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The Managing Director v. G.Natarajan - C.M.A.(MD).No.138 of 2000  RD-TN 2055 (22 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22/06/2007
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
C.M.A.(MD).No.138 of 2000
The Managing Director,
Tamil Nadu State Transport
Corporation (Villupuram Division I) Ltd.,
(C.T.accepted as per the
order of this Court dated
C.M.P.No.241 of 2000) .. Appellant Vs.
United India Insurance Co. Ltd.,
21, Raja Annamalai Road,
Madras - 600 084. .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the Judgment and Decree dated 15.07.1998 made in M.C.O.P.No.3341 of 1995 on the file of the Motor Accident Claims Tribunal, (Ist Additional District Judge -cum- Chief Judicial Magistrate), Trichirapalli. For Appellant .. Mr.D.Sivaraman For Mr.Rajnish Pathiyil For RR-1 to 3 .. Mr.R.Govindaraj
For 4th respondent .. No Appearance
For 5th respondent .. Mr.Joseph Jawahar :JUDGMENT
This appeal is directed against the Judgment and Decree of the Motor Accident Claims Tribunal, (Ist Additional District Judge -cum- Chief Judicial Magistrate), Trichirappalli dated 15.07.1998 made in M.C.O.P.No.3341 of 1995.
2. The Tamil Nadu State Transport Corporation (Division I) Limited, Villupuram, formerly known as Thanthai Periyar Transport Corporation, which figured as the third respondent in M.C.O.P., has brought forth this appeal under Section 173 of the Motor Vehicles Act.
3. The facts leading to the filing of this appeal can be briefly stated thus:
(i) An accident involving the passenger bus belonging to the appellant Transport Corporation bearing Registration No.TN-32-N-0660 and the lorry bearing registration No.TMB-6394 took place on 22.10.1995 at about 07.00 a.m. At the time of accident, both the vehicles were proceeding in the opposite directions on the Trichy-Chennai main road and involved in a head-on collision with each other on the accident spot. Due to the impact of collision, a few passengers who were travelling in the bus and two persons on board the lorry including its driver died on the spot. One Ilangovan was one among passengers of the bus who died on the spot. The parents and sister of the deceased Ilangovan, the respondents 1 to 3 in this appeal, preferred a claim petition M.C.O.P.No.3341 of 1995 on the file of the Motor Accident Claims Tribunal, (Ist Additional District Judge -cum- Chief Judicial Magistrate), Trichirappalli, claiming a compensation of Rs.5,00,000/- against the appellant Transport Corporation (owner of the bus) and the fourth and fifth respondents (owner and insurer of the other vehicle, namely, the lorry bearing registration No.TMB-6394 involving the accident). In the claim petition, the claimants had made averments to the effect that the rash and negligent driving of the above said lorry by its driver was the cause of the accident in question. However they had chosen to make the claim against the owners of both the vehicles and the insurer of the lorry.
(ii) The owner of one of the vehicles involved in the accident, namely, the lorry bearing registration No.TMB-6394 did not contest the claim and remained exparte. The insurer of the lorry, the fifth respondent herein resisted the claim by filing a counter statement denying the petition averments regarding the manner in which the accident took place, questioning the reasonableness of the amount claimed as compensation and contending that it was the driver of the bus belonging to the appellant Transport Corporation who was at fault and that it was his rash and negligent driving of the bus that led to the unfortunate accident.
(iii) Similarly the appellant Transport Corporation resisted the claim questioning the reasonableness of the amount claimed as compensation and contending that the accident was the result of the rash and negligent act of the driver of the lorry and that if at all the claimants were entitled to get any amount as compensation, the same could be recovered from the owner and insurer of the lorry/fourth and fifth respondents herein. (iv) In order to substantiate their case, the claimants examined three witnesses as P.Ws.1 to 3 and produced seven documents marked as Exs.A.1 to A.7. (v) The appellant Transport Corporation/third respondent in M.C.O.P. examined its driver as the sole witnesss, R.W.1 and no document was marked on its side. No witness was examined and no document was marked on behalf of the insurer of the lorry, namely, the fifth respondent herein/the second respondent in M.C.O.P.
(vi) The Tribunal, after hearing arguments advanced on either side, considered the evidence on record, found the drivers of both the vehicles responsible for the accident and fixed the liability equally on the owners of both the vehicles involved in the accident. It assessed the compensation at Rs.2,02,000/- and passed an award directing the Transport Corporation (appellant herein) and the insurer of the lorry (fifth respondent herein) to pay the above said amount together with an interest at the rate of 15 per annum from the date of claim till realisation and with cost.
4. As against the said award, neither the owner nor the insurer of the lorry chose to prefer any appeal or cross-objection. The appellant Transport Corporation/third respondent in M.C.O.P. alone has brought forth this appeal on various grounds set out in the memorandum of appeal.
5. This Court heard the arguments advanced by Mr.D.Sivaraman, learned counsel on behalf of the appellant, Mr.R.Govindaraj, learned counsel appearing on behalf of respondents 1 to 3 and also Mr.Joseph Jawahar, learned counsel appearing on behalf of the fifth respondent and paid its anxious considerations to the same.
6. In respect of a road accident involving head- on collision of two vehicles, the Tribunal, on appreciation of evidence adduced in M.C.O.P., took the view that the drivers of both the vehicles were at fault and that hence the owners and insurer of the vehicles should be mulcted with the liability to pay compensation to the parents and sister of the deceased. The Tribunal assessed the income of the deceased at Rs.3,000/- per month (Rs.36,000/- per annum), deducted 1/3 from the same towards personal expenses and assessed the annual dependency at Rs.24,000/- per annum, took the age of the deceased as 30 years at the time of death and that of the first respondent herein as 65 years and taking into consideration the fact that there was absence of plea and evidence regarding the age of the other claimants, selected '8' as the appropriate multiplier, assessed the compensation for loss of dependency at Rs.1,92,000/-. Adding a sum of Rs.10,000/- towards loss of love and affection, the total amount of compensation was fixed at Rs.2,02,000/- and accordingly an award was passed for the said amount.
7. The appellant Transport Corporation have also incorporated specific grounds in the memorandum of appeal attacking the quantum of compensation awarded by the Tribunal. The claimants have noted in their claim petition, the age of the deceased as 28 years. P.W.1 has also deposed in line with the petition averment regarding the age of the deceased. In addition to that, a copy of the +2 mark sheet has been marked on the side of the claimants as Ex.A.5. As per Ex.A.5, the deceased was born on 07.03.1966. When the school certificate is available, the Tribunal has chosen to rely on the post mortem certificate, in which the approximate age alone could have been noted, to fix the age of the deceased. If the age of the deceased is taken to be 29 based on Ex.A.5, then there is possibility of selecting a higher multiplier to assess the compensation for the death of the deceased.
8. The Tribunal has correctly relied on the evidence of P.W.3 and Exs.A.6 and A.7 to fix the monthly income of the deceased at Rs.3,000/-. The assessment of annual dependency at Rs.24,000/- also cannot be successfully challenged, as the same is based on valid and reliable evidence. The only possible argument against the quantum arrived at by the Tribunal is that the father of the deceased, namely, the first claimant was admittedly aged about 65 years and hence selection of multiplier '8' was improper. It is true that either the age of the deceased or the age of the claimants, whichever is higher, shall be the basis on which the multiplier should be selected. But when there are more than one claimants (all dependants of the deceased), the age of the youngest among them shall form the basis on which the multiplier should be selected. In this case, though the first claimant was admittedly aged about 65 years as on the date of cross-examination before the Tribunal, that itself will not be enough to assume that his wife, the second claimant also would be crossed the age of 60. P.W.1 was examined three years after the accident. Therefore, even as per his own statement, he was aged about 65 years at the time of his cross-examination. As such, his age as on the date of presentation of the claim petition could be reckoned to 62 years. His wife, namely the second claimant, can be presumed to be 4 to 5 years younger than the first claimant. Thus, her age as on the date of claim can be fixed at 57 or 58 years. The third claimant happened to be the unmarried sister of the deceased. The duration of dependency of the third claimant can be taken to be eight years. Therefore, the selection of '8' as the multiplier for assessing the compensation for loss of dependency is not unreasonable.
9. Further more, M.C.O.P. itself seems to have been filed quoting Sections 163(A) and 166 of the Motor Vehicles Act, as the provisions of law under which the claim had been made. Even though the claim cannot be made under both the provisions which are mutually exclusive, no defence was taken before the Tribunal regarding the same. In such circumstances, the Court can take the provision which is more beneficial to the claimants, as the provision under which the claim for compensation has been made. If the claim made by the claimants in this case is taken to be one made under Section 163(A) of the Motor Vehicles Act as per the structured formula provided under schedule II, then a higher multiplier has to be adopted based on the age of the deceased alone. If such a method is adopted, one can easily come to a conclusion that the Tribunal could have awarded a higher amount than what has been awarded as compensation. Even assuming that the claim is made under Section 166 of the Motor Vehicles Act alone, as pointed out supra, the assessment of annual dependency and the selection of multiplier cannot be challenged as unreasonable. The award of a sum of Rs.10,000/- towards loss of love and affection also cannot be termed excessive or exorbitant. The Tribunal should have awarded more amount under the heads of funeral expenses and pain and suffering. But the Tribunal has not awarded any amount on the above said headings. A sum of Rs.5,000/- could have been awarded on each one of the above said headings. If the said aspect is taken into consideration, one can come to a definite conclusion that, at no stretch of imagination, the amount awarded by the Tribunal can be termed unreasonably excessive or exorbitant. That is why, the learned counsel for the appellant also chose to restrict his arguments with regard to the other aspects alone. Hence the total amount of compensation awarded by the Tribunal has got to be confirmed.
10. The learned counsel for the appellant Transport Corporation/third respondent in M.C.O.P. submitted that the finding of the Tribunal regarding the negligence aspect was erroneous in so far as it had held that the drivers of both the vehicles were at fault; that in the light of the specific plea made by the claimants and absence of any evidence on the side of the owner of the other vehicle (lorry), the Tribunal ought to have held the driver of the lorry alone to be at fault and that the Tribunal ought to have mulcted the entire liability on the owner and insurer of the lorry and exonerated the appellant Transport Corporation altogether. As an alternative argument, the learned counsel for the appellant would submit, in any event, the percentage of interest awarded by the Tribunal was high and the same was liable to be reduced.
11. The Court heard the submissions made by the learned counsel for the fifth respondent as a reply to the above said contentions who contended that there was no infirmity in the finding of the Tribunal on the question of negligence and hence the same needed no interference. Due considerations were made to the submissions made by the learned counsel on behalf of either side.
12. It is not in dispute that the bus belonging to the appellant Transport Corporation bearing Registration No.TN-32-N-0660 and the lorry bearing Registration No.TMB-6394 belonging to the fourth respondent, of which the fifth respondent herein was the insurer during the relevant period, were involved in the accident that took place on 22.10.1995 at about 07.00 a.m. near the Wood Saw Mill at Siruganur. It is also not in controversy that there was a head on collision of the above said vehicles which were proceeding in the opposite direction on the Trichy-Chennai Highway. It is true that the claimants have made a specific plea in the petition that the driver of the lorry was at fault and that it was due to his rash and negligent driving, the accident in question occurred. But at the same time, the claimants have chosen to make the claim not only against the owner and insurer of the lorry but also against the owner of the bus, namely, the appellant Transport Corporation as well. The same will indicate, as rightly pointed out by the learned counsel for the fifth respondent, the indecisiveness on the part of the claimants regarding the question of negligence. Both the appellant Transport Corporation and the fifth respondent took diametrically opposite pleas, each one casting the blame on the driver of the other vehicle. In such circumstances, it is unsafe to make a decision in favour of the appellant Transport Corporation on the sole ground that no evidence was adduced on behalf of the owner and insurer of the other vehicle, namely the lorry.
13. P.W.1, the first claimant was not an eye witness and hence correctly desisted from making any attempt to depose regarding negligence aspect. The evidence of P.W.3 is also not helpful to decide the question of negligence. P.W.2 has been examined on the side of the claimants as the eye witness to show that the driver of the lorry alone was at fault. No doubt P.W.2 has made an attempt in his chief-examination to show that the driver of the tanker lorry alone was responsible for the accident. But a perusal of the answers given by him during cross-examination shows that he could not have witnessed the accident. During cross-examination, at the first instance, he would state that the right side of the front body of the bus came into contact with the left side front body of the lorry. Then during further cross-examination realising that it was not possible for the right side of the front portion of one of the vehicles and the left side of the front portion of the other vehicle to come into contact with each other, while they were proceeding in the opposite direction, he would confess that he was not aware of which part of the lorry and which part of the bus came into contact with each other. The same is enough to reject the evidence of P.W.2 in this regard.
14. The remaining oral evidence available is that of R.W.1, the driver of the bus belonging to the appellant Transport Corporation bearing registration No.TN-32-N-0660. No doubt he is assertive in his chief-examination that, while he was proceeding towards Chennai from Trichy, he saw the lorry that came in the opposite direction coming to the wrong side; that on seeing the same, he sounded the horn and applied the dipper switch; that ultimately he took his vehicle to the extreme left and stopped it and that only thereafter, the lorry came and dashed against the bus.
15. Ex.A.1 is the certified copy of the First Information Report registered by the police. From Ex.A.1, it is seen that a case was registered against the driver of the lorry based on the complaint of the cleaner of the lorry. In the said complaint itself, there is an averment that the driver of the bus soon after the accident ran away from the spot and escaped. Ex.A.3 is the certified copy of the Motor Vehicle Inspector's Report which shows extensive damages caused to both the vehicles due to head-on collision. The nature of damage caused to the vehicles will provide a vital clue as to whether one of the vehicles could have been stationary at the time of impact. The fact that three passengers' seats and the driver-seat of the bus were damaged and the top of the bus was damaged upto the sixth post, besides extensive damage to the steering assembly, grill, air conditioner, etc. will show that the evidence of R.W.1 that on seeing the lorry he stopped the bus and the lorry came and hit on the bus which had then become stationary cannot be believed. The mere fact that the police chose to register the criminal case only against the driver of the lorry and closed the case as the charge abated since the lorry driver died on the spot, will not be enough to hold that the accident occurred solely due to the negligence on the part of the driver of the lorry and there was no negligence on the part of the driver of the bus.
16. On the other hand, R.W.1 would admit that the width of the road at the place of accident was 60 feet. In such a broad road, when it is not the case of R.W.1 that the lorry that came in the opposite direction was in the process of overtaking any other vehicle, it is not probable that the lorry would have come to the extreme right. No tangible evidence has been adduced to show on which part of the road the actual impact took place. The certified copy of the rough sketch and observation mahazar prepared by the police showing the salient features and topography of the place of occurrence could have been obtained and produced which are capable of providing valuable information, like actual place of impact and the space available on either side of the road. Such a clue will be helpful to arrive at a just conclusion regarding the question of negligence. Such important documents have not been produced. In the circumstances, the Tribunal, after properly marshalling the evidence and carefully scrutinising the same, has come to a correct conclusion that it was due to the composite negligence of the drivers of both the vehicles, the accident in question took place. There is no force in the contention of the learned counsel for the appellant that the Tribunal has committed an error in coming to the conclusion that the drivers of both the vehicles were at fault and in mulcting the liability on the owners of both the vehicles and the said contention of the learned counsel for the appellant has got to be discountenanced. Yet another aspect is there to be taken into account in order to sustain the Tribunal's award mulcting the liability on the appellant Transport Corporation also. M.C.O.P. has been purportedly preferred of course erroneously, citing sections 163(A) and 166 of the Motor Vehicles Act as the provisions under which the claim is made. It is an accepted proposition that both the provisions are mutually exclusive and one cannot make a claim under both of them. Even then none of the respondents before the Tribunal did take any defence pointing out the above said defect. Under such circumstances, the petition can be considered to be one under the provision which is more beneficial to the claimant. If such a course is adopted and the petition made by the claimants is considered to be one under Section 163(A) of the Motor Vehicles Act, the question of negligence will be pushed to the back door and will lose importance for the reason that a person making a claim under Section 163(A) of the Motor Vehicles Act is not required either to plead or prove any negligence or fault on the part of the respondents against whom the claim is made. In that view of the matter also, the present contention of the appellant attacking the award of the Tribunal on the question of negligence must fail. Taking into account all the above said facts and circumstances, this Court hereby comes to a conclusion that the challenge made to the Judgment and decree of the Tribunal regarding the question of negligence holding that the drivers of both the vehicles were at fault cannot be sustained and that the said finding of the Tribunal has got to be confirmed.
17. This Court is able to find substance and force in the alternative argument advanced by the learned counsel for the appellant that the interest awarded by the Tribunal is excessive and unreasonable. The Tribunal has awarded interest on the award amount at the rate of 15 from the date of claim till realisation. There cannot be any second opinion that as a normal rule, the claimant shall be entitled to get interest on the amount awarded as compensation from the date of claim till realisation. But such a rate of interest cannot be fixed arbitrarily without taking note of the prevailing bank rates on deposits and advances. This Court takes note of the then prevailing rate of interest for bank deposits and bank advances and comes to the conclusion that awarding interest at the rate of 9 per annum shall be reasonable and the same will meet the ends of justice.
18. For all the reasons stated above, this Court comes to the conclusion that the award of the Tribunal deserves to be modified in respect of interest alone as indicated above and in all other respects, the same has got to be confirmed.
19. In the result, the appeal is allowed in part and the award of the Tribunal is modified by reducing the percentage of interest on the award amount from 15 to 9% per annum. In all other respects, subject to the above said modification, the award of the Tribunal shall stand confirmed. There shall be no order as to payment of cost.
The Motor Accident Claims Tribunal,
(Ist Additional District Judge
-cum- Chief Judicial Magistrate),
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