Madras High Court
Thangammal vs The Managing Director on 25 September, 2013
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.09.2013 CORAM: THE HONOURABLE MRS.JUSTICE S.VIMALA C.M.A.No.3472 of 2008 and M.P.No.1 of 2008 Thangammal .. Appellant ..Vs.. The Managing Director, Tamil Nadu State Transport Corporation Limited, No.12, Ramakrishna Road, Salem 636 007 .. Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the award passed in MCOP No.1006 of 2005, dated 31.08.2006 on the file of the Motor Accident Claims Tribunal, I Additional District Judge, Salem. For Appellant : Mr. K.Kuppusamy For Respondent : Mr. M.M.Swaminathan - - - J U D G M E N T
The Court should not succumb to niceties, technicalities and mystic maybes said the Supreme Court in the decision reported in AIR 1980 SUPREME COURT 1354 (N.K.V.Brothers Private Limited v. M.Karumai Ammal). Despite the serene advice, the Tribunal has succumbed to the insignificant inconsistencies, contradictions and omissions and dismissed the claim petition. Aggrieved over the same, the sister of the deceased, Bhagyam, has filed this Civil Miscellaneous Appeal.
2. Bhagyam, aged 47 years, Vegetable Seller, self employed, earning Rs.3,000/- per month, died in an accident that took place on 27.11.2004. She was walking on the Salem-Attur main road from east to west, keeping left side of the road. At that time, the bus belonging to the respondent bearing Registration No.TN27-N-1053 came in the same direction in a rash and negligent manner and dashed behind her, causing her instantaneous death. The deceased, being a widow, having no children, lived along with her sister, the claimant. Alleging loss of financial and moral dependency, the claimant claimed a sum of Rs.5,00,000/- as compensation.
3. The respondent denied the manner of accident. The defence was that the accident happened only due to the negligent act of the deceased herself as she suddenly crossed the road without seeing both ends of the road.
4. The Tribunal, on consideration of oral and documentary evidence, dismissed the claim petition on the following grounds:-
(i) As per the version of the driver, a lorry was coming from the opposite direction which attempted to overtake the bus in front of it and at that time a woman pedestrian who crossed the road was hit by the lorry and died. The criminal court has acquitted him, as per Ex.R-1.
(ii) The person, who set the criminal law in motion, i.e., Jayakumar, has been examined before the criminal court, but not examined as a witness before the Tribunal. The eye witness examined before the Tribunal, namely, P.W.2, Karuppasamy has not been cited as a witness before the Criminal Court. Therefore, the evidence of P.W.2, as eye-witness, cannot be accepted.
5. Based on these findings the claim petition has been dismissed. Whether the findings rendered by the Tribunal is sustainable is the issue raised in this appeal.
6. Normally the judgment of a Criminal Court is not binding upon the civil court. The reason being that, to determine the rights and liabilities of individuals, the civil system use preponderance of probabilities as the standard whereas proof beyond reasonable doubt is the standard expected in the Criminal Proceedings. With respect to nature of proof beyond reasonable doubt, it was held by Lord Denning in the case of Miller vs. Minister of Pensions, as follows:-
If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice. 6.1. This is the extent of proof required due to the detrimental reflection of character of the offender and the subsequent implication of the offence being committed against the society. That is the justification for the intervention of the State in the matters of criminal prosecution. Considering the ramifications of the crime, the matter needs to be argued on behalf of the entire society and not merely by the victim. The higher standard is used to determine the guilt of the individual, also owing to the fact that, the consequences are dire and serious.
7. The following are the other decisions, which are directly on the point that the judgment of the criminal court is not binding upon the Claims Tribunal, but only to the extent indicated therein:-
(i) Judgment of the criminal court is not relevant in a Motor Accident Claims Tribunal trying a claim arising out of a motor accident involving injury or death, AIR 1970 Punj.137; Raja Ram Garg v. Chhanga Singh, AIR 1992 All 28 = 1992 All LJ 318.856.
(ii) Where the judgment of a criminal court did not come within the ambit of Sections 40 to 42, the Motor Accidents Claims Tribunal was not inhibited from coming to its own decision about the veracity or otherwise of the witnesses, Prabhakar v. Maria, AIR 1977 Goa 15.
(iii) In an enquiry into claim before Motor Accidents Claims Tribunal judgment of criminal court is admissible to prove only who the parties to the dispute were and what order was passed therein, AIR 1979 Pat. 204 = 1979 BLJR 384.
(iv) Judgment of Criminal Court is admissible to limited extent but the reasons given therein cannot be read in evidence, (1985) 2 Bom CR 417.
8. From a perusal of the judgments, it is clear that the reasons given by the Criminal Court cannot be relied upon by the Motor Accident Claims Tribunal. Except to the extent of noting down, who the parties are, and what orders were passed thereon, the judgment is not admissible. Therefore, the Claims Tribunal is not right in taking the judgment of the Criminal Court as the foundational material to reject the claim of the petitioner. The finding that witnesses examined before the Criminal Court are not examined before the Tribunal is also incorrect. It is not necessary that the witnesses examined before the Criminal Court alone should be examined before the Tribunal to speak about the negligence. The duty of the Tribunal is to find out the veracity of the witness who give evidence before the Court and to decide whether the evidence is acceptable or not. There is no requirement of any law or rule that the person who preferred the complaint before the Police alone is the competent witness to speak about the manner of accident. Anybody who had occasion to see the accident can speak about the manner of accident. Therefore, the non-examination of Jeyakumar, who preferred the complaint, cannot affect the merits of the case.
9. The next contention is that the finding given by the Tribunal that the driver is not responsible for the accident, (based upon Ex.R-1-Criminal Court Judgment) is unsustainable, especially when the Corporation has admitted the accident in the counter filed by them. It is controverted by the learned counsel for the Corporation contending that the averments made in the counter is only denial and not an admission of accident. In order to answer this contention, it is necessary to look into the averments made in paragraph 5 of the counter. In paragraph 5 it is stated as follows:-
5. ... It is submitted that the accident was happened only due to the negligent act of the deceased. It is submitted that the deceased crossed the road without seeing both ends of the road, so that the accident was happened only due to the negligent act of the deceased. If the deceased took little care before crossing the road, the accident could be avoided easily. There is no fault on the part of the driver of the TSTC Bus. 9.1. A perusal of the averment made in the counter would disclose that it will not amount to denial of accident. It is settled principle that the denial has to be specific and not evasive. It is nowhere specifically stated that the bus belonging to the Corporation did not involve in any accident on that particular day. At this juncture, it is relevant to point out the object of pleadings.
Object of Pleadings: The objects of pleadings are as follows:
1) to bring parties to definite issues 2) to enable the parties to determine the testimony which would be required at the hearting 3) to diminish expenses 4) to prevent delay 5) to prevent one party from taking the other by surprise at the time of hearing. 6) to prevent miscarriage of Justice. 9.2. Under Order VIII Rule 3 CPC, it would not be sufficient to plead a general denial of the facts alleged in the plaint. This provision covers non- admission also even though the rule refers to denials and therefore, the non-admission should also be specific and not general. In the case of Jahuri Sah and ors V. Dwarika Prasad Jhunjhunwala and ors, AIR 1967 SC 109, the Supreme Court held that as per Order VIII Rule 5 of CPC the denial has to be specific and if the defendant in his pleading states that he has no knowledge of a fact pleaded by plaintiff is not tantamount to denial of existence of fact, not even implied denial. It would therefore be taken to be admitted in terms of Order VIII Rule 5 of the CPC. Even where want of knowledge is his reason for non-admission, the defendant should say that he does not admit such and such facts. When the denial is not specific and it is evasive, the contention of the Corporation that the accident did not take place cannot be accepted.
10. The next contention of the learned counsel for the Corporation is that even assuming that there was an accident, the accident was only on account of negligence of the deceased and not on account of negligence on the part of the Corporation driver and that in any event the victim is guilty of contributory negligence.
10.1. There is no material whatsoever to come to the conclusion that the victim is guilty of contributory negligence or the accident took place due to the negligence of the victim. Even though it is stated by the driver that the victim while crossing the road got hit by the lorry there is no material to substantiate the same. If that be the case, the alleged complaint, said to have been given by the driver against the lorry, ought to have been brought on record. Only to avoid the same, the driver of the Corporation contends that the complaint was oral. It is not even the case of the Corporation that the victim got hit against the Corporation bus while crossing the road. Only in that case the theory of contributory negligence can be considered and not otherwise. The Corporation cannot take mutually contradictory plea and it is not permissible. Non-involvement of the Corporation bus and consequent denial of accident cannot sail with the contention that the accident took place due to the contributory negligent of the deceased.
11. Coming to the quantum of compensation, the monthly income of the deceased is stated to be Rs.3,000/-. Adding Rs.500/- towards household services and Rs.500/- towards future anticipated increase in income, the monthly income would be Rs.4,000/-. Deducting 50% towards personal expenses, the contribution would be Rs.2,000/-. Adopting the multiplier of '13' (as the deceased was aged 47), the compensation on account of loss of dependency is Rs.3,12,000/-. (Rs.2,000/- x 12 x 13). Adding a sum of Rs.2,000/- towards funeral expenses and Rs.3,000/- towards loss of love and affection, the compensation payable is Rs.3,17,000/-.
12. In the result, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, the connected MP is closed. The respondent is directed to deposit Rs.3,17,000/- with interest at 7.5% per annum from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment. No costs.
25.09.2013 Index : Yes / No Web : Yes / No srk S.VIMALA, J., srk To
1. Motor Accident Claims Tribunal, I Additional District Judge, Salem
2. The Section Officer, V.R.Section, High Court, Madras C.M.A.No.3472 of 2008 and M.P.No.1 of 2008 25.09.2013