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ARUMUGHAM versus THE MANAGING DIRECTOR

High Court of Madras

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Arumugham v. The Managing Director - C.M.A.(MD).No.1353 of 1998 [2007] RD-TN 1563 (23 April 2007)

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.1353 of 1998

1.Arumugham

2.Palaniammal .. Appellants Vs.

The Managing Director,

Tamil Nadu Transport Corporation Limited,

Division No.II,

Karaikudi.

C.T. Amended as per the order of this

Court dated 23.09.2002 made in

C.M.P.No.22549 of 2001) .. Respondent Civil Miscellaneous Appeal filed under Section 173 of M.V.Act, against the judgment and decree dated 17.03.1998 made in M.A.C.T.O.P.No.24 of 1996 passed by the learned Motor Accidents Claim Tribunal (Presiding Officer/Principal District Judge), Pudukkottai.

For Appellants ... Mr.J.Anand Kumar

For Respondent ... Mr.N.Asai Thambi

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the Judgment and Decree dated 17.03.1998 passed in M.A.C.T.O.P.No.24 of 1996 by the Motor Accidents Claims Tribunal (Presiding Officer/Principal District Judge), Pudukkottai, so far as the disallowed portion of the claim is concerned.

2. Aggrieved by the insufficiency of the compensation awarded by the Tribunal by its award dated 17.03.1998 made in M.A.C.T.O.P.No.24 of 1996, the appellants/claimants have preferred this Civil Miscellaneous Appeal seeking enhancement of compensation.

3. The facts leading to the filing of the appeal can be stated thus: The deceased Marikkannu, aged about five years and studying in Pre.K.G. at the time of accident, was the sixth daughter of the appellants/claimants. On 19.12.1995 at about 01.45 p.m. she met with an accident at Vilakku Road bus stop in Karandappatti, in which she was hit by the bus bearing Registration No.TN-63- N-0013 belonging to Marudhupandiyar Transport Corporation Limited, Karaikudi, the predecessor of the present respondent, viz., Tamil Nadu Transport Corporation. Being hit by the above said bus, the deceased Marikkannu sustained serious head injury from which the brain matter had come out and scattered on the road, as a result of which the deceased Marikkannu died instantaneously on the spot. The accident was reported to the police and a criminal case was registered based on the complaint of one Ganesan of Karandappatti on the file of Illuppur Police Station in Crime No.560 of 1995 for an offence punishable under Section 304(A) IPC against the driver of the said bus. The certified copy of the First Information Report is Ex.A.1. Pursuant to the registration of the case, after inquest, the dead body was subjected to autopsy and a post mortem certificate was issued incorporating an opinion that the deceased would appear to have died of shock due to head injury. The certified copy of the post mortem report is Ex.A.2. After completion of investigation, a final report was submitted on the file of the jurisdictional Magistrate concerned against the driver of the above said bus alleging commission of an offence punishable under Section 304(A) IPC. A certified copy of the final report has been marked as Ex.A.3. Alleging that the accident in question was the result of the rash and negligent driving of the bus belonging to the respondent by its driver, the claimants had filed the above said M.A.C.T.O.P. praying for an award directing the respondent to pay a sum of Rs.2,00,000/- as compensation for the death of their daughter Marikkannu. In order to prove the petition allegations, the claimants have examined P.W.1, the sole witness on the side of the claimants and relied on three documents marked as Exs.A.1 to A.3.

4. The respondent/respondent resisted the claim by filing a counter statement, denying the petition averments and contending inter alia that there was no negligence on the part of the driver of the bus; that it was the deceased girl who came and hit on the vehicle which had already come to a halt at the bus stop; that the negligence of the deceased girl alone was the cause of the accident and that hence the respondent, as the owner of the vehicle, did not have any liability to pay compensation to the appellants/claimants. With the further allegations denying the petition averments regarding the impact of the death of the deceased and contending that the amount of Rs.2,00,000/- claimed as compensation was highly excessive and exorbitant, the respondent/respondent had prayed for the dismissal of the claim for compensation made by the parents of the deceased Marikkannu. No witness was examined and no document was marked on the side of the respondent.

5. The Tribunal, after recording evidence, heard the arguments advanced on both sides, framed two points for consideration - the first one being one on the question of negligence and the second one being one on the question of quantum - , considered the materials on record in the light of the arguments advanced and decided the first issue regarding negligence against the appellants/claimants and awarded a sum of Rs.10,000/- under the no fault liability clause which amount was directed to be paid to the appellants/claimants by the respondent with an interest at the rate of 12 per annum from the date of claim till realisation and proportionate cost.

6. Aggrieved by and challenging the award passed by the Tribunal, the appellants/claimants, who are the parents of the deceased girl, have brought forth this appeal under Section 173 of the Motor Vehicles Act. In this appeal, the award of the Tribunal has been challenged regarding the finding of the Tribunal on the question of negligence as well as quantum so far as disallowed portion of the claim is concerned.

7. This Court heard the arguments advanced on both sides and paid its anxious considerations to the same.

8. It is a fact not in controversy that Marikkannu, daughter of the appellants/claimants met with an accident on 19.12.1995 at about 01.45 p.m., near Vilakku road bus stop in Karandappatti, in which she was hit by the bus bearing Registration No.TN-63-N-0013 belonging to the respondent and died instantaneously due to head injuries causing heavy damage to the brain. The certified copy of the post mortem examination report has been produced and marked on the side of the appellants/claimants as Ex.A.2. From Ex.A.2, it is quite clear that the deceased Marikkannu sustained a severe head injury involving open fracture of the skull through which brain matter had come out and scattered. It is also obvious from the said report that the death was instantaneous. Thus, it can be recorded without any impediment, whatsoever, that the death was the direct result of accident involving the vehicle belonging to the respondent.

9. It is the specific case of the appellants/claimants that while the deceased girl was standing on the left side of the road near bus stop, the above said bus belonging to the respondent hit her and caused the accident, as the same was driven by its driver in a rash and negligent manner. In order to prove the alleged negligence on the part of the driver of the vehicle belonging to the respondent Transport Corporation, the appellants/claimants have examined the first appellant/first claimant as the sole witness on their side. No doubt, P.W.1 admitted that he was not an eye witness to the occurrence. On the other hand, it is his clear assertion that one Ganesan of Karandappatti was an eye witness and it was he, who lodged the complaint with the police based on which, the criminal case was registered against the driver of the above said bus. It is the further assertion of P.W.1 that on enquiry with the above said Ganesan, he came to know that the bus driver was at fault and that it was the driver of the bus belonging to the respondent Transport Corporation who acted in a rash and negligent manner in driving the bus and caused the accident. They have produced Exs.A.1 to A.3. Ex.A.2 - Certified copy of the post mortem report may not be helpful to arrive at a decision regarding whose negligence was the cause of the accident. But the evidentiary value of Exs.A.1 and A.3 cannot be under estimated. It is a fact not in dispute that the report of the accident was lodged with the police by one Ganesan of Karandappatti, claiming to have seen the occurrence. The police, after investigation, seems to have submitted a final report against the driver of the bus belonging to the respondent Transport Corporation for an offence punishable under Section 304(A) IPC. The Tribunal seems to have rejected the evidence of P.W.1 as hearsay. But the documentary evidence adduced on the side of the appellants/claimants in the form of Exs.A.1 and A.3, viz., certified copies of the First Information Report and final report submitted by the Investigating Officer after completion of investigation, have been rejected on the sole ground that the authors of the said documents had not deposed before the Tribunal.

10. The Tribunal seems to have forgotten the legal position that a claim for compensation under the Motor Vehicles Act could be neither a criminal case nor a civil case but a case of a special character to which, strict rules of evidence could not be applied in this case. It is a fact which has not been disputed that a case was registered, based on the complaint of the above said eye witness Ganesan, against the driver of the bus belonging to the respondent Transport Corporation. The genuineness of the certified copies of the First Information Report and the final report marked as Exs.A.1 and A.3 has not been disputed. Further more, no objection was raised for admitting and marking those documents. As no objection was taken for making those documents without examining the authors of the originals of the said documents, the exclusion of the said documents by the Tribunal from its scrutiny and its rejection is erroneous.

11. The de facto complainant Ganesan has given a graphic picture of the accident in his complaint. According to the contents of Ex.A.1, the deceased girl Marikkannu was standing near the bus stop on the edge of the road and the driver of the bus who had stopped the bus at the above said bus stop moved it from the said bus stop in a rash and negligent manner without noticing the deceased girl standing on the edge of the road and hence the left side bumper of the bus hit the deceased causing head injuries through which the brain matter came out and the deceased died on the spot. The investigation conducted by the police has also resulted in the submission of a final report alleging commission of an offence of causing death of a human being by a rash and negligent act punishable under Section 304(A) IPC as evidenced by Ex.A.3. Admittedly the bumper of the bus came into contact with the deceased Marikkannu as a result of which she died on the spot. It is also not in controversy that as a result of the said contact, the skull of the deceased girl was broken and the brain matter that came out from the said injury was found scattered. Assuming for a moment, the documents marked as Exs.A.1 and A.3 cannot be relied on as authors of the originals of those documents have not been examined, the above said admitted facts will be enough to arrive at a conclusion regarding the question of negligence, as they give a vital clue regarding how the accident could have occurred and whose versions could be more probable. It is highly improbable that the head of a little girl will get broken in such a way that the brain matter comes out and found scattered on the road when she runs towards the bus and hits against the bus which is stationary. The movement of a small girl aged about five years cannot be with such a velocity, so as to cause such an injury. Therefore, the contention of the respondent Transport Corporation that the deceased girl came and hit against the bus which had already come to a halt at the bus stop does not deserve acceptance, as the same is highly improbable.

12. On the other hand, the nature of injuries sustained by the deceased leading to her instantaneous death as found in the documentary evidence, especially Ex.A.2 - certified copy of the post mortem report, probabalises the case of the appellants/claimants that the bus was on the move at the time of impact. All these factors were not taken into consideration by the Tribunal and it came to a wrong conclusion that there was no negligence on the part of the driver of the vehicle belonging to the respondent Transport Corporation. In fact, even in the absence of any eye witness, it is not proper for the Tribunal to come to a conclusion that the accident was not proved to be the result of the rash and negligent driving of the vehicle involved in the accident. In such cases, as the nature of accident will be within the special knowledge of the driver of the vehicle involved in the accident, the owner of the vehicle should have examined the driver. An adverse inference can be drawn against the owner of the vehicle in the absence of examination of the driver. In addition to the fact that the respondent Transport Corporation has not chosen either to examine the driver of the bus or to produce any documentary evidence to show that it was the negligence on the part of the deceased girl which led to the accident, there are clear circumstantial evidence in this case. Especially, the nature of injury sustained by the deceased girl will be enough to make improbable the contention of the respondent Transport Corporation that the deceased girl came and hit against the bus which had already come to a halt at the bus stop and to accept the contention of the appellants/claimants that the deceased girl was hit by the moving bus, while she was standing on the edge of the road. This Court, after marshalling the evidence and having an independent assessment of the same, comes to a definite conclusion that the driver of the bus belonging to the respondent Transport Corporation was at fault and that the rash and negligent driving of the said bus by its driver was the cause of the accident. Thus, the finding of the Tribunal regarding the question of negligence has got to be declared erroneous.

13. This Court also finds substance in the arguments advanced by the learned counsel for the appellants that the Tribunal has committed a blunder in awarding a sum of Rs.10,000/- alone as compensation for the death of the daughter of the appellants. According to the counsel, even assuming that the appellants had not proved their case regarding the negligent driving of the vehicle by its driver and that the appellants/claimants were entitled to claim compensation only under the no fault clause found in Section 140 of the Motor Vehicles Act, the award of Rs.10,000/- as compensation could not be justified, as it is against the said provision containing Section 140 of the Motor Vehicles Act. The learned counsel brought to the notice of this Court that even before 14.11.1994, from which date the amendment brought forth by Act 54 of 1994 came into force, the compensation fixed under the no fault liability clause for death of any person was Rs.25,000/- and that the same has been enhanced by the above said Amending Act with effect from 14.11.1994 to Rs.50,000/- and submitted that the Tribunal without even looking at the provision of law and without application of mind had simply passed an order awarding a sum of Rs.10,000/- as compensation which is not only arbitrary but also against the concerned provision of law and in utter disregarded the same. The Tribunal has not stated on what basis it fixed the amount of compensation under the no fault liability clause at Rs.10,000/-. The above said submissions made by the learned counsel for the appellants/claimants has got to be countenanced and in fact, there cannot be any valid argument against the same.

14. Admittedly, the motor accident concerned in this case took place on 19.12.1995. As per the amended provision of Section 140 as amended by Act 54 of 1994, no fault liability for the death of any person in an accident is Rs.50,000/-. Even before amendment the amount of compensation under the said provision (no fault liability clause) was Rs.25,000/-. In spite of the said fact, the Tribunal seems to have awarded only a sum of Rs.10,000/- as compensation without any basis, whatsoever, which cannot be termed but arbitrary. This Court is well aware that only for a limited purpose of showing the erroneous procedure adopted by the Tribunal and non-application of mind by the Tribunal to the relevant provisions of law, the attention of this Court was drawn to the above said facts. At the same time, it is the definite contention of the learned counsel for the appellants that the Tribunal should have held that the accident was the result of the rash and negligent driving on the part of the driver of the respondent Transport Corporation and awarded a reasonable compensation for the death of Marikkannu, the daughter of the appellants/claimants.

15. The learned counsel for the appellants would submit that even in respect of minors, who have not started earning, the adoption of multiplier method alone will result in calculation of reasonable compensation. In respect of the above said contention, the learned counsel for the appellants/claimants relied on the Judgment of the Honourable Supreme Court pronounced in Manju Devi v. Musafir Paswan reported in (2005 ACJ 99), in which the Honourable Supreme Court assessed the notional income for a non-earning person aged about 13 years at Rs.15,000/- per annum, adopted multiplier '15' and assessed the total amount of compensation at Rs.2,25,000/- without deducting any amount for the personal expenses of the deceased. Relying on the above said Judgment of the Honourable Supreme Court, a single Judge of this Court has awarded a sum of Rs.2,25,000/- as compensation in M.Lakshmi v. D.Chandran reported in [2006(5) CTC 46], following a very same method and adopting the notional income and multiplier '15'. In the light of the above said precedents cited by the learned counsel, this Court finds substance in the contention of the learned counsel for the appellants that even in the case of a minor who has not started earning, multiplier method is the appropriate method for assessment of compensation.

16. In Manju Devi v. Musafir Paswan's case, the age of the deceased was 13 years. In M.Lakshmi v. D.Chandran's case, the age of the deceased was 16 years. In both the cases, multiplier '15' was adopted. One thing is clear from the above said Judgments that the income of a minor who has not started earning cannot be assessed below the notional income of Rs.15,000/- per annum and in such cases, no amount should be deducted from the notional income for the persons expenses. But there is no hard and fast rule that '15' should be adopted as the multiplier uniformly in all cases of minors respect of the age of the deceased. Therefore, the income of the deceased should have been assessed at Rs.15,000/- per annum (notional income) which amounts should be multiplied by the appropriate multiplier. The appropriate multiplier that can be adopted in this case based on the guidance provided in U.P.State Road Transportation v. Trilok Chandra reported in [1996 ACJ 831 (SC)] and Manju Devi's case decided by the Honourable Supreme Court, the appropriate multiplier to be selected in this case. It has been observed therein that the table found in second schedule should not be taken as a ready reckoner, but should be used as a guide for the selection of appropriate multiplier. Applying the said principle to the facts of the instant case also, this Court is of the considered view that uniform application of the multiplier '15' for the children upto the age of 15 irrespective of the age group shall not be desirable. In this case, the age of the deceased Marikkannu can be fixed at 2 years in accordance with the particulars found in Ex.A.2. For the children of tender age group, we can apply a smaller multiplier than '15'. Taking into account the age of the deceased and the fact that the deceased was the sixth child of the appellants/claimants, this Court is of the considered view that applying the multiplier '12' in the instant case shall be reasonable. If the notional income of Rs.15,000/- is multiplied by the selected multiplier '12', we get Rs.1,80,000/- representing the reasonable amount of compensation that should have been awarded as compensation to the appellants/claimants. Therefore, this Court is of the considered view that in the instant case, it will be just and proper to award a compensation of Rs.1,80,000/-. Taking into account the long pendency of the case, this Court feels that awarding an interest at the rate of 9 per annum shall be reasonable.

17. In the result, this appeal is allowed in part and the award of compensation made by the Tribunal is enhanced to Rs.1,80,000/- from Rs.10,000/-. The respondent Transport Corporation is directed to pay the above said amount with 9 interest from the date of application after deducting the amount, if any, already paid. The respondent shall also pay proportionate cost to the appellants in both the Courts.

SML

To

The Motor Accidents Claim Tribunal

(Presiding Officer/Principal

District Judge),

Pudukkottai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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