the Owner of Auto) have filed C.M.A.No.3824 of 2005 being aggrieved against the direction given by the Tribunal to pay a sum of Rs.72,625/- together with interest at 9% p.a., etc.,
THE CONTENTIONS IN CMA NO.632/05:
5.The Learned counsel for the Appellant/Transport Corporation submits that the Award dated 29.07.2004 passed by the Tribunal in MCOP NO.92 of 2001 is contrary to law, weight of evidence and probability of the case.
6.It is the further contention of the Learned counsel for the Appellant/Transport Corporation that the Tribunal has committed an error in accepting the evidence of P.W.2 (Eyewitness) in respect of the manner, method and mode of accident that has taken place.
7.Advancing his arguments, the Learned counsel for the Appellant/Transport Corporation contends that no Police Officer has been examined before the Tribunal to establish negligence on the part of R.W.1 (Driver of the Appellant/Transport Corporation Bus).
8.The Learned counsel for the Appellant/Transport Corporation projects a plea that the Tribunal has not appreciated the evidence of R.W.1 (Driver of the Bus) in a proper manner which has resulted in an erroneous award being passed against the Appellant/Transport Corporation.
9.Expatiating his submissions, it is the contention of the Learned counsel for the Appellant/Transport Corporation that the Deceased Auto Driver also is responsible for the accident. But that has not been done in the instant case which is detriment to the case of the Appellant/Transport Corporation.
10.Lastly, it is the contention of the Learned counsel for the Appellant/Transport Corporation that no document evidence has been filed to establish the age, occupation and monthly income of the Deceased Auto Driver and also the age of the Respondents 1 to 4/Claimants and in any event, the application of multiplier at 8 by the Tribunal and also the monthly dependency of the Deceased being arrived by the Tribunal at Rs.4,000/- and deducted 1/3rd of Rs.1,000/- and arrived at a figure of Rs.3,000/- are not a proper one in the eye of law.
THE CONTENTIONS IN CMA NO.3824/2005:
11.The Learned counsel for the Appellants/Respondents 2 and 3 submitted that the Tribunal committed an error in spiralling the liability on Auto Rickshaw Driver, who died in the accident.
12.The Learned counsel for the Appellants/Respondents 2 and 3 contend that no averment of Rash and Negligent driving have been attributed to on the part of Auto Driver by the Respondents 1 to 4/Claimants and even P.W.1 in his evidence has not admitted that the fault lies with the Auto Driver (Since Deceased).
13.According to the Learned counsel for the Appellants, the Tribunal has failed to appreciate that P.W.2 has not stated in his deposition that in Ex.P1 the First Information Report, the Auto Driver (Deceased) has attributed to the happening of occurrence or he has been guilty of negligent driving.
14.The Learned counsel for the Appellants brings it to the notice of this Court that the Tribunal having recorded a finding that the Auto has been partly damaged and also the front bumper and red light have been damaged should have held that the Driver of the Bus alone is guilty of negligence, more so when he has been prosecuted by the parents.
THE DISCUSSIONS AND FINDINGS IN CMA Nos.632 and 3824 OF 2005:-
15.In the instant case, it is useful for this Court to refer to the evidence of P.W.1, First Claimant (Father of the Deceased Auto Driver Kumaravelan), P.W.2 and also the evidence of R.W.1 (Driver of the Bus) for fuller and better appreciation of the case in a proper and real perspective.
16.The evidence of P.W.1 (the Father of the Deceased Auto Driver Kumaravelan) is to the effect that his son Kumaravelan (Since Deceased) expired on 04.04.2000 at about 10.30 a.m. in a road accident and at the time of his death, he is aged 24 years and has been earning a sum of Rs.200/- daily and he used to hand over a sum of Rs.4,500/- to the family (after meting out his expenses) and further, he has no male issue other than the Deceased son.
17.It is the further evidence of P.W.1 that the Second Respondent/Second Claimant is his wife and the Respondents 3 and 4 are his daughters and he has not seen the accident and he has come to know about the accident on being informed by persons and that the accident has taken place near the bus stop and further that the Government bus has dashed against the Auto driven by his son and therefore, the accident has taken place.
18.The Respondents 1 to 4/Claimants have claimed a sum of Rs.12 Lakhs as compensation in the Claim Petition.
19.Ex.P1 is the xerox copy of the First Information Report. A perusal of Ex.P1 First Information Report dated 04.04.2000 indicates clearly that in Crime No.69/2000, a case has been registered under Sections 279, 337, 338 and 304(A) of I.P.C. by the Kedar Police Station. In the First Information Report, the Complainant’s name is mentioned as Natarajan (P.W.2 in the case). The Driver of the Appellant/Transport Corporation, Bus Route No.8A, Town Bus T.N.32 /N0476 has been shown as accused in Ex.P1 First Information Report. The Complainant in Ex.P1 First Information Report as (P.W.2 before the Tribunal) in his evidence has deposed that on 04.04.20000 (the date of accident), he along with his wife and children have travelled in the Auto and the Deceased Kumaravelan is driving the Auto and when they were returning from Villupuram to Atthiyur Thirukai near Athanur at about 8.30 in the morning, in the opposite direction, a bus has come in a fast speed and hit against the Auto as a result of which, the Deceased Kumaravelan has expired and after the accident, they have been admitted into Villupuram Government Hospital.
20.P.W.2 in his evidence goes on to add that because of the Bus Driver’s act, the accident has happened. Even in his cross-examination, P.W.2 has stated that he has been the eyewitness to the accident for the occurrence of the accident. The Bus Driver is fully responsible and added further, there is no fault on the part of the Auto Driver who has driven the Auto in a careful and in a slow manner.
21.R.W.1 (Bus Driver) in his evidence has clearly deposed that on 04.04.2000, he has driven the bus bearing Registration No.T.N.32-N.0476 from Villupuram to Anandhapuram and at about 10.25 a.m., when the has been proceeded near Athanur bus stop (from East to West), at that time in the opposite direction from West to East an Auto bearing Registration No.TMB 1629 has come in a zig zag manner and therefore, he has stopped his bus on the left side of the mud road (to which place he has driven the vehicle) and at that time, Auto has come and dashed against the bus near the driver seat viz., near the red light and that the Auto Driver has died on the spot.
22.The evidence of R.W.1 (Bus Driver) is to the categorical effect that the accident has not taken place because of his conduct/act and the accident has taken place only because of the act/conduct of the deceased Auto Driver and since they have given the complaint before the police, earlier the police has not taken his complaint and further, a criminal case has been registered against him and in the criminal case registered against him, the police have filed a Report stating fault does not lie on him and therefore, the Appellant/Transport Corporation is not liable to pay the compensation claimed by the Respondents 1 to 4/Claimants.
23.Ex.P2 is the Post Mortem Certificate in respect of the Deceased Auto Driver Kumaravelan. From Ex.P2 Post Mortem Certificate, it is quite evident that the Deceased Auto Driver at the time of his death aged 24 years. In Ex.P2 Post Mortem Certificate, the doctor has opined that “the Deceased would have appeared to have died of shock and haemorrhage due to injuries sustained.”
24.In Ex.P3 xerox copy of Motor Vehicles Inspector’s Report pertaining to the Auto TMB 1629 (driven by the Deceased Kumaravelan), the Motor Vehicles Inspector has opined that ‘the accident was not due to any of the mechanical defect of the vehicle’. Significantly, the Motor Vehicle Inspector, Villupuram in Ex.P3 Motor Vehicle Inspector’s Report has observed that the Auto could not be able to ply on the road due to damages sustained by it in the accident. In Ex.P4, Motor Vehicle Inspector’s Report relating to the bus bearing Registration No. T.N.32/N0476, the Motor Vehicles Inspector, Villupuram has opined that ‘ the accident was not due to any of the medical defect of the vehicle.’ However, in Ex.P3 M.V. Report, the Motor Vehicles Inspector has noted several damages in respect of Auto TMB 1629. Ex.P5 is the Driving License of the Auto Driver Kumaravelan (Since Deceased). In Ex.P5 the Driving License of the Auto Driver Kumaravelan (Since Deceased), the Deceased Auto Driver has been authorised to drive light motor vehicles for a period upto 09.07.2000. Further, he has been authorised to drive the Transport Vehicle Badge No.16768 dated 10.07.1997/TN/032.
25.As far as the present case is concerned, the evidence of eyewitness P.W.2 (Complainant in Ex.P1 First Information Report) reminds unimpeachable in so far it relates to the manner and mode of occurrence on 04.04.2000. P.W.2 in his evidence has clearly mentioned that he has travelled in the Auto bearing Registration NO.TMB 1629 on the date of accident on 04.04.2000 and that the accident has taken place on 04.04.2000 at about 08.30 a.m. In the morning when the Auto has been coming near Athanur at that time, the bus of the Appellant/Transport Corporation driven by R.W.1 Bus Driver has come in the opposite direction and dashed against the Auto. Even in the cross-examination, P.W.2 has candidly stated that he has seen the occurrence directly and for the happening of the occurrence/accident, the driver of the Appellant/Transport Corporation Bus viz., R.W.1 is responsible. However, the Tribunal in paragraph No.9 of its Award has among other things observed that ‘for the accident that has taken place, R.W.1 Driver of the Bus and the Deceased Auto Driver are responsible and further opined that since the damage to Auto has been on the higher side as seen from M.V. Inspector’s Report and when the bus and the Auto dashed each other, there will be damage heavily to the Auto and also taking note of the other factors and also the details mentioned in the First Information Report, it has come to a resultant conclusion that the Driver of the Appellant/Transport Corporation (R.W.1) and the Deceased Auto Driver have been responsible for the accident and therefore, it has concluded that R.W.1 the Driver of the Bus has been found responsible to an extent of 75% and the Auto Driver has been found responsible to an extent of 25% and directed the Appellant/First Respondent (Transport Corporation) to pay a compensation and the Appellants/Respondents 2 and 3 (Insurance Company and the owner of Auto) accordingly.
26.This Court on going through the Award passed by the Tribunal is of the considered view that the Tribunal has not taken into account the evidence of P.W.2 (Eyewitness to the occurrence/Complainant in Ex.P1 First Information Report) in regard to the manner, method and mode of occurrence of the accident that has taken place on 04.04.2000. There is no analysis of the evidence of P.W.2 in threader by the Tribunal as to why it has ignored the evidence of P.W.2, especially who has travelled in the Auto when the accident has taken place on the fateful day viz., 04.04.2000, which has been driven by the Deceased Auto Driver Kumaravelan. Suffice it for this Court to point out that the evidence of P.W.2 (Complainant/Eyewitness to the accident) is credible, cogent, convincing since he has spoken very clearly about the manner and method of accident that has taken place on 04.04.2000. Therefore, his evidence is worthy of acceptance and accordingly, this Court accepts the same. As such, this Court comes to an inevitable reasonable conclusion that the accident has taken place only because of the culpability of R.W.1 (Bus Driver) in dashing the bus bearing Registration No.TN.32/N0476 against the Auto bearing Registration No.TMB 1629 driven by the Auto Driver Kumaravelan (Since Deceased), based on the sequence of events in the instant case. Per contra, the other finding of the Tribunal that the Auto Driver is responsible for causing the accident to an extent of 25% is not accepted by this Court in view of the fact that P.W.2’s evidence as referred to supra in detail has since been accepted by this court in regard to the manner and mode of the occurrence of the accident. Accordingly, this Court sets aside the finding of the Tribunal holding that the Driver of the Auto Driver Kumaravelan (Since Deceased) is responsible to an extent of 25%. Viewed in that perspective, equally this Court displaces the finding recorded by the Tribunal that Appellants/Respondents 2 and 3 (Insurance Company and the owner of Auto) are to pay the compensation to an extent of 25% determined by the Tribunal since the Auto has been insured with it at the time of the occurrence/accident.
27.It is to be borne in mind the legal basis for payment of compensation in India continues to be the common law or the Law of Torts as recognised in Anglo Saxon Jurisprudence. Subject to any statutory modification of the general Rule, a right to claim compensation arises only when the person against whom the claim is made is proved to have failed to perform a legal obligation causing an injury to any other person or to have committed an act of omission or commission causing a legal injury to the person making a claim. The Motor Vehicles Act 1939 which is a precursor to the 1988 Motor Vehicles Act provided a statutory procedure for enforcement of rights and obligations flowing under the common law or the Law of Torts. Such a statutory support notwithstanding that if a person was not legally liable to pay any compensation, the statutory mechanism provided by the Act does not make him so, except in situations and extent the statute made a specific departure from the general rule as per decision APPAJI (SINCE DECEASED) V. M.KRISHNA, 2005 ACC 591 KANT.
28.If parents are the claimants the proper multiplier depends upon the age of the claimants and not on the age of of the deceased as per decision MAHARASTRA STATE ROAD TRANSPORT CORPORATION V. LALNIPUII., 2001 ACJ 561 (SUPREME COURT).
29.It is to be noted that the multiplier is a structured formula. Also, the Motor Vehicles Act visualises a Just compensation to be awarded and not reasonable compensation as per decision B.H.RENGAIAH V. H.R.BASAVARAJU, AIR 2000 KANT 324.
30. It is the duty of a Tribunal to determine compensation and to apportion the liability as per decision SNEHALATHA V. DILIP SINGH, 1998 ACJ 114 (J & K).
31.The Hon’ble Supreme Court in Special Leave Petition (Civil) No. 11801-11804 of 2005 in its order dated 17.12.2009 in paragraph No.27 has observed that ‘the Central Government may consider the amendment of the Second Schedule to the Act to rectify the several mistakes therein and rationalise the compensation payable thereunder, repeatedly pointed out by this Court (See: UTTAR PRADESH STATE TRANSPORT CORPORATION V. TRILOK CHANDRA, 1996 (4) SCC 362 and SARALA VERMA V. DELHI TRANSPORT CORPORATION, 2009 (6) SCC 121.
32.When a Tribunal awards compensation/damages to the affected party, the same must be a Fair, Sensible and not an Extravagant one. Further more, it is the duty of a Claims Tribunal to award as perfect a sum as possible acting well within its powers.
33.Coming to the aspect of quantum of compensation, the Tribunal has taken the monthly income of the Auto Driver (Since Deceased) at Rs.4,000/-p.m. and after deducting 1/3rd towards his personal expenses has determined a sum of Rs.3,000/- being the monthly dependency to his family and accordingly, per year, it has worked out a sum of Rs.36,000/-. The Respondents 1 and 2/Claimants being the parents of the Deceased Auto Driver at the time of the accident has been aged 76 and 56 respectively and the Tribunal has taken into account the average age of the parents at 65 and since the Deceased has died unmarried and further, the Tribunal has adopted a multiplier of 8 and arrived at a sum of Rs.2,86,000/- as compensation to be paid to the Respondents 1 to 4/Claimants. That apart, it has also awarded a sum of Rs.4,500/- for funeral expenses of the Deceased and for other loss and in all, it has granted a sum of Rs.2,90,500/- as total compensation for the death of the Deceased Auto Driver Kumaravelan payable to the Respondents 1 to 4/Claimants at the rate of 75% by the Appellant/First Respondent (Transport Corporation) and 25% to be paid by the Appellants/Respondents 2 and 3.
34.At this juncture, though the Learned counsel for the Appellant/First Respondent (Transport Corporation) has projected a plea that the Tribunal ought to have only adopted a multiplier of 5 taking into account of the age of the parents of the Deceased Auto Driver viz., at 76 and 56 respectively but the Tribunal in the instant case on hand, has adopted the multiplier of 8 which is not per se correct going by the II Schedule of Section 163(A) of the Motor Vehicles Act 1988.
35.It is to be borne in mind that considering the development that has taken place in the medical field and also the present longevity of average life span of Indian citizens, it can safely be concluded that the average life span of a Homosapien in this country is around 75 years and added further, taking note of the cast of inflation, spiralling rise in price of essential commodities, etc., and also bearing an important fact that the Deceased Auto Driver Kumaravelan has expired at the prime age of 24 (and that too being unmarried), the multiplier of 8 adopted by the Tribunal cannot be termed as any way Excessive or Exorbitant one in the considered opinion of this Court.
CONCLUSIONS IN CMA NOS.632 AND 3824/2005:-
36.For the foregoing reasons, in the light of the detailed qualitative and quantitative discussions mentioned supra and also this Court taking note of the overall assessment of the facts and circumstances of the case in an integral fashion and also which float on the surface, this Court comes to an inevitable conclusion that the appeal in CMA No.632/2005 filed by the Appellant/Transport Corporation is devoid of merits and the same is accordingly dismissed in the interest of justice. Further, since this Court has come to a resultant conclusion that the Driver of the Appellant/First Respondent (Transport Corporation) in CMA 632/2005 viz., R.W.1 is responsible for happening of the accident and Appellant/First Respondent (Transport Corporation) is liable to pay the entire amount of compensation awarded by the Tribunal in MCOP No.92 of 2001 dated 29.07.2004 and accordingly, the Appeal in C.M.A.3824 of 2005 filed by the Appellants/Respondents 2 and 3 in the Claim Petition (Insurance Company and the owner of Auto) is allowed by this Court to prevent an aberration of justice. Consequently, the Award of the Tribunal dated 29.07.2004 in MCOP NO.92 of 2001 in so far it relates to the direction being issued by it in requiring the Appellants/Respondents 2 and 3 in the Claim Petition (Insurance Company and the owner of Auto) to pay 25% of compensation (viz., Rs.72,625/-) is clearly unsustainable in law and accordingly, the same is set aside. The parties are directed to abide by the Judgment of this Court in both the appeals and they are directed to work out their remedy in the manner known to law and in accordance with law by filing necessary application as per Rule 166 of Civil Rules of Practice in claiming the sums to which they are entitled. The parties are directed to bear their own costs.
The Motor Accident Claims Tribunal,
Chief Judicial Magistrate,