Madras High Court
Alagammai Alias Indirani And Anr. vs Managing Director, Marudhu Pandian ... on 26 March, 1996
Equivalent citations: 1997ACJ1323
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The claimants in M.C.O.P. Nos. 638 of 1985 and 639 of 1985 on the file of the Motor Accidents Claims Tribunal, Tiruchirapalli are the appellants in the above appeals.
2. C.M.A. No. 617 of 1989 is filed against the award of M.C.O.P. No. 639 of 1985 by the wife and minor son Nachiappan of the deceased Alagappan. C.M.A. No. 626 of 1989 is filed against M.C.O.P. No. 638 of 1985 by the mother of the deceased Karuppan alias Kumar. Both the appeals arose out of one accident. The facts leading to the filing of two claim petitions, one for the death of K.R. Alagappan and another for the death of Alagappan's minor son Karuppan are as follow:
3. According to claimants on 24.10.1985 at Mannarpuram at about 8.30 p.m. while the deceased, K.R. Alagappan, was driving his scooter TDY 3012 along with his minor son Karuppan alias Kumar, his wife Alagammai alias Indirani as a pillion rider, after passing of the four-road junction proceeding towards west keeping to his left, a bus bearing registration No. TML 2070 belonging to the Marudhu Pandian Transport Corporation, respondent No. 1 in C.M.A. No. 617 of 1989 and respondent in C.M.A. No. 626 of 1989, coming from Karaikudi to Tiruchi in a rash and negligent manner dashed against the scooter. Due to the impact, the wife who was seated in the pillion was thrown away, the rider Alagappan and his son Karuppan alias Kumar were run over by the left back wheel of the bus. The deceased Alagappan died on the spot and the minor boy Karuppan died on the way to hospital. For the death of Alagappan the wife, another son Nachiappan and father of the deceased, viz., Karuppan Chettiar claimed a sum of Rs. 11,92,121/- towards compensation. For the death of minor son Karuppan, the mother, viz., Alagammai alias Indirani claimed a sum of Rs. 25,000/- towards compensation.
4. The transport corporation filed a written statement disputing the manner of accident and the quantum of compensation as alleged in the claim petitions.
5. In support of the claimants' case, the wife of the deceased Alagappan was examined as PW 1, one Srinivasan, Deputy Manager of I.O.B., Thillai Nagar was examined as PW 2, T. Senthilnathan, the Manager, I.O.B., Thogaimalai Branch was examined as PW 3 and T. Somasundaram, Inspector of Police, Cantonment Police Station, Tiruchi was examined as PW 4. Exh. A-l to A-5 were marked in support of the claimants' case. On the other hand, one Prame Shahal, driver of the Marudhu Pandian Transport Corporation was examined as RW 1. On the basis of the oral and documentary evidence, the Tribunal came to the conclusion that the accident was caused due to the negligence of the bus driver as well as the rider of the scooter TDY 3012. Likewise, the Tribunal after fixing compensation in the light of the finding rendered in negligence aspect, apportioned the compensation by 50:50 and passed an award for Rs. 85,500/- with proportionate costs and interest at 9 per cent per annum from the date of order in M.C.O.P. No. 639 of 1985 and Rs. 12,500 with proportionate costs and interest at 9 per cent per annum from the date of order in M.C.O.P. No. 638 of 1985.
6. Aggrieved by the award of the Tribunal in both the cases, the claimants filed the present appeals before this Court.
7. Mrs. P. Bagyalakshmi, the learned Counsel appearing for the appellants in both the cases contended that in the light of oral evidence of PW 1, PW 3 and PW 4 as well as Exhs. A-3 and A-5, the finding of the Tribunal on the negligence aspect that the deceased Alagappan had also contributed is improper and incorrect. She also contended that the basis and method of calculation of compensation by the Tribunal is too low and the same has to be enhanced. On the other hand, Mr. Pandi, the learned Counsel for the respondent transport corporation contended that the finding of the Tribunal on the negligence aspect, viz., that both rider of the scooter as well as the driver of the bus were responsible is based on the acceptable evidence and also contended that the quantum of compensation fixed by the Tribunal is also based on evidence, hence prayed for dismissal of both the appeals.
8. We have carefully considered the arguments of both the counsel. Since the claimants have filed the present appeals challenging both the negligence and the quantum aspects we are dealing with both the issues in detail. It is the definite case of claimants that on 24.10.1985 at about 8.30 p.m. while the deceased Alagappan proceeding in his scooter TDY 3012 along with his minor son Karuppan in the front side and wife PW 1 on pillion towards west, due to the rash and negligence of the driver of the bus TML 2070 belonging to the Marudhu Pandian Transport Corporation which came from behind dashed on the rear side of the scooter thereby PW 1 pillion rider was thrown away and the rider of the scooter, viz., Alagappan and the minor boy Karuppan sustained fatal injuries. The deceased Alagappan died on the spot and the minor son died on the way to hospital. Apart from the oral evidence of PW 1, the claimants have examined one Senthilnathan, the Manager of Thogaimalai Branch, I.O.B., as PW 3 eyewitness to the occurrence. It is the evidence of PW 3 that on 24.10.1985 at about 8.30 p.m. when himself and the deceased Alagappan were returning on their scooters from their friend's house, at K.K. Nagar near the four road junction, the bus TML 2070 overtaking his scooter in a rash and negligent manner dashed against the scooter TDY 3012 wherein the deceased Alagappan was proceeding towards the junction. Due to the impact the wife of the deceased who was seated as a pillion rider was thrown away and the front left wheel of the bus ran over the rider of the scooter. The minor son who was standing in the front side of the scooter was also thrown away. He further deposed that it was he who informed the police and made the complaint with regard to the manner of the accident. According to him, the entire accident was caused due to the negligence of the bus driver. The Inspector of Police, Cantonment Police Station, Tiruchi was examined as PW 4. According to him, on receipt of the complaint from PW 3 he inspected the spot and prepared a rough sketch showing the place of accident which is marked as Exh. A-3. According to him, he came to know that the accident was caused due to the rash and negligent driving of the driver of the bus TML 2070. In respect of the damage caused to the scooter as well as the bus the certificates issued by the Motor Vehicles Inspector have been marked as Exhs. A-l and A-2. Exh. A-l speaks about the damage caused to the bus TML 2070 and Exh. A-2 relates to the scooter TDY 3012. The post-mortem certificate relating to the deceased Alagappan was marked as Exh. A-4 and the copy of the mahazar in crime No. 235 of 1985 of Cantonment Police Station, Tiruchi was marked as Exh. A-5.
9. In order to support the defence taken by the transport corporation, the driver of the ill-fated bus was examined as RW 1. He categorically deposed that on 24.10.85 he was driving the bus from Karaikudi to Tiruchi and at about 8.30 p.m. after passing the four road junction near Mannarpuram when he was proceeding towards Tiruchi junction one scooter which was coming from the opposite side came to the wrong side of the road and dashed against the front left side of the bus. In spite of stopping the bus the scooterist who came to the wrong side of the road hit against the front left side of the bus and thereby met with an accident. He denied the suggestion of the claimants that it was he who dashed against the rear side of the scooter. In respect of the prosecution launched against him he deposed that he has already filed an appeal and the same is pending in this Court.
10. Even though the eyewitness, viz., Senthilnathan who was examined as PW 3, deposed that he had informed the police immediately after the accident for the reasons best known to claimants, they had not marked the copy of the F.I.R. is a dot have been given by PW 3. It is true that through PW 4 who had investigated the accident Exh. A-5 copy of the mahazar in Crime No. 234 of 1985 on the file of Cantonment Police Station, Tiruchi has been marked, the claimants have not cared to exhibit the earliest report, i.e., F.I.R. as one of the documents. The wife of the deceased, viz., PW 1 has also deposed that she heard the noise from behind and the bus came and dashed on the rear side of the scooter. It is also her evidence that after the treatment she was discharged from the hospital within a few days from the date of accident, which shows that she had sustained only minor injuries. Admittedly she had not filed any separate claim petition for her injuries. In this respect, it is to be remembered that she was travelling as a pillion rider on the scooter, if the impact is from the behind by the said bus, she could have sustained serious injuries and the rear side of the scooter got damaged. It is useful to refer to Exh. A-2, the Motor Vehicles Inspector's report in respect of scooter TDY 3012. Col. 12 of Exh. A-2 reads as follows:
Details regarding damage sustained by the vehicles due to accident:
Vehicle front handle bar fork, headlight assembly body, mudguard and both side doors completely damaged.
PW 4, the Inspector of Police in cross-examination has deposed that (Omitted as in vernacular) Exh. A-l Motor Vehicles Inspector's report regarding the bus No. TML 2070 wherein the damage caused to the bus had been mentioned in the following manner:
Details regarding damage sustained by the vehicle or vehicles due to accident.
Front left corner bumper and body damaged. Front registration number plate damaged.
The damage mentioned in Exhs. A-l and A-2, more particularly Motor Vehicles Inspector's report in respect of scooter TDY 3012, i.e., Exh. A-2 as well as the admission of the Inspector of Police who conducted the investigation (PW 4) in the cross-examination falsifies the oral evidence of PW 1 and PW 3. Moreover, it is the case of PW 1 and PW 3 that the deceased as well as PW 3 were returning from their friend's house at K.K. Nagar. PW 4 the Inspector of Police has admitted in the cross-examination that:
(Omitted as in vernacular) The abovesaid version of PW 4 also falsifies the evidence of PW 1 and PW 3 that they came from K.K. Nagar and while proceeding towards west the deceased Alagappan met with an accident. In view of the above factual position as pointed out by us, we are unable to accept the argument of the learned Counsel appealing for the appellants, viz., while proceeding towards west, the bus came and hit the scooter from behind. Even though the driver of the bus as RW 1 deposed that the scooterist who was driving in a rash and negligent manner from the opposite side, came and hit the front left side of the bus, i.e., from the wrong side and if he was more diligent he could have avoided this accident by applying sudden brake. As pointed out by the Tribunal, he was also equally responsible for the accident. Even though the learned Tribunal apportioned the negligence being 50:50, it is to be remembered that the driver of the bus was driving in an elevated position and it is possible for him to visualise the movement of the vehicles in front of him because of his position. As stated above, if he was more diligent he could have avoided this accident. Since he was driving the public vehicle his responsibility is more than others. On the basis of the entire evidence as discussed by us, we are of the view that the apportionment of negligence fixed by the Tribunal as 50:50 between the bus and the scooter cannot be correct. As pointed out by us, the responsibility of the driver of the public transport corporation is more and in the interest of justice, we fix the negligence of the bus driver and the rider of the scooter as 60:40, having regard to the nature of the vehicles which were involved in the accident, we are apportioning the liability at 60:40 per cent as between the driver of the bus and scooter rider.
11. First we deal with the quantum of compensation payable to the appellants in C.M.A. No. 617 of 1989 filed against the award passed in M.C.O.P. No. 639 of 1985. In this claim petition, the wife, minor son and father of the deceased are the claimants. Totally they had claimed a sum of Rs. 11,92,121/-. In order to fix the compensation the claimant No. 1, wife of the deceased was examined as PW 1. According to her, her husband was aged about 41 years at the time of the accident. Except her oral evidence, she has not filed any documentary evidence to prove her husband's age. She is aged about 32 years. It is seen from her evidence that her husband was employed as an Accountant, C Grade Officer in I.O.B., Thillai Nagar Branch, Tiruchi. She further deposed that her husband was getting a sum of Rs. 2,880 p.m. at the time of accident, and he used to give Rs. 1,500/- p.m. towards family expenses. She also admitted that after her husband's death, she is employed in the very same bank at the monthly salary of Rs. 1,000/-. She further deposed that if her husband was alive, he would have become Grade I Manager in the said bank. It is her evidence that after ascertaining the details from the said bank, she claimed a sum of Rs. 11,92,121/- as total compensation. She also deposed that the claimant No. 3, viz., the father of the deceased is aged about 73 years at the time of her evidence. Even though she had spoken about the employment, monthly income of her husband, she had not filed any document from the I.O.B. to substantiate her oral evidence. No doubt one V. Srinivasan, Deputy Manager, I.O.B., Thillai Nagar Branch, was examined as PW 2 to speak about the employment of the deceased. According to him, the deceased was employed in I.O.B., Thillai Nagar Branch, Tiruchi as Accountant and he further deposed that on the basis of his service register, his date of birth was 14.3.1944 and he joined the service in I.O.B. with effect from 9.10.1967. He further deposed that he can continue his service up to the age of 60. He also deposed that the deceased was getting a monthly salary of Rs. 3,800/- prior to the accident. He also informed the court that there was possibility of getting a sum of Rs. 6,500/- per month by the deceased before his retirement. After retirement, according to him, six months' salary will be paid as gratuity. Even though, PW 2 had explained the employment prospects and emoluments of the deceased, he has also not filed any documentary evidence regarding the same.
12. On the basis of the oral evidence of PWs 1 and 2 and on the basis of the fact that PW 1, employed in the very same bank and earning Rs. 1,000/- per month, the Tribunal fixed Rs. 12,000/- as the actual dependency per annum. Since the deceased was aged about 41 years, considering the length of service, viz., 19 years, the Tribunal arrived at the figure of Rs. 2,28,000/- as total pecuniary loss to the claimant's family. After allowing the deduction to the tune of '/4th of the award amount towards lump sum payment and uncertainty of life, the Tribunal fixed a sum of Rs. 1,71,000/- as the total amount payable to the claimants. Inasmuch as the Tribunal has apportioned the negligence by 50:50, ultimately passed an award for Rs. 85,500/- in favour of the claimants in M.C.O.P. No. 639 of 1985. At this juncture, the learned Counsel for the appellants very much relied on the decision reported in Tamil Nadu Electricity Board v. K. Vijayalakshmi 1995 ACJ 1008 (Madras) and contended that while fixing the compensation the chances for future promotion etc. should be taken into account. In the said decision, a Division Bench of this Court after referring to the judgment of the Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas held that "loss of income has to be estimated taking into account the future contingencies also". She has also very much relied upon another judgment of this Court reported in Tata Engineering and Locomotive Co. Ltd. v. Vasanthi . In the said decision, it is reiterated that the employment given on compassionate ground to the wife and her earning cannot be considered while fixing the pecuniary loss of the deceased. In the said decision after the death of her husband, the wife was employed in the same department. A contention was raised in that case that inasmuch as the wife was given employment on compassionate ground, her salary should be deducted from the compensation awarded to the claimant. For the abovesaid contention, a Division Bench of this Court after referring various decisions of the High Court, rejected the same. No doubt employment may be given on compassionate grounds. But it depends upon the qualification of the person concerned. Further, it is not an amount paid ex gratia or as compensation for the death of the deceased. Work is extracted from the first claimant for the amount paid to her. She earns her salary by working therefor. Hence, that amount cannot form part of compensation to be given to the claimants. It is wrong to say that the salary of the claimant No. 1 in her employment in the very same bank shall be deducted from the compensation. Of course, Mr. P. Pandi, learned Counsel for the respondent transport corporation cited a contra decision rendered in N.D.M.C. v. Kamlesh Kumari , wherein it has been held that inasmuch as the widow got employment owing to the circumstances culminating in the death of the deceased, her employment even on compassionate ground has to be taken into consideration while assessing the dependency. Since the judgment of the Division Bench of our High Court reported in Tata Engineering & Locomotive Co. Ltd. v. Vasanthi , supports the case of the appellants, we are unable to accept and follow the decision of the Delhi High Court cited by the learned Counsel for the respondent transport corporation. We disagree with the quantum arrived at by the Tribunal towards pecuniary loss. As per the oral evidence of PW 1, her husband used to give Rs. 1,500 per month out of his salary and as per the oral evidence of Deputy Manager, I.O.B., Thillai Nagar Branch, PW 2, there is the possibility of promotion and higher emoluments. As discussed earlier, even though there is no documentary evidence regarding the actual salary and prospects of promotional aspects, we can safely presume that he would contribute Rs. 1,500/- p.m. at the initial stage and thereafter Rs. 2,000/- per month to his family. Since the deceased was aged about 41 years at the time of accident, he had another 19 years of service. However, by applying the decision of Apex Court in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas , proper multiplier would be 16 years. In view of the oral evidence of PWs 1 and 2 and the period of remaining service, the proper multiplicand would be Rs. 2,000/- per month. The actual contribution of the deceased to his family would be Rs. 24,000 per year and for 19 years it comes to Rs. 4,56,000/-. Out of which '/4th of the amount has to be deducted towards lump sum payment and uncertainty of life. After deduction, the total pecuniary loss would be Rs. 3,42,000/-. In respect of retirement benefits, except the oral evidence of PW 2, there is no documentary evidence to substantiate their claim. On the basis of the oral evidence of PW 2, we can fix only Rs. 50,000/- towards gratuity etc. The Tribunal has not granted any amount towards loss of consortium and loss to estate. The Apex Court as well as our High Court has held in many cases that towards loss of consortium a moderate amount has to be awarded depending upon the age of the deceased. In this case, the deceased was aged about 41 and the claimant No. 1, viz., the wife is aged about 32 years. Hence, it is just and proper that a sum of Rs. 10,000/- has to be awarded on this head. It is also proper to award another sum of Rs. 10,000/- towards loss of expectation of life. The Tribunal has granted interest at the rate of 9 per cent per annum only and that too from the date of order. This is unsustainable. Even as early as in the year 1985, the Apex Court in the judgment rendered in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), has held that the rate of interest should be 12 per cent per annum and the same should be calculated from the date of petition. As a matter of fact, almost all the High Courts are uniformly following the rate of interest at 12 per cent per annum only, that too from the date of claim petition. In view of the law laid down by the Apex Court we are hereby awarding the interest from the date of petition.
13. In order to clarify the position we hereby enumerate the various amounts fixed under various heads:
Total pecuniary loss Rs. 3,42,000/-
Gratuity and
retirement benefits
etc. Rs. 50,000/-
Loss of consortium Rs. 10,000/-
Loss of expectation
of life Rs. 10,000/-
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Total Rs. 4,12,000/-
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14. In view of our conclusion on the negligence aspect, viz., fixing the liability between the bus driver and scooter rider as 60:40 the claimants are entitled to a sum of Rs. 2,47,200/- with interest at 12 per cent per annum from the date of claim petition. Out of the said amount, even though the claimant No. 3 is not a class I heir, is entitled to the compensation, since he being the dependent of the deceased, we hereby fix a sum of Rs. 15,200/- towards his share. The remaining amount of Rs. 2,32,000/- shall be shared by the claimant Nos. 1 and 2 equally. Inasmuch as claimant No. 2 is a minor, his share shall be invested in a nationalised bank till he attains majority. The mother of the minor, viz., the claimant No. 1 is entitled to withdraw the interest accrued once in six months for the maintenance of the minor.
15. For the reasons stated in C.M.A. No. 617 of 1989 we increase the award to Rs. 2,47,200/- with interest at 12 per cent per annum from the date of petition with proportionate costs. To the above extent, C.M.A. No. 617 of 1989 is allowed in part and the award of the Tribunal passed in M.C.O.P. No. 639 of 1985 is modified.
16. In view of the above discussion, in C.M.A. No. 626 of 1989 also we increase the award to Rs. 15,000/- with interest at 12 per cent per annum from the date of petition with proportionate costs. To the above extent, C.M.A. No. 626 of 1989 is allowed in part and the award of the Tribunal passed in M.C.O.P. No. 638 of 1985 is modified.