Madras High Court
The Managing Director vs C.Uma Maheswari on 4 September, 2012
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras
Dated 04.09.2012
Coram
The Honourable Mrs.Justice R.BANUMATHI
and
The Honourable Mr.Justice R.SUBBIAH
Civil Miscellaneous Appeal Nos.101 and 124 of 2010
and 398 of 2011
C.M.A.No.101 of 2010
The Managing Director,
Tamil Nadu State Express Transport
Corporation Ltd.,
Pallavan Salai, Chennai-2. ..Appellant
..vs..
1. C.Uma Maheswari
2. Minor C.Jagadish Kiran-rep.by
his mother & N.F.R1
3. B.Palani Mudaliar
4. P.Malathi
5. Kanchana Madhukumar
6. United India Insurance Company Ld.,
No.488/489, Anna Salai,
Nandanam, Chennai-35. ..Respondents
C.M.A.No.124 of 2010
1. C.Uma Maheswari
2. Minor C.Jagadish Kiran-rep.by
mother & N.F.R1
3. B.Palani Mudaliar
4. P.Malathi ..Appellants
..vs..
1. Kanchana Mathukumar
2. United India Insurance Co.Ltd.,
No.488/489, Anna Salai,
Chennai-2.
3. Tamil Nadu State Express Transport
Corporation Ltd., rep.by its
Managing Director,
Pallavan Salai, Chennai-2. ..Respondents
C.M.A.No.398 of 2011
The Managing Director,
Tamil Nadu State Express Transport
Corporation Ltd.,
Pallavan Salai, Chennai-2. ..Appellant
..vs.
1. Kanchana
2. Minor M.Cayathiri
3. Minor M.Krishnakumar
(Minors R2 and R3 are rep.by their
mother and N.F. R1) ..Respondents
Civil Miscellaneous Appeals No.101 and 124 of 2010 filed under section 173 of Motor Vehicles Act, 1988, against the common award and decree dated 30.06.2009 made in MCOP.No.3479 of 2000 on the file of Motor Accidents Claims Tribunal (III Court of Small Causes), Chennai.
Civil Miscellaneous Appeal No.398 of 2011 filed under section 173 of Motor Vehicles Act, 1988, against the common award and decree dated 30.06.2009 made in MCOP.No.2597 of 2000 on the file of Motor Accidents Claims Tribunal (III Court of Small Causes), Chennai.
For Appellants : Mr.A.Babu in CMA 101/2010 & 398/2011
and R3 in CMA 124/2010
For Respondents : Mr.M.Swamikannu for R1 to R4 in CMA
101/2010 and Appellant in CMA 124/2010
Mr.S.Natanarajan for R5 in CMA 101/2010 and R1 to R3 in CMA 398/2011 and R1 in CMA 124/2010
Mr.S.Arunkumar for R6 in CMA 101/2010 and R2 in CMA 124/2010
COMMON JUDGMENT
R.SUBBIAH, J., C.M.A.Nos.101 and 124 of 2010 and C.M.A.No.398 of 2011 arise out of a common award (30.06.2009) passed by the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai, in M.C.O.P.Nos. 3479 and 2597 of 2000 respectively along with other three claim petitions, namely, M.C.O.P.Nos.4536, 4582 of 2000 and 5010 of 2003.
C.M.A.No.101 of 2010 has been filed by Tamil Nadu State Express Transport Corporation against the award passed in M.C.O.P.No.3479 of 2000.
C.M.A.No.124 of 2010 has been filed by Claimants in M.C.O.P.No.3479 of 2000 for enhancement of compensation.
C.M.A.No.398 of 2011 has been filed by the Tamil Nadu State Express Transport Corporation against the award passed in M.C.O.P.No.2597 of 2000.
Since all these appeals arise out of a common award, these appeals are also disposed of by a common judgment.
2. Brief facts are as follows:
On 16.04.2000 at about 4.45 Hours, one P.Chandrasekaran along with others including one Madhukumar were travelling from South to North on Chennai-Trichy National Highways from Sabarimala in a Maruti Car bearing registration No.TN-02-H-8051, which was driven in a very high speed and in a rash and negligent manner. When the car was proceeding near Tholudur at Karunkuttai Village, a bus bearing registration No.TN-01-N-6651 belonging to State Transport Corporation came from the opposite direction in a rash and negligent manner on the wrong side of the road and hit the Maruti car and thus, caused the accident, in which, the Maruti Car got heavily damaged and all the occupants of the Maruti Car including the driver died on the spot. Immediately, the driver of the bus lodged a complaint to Mangalamedu Police Station. Legal heirs of deceased Chandrasekaran filed M.C.O.P.No.3479 of 2000 claiming Rs.1,06,00,000/- as compensation against the owner as well as the insurer of the car and the State Transport Corporation. Similarly, the legal heirs of deceased Madhukumar filed M.C.O.P.No.2597 of 2000 claiming Rs.20,00,000/- as compensation against the State Transport Corporation. Legal heirs of other deceased persons have also filed claim petitions before the Tribunal.
3. Though the claimants have stated in their respective claim petitions that the accident is the result of rash and negligent driving of the driver of the bus, the same was denied by the Transport Corporation in their counter, In fact, the Transport Corporation has also filed a claim petition in M.C.O.P.No.5010 of 2003 against the owner as well as the insurer of the car, claiming compensation towards the damages caused to the bus in the accident.
4. Before the Tribunal, totally 9 witnesses were examined as P.Ws.1 to 9 and 29 documents were marked as Exs.P-1 to P-29 and on the side of insurance company, one witness was examined as R.W.1 and two documents were marked as Exs.R-1 and R-2. The Tribunal, after analysing the entire evidence both oral and documentary, held that the accident had occurred due to rash and negligent driving of the driver of the Transport Corporation bus alone and thus, passed a common award against the Transport Corporation, exonerating the insurance company, who is the insurer of the car in question, from paying compensation amount. Aggrieved over the said finding, Transport Corporation filed two appeals in C.M.A.Nos.101 of 2010 (against the award passed in MCOP No.3479 of 2000 filed by legal heirs of deceased Chandrasekaran) and 398 of 2011 (against the award passed in MCOP.No.2597 of 2000 filed by legal heirs of deceased Madhukumar). Being dissatisfied with the compensation awarded by the Tribunal, claimants in MCOP.No.3479 of 2000 filed C.M.A.No.124 of 2010 for enhancement of compensation.
5. It is the main submission of the Appellant Transport Corporation that the first information report Ex.P-7 was lodged only as against the driver of Maruti car bearing registration No.TN-02-H-8051. Since the driver of Maruti Car died in the accident, the first information report was subsequently closed. Inviting the attention of this Court to the Motor Vehicle Inspector's Report marked as Ex.P-28, learned counsel for Transport Corporation submitted that the said document would reveal that there was a damage to the front right side of the bus, which would show that Maruti car came from the opposite direction, entered into on the wrong side of the road and dashed against the Appellant Transport Corporation bus. Under such circumstances, the Tribunal, by taking into consideration the first information report as well as Motor Vehicle Inspector's Report, ought to have exonerated the Transport Corporation from paying compensation or at least by fixing contributory negligence, the Tribunal ought to have directed the insurance company to pay balance 50% of the compensation amount, which is the insurer of the car. It is the further submission of Appellant Transport Corporation that in both claim petitions, the quantum of compensation awarded under different heads is also on the higher side. Therefore, proper reduction has to be made in the amounts awarded by the Tribunal.
6. On the contrary, it is the submission of Insurance Company that on the side of claimants, one Govindarajan was examined as P.W.7, who had travelled in the bus belonging to the Appellant Transport Corporation on the date of accident and he had categorically stated in his evidence that on 16.04.2000, he was travelling in the bus from Chennai to Madurai. When the said bus was nearing the place called Thozhudhur, the bus was stopped by the driver to have a tea and thereafter, the bus was started and while the bus was proceeding towards Madurai at 4.45 AM, the said bus entered into the wrong side of the road at hectic speed in a rash and negligent manner and dashed against the Maruti car which was coming from the opposite direction. He had also stated in his chief examination that he was travelling in the bus, sitting behind the seat of driver and he denied the suggestion putforth in the cross examination that he was sleeping at the time of accident. It is the further submission that the evidence of P.W.7 strongly supports the case of insurance company that accident had occurred only due to the rash and negligent driving of the driver of the bus. So far as P.W.7 is concerned, he is an independent witness and, therefore, there is no reason to discard his evidence. Hence, the Tribunal, by correctly placing reliance on the evidence of P.W.7 had come to the conclusion that the accident had occurred due to the rash and negligent driving of the driver of the bus. Under such circumstances, there is no need to interfere with the finding rendered by the Tribunal. Further, the driver of the bus was examined as P.W.9 and he has not made any negative statement in his evidence with regard to the evidence adduced by P.W.7. It is further stated by the learned counsel that had P.W7 not travelled in the bus, the driver would have denied the statement made by P.W.7 in his evidence. Under such circumstances, no infirmity could be found in the finding rendered by the Tribunal, by placing reliance on the evidence of P.W.7 and, as such, there is no need to interfere with the finding rendered by the Tribunal.
7. Further, learned counsel for the Insurance Company, by drawing the attention of this court to the cross examination of P.W.7, submitted that when a suggestion was putforth to P.W.7, he denied the same by answering that he was not sleeping in the bus at the time of accident and he had witnessed the accident. The assertion made by P.W.7 in his evidence strongly supports the case of the insurance company that the accident had occurred only due to the rash and negligent act of the driver of the bus.
8. It is the further submission that on the date of accident, totally five persons had travelled in the car, which is in violation of conditions of the policy. Therefore, on that ground also, the insurance company is not liable to pay compensation. In support of his submission, the learned counsel has relied on the decision of the Apex Court in the case of National Insurance Co.Ltd., .vs. Anjana Shyam and others (CDJ 2007 SC 895).
9. Contending that the first information report is not a conclusive proof, learned counsel appearing for respondents 1 to 3 in CMA No.398 of 2011/claimants in MCOP.No.2597 of 2000 submitted that the same cannot be take into consideration for fixing liability on the part of the driver of the car. In support of his contentions, he relied on the judgment in the case of National Insurance Co.Ltd., .vs. Rattani and others (2009(1) TN MAC 103 (SC). Learned counsel further submitted that Appellant Transport Corporation failed to produce the report of the departmental enquiry conducted as against the driver of the bus. In the absence of said report with regard to the accident, no infirmity could be found in the finding rendered by the Tribunal that the driver of the Transport Corporation is responsible for the accident.
10. With regard to the quantum of compensation, it is the submission of respondents 1 to 4 in CMA 101 of 2010/claimants in MCOP No.3479 of 2000 (legal heirs of deceased Chandrasekaran) that the deceased Chandrasekaran was working as Deputy General Manager in M/s.Family Health Plan Limited at the time of his death. The Tribunal had taken only a sum of Rs.18,000/- as monthly income of the deceased and thereafter deducted 1/3rd amount and by fixing a sum of Rs.12,000/-, has made calculation for arriving at the compensation under the head of loss of income. By inviting the attention of this Court to Ex.P-16 issued by the the Deputy Manager for M/s.Family Health Plan Limited, the learned counsel submitted that the said certificate would show that the deceased was earning Rs.17,322/- at the time of his death. Under such circumstances, the Tribunal by adding 50% of the amount towards future prospects along with Rs.17,322/- ought to have made the calculation for arriving at the compensation, whereas the Tribunal has made calculation without adding any amount towards future prospects, which had resulted in awarding Rs.24,48,000/- which amount under the head 'loss of income' cannot be said to be an adequate compensation considering the monthly income earned by the deceased.
11. This Court has considered the arguments advanced by respective counsel and perused the materials available on record.
12. With regard to the rash and negligence aspect, it is the stand taken by Insurance company as well as respondents 1 to 3 in CMA.No.398 of 2011 that the first information report was given only by the driver of the bus and as such, there cannot be any surprise in the statement found in the first information report blaming the driver of the car in causing the accident. But, the Tribunal, by correctly relying upon the evidence of P.W.7 has come to the conclusion that the accident had occurred due to the rash and negligent driving of the driver of the Corporation bus. But, we are unable to appreciate this submission made by Insurance Company since the police authorities, after investigation, had closed the complaint. During the course of investigation, if the Investigating Officer had come across any material as against the driver of the bus, he would have filed charge sheet only against the driver of the bus. But, it is not known whether a charge sheet has been filed against the driver of the bus or not. Further, we are of the opinion that when the claimants have come forward with the specific case that the accident is due to the rash and negligent driving of the driver of the Corporation bus, they ought to have summoned the Investigating Officer to examine him as a witness and ought to have marked the site sketch; but they have failed to do so. Hence, we are of the opinion that when the circumstances clearly show that the accident is the result of head on collision of two vehicles, the Tribunal ought to have fixed 50% liability on the part of the driver of the car and thus, directed the insurance company, who is the insurer of the car, to pay 50% of the amount. But, the Tribunal, on erroneous appreciation of evidence, had fixed the entire liability on the part of the driver of the bus. Hence, we are of the opinion that the judgment relied upon by the legal heirs of the owner of the car that the first information report is not a conclusive proof, cannot be made applicable to the facts of this case, since other circumstances available in the case undoubtedly go to prove that the accident is the result of contributory negligence of the drivers of both vehicles.
13. So far as the evidence of P.W.7 is concerned, we find, in the cross examination, he had admitted that he has not produced any proof before the Tribunal to show that he had travelled in the bus on the date of accident. Further, he has not given any statement to the police during the course of investigation. Had he travelled in the bus on the date of accident and witnessed the accident, police would have recorded his statement. But, in the instant case, such statement is not available. On the other hand, P.W.7 had deposed that on request made by Mallika, one of the claimants in another claim petition (MCOP.No.4536 of 2000), he came to the Court to give evidence. There is no trustworthiness in the evidence of P.W.7 and as such, no reliance could be placed on his evidence. On the other hand, the evidence available on record, namely, the first information report and the Motor Vehicle Inspector's Report would show that the accident is the result of contributory negligence of both vehicles. Therefore, we hold that Appellant Transport Corporation as well as United India Insurance Company Limited, the insurer of the car, are liable to pay compensation at the rate of 50% each. In view of the same, the finding rendered by the Tribunal with regard to liability is hereby set aside.
14. Though a submission was made by the Insurance Company that at the time of accident, totally five persons had travelled in the car and therefore, there is a violation to the conditions of Policy, we find that one of the occupants in the car was only a minor boy. Hence, we are not inclined to accept the submission made by Insurance Company in this regard.
15. C.M.A.No.398 of 2011: So far as the quantum of compensation awarded by the Tribunal in M.C.O.P.No.2597 of 2000, we find that legal heirs of deceased Madhukumar had made a claim of Rs.20,00,000/- as compensation and the Tribunal has awarded Rs.8,66,000/- under various heads, as follows:
Rs.
Loss of income 8,16,000.00 Loss of consortium 10,000.00 Pain and Mental Agony 10,000.00 Loss of estate 10,000.00 Loss of expectation of life 10,000.00 Funeral expenses 10,000.00 -------------- Total 8,66,000.00 --------------
16. By a perusal of evidence on record, it is seen that the deceased was earning a sum of Rs.12,000/- per month working as Managing Director in M/s.Gayathri Offshore Services Private Limited. In order to prove the income, Pan Card of deceased Madhukumar was marked as Ex.P-20. But, the Tribunal has taken only a sum of Rs.6,000/- as monthly income and thereafter deducted 1/3rd amount towards personal expenses and by applying the multiplier of 17, based on the age of the deceased as 28 years at the time of accident, has awarded Rs.8,16,000/- (Rs.4,000/-x 12x17). We do not find any infirmity in the calculation made by the Tribunal. In fact, the monthly income of the deceased taken as Rs.6,000/- for making calculation cannot be said to be a higher sum considering the present days' cost of living. That apart, the amounts awarded under other heads, in our view, are reasonable. Under such circumstances, we do not find any valid reason to accept the submission made by the Appellant Corporation that the compensation awarded by the Tribunal is excessive.
17. In view of the finding of this Court that both vehicles are responsible for the accident, the Appellant Corporation is liable to pay only 50% of compensation, which comes to Rs.4,33,000/-.
18. C.M.A.No.124 of 2010: Coming to the compensation awarded to appellants in this appeal/ the claimants in MCOP.No.3479 of 2000, it is the claim of claimants that the compensation awarded by the Tribunal is not adequate and it needs enhancement. Tribunal has awarded Rs.27,65,000/- as Compensation under the following heads:
Rs.
Loss of dependency 24,48,000.00 Damages to clothes 2,000.00 Loss of expectation of life 2,50,000.00 Loss of consortium 40,000.00 Loss of love and affection 10,000.00 Funeral expenses 15,000.00 --------------- Total 27,65,000.00 ---------------
19. It is the submission of appellants that the Tribunal, by considering Ex.P-16, the salary certificate of deceased Chandrasekaran, ought to have fixed Rs.17,332/- as monthly income. On a perusal of Ex.P-16, it is seen that it was prepared in the letterhead signed by the Deputy Manager for M/s.Family Health Plan Limited, whereas Ex.P-22, pay slip of deceased for August, 1997 would show that the monthly income of the deceased was Rs.12,640/-. Earnings Statement issued for January, 2000 by Indian Hospitals Corporation Ltd., marked as Ex.P-23, shows that total salary of the deceased was Rs.12,994/. Though Exs.P-23 and P-23 reflect that the monthly income of deceased is Rs.12,000/-, the Tribunal had taken a sum of Rs.18,000/- as monthly income of the deceased. Hence, we are of the opinion that there is no need to fix further amount towards monthly income.
20. So far as Ex.P-16 is concerned, we are of the opinion, no reliance could be placed on that document since no supporting document, such as salary register was filed to strengthen the case of claimants that the deceased was receiving Rs.17,332/- as monthly income at the time of accident. Further we find that the Tribunal, by fixing Rs.18,000/- as monthly income and by deducting one third amount towards personal expenses, had fixed a sum of Rs.12,000/- as monthly loss of income and thereafter by applying the multiplier of 17 awarded a sum of Rs.24.48,000/- (Rs.12,000/-x12x17) towards loss of income. We do not find any infirmity in the said amount awarded by the Tribunal towards loss of income since the same was supported by documentary evidence.
20. Further, we find that Rs.2,50,000/- has been awarded by the Tribunal under the head 'loss of expectation of life'. We are of the view that the amount awarded under the said head is not maintainable since the Tribunal has already awarded Rs.24,48,000/- towards loss of income. However, we are of the opinion, since no adequate compensation was awarded under some of the conventional heads, instead of settling aside the sum of Rs.2,50,000/- awarded by the Tribunal, the said amount could be split up and adjusted under other conventional heads, where adequate compensation was not awarded. Hence, the sum of Rs.2,50,00/- awarded under the head "loss of expectation of life" is set aside and consequently, the said amount is adjusted under other heads, as follows:
(a) We find that the Tribunal has awarded only a sum of Rs.10,000/- towards loss of love and affection. Considering the fact that the 2nd appellant/claimant had lost his father at his tender age, he is entitled for a total sum of Rs.1,50,000/- as compensation under the head of loss of love and affection. Hence, Rs.1,50,000/- is hereby awarded under the said head by adding another sum of Rs.1,40,000/-.
(b) Appellants 3 and 4, who are the parents of the deceased are also entitled to compensation under the head of loss of love and affection. Hence, Rs.50,000/- is awarded towards loss of love and affection at the rate of Rs.25,000/- each.
(c) Considering the fact that first appellant-wife had lost her husband at the age of 26 years, the sum of Rs.40,000/- awarded by Tribunal towards 'loss of consortium' is hereby enhanced to Rs.1,00,000/- by adding another sum of Rs.60,000/-.
The amounts awarded under other heads, in our view, are reasonable and hence, they are confirmed. The details of modified amounts are as follows:
Rs.
Loss of dependency 24,48,000.00 Loss of consortium 1,00,,000.00 Loss of love and affection(son) 1,50,000.00 " (Parents) 50,000.00 Damage to clothes 2,000.00 Funeral expenses 15,000.00 ---------------- Total 27,65, 000.00 -----------------
21. Since the modified amount tallies with the amount awarded by the Tribunal, there is no need to interfere with the quantum of compensation. In view of the finding there is a contributory negligence on the part of driver of both vehicles, the Appellant Transport Corporation is directed to pay 50% from the compensation, i.e.Rs.13,82,500/- and Insurance Company is directed to pay the balance amount of Rs.13,82,500/-.
In fine, C.M.A.No.101 of 2010: Appeal is partly allowed and Appellant Transport Corporation is directed to pay 50% of the compensation awarded by the Tribunal i.e.Rs.13,82,500/- with 9.5% interest. If entire compensation amount has already been deposited, Transport Corporation is permitted to withdraw the excess amount more than that of modified amount with proportionate accrued interest from the deposit. However, there is no order as to costs. Consequently, M.Ps.No.1 and 2 of 2010 are closed.
C.M.A.No.398 of 2011: Appeal is partly allowed and Appellant Transport Corporation is directed to pay 50% of compensation awarded by the Tribunal i.e.Rs.4,33,000/- with 9.5% interest from the date of petition within a period of six weeks before the Tribunal. If entire compensation amount has already been deposited, Transport Corporation is permitted to withdraw the excess amount more than that of modified amount with proportionate accrued interest from the deposit. However, there is no order as to costs.
C.M.A.No.124 of 2010: Appeal is dismissed. However, there is no order as to costs. Transport Corporation and Insurance Company are directed to pay the compensation awarded by the Tribunal at 50% each with proportionate accrued interest at the rate of 9.5% per annum from the date of petition before the Tribunal, within a period of six weeks from the date of receipt of a copy of this judgment. Out of the said amount, 1st appellant-wife of the deceased is entitled to Rs.10,00,000/-; 2nd appellant-minor son of the deceased is entitled to Rs.8,00,000/- and appellants 3 and 4 are equally entitled to the remaining amount. On such deposit being made, Appellants 1, 3 and 4 are permitted to withdraw the entire compensation apportioned to them along with proportionate accrued interest. So far as minor 2nd appellant is concerned, Tribunal is directed to invest the minor's share in a Nationalised Bank till he attains majority. First appellant is permitted to withdraw the accrued interest once in three months for the upkeep and maintenance of her minor son. There is no order as to costs.
Index: Yes. (R.B.I,J.,) (R.P.S.,J.,) Internet: Yes. 04.09.2012 gl Copy to The Registrar, (Motor Accidents Claims Tribunal), Court of Small Cuases, Chennai. R.BANUMATHI, J., and R.SUBBIAH, J., gl Pre-delivery common judgment in CMA.Nos.101 and 124 of 2010 and 398 of 2011 04.09.2012