P. Sulochana v. M. Vinayagam — 1987 DIGILAW 135 (MAD)

JUDGMENT Swamikkannu, J. 1. This appeal coming on for hearing on Monday the 23rd day of March, 1987 upon perusing the petition of Appeal, the order of the Lower Court, and the material papers in the case, and upon hearing the arguments of Mr. A.N. Viswanatha Rao, Advocate for the Appellants and of Mr. R. Vedantham, Advocate for the 1st Respondent and of Mr. A. Devanathan, Advocate for the 2nd Respondent the Court made the following Order: 2. This is an appeal filed under Section 110-D of the Motor Vehicles Act, 1939 by the petitioners against the Award dated 3.1.1981 passed in M.O.P. No. 150 of 1980 on the file of the Motor Accidents Claims Tribunal (Sub court), Chengalpattu, passing an award for Rs. 16,400/- in favour of petitioners/appellants 1, 5 and 6 with proportionate costs and dismissing the petition against petitioners 2 to 4/appellants 2 to 4. The Tribunal also found that the 6th petitioner/appellant is entitled to Rs. 2,000/- out of the compensation awarded; and petitioners/appellants 1 and 5 are jointly entitled to Rs. 14,400/- and also directed the second respondent to deposit the amount in court within three months, failing which the petitioners/appellants would be entitled to interest at 6 per cent per annum from the date of award till date of deposit. 3. The petition was filed before the Tribunal by the appellants herein under Section 110-A of the Motor Vehicles Act who are the widow, mother and children of the deceased K, Parthasarathy, praying the Tribunal to pass an award for Rs. 84,650/- as compensation for the death of the deceased K. Parthasarathy who died in a road accident which occurred on 30.10.1979 at about 6.15 a.m., on Varadarajapuram and Poonamallee Trunk Road due to rash and negligent driving of the lorry bearing registration No. MDJ. 5832 by its driver. The respondents herein are respectively the owner and insurer of the-lorry involved in the accident. 4. The petitioners/appellants herein are the widow mother and children of the deceased Parthasarathy Pillai. On 30.10.1979 at about 6.15 a.m., when the deceased was driving his buffaloes on the extreme left side of the Trunk Road towards Poonamallee for milking, the lorry bearing registration No. MDJ. 5832 was driven rashly and negligently and came behind him and hit the deceased and the buffalo and the deceased died on the spot. One of the buffaloes died due to the accident. 5832 was driven rashly and negligently and came behind him and hit the deceased and the buffalo and the deceased died on the spot. One of the buffaloes died due to the accident. The deceased was aged 50 years at the time of the accident. He was doing milk business. He was an agriculturist. The income per month is Rs. 1,000/-. He earned Rs. 500/- per month from milk business and Rs. 500/- per month from agricultural lands. The accident occurred at Varadarajapuram, near Poonamallee. The petitioner/appellants claimed Rs. 84,650/-towards compensation. 5. M. Vinayagam - first respondent herein filed the written statement before the Tribunal and the same was adopted by United India Insurance company - the second respondent herein. It was, interalia, contended that the age, occupation and the monthly income of the deceased are not admitted. The relationship of the petitioners/appellants herein with the deceased is denied. The claim is excessive. The lorry was driven at a moderate speed on its proper side. There was no rash or negligent act on the part of the lorry driver. The lorry was proceeding towards Madras. Near Poonamallee, the deceased was milking on the road-side. All of a sudden the buffalo got frightened and lifted its rear legs and kicked the deceased. This had resulted in the deceased suddenly running towards the road side. He got himself hit by the rear side of the lorry. He fell down and got underneath the rear wheel. The accident was due to the negligence of the deceased. The deceased was guilty of contributory negligence. 6. The following points were framed for consideration by the Tribunal: 1. Whether the lorry MDJ 5832 was driven rashly and negligently and caused the accident ? 2. Whether the deceased was guilty of contributory negligence ? 3. To what amount to which the petitioners are entitled ?. 7. On behalf of the petitioners/appellants, Sulochana - first petitioner/appellant examined herself as P.W. 1. One Santhanam was examined as P.W. 2 on the side of the appellants. Ex. A. 1 photograph, Ex. A. 2 negative, Ex. A.3 photograph, Ex, A.4 negative, Ex.A. 5 photograph, Ex, A. 6 negative, Ex. A. 7 kist receipt dated 23.2.1978 for Rs. 20/-for Fasli 1387, Ex. A. 8 kist receipt dated 23.10.1978 for Rs. 9-50 for Fasli 1388, Ex. A. 9 death report, Ex. Ex. A. 1 photograph, Ex. A. 2 negative, Ex. A.3 photograph, Ex, A.4 negative, Ex.A. 5 photograph, Ex, A. 6 negative, Ex. A. 7 kist receipt dated 23.2.1978 for Rs. 20/-for Fasli 1387, Ex. A. 8 kist receipt dated 23.10.1978 for Rs. 9-50 for Fasli 1388, Ex. A. 9 death report, Ex. A. 10 notice dated 14.4.1980 issued by the petitioners' counsel to the respondents herein, and Ex. A. 11 reply notice dated 4.5.1980 sent by the first respondent's counsel to the petitioner's counsel were marked on the side of the petitioners/appellants. One Manivannan - driver of the lorry was examined as R.W. 1 on the side of the respondents. 8. On the consideration of the above evidence available on record, both oral and documentary, the Tribunal held under point Nos. 1 and 2 that the accident occurred due to rash and negligent driving of the lorry and that the deceased was not guilty of contributory negligence and answered the points in favour of the petitioners. As mentioned already, the Tribunal found that the petitioners are entitled to a compensation of Rs. 16,400/- and passed an award accordingly. Aggrieved by the decision of the Motor Accidents Claims Tribunal (Sub Court), Chengalpattu the petitioners in M.O.P. No. 150 of 1980 have come forward with this appeal. 9. It is contended on behalf of the appellants by Mr. A.N. Viswanatha Rao, learned Counsel that the Tribunal has not properly appreciated the evidence available on record and while fixing the quantum, the Tribunal erred in not considering the loss of agricultural income consequent to the death of the deceased and this has led to failure of justice. In other words it is submitted that the Tribunal failed to take into consideration the various aspects of the case and the relevant factors governing the fixing of quantum of compensation and all these had led to miscarriage of justice. It is further contended on behalf of the appellants that the Tribunal ought not to have deducted 20% on the ground of lump sum grant from the amount that had been arrived at as compensation. It is also contended that the Tribunal ought to have allowed interest at 9% per annum from the date of the petition till the date of deposit. In the circumstances, it is submitted on behalf of the appellants that the award of the Tribunal has to be enhanced from Rs. It is also contended that the Tribunal ought to have allowed interest at 9% per annum from the date of the petition till the date of deposit. In the circumstances, it is submitted on behalf of the appellants that the award of the Tribunal has to be enhanced from Rs. 16,400/- to Rs. 50,000/- with costs throughout. In this appeal, the appellants claimed a sum of Rs. 33,600/- as compensation over and above what had been granted by the Tribunal. 10. Mr. A. Devanathan, learned Counsel for the second respondent in this appeal has inter alia contended that the Tribunal has come to a correct conclusion and as such there is no ground for disturbing the Award passed by the Tribunal. 11. Mr. R. Vedantham, learned Counsel for the first respondent, owner of the vehicle has also submitted that the grounds now urged on behalf of the appellants are untenable and unsustainable. 12. The points for consideration in this appeal are: (1) Whether the lorry MDJ 5832 was driven rashly and negligently and caused the accident. (2) Whether the deceased was guilty of contributory negligence. (3) To what amount to which the petitioners are entitled? 13. Point Nos. 1 and 2 : In the instant case before us, P.W. 2 Santhanam has been examined as an eye witness for the occurrence. The first petitioner-first appellant P. Sulochana has examined herself as P.W. 1. We have to scrutinise the evidence of P.W. 2 Santhanam for ascertaining whether there was rash and negligent act on the part of the driver of the lorry involved in the accident. The accident occurred on 30.10.1979 at 6.30 a.m. near Varadarajapuram. The deceased was driving his buffaloes from west to east. The lorry was driven rashly and also against the buffalo. P.W. 2 is a resident of Varadarajapuram. The deceased was also a resident of Varadarajapuram P.W. 2 stated that the accident occurred in front of the tea stall. He stated that he was driving the buffaloes to Poonamallee for milking. The driver of the lorry was examined as R.W. 1. According to R.W. 1" he was driving the lorry slowly. He stated that the deceased was milking the buffalo on the left side of the road and when he was passing the deceased there was a noise and the cleaner asked the driver to stop the vehicle. The driver of the lorry was examined as R.W. 1. According to R.W. 1" he was driving the lorry slowly. He stated that the deceased was milking the buffalo on the left side of the road and when he was passing the deceased there was a noise and the cleaner asked the driver to stop the vehicle. The evidence of R.W. 1 is that the cleaner told him that the deceased was hit by the rear wheel. The buffalo was also injured. In chief-examination he stated that he does not know how the accident occurred. It is relevant in this connection to note that the contention raised in the written statement filed by the Insurance Company, the second respondent herein is that while the deceased was milking the buffalo, it had suddenly raised its leg and kicked him as a result of which the deceased was pushed towards road and that at that time the rear side of the lorry hit the deceased and he got injured by the rear wheel of the lorry. 14. Even at the outset it can be said that the case put forward by the respondents in this case is unacceptable. Let us now look into the evidence of R.W. 1, the driver of the lorry. In chief examination, he has stated that he does not know how the accident occurred. But the counter proceeds on the basis that the buffalo got frightened and, kicked the deceased and the deceased was pushed to the road and dashed against the lorry. Further there are prevarications and vital discrepancies in the evidence of R.W. 1. Even in the chief examination R.W. 1, stated that the decease was milking the buffalo when the lorry, passed the deceased. At that time according to R.W. 1, he heard a noise and the cleaner of the lorry told him that the lorry hit the deceased. It is not stated that the buffalo kicked the deceased and the deceased ran to the middle of the road and dashed against the lorry. He specifically stated that he does not know how the accident occurred. Therefore it is clear that the allegation that the buffalo kicked the deceased and the deceased ran to the road and dashed against the lorry cannot be accepted. This allegation seems to me as an invention for the purpose of this case. He specifically stated that he does not know how the accident occurred. Therefore it is clear that the allegation that the buffalo kicked the deceased and the deceased ran to the road and dashed against the lorry cannot be accepted. This allegation seems to me as an invention for the purpose of this case. Thus the evidence on record would go to show that the accident occurred due to the negligence of the driver of the lorry and not due to the contributory negligence of the deceased. Further the cleaner from whom R.W. 1 came to know of the accident, was not examined. The evidence of R.W. 1 is that he does not know how the accident occurred. A reasonable and prudent driver under the circumstances, ordinarily would have noticed as to what had happened at the place of the occurrence during the time of the impact. It is not the case of the respondents that it was not the lorry that had hit and caused the injuries on the deceased. To hear the driver R.W. 1 saying that only on the information furnished by the cleaner, he came to know about the occurrence is somewhat strange. R.W. 1 admitted that the accident occurred near the Tea-Stall. In the cross-examination, R. W. 1 stated that he was proceeding at a speed of 15 kms. per hour. If the lorry was driven with low speed, the accident would have been averted. As stated earlier, the deceased was not guilty of contributory negligence. There is absolutely no material to hold that the deceased had also contributed for the accident. Therefore the findings given by the Tribunal under Point Nos. 1 and 2 are correct. 15. Now let us discuss about the quantum of compensation that has to be awarded to the appellants-herein. Their grievance is that the Tribunal had not taken into consideration several aspects which were disclosed by the evidence adduced by them. The first petitioner-first appellant herein has examined himself as P.W. 1. She stated that the deceased was the owner of three acres of land. The deceased was 50 years of age at the time of the accident. She stated that the annual income from the land is fifty bags of paddy. P.W. 2 has not stated about the income of the deceased, though P.W. 2 is a native of the same village. The deceased was 50 years of age at the time of the accident. She stated that the annual income from the land is fifty bags of paddy. P.W. 2 has not stated about the income of the deceased, though P.W. 2 is a native of the same village. He is living in the same street where the deceased was ' living. The deceased has two sons of 25 and 23 years old respectively. So far as the income from the lands is concerned, the Tribunal is correct in having observed that the two sons of the first petitioner-first appellant who are aged 25 and 23 years respectively will be looking after the lands and as such there is no loss of income from the lands on account of the death of the deceased. There is no evidence to show the income of the deceased from milk business. In cross-examination, P.W. 1 stated that the deceased was having only one buffalo and the yield from the buffalo is 3 liters per day. Therefore, I am of the view that the income of the deceased from milk business is Rs. 200/- per month. Allowing a sum of Rs. 100/- for his own maintenance, the deceased would have easily contributed a sum of Rs, 100/- to the family income. In fact he would have been contributing a sum of Rs. 1,200/- per annum. 16. As already stated, the age of the deceased was 50 years, Ex. A. 9 is the death report. In this report, his age is noted as 50 years. Therefore we can safely take that the age of the deceased as 50 years. Taking the expectancy of his life as 65 years and also the uncertainties of life, it may be assumed that he would have lived atleast for a further period of 15 years, if not more, but for the accident. There is evidence to show that the deceased was hale and healthy and his constitution was also perfect and sound, Therefore the irresistible conclusion that could be arrived at in the instant case is that the deceased would have lived atleast for a further period of 15 years. 17. The Tribunal had awarded a sum of Rs. 14,400/- as compensation under the heading loss of income after deducting twenty per cent lump sum grant. 17. The Tribunal had awarded a sum of Rs. 14,400/- as compensation under the heading loss of income after deducting twenty per cent lump sum grant. This Court is not inclined to accept the compensation awarded by the Tribunal under this head. The Tribunal has not properly assessed the income from the mulching animal. P.W. 1 in his cross-examination stated that the deceased was having one buffalo and the yield of that buffalo is three liters per day. Taking this into consideration, this Court enhances the compensation payable under this head to Rs. 16,400/-. While enhancing the same, this Court disallows the grant of compensation of Rs. 2,000/- under the heading pain and suffering for the deceased died on the spot. Thus in all the compensation payable to the appellants comes to Rs. 16,400/-. The total compensation has to be shared by appellants 1, 5 and 6 in the following manner. P. Sulochana- first appellant Rs. 7,200/- P. Pushpa- fifth appellant Rs.7000/- Chinnammal- 6th appellant Rs. 2,000/- As stated by the Tribunal, appellants 2 to 4 are not entitled to any amount as they are major sons of the deceased. 18. In the result, with the above modifications, namely enhancement of Rs. 2,000/- inter the heading loss of income and disallowance of Rs. 2,000/- under the head of pain and suffering, this appeal stands dismissed. However, there will be no order as to costs.