Madras High Court
Managing Director Thanthai Periyar ... vs Ammani Ammal And Anr. on 13 October, 1987
Equivalent citations: 2(1988)ACC619
JUDGMENT Swamikkannu, J.
1. The first respondent, the Managing Director, Thanthai Periyar Transport Corporation Ltd., has preferred this appeal against the judgment and decree of the Motor Accidents Claims Tribunal (Principal Subordinate Judge), Vellore, made in M.A.C.T.O P. No. 339 of 1979 dated 27-4-1981.
2. Two petitions, namely M.A.C.T.O.P. Nos. 361 and 339 of 1979 bad been filed by the husband and the mother respectively of the deceased bad been filed before the Tribunal under Section 110-A of the Motor Vehicles Act. Husband, in his petition claimed compensation of Rs. 30,200/- while the mother of the deceased in her petition claimed compensation of Rs. 10,000/- on the ground that she had suffered mental agony and pain on account of the loss of her youngest daughter. Both the petitions were tried jointly and a common award is passed by the Tribunal.
3. In this appeal we are concerned only with the award passed in M.A.C.T.O.P. No. 339 of 1979 filed by the mother of the deceased Santha.
4. The case of the petitioner in short is as follows :--At about 3 p.m. on 20-5-1979 when the deceased Santha and her husband were returning to Tiruvannamalai in Avalurpet-Tiruvannamalai road, after finishing their work at Seriyandal village, the bus bearing registration No. TMN 7544 belonging to the appellant herein, driven by the second respondent herein came behind them at a high speed without sounding horn, clashed and ran over the deceased Santha as a result of which the deceased Santha died on the spot due to the fatal injuries sustained by her. As the accident had occurred solely due to the rash and negligent driving of the bus belonging to the appellant, by its driver the second respondent herein, the appellant and the 2nd respondent herein are liable to pay the compensation. At the time of the death, the deceased Santha was hale and healthy and she was assisting her husband in all respects. She was married to the petitioner in M.A.C.T.O.P. No. 361 of 1979 just 9 months prior to the accident. It is alleged in the petition that she has suffered mental agony and pain on account of the loss of her youngest daughter.
5. The appellant and the 2nd respondent herein have filed independent counters resisting the petition on the ground that the accident had not occurred in the manner set out in the petition. On the other hand the accident had taken place solely on account of the negligence on the part of the deceased Santha as she darted across the road all of a sudden from one side to another. While the second respondent was driving the vehicle near the place of the accident, he saw the petitioner and his wife while they were proceeding on the left side of the road side by side. After the bus had passed them he heard a notice of the impact and immediately thereafter this respondent stopped the vehicle on the very spot itself. At that time, the male who accompanied the deceased run away and some of the passengers of the bus gave a chase and caught him. It was then learnt that the deceased was his wife, that they had no been getting on well for a long time and had quarrelling with each other. As the petitioner had no intention to live with the deceased Santha, he pushed her like that. The second respondent cannot therefore be held responsible for the accident. In fact, the impact was on the rear side of the bus arid it was entirely due to the conduct of the deceased and the husband of the deceased.
6. On these pleadings, the Tribunal had framed two points for consideration. They are:
(1) Whether the accident had occurred solely due to the rash and negligent driving of the bus belonging to the first respondent by its driver, the second respondent as alleged in the petition; (2) Whether the petitioner in both the petitions is entitled to claim compensation, and if so, to what amount ?
7. Evidence had been recorded in M.A.C.T.O.P. No. 361 of 1979 and the same had been treated as evidence in M.A.C.T.O.P. No. 339 of 1979 and a common award was passed by the Tribunal. On the evidence both oral and documentary available on record, the Tribunal came to the conclusion that the occurrence took place only due to rash and negligent driving of the bus by RW 1. It also came to the conclusion that a sum of Rs. 5,000/- has to be awarded as compensation to the petitioner for the loss of her daughter. Both the appellant and the second respondent herein have to pay the same to the petitioner/first respondent herein with costs of Rs. 200/-Hence the appeal, impleading the driver as the second respondent to this appeal.
8. It is contended on behalf of the appellant that the Tribunal had not properly appreciated the evidence available on record and as such the conclusion arrived at by it is not correct. It is also contended that the Tribunal should have taken into consideration the acquittal of the driver by the criminal Court as corroborative evidence to substantiate the case of the appellant. The Tribunal having found that the first respondent herein is not entitled to any compensation on the ground that she is not a dependant of the deceased, ought to have held that the first respondent is not entitled to any compensation. In this regard the decision reported in 198S SCJ 360 is relied on behalf of the appellant.
9. The points that arise for consideration in this appeal are:
(1) Whether the accident was due to the rash and negligent driving of the bus belonging to the appellant; (2) Whether the first respondent herein is legally entitled to get compensation;
(3) Whether the quantum of compensation awarded by the Tribunal is just and adequate.
10. Points 1 to 3 :--So far as the question of liability is concerned, it is seen that the evidence of RW 1 itself shows that his evidence cannot be relied on. His interested testimony cannot be made use of to hold that he was not responsible for the occurrence. The evidence of PW 1 and PW 3 also can be booked into with respect to the occurrence in the instant case. While taking the entire evidence thus available through PWs. 1 to 3 and the evidence of RW 1, it is seen that the evidence of PW 2 is entitled to credence. A careful scrutiny of the evidence clearly discloses that it was only due to the rash and negligent driving of RW 1 that the occurrence took place. The judgment in Ex. B-1, need not be relied on for coming go the conclusion in a claim petition filed under Section 110-A of the Motor Vehicles Act. Irrespective of the order of acquittal or conviction in a criminal case, the Tribunal is duty bound to look into the entire evidence adduced before it and come to an independent conclusion regarding the manner in which the vehicle was driven during the time of the occurrence. This Court finds that there is sufficient and adequate evidence available on record to confirm the finding of the Tribunal that it was only due to the rash negligent driving of the bus in question that the occurrence took place.
11. So far as the quantum of compensation that had been arrived at namely Rs. 5,000/- payable to the mother is concerned, this Court finds that the said conclusion is also correct on the basis of the evidence on record. PW 2 has stated in the course of her cross-examination that apart from the deceased Santha, she has also got four other daughters all of whom are now married. PW 2 had stated that the deceased Santha is her youngest daughter. It is observed by the Tribunal that PW 2 is entitled to this sum of Rs. 5,000/- only on the basis of sympathy. This observation, according; to this Court is not correct. As a matter of fact she is entitled to compensation either as the dependent or as the legal representative of the deceased. The deceased is the youngest daughter. In this modern days female child is not bereft of capacity to earn. In the present progressive policy and as per the organic law of the land, namely the Constitution of India, a lady citizen is as much entitled to all the rights that are enjoyed by the male citizen. Therefore there is nothing wrong in coming to a conclusion that the deceased Santha, if she had been allowed to live on the surface, but for the crucial accident, she would have certainly maintained her mother. The fact that the first respondent is having four other daughters and that the deceased is her youngest daughter does not mean that she is precluded from getting any benefit from her youngest daughter. Hence the present case comes well within the definition of lega representatives as occurring in the provisions of the Act. In this regard this Court relies on the ratio decidendi Of the Supreme Court in G.S.R.T. Corporation Ahmedabad v. Ramanbhai . The following is the ratio that had been laid down by the Supreme Court in this decision.
The expression 'legal representative' has not been defined in the Act. However, a legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate develves on the death of an individual. The proviso to Sub-section (1) of Section 110-A of the Motor Vehicles Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent and; (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A. This section in a way is a substitute to the extent indicated above for the provisions of Section 1-A of the Fatal Accidents Act, 1855 which provides that every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor administrator or representative of the person deceased. While the Fatal Accidents Act provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110-A(1) of the Motor Vehicles Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B that the Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provision takes the place of the third Paragraph of Section 1A of the Fatal Accidents Act which provides that in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought. Persons for whose benefit such application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit such action shall be brought. Persons for whose benefit such application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act in so far as motor vehicles accidents are concerned. These provisions are not merely procedural provisions. They substantially affect the rights of the parties. As the right of action created by the Fatal Accidents Act was "new in its species, new in its quality, new in its principles, in every way new", the right given to the legal representatives under the Motor Vehicles Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, new situations and new dangers require new strategies and new remedies.
12. The brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A if he is a legal representative of the deceased. , Overruled, F.A. No. 1379 of 1986 D/24-12-1986 (Guj), Affirmed , approved.
13. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B amongst the legal representatives for whose benefit an application may be filed under Section 110-A have to be done in accordance with well-known principles of law. It is to be remembered that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which has been substantially modified by the provisions contained in the Motor Vehicles Act in relation to cases arising out of motor vehicle accidents.
14. Faithfully following the law laid down by the Supreme Court in the above case, this Court holds that the mother is the legal representative of the deceased, the youngest daughter and that she is entitled to the compensation. In this view the sum of Rs. 5,000/- fixed as compensation for the death of her youngest daughter. It cannot be said that this sum of Rs. 5,000/- is in any way exeessive. Apart from holding that the mother -is the legal representative of the deceased youngest daughter on the basis of the above ratio decidendi of the above decision in other respects, the award of the Tribunal is confirmed. There is no merit in the appeal.
15. In the result, the appeal is dismissed with cost of Rs. 250/- (Rupees Two hundred and fifty only).