Madras High Court
Rani And Ors. (Minors Rep. By Their ... vs The Managing Director, Tamil Nadu State ... on 28 February, 2008
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Being dissatisfied with the quantum of compensation awarded in M.C.O.P. No. 654/1999, [Rs. 50,000/-, in terms of no fault liability] for the death of Janakiraman in the road traffic accident, wife, daughters, son and mother of the deceased have preferred this appeal.
2. Brief facts which are necessary for disposal of these appeals are as follows: On 28.04.1999 at about 6.30 a.m., the deceased was travelling in his cycle in MBT Road and was nearing Yeriyur. At that time, the bus bearing Registration No. TN 23 N 810 came in a rash and negligent manner and dashed against the deceased and caused fatal injuries to him. Regarding the accident, a case was registered against the driver of the bus in Sathuvachari P.S. in Cr. No. 220/1999 under Sections 279, 337, 304A IPC. Alleging that the accident was due to the rash and negligent driving of STC bus driver, claimants have filed Petition claiming compensation of Rs. 10,00,000/-.
3. Opposing the claim, STC has filed counter stating that the driver was driving the bus slowly and carefully and when the bus was nearing Yeriyur, he found a cyclist suddenly crossing the road from the right side to the left side and therefore, the STC bus driver applied brakes and stopped the bus. But the cyclist dashed against an old woman and fell down and the cyclist himself invited the accident. The bus did not even touch the cyclist and therefore, STC is not liable to pay any compensation.
4. Before the Tribunal, first claimant examined herself as PW-1. Eye witness was examined as PW-2. Exs.P-1 to P-8 were marked. The driver of the bus who was on wheels at the time of accident was examined as RW-1. Upon consideration of oral and documentary evidence and pointing out certain discrepancies between the evidence of PW-2 and Ex. P-1, Tribunal held that the claimants have not proved negligent driving of the bus driver. Holding that the claimants have not established negligence of bus driver, the Tribunal found that the STC cannot be fastened with liability on the ground of negligence. However, in terms of Section 140 of M.V. Act, Tribunal has awarded Rs. 50,000/- under as compensation no fault liability for the death of deceased Janaki Raman.
5. Challenging the impugned Order, the learned Counsel for the Appellant has contended that the Tribunal ought not to have attached weight to the contradictions in the evidence of PW-2 and Ex.P-1. Drawing the attention of the Court to the evidence and materials on record, the learned Counsel for the Appellants has submitted that the evidence of RW-1 that he stopped the bus is contradictory to their own version in the counter, which aspect was not analyzed by the Tribunal in its proper perspective. It was further argued that the finding of the Tribunal is perverse and opposed to the materials on record and unsustainable and the claimants are to be awarded just compensation for loss of dependency.
6. Submitting that PW-2 is none other than the brother of the deceased, learned Counsel for the STC contended that no probative value could be attached to the evidence of PW-2. Drawing the attention of the Court to the evidence of RW-1, the learned Counsel for the respondent contended that based on the materials on record, the Tribunal has rightly arrived at the conclusion that the claimants have not proved negligence of the bus driver. It was further submitted that in the absence of proof regarding negligence, Tribunal has rightly awarded Rs. 50,000/- as compensation under no fault liability.
7. In the Petition, it is averred that on 28.04.1999, the deceased was riding his bicycle near Yeriyur and at that time, the bus came in a rash and negligent manner and dashed against the deceased who was travelling in the cycle and caused the death of deceased Janaki Raman.
8. In his evidence, PW-2 has stated that he came to Yeriyur to attend a festival and he went to the bus stop to go to Vellore and that the deceased Janaki Raman accompanied him to the bus stop. PW-2 has further stated that the deceased was proceeding in the South to North direction. At that time, STC bus came in the opposite direction and at that time, a woman tried to cross the road and to avoid hitting against the woman, the bus swerved and at that time, the bus hit against the cyclist.
9. Per contra, in the Petition it is averred that the deceased was attempting to cross the MBT Road and at that time, the bus came in the opposite direction and hit against the cyclist. In Ex. P-1 - FIR also, it is averred that the deceased crossed the road and at that time, the bus which came in the opposite direction hit against the cyclist and the deceased had fallen down and sustained fatal injuries.
10. The Tribunal disbelieved the claimants' case on the ground of contradiction as to the manner of accident between the evidence of PW-2 and Ex. P-1. No doubt, there is contradiction as to the manner of accident between the evidence of PW-2 and the materials on record. In my considered view, the Tribunal ought not to have dismissed the claim petition based on the ground of such contradiction. The burden of proof in a claim petition arising under the M.V. Act is lighter than in criminal prosecution. Only in criminal case, prosecution has to establish the case beyond reasonable doubt. But in civil action, plaintiff has only to establish balance of probabilities in his favour. The Tribunal was not justified in assessing the parameters of assessment of evidence in criminal cases.
11. In a case of negligence, claimants must prove (i) that the respondent was under a duty to take reasonable care towards the deceased to avoid the damage complained of; (ii) when there is breach of duty on the part of the respondent, which means his negligence, and the accident was due to such breach of duty.
12. In an action for negligence, the claimants have to show that the respondent owed to him a duty of care and that the Defendant in breach of that duty, acted negligently and the respondent's negligent act caused injuries to the claimant. The deceased was proceeding in the road from South to North. Admittedly, the bus came in the opposite direction. Driver of the bus, who was on the wheels in a heavy vehicle owed a duty of care to the other road users. Materials on record establish that STC bus driver failed to take reasonable care in respect of other road users.
13. In his evidence, RW-1 has stated that only near Yeriyur, the cyclist crossed the road and at that time, he stopped the bus and the cyclist himself hit against the bus. Per contra, in the counter, it is averred that the bus driver tried to avert the hit against a passer by woman and stopped the bus and the cyclist dashed against the old woman and fell down and the bus did not even touch the cyclist. The contradictions in the evidence of RW-1 and the averments in the counter would expose the falsity in the defence version.
14. The Tribunal was not justified in adopting a dogmatic approach in assessing the evidence as if in criminal case. The evidence of PW-2 would show that the bus was driven in a negligent manner and that it had hit against the cyclist. The contradictions between the evidence of PW-1 and in Ex.A-1 are not material variations so as to affect the credibility of the claimants' case. The discrepancy is only due to the manner of narration of the accident, which is not in any way fatal to the claimants' case. Upon consideration of the evidence of PW-2 and other materials on record, there is no difficulty in holding that the accident was due to the rash and negligent driving of the bus driver.
15. At the time of accident, the deceased was aged 50 years. He was owning and operating national permit lorry. Ex.A-5 is the Driving Licence of the deceased. Ex. A-5 and A-6 would show that the deceased had owned national permit lorry and was operating it. In her evidence, first claimant who examined herself as PW-1 has stated that the deceased was getting Rs. 15,000/- p.m. and that he was contributing Rs. 5,000/- and that he himself was operating the national permit lorry. Though PW-1 has stated that her husband was getting more than Rs. 15,000/-, no document had been produced showing that he was earning Rs. 15,000/-.
16. Though PW-1 has stated that her husband was getting Rs. 15,000/-, she has stated that he was contributing only Rs. 5,000/- p.m. to the family. Based on the evidence of PW-2, the income of the deceased is fixed at Rs. 4,500 p.m. He would have spent Rs. 1,500/- for personal expenses and would have contributed Rs. 3,000/- p.m. to the family. Loss of dependency per annum is fixed at Rs. 36,000/-. The deceased was aged 50 years. As per Second Schedule to the M.V. Act, multiplier 11 is adopted, which is applicable to the age group of 50 to 55 years. Total loss of dependency is calculated at Rs. 3,96,000/- [Rs. 3,000 x 12 x 11].
17. The first claimant was aged 37 years at the time of accident. For the rest of her life, she has lost consortium of her husband and his love and affection. An amount of Rs. 25,000/- is awarded for loss of love and affection and consortium. Likewise, claimants 2 to 4 who are minor children of the deceased have lost their father at their young age. Because of death of their father, the minor claimants have lost the love and affection and ways of getting better education. Fifth claimant who is aged 65 years is the mother of the deceased. An amount of Rs. 50,000/- is awarded for loss of love and affection to the claimants 2 to 5 [Rs. 12,500/- each]. An amount of Rs. 5,000/- is awarded for Funeral Expenses. Thus the claimants are entitled to a compensation of Rs. 4,76,000/- in all.
18. Of the total compensation amount of Rs. 4,76,000/-, the first claimant would be entitled to Rs. 1,50,000/-. Claimants 2 to 4 would be entitled to Rs. 1,00,000/- each. The fifth claimant would be entitled to Rs. 26,000/-.
19. In the result, The compensation amount of Rs. 50,000/- is enhanced to Rs. 4,76,000/- and this appeal is partly allowed;
Enhanced compensation of Rs. 4,26,000/- is payable with interest @ 7.5.% from the date of Petition till the date of deposit;
The compensation amount of Rs. 50,000/- awarded by the Tribunal is payable with interest @ 9% from the date of Petition;
The enhanced amount along with accrued interest shall be deposited within a period of three months from the date of receipt of copy of this order;
On such deposit, the claimants are entitled to withdraw the entire compensation amount payable to them.
The amount of compensation shall be apportioned amongst the claimants as stated in paragraph 18.
There is no order as to costs in this appeal.