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TAMIL NADU STATE TRANSPORT CORPORATION versus SARASWATHI

High Court of Madras

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Tamil Nadu State Transport Corporation v. Saraswathi - C.M.A.(MD).No.904 of 2000 [2007] RD-TN 1966 (15 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 15/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.(MD).No.904 of 2000

Tamil Nadu State Transport Corporation

(Madurai Division-II) Limited,

Tirunelveli,

represented by the Managing Director .. Appellant Vs.

1.Saraswathi

2.Minor R.Thangaiah

3.Minor R.Ravindar

4.Minor R.Pavithra

5.Minor R.Subadra

6.Thangian Nadar

7.Umaiyal Ammal

(Minor 2 to 5 are rep. by

mother and next friend

Saraswathi, 1st respondent) .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the decree and Judgment dated 14.09.1999 made in M.C.O.P.No.182 of 1996 on the file of the Motor Accident Claims Tribunal (Principal Sub Court), Tenkasi.

For Appellant : Mr.D.Saravanan,

For Mr.Rajnish Pathiyil

For Respondents : Mr.Abdul Wahab

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the Judgment and decree passed by the Motor Accident Claims Tribunal (Principal Sub Court), Tenkasi dated 14.09.1999 made in M.C.O.P.No.182 of 1996.

2. The facts leading to the filing of this appeal can be briefly stated thus:

The respondents herein, who are the wife, children and parents of one Rajakani, who died in an accident that took place at about 05.15 p.m. on 01.04.1996 in front of the shop of one Mani, near Alangulam bus stand on the Tirunelveli-Tenkasi main road, preferred a claim petition M.C.O.P.No.182 of 1996 against the appellant Transport Corporation claiming a sum of Rs.5,00,000/- as compensation.

3. The claimants in their claim petition contended that the deceased Rajakani was standing and talking with others in front of the shop of one Mani situated just on the western side of Alangulam Bus stand on the Tirunelveli- Tenkasi main road; that the passenger bus bearing registration No.TN-72-N-0726 and belonging to the appellant Transport Corporation came there driven by its driver in a rash and negligent manner from east to west and dashed against the deceased Rajakani and two others as a result of which, the deceased sustained multiple grievous injuries leading to his death within five minutes after having been admitted in the Tirunelveli Medical College Hospital, Palayamkottai; that another person, by name, Kathiresan died on the spot itself and one Muthaiah also sustained injuries and that the accident took place solely due to the rash and negligent act of the driver of the bus belonging to the appellant/respondent. With the further contention that due to the untimely death of the deceased Rajakani, the claimants have suffered loss of dependency and benefit besides shock and mental agony, loss of consortium and loss of love and affection; that as the owner -cum- driver of a van bearing registration No.TN- 01-A-4757, the deceased Rajakani was earning a sum of Rs.3,500/- per month; that the deceased was the sole bread winner of the family and was aged about 33 years at the time of his death and that hence they were entitled to be compensated by the appellant Transport Corporation/respondent, they had prayed for an award against the appellant/respondent directing payment of a sum of Rs.5,00,000/- as compensation together with interest and cost, even though according to their calculation they could have made a claim for a larger amount. In order to substantiate their claim, they examined two witnesses as P.Ws.1 and 2 and relied on six documents marked as Exs.A.1 to A.6.

4. The above said claim was resisted by the appellant/respondent by filing a counter-statement containing averments denying the petition allegations regarding the manner in which the accident took place, the alleged negligence on the part of the driver of the bus, the age, occupation and income of the deceased, the dependency of the claimants and the reasonableness of the amount claimed as compensation. It was also contended by the appellant/respondent before the Tribunal that there was no negligence or want of care on the part of the driver of the bus belonging to the appellant Transport Corporation; that while the bus was proceeding at a moderate speed on the Tenkasi-Tirunelveli track, just away from the Alangulam bus stand on its western side, all of a sudden, a cyclist started crossing the road from left to right; that the driver of the bus, in an attempt to avoid hitting the cyclist, had to necessarily turn the bus towards right; that at that moment, the deceased who was standing on the right side of the road, without noticing the bus, suddenly came towards the bus and got hit by the same and that hence the driver of the appellant Transport Corporation/respondent was not responsible for the accident. On the side of the appellant/respondent, the driver of the bus alone was examined as R.W.1 and no document was marked.

5. At the conclusion of enquiry, the Tribunal heard the arguments advanced on either side, scrutinised the evidence adduced on both sides, held that the accident was at fault, assessed the income of the deceased at Rs.1,000/- per month, deducted Rs.200/- from the same towards personal expenses and calculated the dependency at Rs.800/- per month. Taking the age of the deceased as 33 years, the Tribunal '27' as the multiplier, assessed the total amount of compensation at Rs.3,51,700/- and passed an award directing the appellant Transport Corporation to pay the said amount together with future interest at the rate of 12 per annum.

6. Aggrieved by and challenging the same, the appellant Transport Corporation has brought forth this appeal before this Court.

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

8. In this appeal, the finding of the Tribunal regarding the question of negligence and the reasonableness of the quantum of compensation awarded by the Tribunal have been challenged by the appellant Transport Corporation. But the learned counsel for the appellant Transport Corporation, at the time of hearing of the appeal, did not advance any argument in support of the challenge made to the Judgment of the Tribunal regarding its finding on the question of negligence. Clear evidence was adduced on the side of the claimants through the eye witness, namely, P.W.2 - Sakthivel in conformity with the pleading that the deceased and others were standing on the spot on the mud road, which was 10 feet away from the edge of the tar portion of the road on its southern side; that they were hit by the KTC bus which came at a high speed from Tenkasi to Tirunelveli and that while three persons including the deceased got injured, he alone was able to escape, as he ran away on seeing the bus approaching towards them. Ex.A.1 is the certified copy of the First Information Report. The contents of Ex.A.1 corroborates the evidence of P.W.2 that P.W.2 was an eye witness; that it was he who went to the police station and lodged the complaint after taking the deceased and the injured persons to the hospital and that only based on his complaint, the First Information Report was drafted by the police. Exs.A.2 and A.3 are certified copies of post mortem certificate and Motor Vehicle Inspector's report. These documents prove that the deceased Rajakani died soon after his admission in the Tirunelveli Medical College Hospital, Palayamkottai and the injuries sustained in the accident was the direct cause of his death. The evidence of P.W.2, the only eye witness examined on the side of the claimants is quite natural and without any discrepancy, besides being corroborated by the documentary evidence Exs.A.1 to A.3. There is no reason, whatsoever, to reject or disbelieve his evidence regarding the manner in which the accident took place.

9. On the other hand, the case of the appellant/respondent was not uniform through out. It is the case of the appellant/respondent as found in the counter statement that while the driver of the bus turned it to the right side of the road (southern part of the road) in an attempt to avoid hitting a cyclist who suddenly started crossing the road from north to south, the deceased moved towards the bus and hit against the same. But the said contention found in the counter statement was given a go-by during enquiry. The driver of the bus, namely, R.W.1 admitted in his evidence that the persons, who were hit by the bus were standing in front of the shop situated on the southern side of the road at the time of impact. At the same time, there was an attempt to introduce a new case as if a lorry had been parked on the northern side of the road and that the bus had to come to the southern side of the road while going past the said lorry. Admittedly, the road at the place of accident runs east -west and the shop of Mani is situated on the southern side of the east-west road. At the time of accident, the bus was proceeding towards Tirunelveli i.e., in the direction of west-east. As per the averments of the appellant/respondent found in the counter statement, a cyclist started crossing the road from north to south and in an attempt to avoid hitting him, the driver of the bus had to turn it to its right and thus the bus went to the southern side of the road. There is nothing in the counter-statement to show that any vehicle had been parked on the northern side of the road. On the other hand, an attempt was made for the first time, during enquiry in M.C.O.P. to show that the bus had to use the southern part of the road, as a lorry had been parked on the northern side of the road and on seeing a cyclist crossing the road from north to south, the bus had to be swerved to the right (left side of the road). But a close scrutiny of the evidence of R.W.1 will show that the same is confusing and unreliable. The statement of R.W.1 in his evidence regarding directions is quite confusing.

10. As pointed out earlier, the averment made in the counter statement is to the effect that a cyclist was crossing the road form north to south and in order to avoid hitting him the bus had to be turned to the south of the road. But R.W.1 in his evidence would state that the cyclist started crossing the road from south to north which is quite contra to the averments found in the counter statement. At the same time, R.W.1 would also state that while he was driving the bus on the right side of the lorry that had been parked on the left side of the road, he had to drive the bus towards west as a cyclist came across the road. Admittedly, the bus was proceeding from west to east. The statement of R.W.1 in his evidence that he had to drive the bus towards west on seeing a cyclist crossing the road, exhibits the utter confusion with which he was deposing. The Tribunal has rightly rejected the evidence of R.W.1 as unbelievable and unreliable.

11. On a proper appreciation of evidence, the Tribunal has come to a correct conclusion that the driver of the bus was at fault and that the accident took place solely due to the rash and negligent driving of the bus belonging to the appellant/respondent. The appellant has not made out any case for interference with the said finding of the Tribunal. That is why, the learned counsel for the appellant has also chosen not to advance any argument challenging the finding of the Tribunal regarding the negligence aspect. Therefore, the said finding of the Tribunal has got to be upheld.

12. The Tribunal rejected the case of the claimants that the deceased was functioning as owner -cum- driver of a van and was having a monthly income of Rs.3,500/-. Taking the age of the deceased to be 33 years and his income as a coolie to be Rs.1,000/-, the Tribunal assessed the monthly dependency at Rs.800/- and annual dependency at Rs.9,600/-, multiplied the same with '27' and arrived at the figure Rs.2,59,200/- representing the compensation for loss of dependency.

13. The learned counsel for the appellant pointing out that altogether a sum of Rs.85,000/- (Rs.25,000/- towards pain and mental shock to claimants 2 to 5, Rs.30,000/- for pain and mental shock to claimants 6 and 7 and Rs.30,000/- for pain, mental shock and loss of consortium to the first claimant) contended that the same was highly excessive and exorbitant, besides there being duplication and that hence the same should be disallowed except to the extent of a reasonable amount towards loss of consortium and love and affection which shall not exceed in any case Rs.20,000/-. The learned counsel for the appellant Transport Corporation argued further that the Tribunal committed an error in not strictly following the multiplier theory and adopting a multiplier higher than what is permissible.

14. There is substance in the contention raised by the learned counsel for the appellant Transport Corporation. It is an established procedure to deduct 1/3 of the income towards personal expenses. The Tribunal has deviated from the same and deducted only a sum of Rs.200/- representing 1/5th of the income of the deceased towards personal expenses. Honourable Supreme Court has clearly laid down the law in U.P.State Road Transportation and others v. Trilok Chandra and another reported in [1996 ACJ 831 (SC)] that the multiplier method alone is the rationale method for assessment of compensation in fatal accident cases; that the maximum multiplier that can be applied in a given case shall be '18' and that in no case a higher multiplier than '18' could be selected. The Tribunal has used '27' as the multiplier. It seems the Tribunal, after assessing the age of the deceased at 33 years and holding that he would have lived upto 60 years had he not died in the accident, fixed the years of purchase and multiplied the same with the annual dependency. Long back, the Honourable Supreme Court has disproved the said method as irrational. Therefore, this Court has to accept the contention of the learned counsel for the appellant that the method adopted by the Tribunal for assessing compensation was erroneous.

15. The learned counsel for the respondents/claimants would contend that even though the method adopted by the Tribunal for assessing the compensation may be disproved by this Court as irrational or not in accordance with the ratio in a hierarchy of Judgments pronounced by Honourable Supreme Court as well as the High Courts of the country, the award could be sustained, if the respondents/claimants were able to justify the total amount awarded by the Tribunal. The learned counsel for the respondents/claimants has pointed out that there were sufficient evidence in proof of the contention of the claimants that the deceased was the owner -cum- driver of the van bearing registration No.TN- 01-A-4757 and was having a monthly income of Rs.3,500/-; that in spite of the same, the Tribunal erroneously held that the said contention of the claimants had not been proved; that the assessment of the monthly income of the deceased aged about 33 years who happened to be the sole bread winner of the family at a paltry sum of Rs.1,000/- cannot be sustained and a substantially higher amount should have been taken as monthly income of the deceased; that if the income of the deceased had been taken to be Rs.3,500/- per month definitely a higher amount would have been awarded as compensation for loss of dependency; that on such a proper assessment of compensation applying the multiplier method, this Court could definitely come to a conclusion that the total amount awarded by the Tribunal is not either excessive or exorbitant and that hence the award of the Tribunal, so far as the quantum is concerned, should be upheld and the appeal should be dismissed.

16. This Court, after having an independent appreciation of evidence adduced on both sides, is able to find substance in the above said contention of the learned counsel for the respondents/claimants. The only reason assigned by the Tribunal for the rejection of the claimants' contention that the deceased was the owner -cum- driver of a van, was that the driving licence of the deceased was not produced. The mere fact that the driving licence of the deceased was not produced could not be a valid ground for rejecting the contention of the claimants supported by other evidence adduced on the side of the claimants which do have sufficient evidentiary value. P.Ws.1 and 2 have categorically stated that the deceased was having a van and he functioned as the owner -cum- driver of the same. The registration number of the van has also been furnished in the claim petition. The evidence of P.W.2 that the deceased owned a van and he himself was the driver of the same stands unchallenged, as there was no cross-examination challenging the said version of P.W.2. In the earliest document, namely, the First Information Report itself the deceased had been described to be a van driver as evidenced by Ex.A.1. The trip sheets, three in number, written by the deceased have been produced by the claimants and marked as Ex.A.5 series. The copy of the registration certificate for the van bearing registration No.TN-01-A-4757 is Ex.A.4. Of course, the first claimant Saraswathi, the wife of the deceased happened to be the registered owner of the said van. P.W.1 has admitted that the vehicle was purchased in her name. P.W.1 (the first claimant) is none other than the wife of the deceased. Therefore, there is no wonder in the deceased purchasing the van in the name of his wife and doing business using the same and he himself functioning as its owner -cum- driver. Ex.A.5 series contain not only the driving licence number of the deceased but also his batch number. Clear evidence has also been adduced through P.W.1 that after the death of her husband, unable to maintain the van, she had to sell it. If all these evidence adduced on the side of the claimants are put together, they will lead to only one probable conclusion, i.e. the deceased had purchased the van in the name of his wife and was doing business using it and acting as its owner -cum- driver. The Tribunal has committed an error in not accepting the above said evidence and rejecting the contention of the claimants that the deceased was the owner -cum- driver of the van bearing registration No.TN-01-A-4757.

17. A person aged about 33 years owning a van and doing business functioning as its owner -cum- driver can easily have a net income of not less than Rs.2,500/- per month, if not Rs.3,500/- per month as contended by the claimants. Hence the annual income of the deceased is assessed at Rs.30,000/-. Deducting 1/3 from the same towards personal expenses of the deceased Rajakani had he survived, the annual loss of dependency occasioned to the claimants is assessed at Rs.20,000/-. Among the claimants/respondents are the wife and minor children of the deceased. They are younger than the deceased. Therefore, it shall be just and proper to select a multiplier on the basis of the age of the deceased. It has been clearly proved by the evidence of P.W.1 and by the production of Exs.A.2 and A.6, out of which Ex.A.6 is a clinching one, that the deceased was aged about 33 years at the time of his death. As per Ex.A.6 - the transfer certificate, he was born on 10.06.1963. Based on the said document, the age of the deceased has to be taken as 33 years. The appropriate multiplier to be selected shall be none other than '16'. The product of the above said multiplicand, namely, annual loss of dependency (Rs.20,000/-) and the multiplier (16) shall be Rs.3,20,000/-. The first claimant has lost her husband in her young age. The claimants 2 to 5 have lost their father during their childhood. Therefore, awarding a sum of Rs.25,000/- towards loss of consortium and loss of love and affection shall be quite reasonable. In addition to that, a sum of Rs.5,000/- can be awarded towards funeral expenses. If all these three amounts are taken into account, the total amount of compensation will come to Rs.3,50,000/-. Awarding a sum of Rs.2,000/- for transport expenses shall be quite reasonable. As the deceased had died at the age of 33, for loss of expectation of life, some amount could have been awarded. If a minimum of Rs.5,000/- is awarded towards loss of expectation of life that will take the total amount of compensation to Rs.3,57,000/- which shall be slightly more than what was awarded by the Tribunal. Therefore, the total amount awarded by the Tribunal as compensation for the death of the husband of the first respondent/first claimant is neither excessive nor exorbitant and no reduction of the same is warranted. The total amount awarded by the Tribunal can be upheld not on the reasons assigned by the Tribunal but on the basis of the assessment made by this Court as indicated above.

18. For all the reasons stated above, this Court comes to the conclusion that the challenge made by the appellant to the award of the Tribunal either on the question of negligence or on the quantum of compensation does not succeed; that the award of the Tribunal is quite reasonable and the same should be confirmed and that the appeal preferred by the appellant deserves to be dismissed.

19. In the result, this Civil Miscellaneous Appeal is dismissed with costs.

SML

To

The Motor Accident Claims Tribunal

(Principal Sub Court),

Tenkasi.




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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