Madras High Court
The Managing Director vs Ralina Parvin on 14 March, 2016
Bench: S.Manikumar, C.T. Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE C.T. SELVAM
C.M.A.(MD)No.176 of 2016
and
CMP(MD)No.2642 of 2016
The Managing Director,
Tamil Nadu State Transport Corporation,
(Kumbakonam Division II),
Periyamilaguparai,
Trichy ? 1. ... Appellant
Vs.
1.Ralina Parvin
2.Minor Harun Rasidhu
3.Taj Nisha
4.Shikanthar ... Respondents
*(R2 represented by his mother and
natural guardian Ralina Pravin,
1st respondent)
PRAYER: The Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicle Act, against the judgment and award made in M.C.O.P.No.1989 of 2010,
dated 12.03.2012 on the file of Motor Accidents Claims Tribunal, Additional
District Court, FTC.No.2, Tiruchirapalli.
!For Appellant : Mr.D.Sivaraman
^For Respondent :
:JUDGMENT
(Judgment of this Court was made by S.MANIKUMAR, J.) Challenge in this appeal by the appellant Tamil Nadu State Transport Corporation, Kumbakonam Division II, Trichy ? 1, is to the finding, fixing negligence on the driver of the State Transport Corporation Bus, bearing Reg.No.TN-45-N-2614 and consequently, the direction to pay compensation of Rs.17,95,000/- with interest, at the rate of 7.5% per annum from the date of claim, till the date of realisation, to the legal representatives of the deceased.
2. Short facts leading to the appeal are that on 11.07.2010 at about 11 p.m., when the deceased Vasik Raja was riding Hero Honda motorcycle bearing Reg.No.TN-45-AZ-9193 on the extreme left side of Trichy ? Dindigul road, opposite to Aarthi Hotel, due to the construction of a four ways high road, traffic was opened only, in single road and at that time, a bus, belonging to the appellant transport Corporation, bearing Reg.No.TN-45-N-2614, which came in the opposite direction, driven by its driver, in a rash and negligent manner, dashed against the motorcyclist. As a result of which, the rider sustained grievous injuries. Immediately, he was taken to G.K.M.Hospital, Manapparai. After providing first aid, he was referred to Government Hospital, Manapparai, but on the way, he died. A case in Crime No.331 of 2010 was registered, on the file of Manapparai Police, against the driver of the appellant State Transport Corporation bus, for the offences under Sections 279, 304(A) of IPC.
3. Wife, minor son, aged about 1-1/2 years, parents aged about 63 and 50 years respectively filed M.C.O.P.No.1989 of 2010, on the file of the Motor Accidents Claims Tribunal, Trichy, claiming compensation of Rs.50,00,000/- In the claim petition, they have contended that the deceased was a B.E. Graduate in Computer Engineering and was working in ARISTATS 'E' Solution and earned Rs.40,000/- per month. He was aged 29 years. According to the claimants, due to death of the breadwinner, the family was deprived income, of love and affection. They claimed compensation of Rs.50,00,000/-.
4. Opposing the claim, the State Transport Corporation, in the counter affidavit, denied negligence on the part of the driver of the bus. The appellant Transport Corporation has further added that due to intoxication, the motor cyclist suddenly came to the middle of the road. On seeing the motorcycle, driver of the Corporation bus, sounded horn and stopped the bus. Despite the same, motorcyclist dashed against the bus pumber, fell down and sustained injuries, subsequently died. Thus, the appellant transport Corporation has denied the manner of the accident. Without prejudice to the above, the appellant Transport Corporation has disputed the age, avocation, income and the compensation claimed under various heads.
5. Before the claims Tribunal, on the side of the respondents / claimants, the wife of the deceased examined herself as P.W.1 and adduced evidence about the manner of accident and loss of income. P.W.2, is stated to be the eyewitness and Exs.P1 to P19 have been marked. On the side of the appellant transport Corporation, driver of the bus has been examined, as R.W1. Ex.R1 is the copy of the judgment of the Criminal Court, acquitting the driver.
6. On evaluation of pleadings and evidence, the Claims Tribunal came to the conclusion that R.W.1, driver of the State Transport Corporation bus, bearing Reg.No.TN-45-N-2614, was negligent in causing the accident. The Tribunal, awarded a compensation of Rs.17,95,000/- with interest, at the rate of 7.5% per annum and apportioned the same as hereunder:-
S.NO DESCRIPTION AMOUNT IN (RS).1
Loss of Income 17,28,000
2.
Loss of love and affection 40,000
3. Loss of estate 20,000
4. Transportation 2,000
5. Funeral Expenses 5,000 TOTAL 17,95,000
7. Assailing the correctness of the Award Mr.D.Sivaraman, learned counsel appearing for the appellant Transport Corporation submitted that the Tribunal has failed to consider that, due to intoxication, the deceased suddenly turned his motor cycle to the right side of the road and thus invited the accident. He also submitted that the Tribunal has failed to consider the fact that, as per rough sketch prepared by the police, the accident has occurred on the eastern side of the road and from the above, it is evident that the deceased, stated to have proceeded from south to north, had gone to the extreme right of the road and dashed against the bus and thereofore, he alone was negligent in causing the accident.
8. On the quantum of compensation, he submitted that the Tribunal has erred in adopting '18' multiplier for the purpose of computing the loss of contribution to the family. It is also his submission that the claims Tribunal has failed to give due credence to the testimony of R.W.1, the driver of the transport Corporation bus and Ex.R2 Judgemnt of the Criminal Court, in which R.W.1, driver has been acquitted.
9. Heard the learned counsel for the transport Corporation and perused the materials on record.
10. Though P.W.1 / wife has adduced evidence regarding the manner of accident, she has not witnessed the same. A case in Crime No.331 of 2010, has been registered, on the file of Manapparai Police Station, against the driver of the appellant State Transport Corporation bus, for the offences under Sections 279, 304(A) of IPC. P.W.2. is stated to have witnessed the accident and supported the version of P.W.1/wife. Though a contention has been made, that R.W1 has been acquitted of the charges levelled, upon perusal of Ex.R1, judgment rendered in the Criminal case, the Claims Tribunal has found that R.W.1 has been acquitted on benefit of doubt and thus, on the assessment of oral and documentary evidence adduced on behalf of the respondent and R.W.1, held that the latter was negligent for causing accident. At this juncture, this Court deems it fit to consider a few decision in Oriental Insurance Co. Ltd., v. K.Balasubramanian reported in 2007 (2) TN MAC 399, as to whether judgment rendered in the criminal Court is binding on the Tribunal or not. Observations of the Division Bench of this Court in the above reported case, are as follows:
"It is a well settled proposition of law that the judgments of the Criminal Courts are neither binding on the Civil Court/Motor Accident Claims Tribunal no relevant in a Civil Case or a claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is convicted based on his admission, the judgment of the Criminal Court becomes admissible and relevant in Civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the Criminal Court, but as a document containing an admission. Of Course, admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence."
11. As per the above said Division Bench judgment, the admissions made before the Criminal Court are not conclusive proof admitted therein and unless and until, they are proved to be incorrect or false on the person against whom, the admissions are sought to be used as evidence. Conversely, if the admission or conviction based on pleading guilty is not proved to be incorrect or false, then the same shall be the best peace of evidence.
12. With reference to the rough sketch prepared by the police, now raised in this appeal, perusal of the impugned judgment shows that there is no specific pleading with reference to sketch, except to state that when the deceased was riding the vehicle in a rash and negligent manner and due to intoxication, suddenly he turned his motor cycle, to the right side, and dashed against the front pumber of the bus and invited the accident. Sketch has not been marked before the Tribunal at this stage, it cannot be permitted to be relied on in the absence of any specific averments in the counter affidavit. It is trite law that no evidence can be permitted to be adduced without any pleadings.
13. Quantum of compensation awarded by the Tribunal is Rs.17,28,000/-. Opposition in the appeal is that the Tribunal has erred in fixing the income as Rs.12,000/- per month, in the absence of any document.
14. Perusal of the award shows that P.W.1 wife has deposed that the deceased was a graduate in engineering and at the time of accident, he was a managing partner in ARISTATS 'E' Solution. According to her, he earned Rs.40,000/- per month. Though, Exs.P3 and P4 educational certificates and Exs.P.7 to P16 have been marked, the Claims Tribunal has arrived at the conclusion that the respondent had not proved that the deceased earned Rs.40000/- per month. But taking note of the educational qualification, the Tribunal fixed the monthly income as Rs.12,000/-. After deducting 1/3 towards personal and living expenses of the deceased, the Tribunal had taken Rs.8000/-, as income, for the purpose of computing the loss of contribution to the family. At the time of accident, he was aged 29 years. Applying '18' multiplier, the Tribunal has computed the loss of contribution to the family as Rs.17,28,000/-. In addition to the above, the Tribunal, has awarded Rs.40,000/- under the head, 'loss of love and affection; Rs.20,000/- towards consortium; Rs.5000/- for funeral expenses and Rs.2000/- for transportation, altogether, the claims Tribunal awarded a sum of Rs.17,94,000/- with interest, at the rate of 7.5% per annum from the date of claim, till the date of realization.
15. At the time of accident, the deceased was survived by his wife, minor son, and parents. Educational qualification of the deceased has been proved. He was an Engineer. Though the Tribunal has not accepted the contention of the respondents that the deceased was a Managing partner in ARISTATS 'E' Solution and earned Rs.40,000/- per month, considering the educational qualification of the deceased Rs.12,000/- per month, fixed as monthly income, for the purpose of computing the loss of contribution to the family, cannot be said to be on the higher side in view of the decision of the Hon'ble Supreme Court in Vimal Kanwar and Others v. Kishore Don and Others, reported in 2013 (7) SCC 476, wherein, the deceased was an Engineer in Public Works Department. He was aged 28 years and 7 + months. There was a pay revision also. Thus, considering the abovesaid aspect, and, by observing that had the deceased been alive, he would have had chances of even becoming a Chief Engineer in Public Works Department, the Hon'ble Apex Court, in Vimal Kanwar's case, added 100% of income under the head ''future prospects''. Revision of Pay Scale, in the said judgment, was one of the key factors taken into consideration, besides the age of the deceased. Quantum of compensation awarded to the respondent / claimant cannot be said to be on the higher side warranting interference.
16. The accident occurred on 11.07.2010, age of the wife was 27 years. 'Consortium' as per the decision in Best v. Samuel Fox reported in 1952 AC 716 means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc." In Rajesh and others v. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Apex Court, held as follows:
''In legal parlance, 'Consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for Loss of Consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award atleast Rupees one lakh for Loss of Consortium.?
17. In the instant case, at the time of accident, minor son was aged 1-
1/2 years. The Tribunal has awarded compensation of Rs.40,000/- towards loss of love and affection, for all the claimants / respondents viz. Wife, minor son and parents. In Rajesh v. Rajbir Singh reported in 2013 (2) TNMAC 55, the Hon'ble Apex Court has awarded Rs.1,00,000/- for the loss of love and affection.
18. On the aspect of awarding compensation for funeral expenses, in Rajesh and others Vs. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Supreme Court held as follows:
?21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-.?
19. Though learned counsel for the appellant contended that the Tribunal has erred in applying '18' multiplier and that the proper multiplier would be '17' for computing the loss of contribution, considering the fact that the Tribunal has awarded lesser compensation, under the above said heads, excess compensation if any, awarded under the head loss of income can always be adjusted against the other heads, on the principles of just compensation. Few decisions on this aspect are as under:-
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:-
?The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Hon'ble Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
?We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ?adequate compensation? that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.?
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Hon'ble Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
?The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.?
(emphasis supplied)
20. In the result, the Civil Miscellaneous Appeal is dismissed. The appellant Insurance Company is directed to deposit the entire award amount, with accrued interest and costs, to the credit of M.C.O.P.No.1989 of 2010, on the file of Motor Accidents Claims Tribunal,( Additional District Court, FTC.No.2,) Tiruchirapalli, less the statutory deposit already made, within six weeks from the date of receipt of a copy of this order. On such deposit being made, respondents 1, 3 & 4 / major claimants are permitted to withdraw their respective shares, with proportionate interest and costs. The Share of the claimant / respondent No.2 shall be deposited in an interest bearing account, in any one of the Nationalized Bank, proximate to the residence of the 1st respondent. Mother of minor claimant and 1st respondent, is permitted to withdraw the interest accrued, once in three months for the welfare of the minor claimant, till he attain majority.
To The Motor Accidents Claims Tribunal, Additional District Court, FTC.No.2, Tiruchirapalli..