Madras High Court
Shanthi vs K.Nallasamy on 29 April, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2008 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.No.1158 of 2002 1.Shanthi 2.Minor Revathi 3.Minor Anandhi 4.Minor Priya ... Appellants Vs. 1.K.Nallasamy 2.Tamil Nadu State Transport Corporation (Combater Division II) Limited, Erode represented by its Managing Director, having its office at Chennimalai Road, Erode (1st respondent set exparte, Hence notice not necessary in this C.M.A.) ... Respondents Prayer: Appeal filed against the Judgment and Decree dated 08.10.2001 made in M.C.O.P.No.667 of 2000 on the file of the Motor Accident Claims Tribunal/First Additional Sub Judge, Erode. For Appellant : Mr.N.Manokaran For 2nd respondent : Mr.Rajnish Pathiyil JUDGMENT
This Civil Miscellaneous Appeal is preferred by the claimants as appellants aggrieved against the award passed in M.C.O.P.No.667 of 2000 dated 08.10.2001 by the Motor Accident Claims Tribunal viz., the First Additional Sub Judge, Erode and has prayed for enhancement of compensation.
2.The appellants/claimants, being wife and children of the deceased Arumugam, have filed a claim petition M.C.O.P.No.667 of 2000 on the file of Motor Accident Claims Tribunal viz., the First Additional Sub Judge, Erode claiming for an award of Rs.6,00,000/- against the respondents with a direction to pay the same with interest at 18% per annum from the date of petition till the date of realisation and with costs.
3.The factual matrix leading to the present appeal are narrated in brief:-
(i) The deceased Arumugam, as standing passenger on 30.10.1999 at about 5.30 p.m. was travelling in the bus bearing registration No.TN 33 N 0323 belonging to the second respondent Transport Corporation from Erode to Arachalur. The first respondent-driver, drove the bus in a rash and negligent manner and in an uncontrollable speed and near Vellode, Puduvalasu Rail Thottipalayam privu when the bus turned in the curve in a rash and negligent manner, the deceased standing inside the bus was thrown out of the bus and fell on the ground and sustained injuries on his head and he died on the spot. The accident took place only due to the rash and negligent driving of the bus by its driver and the second respondent Corporation being the owner of the bus are therefore jointly and severally liable to pay the compensation claimed with interest at 18% per annum and costs from the date of the petition till realisation.
(ii)The respondents took a stand in the counter that the first respondent driver drove the bus bearing registration No.TN 33 N 0323 on the Arachalur to Erode route in a moderate speed in a very cautious manner by observing the traffic rules and regulations and when the bus was nearing Puduvalasu, the conductor blow the whistle in order to stop the bus and before the bus halted, the deceased Arumugam in a drunken mood suddenly jumped down from the running bus and resultantly, he fell on the road and voluntarily invited the accident by his contributory negligence and therefore, the respondents are not liable to pay any compensation, much less compensation of Rs.6,00,000/- as claimed in the petition.
4.Before the Tribunal, on the side of claimants P.W.1 and P.W.2 were examined and Exs.P.1 to P.7 were marked. On the side of respondents, R.W.1-driver was examined and no exhibits were marked.
5.After considering the oral and documentary evidence on record, the Tribunal viz., the First Additional Sub Judge, Erode has passed an award dated 08.10.2001, granting compensation of Rs.2,01,500/- (Rupees Two lakhs one thousand and five hundred only) with interest at 9% per annum from the date of petition till the date of realisation in favour of the appellants/claimants and fixing a time limit of one month for depositing the said amount. Dissatisfied with the award of Rs.2,01,500/- granted by the Tribunal viz., the First Additional Sub Judge, Erode, the claimants as appellants have filed the present appeal claiming higher compensation.
6.According to the learned counsel for the appellants, the Tribunal should have awarded compensation of Rs.6,00,000/- in favour of the appellants/claimants, when the Tribunal came to the conclusion that the deceased Arumugam died on account of negligent driving of the first respondent, driver of the second respondent Corporation and that the Tribunal erred in not taking into consideration the evidence of P.W.1 in order to substantiate the income of the deceased in proper perspective and that the Tribunal committed an error in determining the monthly income as Rs.1,500/- per month without any basis and in any event, the award of the Tribunal granting compensation of Rs.2,01,500/- is meagre, incorrect and not sustainable in law.
7.It is also the specific stand of the appellants that the deceased Arumugam was doing tender coconut business and milk vending business and also was working as Sprayer Man in respect of agricultural operations, getting a weekly income of Rs.1,200/- and this was not taken into consideration by the Tribunal while awarding compensation and that the Tribunal has not awarded any sum under the caption loss of love and affection, etc. On the question of negligence, the Tribunal relied on the evidence of eyewitness (complainant) viz., P.W.2-Subramani to the effect that the driver of the bus (first respondent) drove the bus in Thottipalayam section curve in an excessive speed and negligently and applied the breaks and as a result thereof he fell down and died and therefore, has come to the conclusion that the accident took place on account of the first respondent-driver driving the bus in an excessive speed and negligent manner and resultantly, he has been held responsible for the accident.
8.It is pertinent to point out that in an action for negligence, the legal burden of proof, no doubt rests on the claimant, but barring certain exceptional matters it may not be possible for the claimants to know what precisely led to the accident, in the considered opinion of this Court. As a matter of fact, this difficulty to the claimants can be avoided by applying the maxim 'Res Ipsa Loquitur', which is not a principle of law, but a rule of evidence. Moreover, in certain cases it is quite possible for the claimants to rely on mere fact that something happened as affording Prima facie evidence of want of due care on other's part. In reality, 'Res Ipsa Loquitur' is a principle which help them to do so.
9.In Surjeet Singh V. Santhosh Kumari, 1989 ACJ 466 (Punjab & Haryana), it is observed that 'the doctrine of 'Res Ipsa Loquitur' does not dispense with the need to prove a fact alleged by a person. It only affects the mode of proof, with a view to mitigating the riqour of proof of negligence under certain circumstances, the common law invokes the doctrine'.
10.It is to be pointed out that the maxim of 'Res Ipsa Loquitur' will come into operative play to the aid of the appellants/claimants, only when the circumstances indicate negligence on the part of the driver of the bus. The general principle that the burden of proof of negligence rests on the claimants cannot be altered in any manner, in the considered opinion of this Court. However, if the accident is proved to have occurred due to the negligence of the driver, the maxim 'Res Ipsa Loquitur' squarely applies and the presumption of negligence can be inferred and the burden will shift on the driver of the vehicle to show that he was not negligent at the time of the accident.
11.In Basthi Kasim Saheeb V. Mysore State Road Transport Corporation, 1991 ACJ 380, the Hon'ble Supreme Court has observed that 'if accident is admitted and the driver is not able to explain the accident, the principle of 'Res Ipsa Loquitur' can be applied'.
12.Moreover, the mere happening of an accident itself may be more consistent with negligence on the part of the defendant and if that is so, the Tribunal may find negligence on the part of the defendant unless he gives a reasonable explanation to show how the accident may have happened without negligence on his part. Indeed, once the doctrine 'Res Ipsa Loquitur' is found to be applicable, the burden of proof would certainly shift on the defendant. At this stage, it is not out of place to make a mention that in the instant case on hand, the burden falls on the respondents to show that the accident has not taken place due to any rash and negligent act on their part.
13.As far as the present case is concerned, in view of the unimpeachable evidence of P.W.2-Subramani to the effect that the first respondent-driver of the bus drove the bus in Thottipalayam Section curve in an excessive speed and in a negligent manner and applied the breaks as a result of which the deceased Arumugam fell down and died, the very happening of accident has been established by the appellants/claimants and that they cannot prove beyond that, in the considered opinion of this Court and therefore, it is evident that the first respondent, being the driver of the bus (owned by the second respondent), who drove the bus in a rash and negligent manner resulting in an accident and consequently, this Court concurs with the finding arrived at by the Tribunal that the accident took place on account of the negligence act of the driver by driving the vehicle in high speed and that the driver of the bus was solely responsible for causing the accident.
14.Coming to the plea of enhancement of compensation, it is to be pointed out that the Tribunal has adopted the multiplier of 16 and has fixed the monthly income of the deceased Arumugam at Rs.1,500/- per month. After deducting 1/3rd towards personal expenses of deceased Arumugam, the Tribunal has arrived at a figure of Rs.1,92,000/-. The deceased Arumugam at the time of his death was 38 years of age.
15.In Tulsiram Agarwal V. Manjindar Singh and Others, 1999 ACJ 1988 (Rajesthan), the deceased was aged 38 years and the correct multiplier of 16 was adopted. In Sudhakaran V. Francise and Others, 1997 ACJ 144 (Kerala), it is held that 'for the death of deceased aged 38 the multiplier of 16 adopted by the Tribunal was found to be reasonable'. In Dheeran Chinna Malai Transport Corporation V. Ammani, 2000 ACJ 589, this Court has adopted a multiplier of 16 where the deceased was an experienced practising Advocate of 38 years.
16.It is true that there are uncertainties and difficulties in assessing damages in personal injury and death cases, but the same should not preclude an assessment as best as can in the circumstances be made. However, a compensation has to be determined in terms of money, because, otherwise the law would be sterile and not able to give any relief at all to the affected individuals. No doubt, certainty and accuracy are frequently not to be obtained, but one cannot ignore the fact that a fair assessment must be made in a given matter on the facts and circumstances arising thereto at any costs.
17.The Tribunal has granted Rs.2,000/- towards funeral expenses, towards loss of estate it has granted Rs.2,500/- and towards loss of consortium it has awarded Rs.5,000/- and in all the appellants/claimants were awarded a sum of Rs.2,01,500/- (Rupees two lakhs one thousand and five hundred only), with interest at 9% per annum from the date of filing of the petition till date of deposit. The Tribunal has fixed the lawyer's fee as Rs.7,030/-. Out of Rs.2,01,500/-, the first appellant/claimant was given a sum of Rs.55,625/- towards her share and appellants 2 to 4/minor claimants were given Rs.48,625/- each.
18.It is pertinent to make a mention that if a breadwinner of the family is lost in an unfortunate accident, then the Motor Vehicles Act is like a banyan tree which provides solace to the grief stricken claimants/family members. Indeed, the Motor Vehicles Act visualises a just compensation and not a reasonable compensation. The Tribunal has concluded that there is no proof for the deceased Arumugam to have conducted tender coconut business. Equally, it has also concluded that there is no proof for the conduct of milk business by the deceased Arumugam. One important fact that cannot be ignored in this case is that as per Ex.A.7-Proforma Invoice dated 03.01.1997 in the name of deceased Arumugam for Rs.6,436/- there is a reference towards the power sprayer equipment and therefore, it is quite clear that the deceased Arumugam was doing spraying work during his life time. The Tribunal has fixed the monthly income of the deceased Arumugam as Rs.1,500/-, based on the fact that he was doing spray work. Admittedly, the deceased Arumugam during his life time was maintaining the appellants/claimants. To put it differently the appellants/ claimants numbering 4 were depending on the monthly income of the deceased Arumugam. As a matter of fact, the first appellant is the wife of the deceased Arumugam and appellants 2 to 4 are the minor children of the deceased. Considering the fact that even though there is no proof that the deceased Arumugam was doing tender coconut business or the milk business the fact that he was doing spray work cannot be denied or disputed and bearing in mind that the appellants/claimants were dependent on the deceased Arumugam, this Court is of the view that the monthly income of deceased Arumugam fixed at Rs.1,500/- by the Tribunal is inadequate.
19.Per contra, this Court is of the considered opinion that the monthly income of the deceased Arumugam can be reasonably fixed at Rs.2,100/- and accordingly, determines the monthly income of the deceased Arumugam at Rs.2,100/-, (based on his average earning of Rs.70/- per day). At this juncture, this Court points out that the strict rules of evidence are not applicable to the Claims Tribunal. Out of the monthly income of Rs.2,100/- so fixed, one can reasonably deduct 1/3rd towards the personal expenses of the deceased Arumugam. Therefore, the monthly dependency of Rs.1,400/- is fixed by this Court, which is just and prudent on the facts and circumstances of the present case. Based on the monthly dependency of Rs.1,400/-, per year it works out to Rs.16,800/-. Since the age of the deceased Arumugam is mentioned as 38 at the time of his death in Ex.a.5-Postmortem Certificate, this Court places the reliance on Ex.A.5-Postmortem Certificate and determines the age of the deceased Arumugam at the time of his death as 38. Therefore, the proper multiplier to be adopted is 16 as per the Second Schedule to Section 163 A of Motor Vehicles Act and accordingly, adopting the multiplier of 16, then Rs.16,800/- x 16 it comes to Rs.2,68,800/- as compensation. This Court grants Rs.2,500/- towards loss of estate, Rs.2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium. Therefore, a sum of Rs.9,500/- towards general damages to the appellants/claimants is awarded by this Court. Thus, the appellants/claimants are awarded the total compensation of Rs.2,78,300/- [Rs.2,68,800/- + 9,500/-]. Accordingly, this Court awards a sum of Rs.2,78,300/- (Rupees two lakhs seventy eight thousand and three hundred only) as compensation for the death of the deceased Arumugam and this Court concludes that a sum of Rs.2,01,500/- awarded by the Tribunal as compensation to the appellants/claimants is not adequate. Inasmuch as a sum of Rs.2,01,500/- has been awarded by the Tribunal by its Award dated 08.10.2001 and in lieu of the fact that this Court has awarded a sum of Rs.2,78,300/-, the difference sum of Rs.76,800/- the appellants/claimants are entitled to receive from the second respondent Transport Corporation as enhanced compensation. As seen from the Award, the Tribunal has fixed the lawyer's fee as Rs.7030/-. However, the correct lawyer's fee is fixed as Rs.8,566/-, determined by this Court. Hence, the difference of Rs.1,536/- is to be paid by the respondent Corporation to the appellants/claimants.
20.From the foregoing discussions and on examination of oral and documentary evidence available on record and looking it from any point of view, this Court opines that the award of Rs.2,01,500/- passed by the Tribunal is not adequate and instead this Court awards a compensation of Rs.2,78,300/- (Rupees Two lakhs seventy eight thousand and three hundred only) as just and proper in the circumstances of the case. The second respondent Transport Corporation is directed to pay the difference amount of Rs.76,800/- to the appellants/claimants by means of deposit into the Motor Accident Claims Tribunal viz., the First Additional Sub Judge, Erode to the credit of M.C.O.P.No.667 of 2000 within one month from the date of receipt of the copy of this order. Further, the second respondent Transport Corporation is also directed to pay the difference amount of Rs.1,536/- towards lawyer's fee by means of deposit into the Motor Accident Claims Tribunal viz., the First Additional Sub Judge, Erode to the credit of M.C.O.P.No.667 of 2000 within one month from the date of receipt of the copy of this order.
21.The Motor Accident Claims Tribunal viz., the First Additional Sub Judge, Erode is directed to ensure that the requisite Court Fee is paid by the appellants/claimants, if not already paid by them and in this regard, the appropriate steps may be taken by the Tribunal.
In the result, the Civil Miscellaneous Appeal is allowed in above terms. Considering the facts and circumstances of the case, there shall be no order as to costs.
29.04.2008 Index : Yes Internet : Yes sgl M.VENUGOPAL,J.
Sgl To The First Additional Sub Judge, Motor Accidents Claims Tribunal, Erode.
Judgment in C.M.A.NO.1158 OF 2002 29.04.2008