Madras High Court
The Managing Director Annai Sathya ... vs Rahamathunnisa on 8 September, 2006
Author: V. Dhanapalan
Bench: V. Dhanapalan
JUDGMENT V. Dhanapalan, J.
1. Chalenging the judgment and decree dated 16.12.1997 passed by the Motor Accident Claims Tribunal, (Sub-Court), Krishnagiri, in M.C.O.P. No.306 of 1995, Annai Sathya Transport Corporation has preferred the above Civil Miscellaneous Appeal.
2. According to the respondent/claimant, on 01.10.1994, at 1.00 p.m., the bus belonging to the Transport Corporation, driven rashly and negligently by its driver, dashed against a tanker lorry which was stationed in the left side of the road near Naduppaiyur and on account of the said accident, her husband and two others died and several others in the bus got severely injured. Thus, it is the case of the respondent/claimant that the Transport Corporation is liable to pay her a compensation of Rs. 5,00,000/- for the death of her husband in the accident caused by the Transport Corporation bus driver. On her side, three witnesses including her were examined and three documents were marked.
3. Before the Tribunal, the Transport Corporation filed its counter contending that the tanker lorry was stationed in the middle of the road without any signal and the accident did not happen due to careless and negligent act of the bus driver. Hence, it was its case that the owner and Insurer of the tanker lorry are liable to pay the compensation. The Transport Corporation further disputed the claim with regard to age and income of the deceased. But, on its side, no oral or documentary evidence was let in.
4. After consideration of the oral and documentary evidence, the Tribunal fixed the negligence on the part of the bus driver and held that the Transport Corporation is liable to pay a sum of Rs. 2,93,000/- as compensation to the respondent/claimant with interest at the rate of 12% per annum from the date of claim petition till the date of deposit.
5. Mr. G. Muniratnam, learned Counsel for the appellant Transport Corporation has contended that the Tribunal ought not to have relied on P.W.2, an interested eye-witness and Ex.P. 2, First Information Report, the author of which was not examined and at least contributory negligence ought to have been fixed against tanker lorry driver for violation of traffic rules. As regards the quantum of compensation, he has contended that the Tribunal has gone wrong in fixing the monthly contribution of the deceased as Rs. 3,000/- without any basis and even the application of multiplier of 8 is totally erroneous.
6. Per contra, Mr. Thamaraiselvan, learned Counsel for the respondent/claimant has contended that the Tribunal has rightly fixed the negligence on the part of the bus driver on the basis of deposition of P.W.2, an eye-witness to the accident and Ex.P.2, the First Information Report. It is his further contention that the Tribunal has applied a lesser multiplier of 8 and it ought to have applied the multiplier of 13 and thus, the award of compensation needs to be enhanced.
7. The points which arise for consideration in this appeal are that as to who is the cause for the accident and whether the quantum of compensation fixed by the Tribunal does need any sort of interference.
8. P.W.2, an eye-witness to the accident has categorically deposed the bus was driven in a rash and negligent manner and it dashed against the tanker lorry stationed in the left side of the road. Though the Transport Corporation has contended that the accident happened only due to violation of traffic rules by the tanker lorry driver, it has failed to let in either oral or documentary evidence. At least, its driver could have been examined but it was not so. In the absence of any evidence on the side of the Transport Corporation to prove that the tanker lorry driver was at fault, I endorse the finding of the Tribunal in fixing the negligence on the part of the bus driver.
9. Coming to the award of compensation fixed by the Tribunal, it is seen that the deceased was employed as a Multi Purpose Health Assistant in a Government Primary Health Centre at Karimangalam, Dharmapuri District and was drawing a salary of Rs. 3,518/- per month as per Ex.P.1, Salary Certificate. Ex.P.3, post-mortem certificate shows that the deceased was aged 50 years. Based on these, the Tribunal has proceeded to fix the monthly contribution of the deceased as Rs. 3,000/- per month and applying the multiplier of 8, it has arrived at a sum of Rs. 2,88,000/- as pecuniary damages and has also awarded a sum of Rs.5,000/- towards loss of consortium totaling to Rs. 2,93,000/-.
10. As far as the fixation of the contribution of the deceased to his family is concerned, it is seen that the Tribunal has fixed it at Rs. 3,000/- without application of mind and by deviating from the established principle in this regard. Hence, by deducting one-third of the income, the monthly contribution of the deceased is fixed at Rs. 2,350/-. Though the date of accident is 01.10.1994, i.e. about 1 = months prior to amendment of the Motor Vehicles Act, 1988 on 14.11.1994, taking into consideration overall aspects of the matter and the age of the deceased and the respondent/claimant in particular, since the deceased was aged 50 years, the proper multiplier to be applied for the age group of the deceased is 11. Accordingly, the pecuniary damages works out to Rs. 3,10,200/- and added to this, is the sum of Rs.5,000/- awarded by the Tribunal towards loss of consortium and thus, the total compensation comes to Rs. 3,15,200/- as against Rs. 2,93,000/- fixed by the Tribunal.
11. In support of the above enhancement awarded by this Court, it is worthwhile to cite a judgment of this Court reported in 1999 (III) MLJR 147 in the case of Managing Director, Thanthai Periyar Transport Corporation, Villupuram v. Sundari Ammal and Ors. wherein the learned single Judge has observed that the provisions of Order 41, Rule 33 of the C.P.C. 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 appeal against that order of the Tribunal and this principle has been applied in numerous cases by various High Courts and to cite a few, they are the decisions reported in:
(a) (1993) 2 TAC 113 in the case of Oriental Fire & General Insurance Company Ltd. v. A.P. Sikliker by Gujarat High Court
(b) 1988 ACJ 281 in the case of Municipal Board, Mount Abu v. Harilal by Rajasthan High Court
(c) 1989 ACJ 750 in the case of Maharashtra State Road Transport Corporation v. Kamalabai by Bombay High Court and
(d) 1987 ACJ 354 Sewaram alias Sewan v. Nanhe Khan alias Asgar Deg by Madhya Pradesh High Court
12. Also, the Supreme Court, in its decision in the case of Dhangir v. Madan Mohan, observed as follows: (para 24) 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 respondents 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 appellants 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 require used in Rule 33 of 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 Section 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 one mere technicalities.
13. Thus, in view of the aforesaid proposition of law and the principles laid down by the various Courts and the Supreme Court in particular, I am convinced that this is a fit case wherein the amount of compensation should be revised upwardly and enhanced, as indicated above, even in the absence of cross-objection by the claimant and she should not be denied of this enhancement just because the Tribunal has erred in arriving at the proper compensation. Also, it has to be borne in mind that the Motor Vehicles Act, is, after all, a beneficial legislation and the benefit of the Act should reach the victim or his dependant. The enhanced sum of Rs. 22,200/- shall carry Interest @ 7.5% per annum from the date of the Claim Petition.
In the result, the appeal preferred by the Transport Corporation fails and accordingly, it is dismissed with the quantum awarded by the Tribunal modified as indicated above. No costs.