Madras High Court
Tamilnadu State Transport Corporation vs Muthulakshmi on 22 February, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 22/02/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1558 of 2003 and C.M.P.(MD)No.17270 of 2003 TamilNadu State Transport Corporation (Madurai Division I)limited represented by its Managing Director, Madurai. ... Appellant Versus
1. Muthulakshmi
2. P.Maheeswari
3. Senthil Kumar
4. Minor Kalaivani ... Respondents
5. The Superintendent Engineer T.N.E.B., Poothur, Madurai.
6. United India Insurance Company, Divisional Manager, Melavali Veedi, Madurai-7.
7. Pitchaiyammal ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 22.11.2000 and made in M.C.O.P.No.698 of 1998, on the file of the Motor Accidents Claims Tribunal (I Additional District Court cum Chief Judicial Magistrate), Madurai.
!For Appellant ... Mr.Rajnish Pathiyel ^For Respondents 1-4&7 ... Mr.K.Murugesan For Respondent 5 ... Mr.M.Sureshkumar For Respondent 6 ... Mr.R.Mahalingam :JUDGMENT` This Civil Miscellaneous Appeal is filed by the appellant - Transport Corporation against the judgment and decree dated 22.11.2000 passed in M.C.O.P.No.698 of 1998 by the Motor Accidents Claims Tribunal (I Additional District Court cum Chief Judicial Magistrate) Madurai, awarding a sum of Rs.5,92,040/- with interest at the rate of 12% p.a. from the date of the petition and costs.
2.The appellant is the Transport Corporation owned by the Tamil Nadu Government. The vehicle owned by the fifth respondent, insured with the sixth respondent, involved in an accident with the bus owned by the appellant - Corporation, resulting in the death of one Muneeswaran. The accident took place on the Arasaradi-Theni main road (opposite to Madurai Corporation pumping station) at 11.15 p.m. The deceased Muneeswaran was employed in Tamil Nadu Electricity Board as Wireman. He travelled in the jeep belonging to Tamilnadu Electricity Board on 16.09.1997 from Koodal Nagar to Arasaradi, from west to east. The bus came in the east-west direction. Due to the accident, Muneeswaran died. The respondents 1 to 4 and 7 are the legal heirs of the deceased. The respondents 1 to 4 filed M.C.O.P.No.698 of 1998 claiming a compensation of Rs.8 Lakhs for the death from both the sixth respondent herein and the appellant. The Tribunal passed the award dated 22.11.2000 holding that the appellant is solely liable to pay compensation of Rs.5,92,040/-. The appellant has preferred the present appeal questioning the liability alone.
3.Heard the submissions made by the learned counsel on either side and perused the materials available on record.
4.The learned counsel for the appellant submits that the driver of the jeep, in which the deceased travelled, also equally contributed to the accident and therefore, the Tribunal ought to have apportioned the blame/liability between the appellant and the sixth respondent.
5.On the other hand, while resisting the aforesaid claim of the appellant, the learned counsel for the respondents 1 to 4 submits that the Tribunal failed to order just compensation and therefore, the claimants are entitled to enhanced compensation. Claim for enhancement is strenuously resisted by the learned counsel for the appellant. Hence, two issues arise for consideration.
6.Those issues are(i) whether the order of the Tribunal was correct in solely fixing the liability on the Transport Corporation and (ii) whether the legal representatives of the deceased person are entitled to enhancement of compensation.
Issue No.1:
7.The learned counsel for the appellant submits that the accident took place at the middle of the road and therefore, the driver of the bus should not be held solely responsible for the accident. The learned counsel for the appellant relies on the sketch, which was marked as Ex.P.5, in support of his submission. It is further contended that P.W.3 deposed that the accident took place on the southern side of the road and therefore, the driver of the jeep was also responsible for the accident.
8.On the other hand, the learned counsel for the respondents 1 to 4 submits that the sketch of the accident shows that the accident took place on the northern side of the road and that would itself establish that the appellant was solely liable to pay compensation. The learned counsel further submits that the police also prosecuted the driver of the bus by filing charge sheet and the same was marked as Ex.P.6. It is also submitted that the evidence of P.W.3, an eye-witness, was correctly accepted by the Tribunal and that the learned counsel for appellant misread the evidence of P.W.3. The learned counsel proceeds further that the driver of the bus, who was examined as R.W.1, had spoken inconsistently. In the chief examination, R.W.1 stated that there was a water pipeline on the middle of the road and to avoid the water pipeline, the driver of the jeep took the jeep to the right side, i.e. southern side and in that process, the driver of the jeep met with an accident. It is submitted that no such plea was stated in the counter filed before the Tribunal. It is also submitted that no such obstruction was cited in the sketch, particularly, when R.W.1 accepted the sketch during the cross examination. The Tribunal could not be found fault for its finding.
9.The driver of the bus, who was examined as R.W.1, stated that the jeep came on the right side to avoid some waterline that was on the middle of the road, but that was not the reason given in the pleadings of the appellant before the Tribunal. Furthermore, the sketch also does not state that the jeep came to the right side of the road i.e. to the southern side of the road to avoid some waterlines. On the other hand, the sketch is against the appellant. According to the sketch, the bus went to the path of the jeep and dashed against the jeep i.e. the bus went to the northern side when it proceeded from east to west as per the sketch. The driver examined on the side of the appellant stated during cross examination as follows:
"tiuglj;jpy; fz;lgojhd; rk;gtk; ele;jJ vd;why; rhpjhd;"
10.Therefore, there is no evidence to show that the jeep came to the southern side in the path of the bus and caused the accident. On the other hand, the sketch accepted by R.W.1, goes to prove that the accident was due to the bus coming on the northern side and caused the accident.
11.The learned counsel for the appellant relies on a line from the chief examination of P.W.3 that the accident took place on the southern side of the road and seeks to make out that the accident took place on the southern side of the road and therefore, the jeep driver was solely responsible for the accident. That submission is contrary to the sketch. Though during the chief examination it is stated that the accident happened at the southern side of the road, in the cross examination, P.W.3 denied the suggestion made by the Corporation that the accident took place at the southern side of the road. The answer given by P.W.3 during cross examination in this regard, is as follows:
"ghz;oad; Bghf;Ftuj;J BgUe;J bjd;g[wk; bkJthf te;J bfhz;oUe;jJ vd;Wk;. v';fs; $Pg; fHpt[ ePh; milg;ig nky; Vwhky;. mjid Rw;wp tu ntz;Lk; vd;gjw;fhf $Pg;gpd; Xl;Ldh; tyJ g[wkhf Xl;o v';fs; thfdj;jpd; nky; nkhjptpl;lhh; vd;why; rhpay;y"
The learned counsel for the appellant could not pick out a line from the evidence of P.W.3 and one has to look into entire evidence. No one could come to the conclusion that P.W.3 spoke that the Jeep went to the southern side and caused the accident.
12.As rightly contended by the learned counsel for the respondents 1 to 4, after investigation made by the police, a charge sheet was filed against the bus driver, which is not disputed by the appellant. Further, P.W.3 was an eyewitness. The learned counsel for appellant submits that since P.W.3 was a co- employee of the deceased, the evidence should be rejected. I am not inclined to accept such submission made by the learned counsel for the appellant. In fact, the driver of the bus is a more interested witness. In fact, as rightly contended by the learned counsel for the respondents 1 to 4, the reason, i.e. the water pipeline, that was adduced during the examination of the driver, is not found in the pleadings of the appellant before the Tribunal.
13.Hence, I do not find any infirmity in the findings of the Tribunal that the accident was caused due to the rash and negligent driving of the driver of the bus of the appellant - Corporation. Hence issue No.1 is answered accordingly.
Issue No.2:
14.The learned counsel for the respondents 1 to 4 submits that this Court could enhance the compensation ordered by the Tribunal, if it is not a just compensation under Section 168 of the Motor Vehicles Act, even in the absence of any cross objection filed by the claimants. On the other hand, the learned counsel for the appellant herein has vehemently opposed that the enhancement would arise only in the exceptional cases and the learned counsel has heavily relied on the decision of a Division Bench of this Court in National Insurance Company Vs. Rani and Others reported in 2004(3) L.W.578. On the other hand, the learned counsel for respondents/claimants 1 to 4 submits that the Honourable Apex Court has rendered various decisions and he relies on the following decisions in support of his submissions that this Court could enhance the compensation, being an Appellate Court by invoking Order 41 Rule 33 r/w Section 168 of the Motor Vehicles Act.
(i)Divisional now General Manager, Karnataka State Road Transport Corporation V. J.D.Sigamany and another reported in 1999 ACJ 977,
(ii)National Insurance Company Ltd., V. M.Jayagandhi and others reported in 2008(1) TNMAC 177,
(iii)The Managing Director, Annai Sathya Transport Corporation Ltd., Vs. Janardhanam and 7 others reported in 2000(11)CTC 272,
(iv)Nagappa Vs. Gurudayal Singh and others reported in (2003)2 SCC 274,
(v)The APSRTC Vs. M.Ramadevi and Others reported in 2008(1) TNMAC 234(SC),
(vi)Sardar Ishwar Sing and another Vs. Himachal puri and others reported in 1990 ACJ 965,
(vii)The TNSTC Vs. Sambandam reported in 2007(2) TNMAC 124; and
(viii)N.N.Swaminathan Vs. Panthana Nachiar and Others reported in 2009(2) TNMAC 356 It is also submitted that this Court can also invoke the power under Section 151 of Civil Procedure Code to enhance compensation in appropriate cases.
15.According to me, the test is, whether just compensation was awarded or not. If just compensation was not awarded, this court could certainly enhance the compensation.
16.The learned counsel for the respondents / claimants submits that the deceased person was a Wireman, employed in the Tamil Nadu Electricity Board. At the time of death, he was aged about 47 years and his salary was Rs.6,657/- p.m. as per Ex.P.3 given by the Tamil Nadu Electricity Board. The Tribunal had taken into account a sum of Rs.6,700/- as his monthly salary, without taking into account the future prospects. In this regard, he relies on the decision of the Honourable Apex Court in Smt.Sarala Verma &Others Vs. Delhi Transport Cororation and Another reported in 2009(2) TNMAC 1.
17.In my considered view, the Tribunal should have taken into account future prospects as P.W.2 stated that the deceased had promotional prospects. The submission of the learned Counsel for the respondents that being an employee of Tamil Nadu Electricity Board, he is entitled to annual increment, periodical revision in salary and selection grade scale of pay, bonus etc is well founded. Hence, if future prospects is taken as per the decision of the Honourable Apex Court in Sarala Varma's case, the claimants would get enhanced compensation.
18.The learned Counsel for claimants further submits that the Tribunal failed to grant any amount towards loss of consortium to the first claimant, who is the wife of the deceased and the Tribunal did not grant any compensation amount towards loss of love and affection to R.2 to R.4 and R.7. According to the learned Counsel, at least, a sum of Rs.25,000/- should be awarded to the first claimant towards consortium and the respondents 2 to 4, the children of the deceased should be awarded a sum of Rs.10,000/- each towards loss of love and affection. Likewise, the seventh respondent, the mother of the deceased should be awarded a sum of Rs.10,000/- towards loss of love and affection.
19.The sole contention of the learned Counsel for the appellant is that the enhancement of compensation could arise only in exceptional cases and that this case does not come under the exceptional case. The claimants, having failed to file cross objections, could not seek enhancement of compensation as a matter of course. The learned Counsel for the appellant relies on the decision of the Division Bench of this Court, in National Insurance Company Ltd. v. Rani and others reported in 2004-3-L.W.578.
20.On the other hand, the learned Counsel for the claimants submits that the same Bench in Pallavan Transport Corporation Ltd. v. M.Anbumani reported in 2004 ACJ 1086 has held that this Court being an Appellate Court could invoke power under Order 41 Rule 33 of Civil Procedure Code and enhancement of compensation could be made in the absence of cross objection by the claimants. In the said case, the deceased was a police constable. Reliance is placed on paragraph 6 of the said judgment and the same is extracted herein:
"6.It is unfortunate that the claimants have not filed cross-objections. But at the same time, it is not as if this Court is helpless and this Court can certainly invoke its powers conferred under Order 41, rule 33 of the Code of Civil Procedure since the court in deciding these matters, should remember that the compensation awarded should not be inadequate, neither should be unreasonable, excessive nor deficient. In this case, this Court is of the view that the compensation that has been fixed by the Tribunal is on the lower side."
21.The learned Counsel for the claimants also relies on another judgment of the same judge, who rendered the judgment in 2004(3) L.W.578 in National Insurance Company Vs. Rani and Others sitting in different Division Bench in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri. v. Janardhana and 7 others reported in 2000 (II) CTC 272. In this case also, it has been categorically held that this Court could invoke order 41 Rule 33 to grant relief even where no appeal or cross objection is filed if the claimants are not awarded just compensation. He has relied on paragraphs 33 and 34 of the said judgment which is extracted herein:
"33.At this stage, learned Counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of Judgment and not from the date of the petition. The learned Counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan, AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the appellate Court is discretionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandurang Kadam and others, 1995(1) SCC 320, has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.
34.This Court considers that this is a fit case, where the discretionary power under Order 41, Rule 33 of Code of Civil Procedure has to be exercised by this Court in favour of the claimants/respondents. This Court has to see that the claimants are awarded just compensation. In this view of the matter, we hold that even though the petitioner / petitioners in any of the petitions has/have not filed any appeal or cross objection in the interest of justice it has to be held that he/she/they is/are entitled to claim interest at 12 per cent per annum on the amount awarded in the respective cases from the date of the respective petitions."
22.In fact, the issue is now concluded by the decisions of the Honourable Apex Court in Nagappa's case reported in 2004(2) TNMAC 398 and in APSRTC & Another. v. M.Ramadevi and others (SC) reported in 2008(1) TN MAC 234 (SC). Paragraph 9 of the judgment in Ramadevi's case is extracted herein.
"9.In Nagappa v. Gurdial Singh and Ors., 2004(2) TN MAC 398(SC):2003 (2) SCC 274, para 21 as follows:
"21.For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/Court cannot award Compensation amount exceeding the claimed amount. The function of the Tribunal / Court is to award "just" Compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time- barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub- section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for Compensation under the MV Act. If required, in appropriate cases, the Court may permit amendment to the Claim Petition."
23.Hence, it is very clear that this Court can enhance the compensation as held by the Honourable Apex Court in Rama Devi's case where just compensation was not awarded by the Tribunal.
24.The judgment referred to by the learned counsel for the appellant is of no use to him. The Division Bench in that case held that the said case was not a fit one to invoke Order 41 Rule 33 to enhance the compensation, without any appeal or cross objection. Para 36 of the judgment reported in 2004(3)LW 578 is extracted here-under:
"36.Coming to the present case, there is no difficulty to hold that this is not a case, where this Court can invoke Order XLI Rule 33 and enhance the amount of compensation."
25.In this case, admittedly, the Tribunal failed to take into account the future prospects of the deceased person. Since the deceased was employed in Tamil Nadu Electricity Board as wireman and since P.W.2 deposed that the deceased had promotional prospects, atleast 30% could be added to last drawn pay at the time of death towards future prospects.
26.The Tribunal ought to have taken at least 30% of the last pay towards future prospects. It would be inconsonance with the dictum laid down by the Honourable Supreme Court in Smt.Sarala Verma &Others Vs. Delhi Transport Cororation and Another reported in 2009(2) TNMAC 1. If 30% of the last drawn pay is taken towards future prospects, the following would be the enhanced amount of compensation payable to the legal representatives of the deceased:
a) salary at the time of his death(as per Ex.P.3) Rs. 6,657.00
b) 30% towards future prospects Rs. 1,997.10 c) multiplier 11
d) enhancement (1997.10x12x11x2/3) Rs.1,75,744.80
27.Hence in my considered view, the claimants are entitled to a sum of Rs.1,75,750/- towards enhanced compensation taking into account the future prospects. As rightly contended by the learned counsel for the claimants, the Tribunal failed to award any amount on the non-pecuniary losses, such as consortium and loss of love and affection. In my view, the first claimant is entitled to a sum of Rs.20,000/- towards consortium and the respondents 2 to 4, the children of the deceased are entitled to a sum of Rs.8,000/- each towards loss of love and affection and the seventh respondent mother of the deceased is entitled to a sum of Rs.8,000/- towards loss of love and affection. Hence, the legal representatives of the deceased are entitled to a sum of Rs.2,27,750/- towards total enhanced compensation and they are also entitled to interest at the rate of 7.5% from the date of application. The compensation could be apportioned as determined by the Tribunal. Hence, issue No.2 is answered in favour of the claimants, who are the legal representatives of the deceased.
28.The appellant is directed to deposit a sum of Rs.2,27,750/- towards further compensation to the legal representatives of the deceased to the credit of M.C.O.P.No.698 of 1998, on the file of the Motor Accidents Claims Tribunal (I Additional District Court cum Chief Judicial Magistrate), Madurai along with 7.5% interest from the date of application. The legal representatives are entitled to withdraw the same in the same proportion as ordered by the Tribunal.
29.Accordingly, this Civil Miscellaneous Appeal is disposed of in the above terms. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
ssl/TK To The Motor Accident Claims Tribunal (I Additional District Court cum Chief Judicial Magistrate), Madurai.