Madras High Court
Managing Director, Thanthai Periyar ... vs Sundari Ammal And Four Others on 23 June, 1999
Equivalent citations: 2001ACJ1128, 1999(2)CTC560, (1999)3MLJ147, 1999 A I H C 3962, (1999) 3 TAC 603, (2001) 1 ACJ 1128, (1999) 3 MAD LJ 147, (1999) 3 MAD LW 182
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. Thanthai Periyar Transport Corporation is the appellant herein.
2. Aggrieved over the Award directing the appellant to pay the compensation of Rs. 1,80,000 to the claimants, the respondents herein as against the total compensation of Rs. 5,00,000, the present appeal has been presented before this Court both on the ground of negligence and of quantum.
3. The facts briefly are - One Muthian, who was working as Deputy Tahsildar at Panruti Taluk Office, is the deceased. On 4.5.1992 at about 8.30 P.M. the deceased was driving his scooter from Panruti to Varakalpattu in the Panruti to Cuddalore main road. The deceased was nearing Boologanathar Kovil at Nellikuppam in the extreme left side of the road. While so, the bus belonging to the appellant-Corporation came in the same direction from Panruti to Cuddalore at a high speed. The bus in a rash and negligent manner hit behind the scooter. Due to the impact, the deceased Muthian was thrown out from the scooter and fell into a pit. He sustained multiple and grievous injuries on the head and all over the body and was lying down on the road side ditch in a pool of blood gasping for life. However, the driver of the bus did not choose to stop the vehicle but sped away. The deceased was immediately taken to the Government Hospital at Cuddalore. After some treatment, on the advice of the doctors, he was taken to the Apollo Hospital at Madras, He took treatment from 5.5.1992 to 11.5.1992. Despite the best treatment, the deceased died on 11.5.1992 at about 7.45 P.M.
4. The claimants Sundari Ammal, wife, aged about 42 years, Manimaran, son, aged about 21 years, Pari, son aged about 19 years, Pallavi, daughter, aged about 18 years and Jagadambal Ammal, mother aged about 70 years, being the dependants filed a petition claiming a total compensation of Rs.5,00,000. The said claim was contested by the appellant-Corporation by examining the driver as R.W.1 and a passenger of the bus as R.W.2 to establish that the deceased alone was negligent and as such, the Corporation was not liable to pay any compensation.
5. The Tribunal after scrutiny of the materials, concluded that the driver of the bus was negligent and the claimants would be entitled to Rs.1,80,000 as compensation.
6. This Award is the subject-matter of the challenge in this appeal by the appellant-Corporation disputing its liability.
7. Mr. Muniratnam, counsel for the appellant would urge the following contentions:
"The Tribunal did not consider the evidence of R.W.1, the driver of the bus which is supported by R.W.2, the passenger of the bus. The evidence of P.W.2, a relative of the deceased cannot be given credibility, in view of the fact that his evidence is completely contrary to Ex.A3, the report of the Motor Vehicles Inspector, which would reveal that there was no damage to the bus. If the bus hit the scooterist, there would have been some damage to the front side of the bus. The deceased scooterist, on seeing the bus coming behind took a left turn and fell into a ditch and thereby he sustained the injuries. At any rate, the quantum is on the higher side. The applying and adopting the multiplier of 10 years and fixing the monthly contribution at Rs. 1,500 are not proper."
8. On the other hand, Mr. V.P. Venkat, learned counsel for the respondents, in his reply would contend that the Tribunal correctly found, on placing reliance upon the testimony of P.W.2, who is a truthful witness, that the driver alone was negligent. The counsel would further submit that the fixation of the quantum and assessment of the damages by the Tribunal is not proper, as the Tribunal has only awarded Rs. 1,80,000 as against the compensation of Rs.5,00,000, especially when the deceased being the Deputy Tahsildar would have got a future prospect of life and as such, the amount awarded is on the very lower side. He would also point out that even in the absence of Cross-objection, this Court has got powers to enhance the amount of compensation.
9. On a careful consideration of the materials placed before the Tribunal and the submissions made by the respective counsel, I am of the view that the finding with regard to the negligence on the part of the driver of the bus rendered by the Tribunal is quite correct.
10. P.W.2, Dinakaran is the eye witness. According to him, on 4.5.1992 at about 8.30 P.M. when he was proceeding to the house of his sister, he saw the scooter as well as the bus belonging to the appellant Corporation came from Pattambakkam proceeding towards Cuddalore. At that time, the scooter was coming at the left side road. But, the bus which came in a very high speed dashed behind the scooter, as a result of which, the deceased was thrown out from the scooter and fell into a ditch. Even after the impact, the driver did not stop the bus. Immediately, the deceased was taken to the hospital. He reported the matter to the police. F.I.R. was registered against the driver of the bus. Ex.A2 is the F.I.R. Originally, it was registered under Sections 279 and 337 I.P.C. After the death of the deceased, the case was altered into one under Section 304-A I.P.C. The Express Report is Ex.Al. The contents of the F.I.R. and Express Report would support the evidence of P.W.2, the eye- witness.
11. It is true that an answer has been elicited from P.W.2 during his cross-examination that he knew the deceased from his young age. But, this would not be taken as a ground to reject the evidence of P.W.2 as an interested witness. As a matter of fact, since he knew the deceased earlier, he gave the message to the relatives of the deceased and went to the police station and gave a complaint. Therefore, there is nothing to indicate that his evidence does not reveal the credibility.
12. According to P.W.2, the width of the road is 20 feet and the deceased was driving the scooter at the left side of the road. A suggestion was put to him as follows:
Though this was suggested to P.W.2 as a defence of the driver of the bus, when the driver was examined as R.W.1, he would state that when he came near the Boologanathar Koil temple driving the bus, a lorry was coming in the opposite direction and at that time, the deceased riding on a scooter suddenly turned his head to the bus and consequently there was a slip, as a result of which, he fell down.
13. R.W.2, a passenger travelled in the bus was also examined on the side of the appellant Corporation. He would simply state that a scooter was going in front of the bus and scooterist suddenly had a slip and fell down and the bus without stopping at the stop proceeded and that he did not know who was the scooterist.
14. Strangely, the defence theory projected through the witnesses is quite contra to the counter filed by the appellant Corporation. It is stated in the counter as follows:
"when the bus was nearing Boologanathar Koil the driver noticed the deceased was proceeding in front of the bus in his scooter. On the opposite direction another bus was coming from East to West. The driver sounded horn and while giving way to the bus the deceased swerved his scooter to his left and he fell down in a ditch on the left side of the road."
This statement made in the counter and the evidence adduced by R.Ws.l and 2 and the suggestion made to P.W.2 would clearly show that the appellant-corporation has taken different stands at different stages. In the light of the said situation, the evidence of P.W.2, which is in consonance with the contents of the F.I.R. and Express Report, can be taken as trust-worthy and acceptable.
15. With regard to the quantum, on taking into consideration the various materials produced by the claimants, I am of the view that the Tribunal has not made proper assessment in computing the compensation as Rs. 1,80,000, especially when the claimants sought for a compensation of Rs. 5,00,000.
16. Unfortunately, in the instant case, there is no cross- objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross- objection by the claimants.
17. In Dangir v. Madan Mohan, and M.D. Pallavan Transport Corporation Ltd. v. Kalavathi, 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
18. Section 110-D of the Motor Vehicles Act, 1939 confers on this Court the jurisdiction to entertain an appeal against the award passed by the Claims Tribunal. The reading of the provision would reveal that the High Court has to deal with the said appeal presented before it under the Civil Procedure Code.
19. Since the Motor Vehicles Act, 1939 empowers the High Court to hear the appeals, by virtue of Section 171 of the Act, the Civil Procedure Code is applicable to the High Court. Therefore, Order XLI of Civil Procedure Code is attracted when the High Court hears the appeal preferred before it against the award of the Motor Accidents Claims Tribunal. This is the view taken by a Bench of this Court in Marker Naidu v. S. Dharman, 1986 A.C.J. 178.
20. In National Insurance Co. Ltd. v. Ramachandran and others 1992 (II) A.C.C. 448, a Division Bench of this Court has also held that Order XLI Rule 33 Civil Procedure Code is applicable to the Claims Tribunal cases and that once the matter comes before this Court in appeal against the award of the Tribunal, the said provision is applicable just like any other first appeal which comes before this Court.
21. Order XLI Rule 33 of the Code of Civil Procedure provides as under:
"33. Power of Court of Appeal: The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."
22. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh, , the reading of the provision would make it clear that the appellate court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objection.
23. Of course, it is true that this discretion has to be exercised with care and caution and that too, in rare cases where the order has been passed which is wholly uncalled for in the circumstances of the case. In other words, though this court under the garb of Order XLI, Rule 33 cannot enlarge the scope of the appeal, the appeal powers can certainly be exercised in a given case and such an exercise depends upon the nature and facts of each case.
24. The Apex Court in Dhangir v. Madan Mohan, , be referring Order 41, Rule 33, would make the following observation:
"The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The words 'as the case may be require' used in Rule 33 Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many. We are giving any liberal interpretation . The rule itself is liberal enough. The only constraints that we, could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It is true that the power of the appellate court under S. 33 is discretionary. But, it is a proper-exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities."
25. In the light of the above observation of the Apex Court, let me now see whether this is a fit case in which this Court could invoke Order 41 Rule 33 to make an order enhancing the amount of compensation, in the absence of Cross-Objection
26. The Tribunal fixed the age of the deceased as 55 on the basis of the post-mortem certificate Ex.A5. On the strength of Ex.A9, the salary certificate, the salary of the deceased was fixed at Rs. 3,500 per month. It is further held by the Tribunal that the deceased would have received take-home pay Rs. 2,000 per month and he would have spent Rs. 1,500 for the family expenses and Rs. 500 towards his personal expenses. By applying 10 years multiplier, the Tribunal calculated Rs. 1,500 x 12 x 10, which comes to Rs. 1,80,000.
27. In this context, it is to be pointed out that the evidence of P.W.1 would show that the deceased used to get Rs. 3,500 per month as monthly salary. But, the salary certificate Ex.A9 would show that the deceased working as a Deputy Tahsildar in South Arcot Revenue Unit, used to get total salary of Rs. 3,050. In the absence of any evidence, the Tribunal calculated that take-home pay would be Rs. 2,000.
28. P.W.1 also would state on the basis of Ex.A10, the promotion list notification, that the name of the deceased was in the promotion list and there was a chance for promotion as Tahsildar and consequently, he would have got more salary. It is also seen from her deposition, the dependants, the legal representative of the deceased are the wife, two sons, one daughter and mother.
29. Under these circumstances, the finding of the Tribunal that the deceased would have spent only Rs.1,500 for the family is without any basis.
30. If Rs. 2,500 is considered to be take-home pay, it can be concluded that minimum Rs.2,000 would have been spent for the entire family as monthly dependency, since there are five dependants. Moreover, the materials given in the deposition of P.W.1, the wife, would reveal that there was a future prospect of life by getting promotion. In that event, the future dependency also has to be considered. Without considering these things, it is not proper for the Tribunal to fix Rs.1,500 as monthly dependency, in the absence of any material for arriving at such a conclusion.
31. On considering the evidence of P.W.1 and other documents and on considering the future prospects of life, it can be safely decided that the monthly dependency would be Rs.2,000. Even if the multiplier of 10 years is adopted, the total calculation would work out to Rs. 2,40,000.
32. Both in the claim petition and before the Court, it is stated by P.W.1, the wife, that the deceased was taken to Apollo Hospital, where he was given treatment for more than a week and they incurred a total expenditure of Rs. 27,000. To prove the same, Ex.A7 was marked. The medical bills alone would show that the first claimant paid Rs. 21,453. If transport charges are added, the total amounts would certainly work out to Rs. 27,000.
33. In the claim petition, the claimants have claimed a total amount of Rs. 5,00,000 as compensation. Admittedly, the first claimant, the wife is a young widow. Even then, there is no provision made by the Tribunal with regard to loss of consortium. Similarly, the other claimants, viz., claimants 2 to 4, young children have not been provided with the compensation towards loss of love and affection. Equally, the fifth claimant mother an old lady, also has not been given any amount towards loss of companionship.
34. In the facts and circumstances of the case, it may be appropriate to fix Rs.10,000 for wife on the head loss of consortium, Rs. 25,000 for children towards loss of love and affection and Rs.5,000 for mother towards loss of companionship.
35. The learned counsel for the appellant would point out that the very fact that the claimants have not filed any cross- objection or appeal, would show that the claimants are not interested in the enhancement of compensation and that in any event, this is not a fit case wherein this Court could exercise its discretion to enhance the amount of compensation, as the award of Rs.l,80,000 passed by the Tribunal cannot be said to be on the lower side.
36. When it is clear from the provisions mentioned above, that this Court is empowered to grant adequate relief so as to do substantial justice between the parties, even in the absence of cross objection or appeal. I am of the opinion that when this court finds that the Tribunal had not made proper assessment for computing the amount of damages, the amount of compensation awarded has to be necessarily enhanced to do justice by granting the relief to a party, who has not appealed.
37. The Courts should not be silent spectators, when they feel that the Tribunal had not done proper justice in awarding the relief to the claimants. As pointed out by various rulings, the underlying purport and design of the provisions of Order 41 Rule 33 would clearly go to show that the Parliament has enacted such a provision with a view that the Court could rise to the occasion and render substantial justice between the parties even in the absence of cross-objection.
38. The framers of the Code had enacted under Order 41 Rule 33 that even if the claimant may not have made a perfect claim, the Court should not become silent spectator and remain impotent to give appropriate relief to one who rightly deserves the potentiality. All the Courts should deliver justice according to the needs of the litigants and the circumstances emerging from the evidence on record, has been recognised by the provisions incorporated in Order 41 Rule 33 of the Code.
39. It is laid down that the provisions of Order 41, Rule 33 of the code can be resorted to "ex 'debito justitiae", i.e. to do justice between the parties by varying the award of the Tribunal in favour of the claimants, although they had not preferred any appeal against the order, in the following decisions:
1: Oriental Fire and General Insurance Co. ltd. v. A.P. Sikliker, 1993 (2) T.A.C. 113Guj.; 2. Municipal Board, Mount Abu v. Hari Lal, 1988 ACJ 281 Raj.; 3. National Insurance Company Limited v. Tulsi Devi 1988 ACJ 962 Raj.; 4. Maharashtra State Road Transport Corporation v. Kamalabai, 1989 ACJ 750 Bom.; 5. Sone Ram v. Jayaprakash, , 6. Sewaram Alias Sewan v. Nanhe Khan Alias Asgar Beg, 1987 ACJ MP; 7. Rajasthan State Road Transport Corporation v. Manumati Mahamia, 1987 ACJ 1045, Raj.; 8. State of Madhya Pradesh v. Diswanchandra Gupta, 1989 ACJ 320, MP; 9. New India Assurance Company Limited v. Shakuntla Bai, 1987 ACJ 224, MP; 10. United India Fire and General Insurance Co. Ltd. v. Malati Bala, 1985 (1) Gau LR 443; 11. Prakramchand v. Chuttan Alias Alim and others, 1991 ACJ 1051, MP; 12. Sardar Ishwar Singh v. Himachal Puri, 1990 ACJ 965, MP.
40. In view of the aforesaid proposition of law and the principles laid down by the various Courts and in the light of the peculiar facts and circumstances of the case, I am convinced that this is a fit case wherein the amount of compensation should be revised upwardly and enhanced even in the absence of cross- objection by the claimants.
41. In the net result, the amount awarded, while confirming the finding with regard to negligence, is modified in regard to quantum by enhancing the amount of compensation in the following manner:
1. For loss of dependency: Rs. 2,40,000
2. For loss of consortium: Rs. 10,000
3. For loss of love and affection: Rs. 25,000
4. For loss of companionship: Rs. 5,000
5. For medical expenses Rs. 27,000 Total compensation: Rs. 3,07,000
42. The appellant is directed to pay the amount of compensation referred to above along with 12% p.a. interest from the date of petition till the date of realisation. The claimants are directed to pay the balance court-fee in respect of the quantum enhanced.
43. With the above observations, the appeal is disposed of. No costs.