Pallavan Transport Corporation v. Gowri — 1980 DIGILAW 232 (MAD)

ORDER: Ramanujam, J. — On 25th January, 1972 at about 9. A. M. one T. V. Subramanian got into a bus belonging to Pallavan Transport Corporation Ltd. at the bus stop near Maharaja Talkies, T. H. Road, Madras, and as there was no sufficient space inside the bus, he travelled standing on the footboard of the bus. The bus after going to a certain distance went to the extreme left side of the road to avoid a lorry coming in the opposite direction and as in that process the bus went very close to a telephone post, Subramaniam was hit by the telephone post and sustained severe injuries, as a result of which he died after two days in the General Hospital. His wife and six children filed a claim petition before the Motor Accidents Claims Tribunal, Madras, for a compensation of Rs. 40,000 on the ground that the accident was caused during the rash and negligent driving of the bus and that as a result of the accident which resulted in the death of the said Subramaniam, they have suffered loss of pecuniary benefit and also loss under other heads, such as, pain and suffering etc. The said claim was resisted by the Pallavan Transport Corporation Ltd., Madras, by putting the claimants to strict proof of their case in their claim petition. The Corporation has also stated that the claim in any event is excessive. 2. The following two points arose for consideration before the Tribunal: (1) Whether the accident resulting in the death of Subramanian was a result of rash and negligent driving of the bus by its driver? (2) What, if any, is the compensation to which the petitioners-claimants would be entitled? 3. The Tribunal on a due consideration of the evidence before it adduced by both parties held the first point in favour of the claimants, as it took the view that the accident was exclusively due to rash and negligent driving of the bus by the driver. On the question of quantum of compensation, the Tribunal held that a sum of Rs. 15,000 will be the loss of pecuniary benefit to the family and Rs. 5,000 will be the compensation for pain and suffering. Thus, the Tribunal on the aggregate gave a sum of Rs. 20,000 as compensation as against a sum of Rs. 40,000 claimed by the claimants. 4. 15,000 will be the loss of pecuniary benefit to the family and Rs. 5,000 will be the compensation for pain and suffering. Thus, the Tribunal on the aggregate gave a sum of Rs. 20,000 as compensation as against a sum of Rs. 40,000 claimed by the claimants. 4. Aggrieved against the findings of the Tribunal on both the above questions, the Pallavan Transport Corporation has come up in appeal before this Court. The claimants, who are respondents in the appeal, have filed a memorandum of cross-objections, seeking enhanced compensation of Rs. 40,000. 5. In this appeal, the first question to be considered is as to whether the accident resulting in the death of Subramanian was due to rash and negligent driving of the driver of the bus as alleged by the claimants or it was due to Subramanian contributing his negligence by travelling on the footboard of the bus. 6. The theory of contributory negligence on the part of the deceased was not specifically put forward before the Tribunal and the Tribunal had not considered that aspect of the case. This plea of contributory negligence is however vehemently and seriously argued by the learned counsel for the appellant before us. After due consideration of the matter, we are of the view, that the plea of contributory negligence cannot be taken to have been duly established in the case. According to the learned counsel for the appellant the deceased having travelled in the bus by standing on the footboard which is not authorised, he should be taken to have contributed to the accident by his negligence. There is no dispute in this case that the deceased stood on the footboard of the bus at the time of the accident and it is because he was standing on the foot board, he was hit by the telephone post which was on the left side of the road and died later. The question is whether from those admitted facts, the deceased should be taken to have contributed by his negligence to the accident in question as contended for by the learned counsel for the appellant. 7. Even if the deceased had travelled on the foot board of the bus, he cannot be taken to have contributed to the accident by his negligence. 7. Even if the deceased had travelled on the foot board of the bus, he cannot be taken to have contributed to the accident by his negligence. The deceased can be taken to have contributed to the accident by his negligence only if the accident had occurred as a result of his foot board travel. In this case, it cannot be said that merely because of the footboard travel by the deceased, the accident occurred. The accident had occurred only because the driver of the bus had swerved the bus to the left to avoid the lorry coming in the opposite direction and went to the extreme left side of the road when the deceased was hit by the post. But for his swerving to the left rashly and negligently the accident could not have occurred. The accident cannot be taken to have occurred merely because the deceased was travelling by standing on the footboard. We are in entire agreement with the view taken by the Tribunal in this regard, that even assuming that there were two buses on his right side and that a lorry was coming on the opposite direction, the driver could have stopped the bus and allowed the lorry to pass before proceeding further. Instead of doing that he swerved to the extreme left, went very close to the telephone post and consequently the deceased was hit by the post. This shows that the driver was driving the vehicle in a rash and negligent manner, especially when there was a large number of passengers in the bus and some of them standing on the footboard. On the admitted facts of this case, we are not inclined to hold that by merely standing on the foot board the deceased had contributed to the accident by his negligence. Even though the deceased had travelled by standing on the footboard, the accident could have been averted, if the driver had driven the bus without rashness or negligence. We are, therefore, of the view that the plea of contributory negligence on the part of the deceased has not been established in this case. 8. There is no dispute that the driver of the bus took to the extreme left side of the road, as a result of which the deceased who was standing on the footboard dashed against the telephone post which was on the left side pavement. 8. There is no dispute that the driver of the bus took to the extreme left side of the road, as a result of which the deceased who was standing on the footboard dashed against the telephone post which was on the left side pavement. The impact was due to the fact that the bus was taken very close to the pavement. We have to therefore hold that the accident in this case had occurred due to the rashness and negligence of the driver of the bus and the deceased cannot be taken to have contributed by his negligence to the accident in question. We therefore, agree with the finding of the Tribunal on the first point. 9. On the question of quantum of compensation the Tribunal found that the deceased was 68 years of age at the time of his death as seen from his birth extract, that he was getting a pension of Rs. 55.80 per month as a retired Headmaster of a Corporation School, that in addition to his pension, he was earning a sum of Rs. 150 per month by giving private tuition to about 10 or 15 students and that he was also earning a sum of Rs. 150 as a booking clerk in a cinema theatre called Murugan talkies. Thus according to the Tribunal, the deceased was earning a sum of Rs. 300 per month and the loss of pecuniary benefit to the family can be assessed at Rs. 250 per month. Taking the annual dependency at Rs. 3,000 and adopting five years purchase the total amount of loss of pecuniary benefit to the family, the Tribunal has fixed the same at Rs. 15,000 in this regard. In addition, the Tribunal has also awarded a sum of Rs. 5,000 under the head of pain and suffering. The learned counsel for the appellant contends that the tribunal has proceeded merely on the basis of the interested evidence adduced on the side of the claimants, that there is no evidence that the deceased was earning a sum of Rs. 150 per month by giving private tuition and that even on the basis of the evidence of P. W. 2, son of the deceased, he was only earning a sum of Rs. 90 a month as a booking clerk in the cinema theatre and not Rs. 150 as has been found by the Tribunal. 150 per month by giving private tuition and that even on the basis of the evidence of P. W. 2, son of the deceased, he was only earning a sum of Rs. 90 a month as a booking clerk in the cinema theatre and not Rs. 150 as has been found by the Tribunal. It is seen from the evidence of P.W.2 that his father was giving tuition to 10 to 15 students and was earning thereby a sum of Rs. 150 and that in addition he was earning a sum of Rs. 90 as a booking clerk in the cinema theatre. Apart from P. W. 2, there is no other independent evidence to indicate that the deceased was giving tuition to any one. If really the deceased was giving tuition to 10 to 15 students, at least a parent of one of the students could have been examined to show that the deceased was really giving tuition to the students and was getting a particular amount as fee for tuition. Excepting the mere ipse dixit of P. W. 2, that his father was earning Rs. 150 by giving tuition to 10 to 15 students, there is no concrete or acceptable evidence on the question of the deceased having given tuition. In the absence of any corroborative material the interested statement of P. W. 2 that the deceased was giving private tuition and was getting Rs. 150 a month, cannot straightway be accepted. The Tribunal, therefore, should not have accepted the mere statement of P. W. 2 that his father was earning Rs. 150 a month by giving private tuition without insisting on further corroborative material on that point. 10. On the question as to whether the deceased was earning any sum as a booking clerk in the cinema theatre, P. W. 2 has himself stated that his father was earning Rs. 90 per month, that he was getting Rs. 3 per day in the cinema theatre while P. W. 5, another booking clerk in that cinema theatre deposed that the deceased was getting a daily wage of Rs. 5. Therefore, as between the two differing statements made by P. W. 2 and P. W. 5, the Tribunal has chosen to accept the evidence of P. W. 5. 3 per day in the cinema theatre while P. W. 5, another booking clerk in that cinema theatre deposed that the deceased was getting a daily wage of Rs. 5. Therefore, as between the two differing statements made by P. W. 2 and P. W. 5, the Tribunal has chosen to accept the evidence of P. W. 5. However, we see considerable substance in the contention of the learned counsel for the appellant that the Tribunal was not justified in ignoring the admission made by P.W. 2, that his father was earning a sum of Rs. 3 per day in the cinema theatre. P.W.2, the son of the deceased should be taken to have known what his father was earning as a booking clerk. P. W. 2, being an interested party, he would not have under-estimated the earning of his father especially when he is claiming compensation based on his father's earning. Therefore, we are of the view the Tribunal is not justified in ignoring the admission made by P. W. 2, when he stated that his father was getting Rs. 90 a month as a booking clerk in Murugan Talkies. Thus, the total earnings of the deceased at the time of the death had not been shown to be more than Rs. 150 per month, i.e., Rs. 90 as a booking clerk and Rs. 60 as pension. Having regard to the size of his family, the deceased could be taken to have utilised his entire earning for supporting his family. Therefore, the pecuniary loss to the family as a result of the death of the deceased can be taken to be Rs. 150 per month and the annual dependency Rs. 1,800. Having regard to the age of the deceased at the time of his death, the Tribunal has taken five years as the multiplier. The learned counsel for the respondent, who is the cross-objector, submits that the Tribunal was not justified in taking the multiplier as five years and that it should have adopted at least seven as one can assume having regard to the healthly bodily condition of the deceased that he would have earned and contributed to his family till he attained the age of 75 years. We are of the view in taking five years purchase the Tribunal has come to a reasonable conclusion on the point. We are of the view in taking five years purchase the Tribunal has come to a reasonable conclusion on the point. Having regard to the age of the deceased which was 68 at the time of his death, the Tribunal has proceeded on the basis that till the age of 73 he would have earned and contributed to his family. There are no materials to indicate that the adoption of 5 years purchase by the Tribunal was erroneous. Taking five years purchase as the basis the total pecuniary loss to the family comes to Rs. 9,000. 11. The learned counsel for the appellant challenges the award of Rs. 5,000 under the head of pain and suffering on the ground that the claimants themselves have asked only Rs. 3,000 on this head and the Tribunal has exceeded its jurisdiction in giving an enhanced amount of Rs. 5,000 as against a claim of Rs, 3,000. The Tribunal has awarded Rs. 5,000 under this head having regard to the fact that the deceased had a large number of fractures and that the deceased would have suffered considerable mental agony and pain on account of that. We are not inclined to interfere with that portion of the award of the Tribunal merely on the basis that in the claim form the claimants have shown only Rs. 3,000 under the head of pain and suffering ignoring the actual fact that the claimants have claimed in all a sum of Rs. 40,000 as compensation. The result of the foregoing discussion is that the award of Rs. 5,000 of the Tribunal for pain and suffering is sustained and the award of Rs. 15,000 as the pecuniary loss to the family will be restricted to Rs. 9,000. Thus the total comes to Rs. 14,000. 12. The Tribunal in this case has awarded interest on the compensation awarded at 6 per cent, per annum from the date of its order and not from the date of claim as is usually done. We see no reason to deprive the claimants the interest which they are entitled to from the date of the claim. We therefore hold that claimants will be entitled to the interest on the compensation awarded by us at 6 per cent per annum from the date of the claim petition. 13. We see no reason to deprive the claimants the interest which they are entitled to from the date of the claim. We therefore hold that claimants will be entitled to the interest on the compensation awarded by us at 6 per cent per annum from the date of the claim petition. 13. The respondent in the appeal have filed an application for direction, C. M. P. No. 6676 of 1979. The seventh respondent in the appeal is a minor daughter of the deceased. The said minor had died even before the Tribunal rendered its order. But by inadvertence the death of the 7th (seventh) respondent was not brought to the notice of the Tribunal. Because of this omission, the Tribunal has directed that the compensation amount would be divided between the various claimants equally. It is now pointed out by the counsel for the respondents that as the seventh respondent has died, the entire amount of compensation will have to be shared as between claimants 2 to 6 the first claimant having died pending appeal. This factum of the death of respondents 1 and 7 has not been disputed and therefore, the entire amount of compensation will naturally have to be shared by claimants 2 to 6, who are not only the legal representatives of the deceased but also the legal representatives of the first respondent, the mother. In this view, we direct the compensation awarded in this Court to be paid equally to respondents 2 to 6. 14. This appeal is allowed in part and the award of the Tribunal will be modified as indicated above. The cross-objections is dismissed. There will be no order as to costs either in the appeal or in the cross objections. S.J. ----- Appeal partly allowed; Cross objections dismissed.