R. Munia Pillai v. Meenakshi and 3 others — 1997 DIGILAW 858 (MAD)

Judgment : 1. The appellant in this appeal is the first respondent in M.C.O.P. No. 64 of 1986 on the file of the Motor Accident Claims Tribunal (Sub Court). Srivilliputhur. Respondents 1 to 3 herein are the claimants and the fourth respondent herein was the second respondent in the above claim proceedings before the Tribunal. For the purpose of convenience, in this judgment, the parties are referred to in their rank in which they were described in the proceedings before the Tribunal. 2. One Mahalingam, husband of the first claimant and father of claimants 2 and 3 died in a motor vehicle accident that took place on 211. 1985 at a place called Sulakkarai which is at Madurai Virudhunagar road before mid-night. The deceased was going in his motorcycle on that day with a pillion on his back, who is examined as P.W.2, from north to south. At that time, the lorry bearing No. KRE 1446 owned by the first respondent and insured with the second respondent came in the opposite direction in a rash and negligent manner and in that process went to the wrong side of the road and hit against the deceased. As a result of the impact, the deceased sustained injuries and he ultimately died. On this basis, a claim petition was filed claiming a compensation of Rs.3,16,000. Opposing this claim petition, the respondents before the Tribunal contended that the vehicle belonging to the first respondent was driven observing the rules of the road and the accident was solely due to the negligent act on the part of the deceased himself. The second respondent took the defence that their liability under the policy of insurance is limited to Rs.1,50,000. 3. The Tribunal, after analysing the materials placed before it held that the vehicle of the first respondent was driven in a rash and negligent manner and thus, fixed the liability of negligence on the owner, viz., first respondent. As far as the quantum of compensation is concerned, the Tribunal awarded a sum of Rs.2,00,000 as pecuniary loss sustained by the claimants and a sum of Rs. 10,000 towards damages to the vehicle. Thus, a total sum of Rs.2,10,000 was fixed, out of which, the insurance company’s liability was restricted to Rs. 1,50,000 towards personal loss as far as policy conditions are concerned and a sum of Rs. 10,000 towards damages to the vehicle. 10,000 towards damages to the vehicle. Thus, a total sum of Rs.2,10,000 was fixed, out of which, the insurance company’s liability was restricted to Rs. 1,50,000 towards personal loss as far as policy conditions are concerned and a sum of Rs. 10,000 towards damages to the vehicle. The owner of the vehicle was personally made to pay the balance sum of Rs.50,000. The Insurance company had not filed any appeal against this award. However, the first respondent being the owner of the vehicle, held responsible for the accident, had come up by way of this appeal questioning his liability under the award is concerned. While canvassing his liability under the award, the learned counsel for the appellant advanced arguments stating that the Tribunal had completely erred in law and on facts in fixing the monthly earnings of the deceased in an arbitrary manner and without any supporting evidence. 4. As far as the accident is concerned, there is the evidence of eye-witnesses, viz., P.W.2 who travelled with the deceased as a pillion in the motor-cycle on the date of the accident. The driver of the first respondent’s vehicle was also prosecuted in a court of law for an of fence under Section 304-A of the Indian Penal Code and he was found guilty and convicted as well. Ex.A-5 is the certified copy of the judgment in that case. As against the evidence of P.W.2 no contra evidence, either oral or documentary, had been let in on the side of the respondents to disprove the version of the eye-witnesses examined on the side of the claimants. Under these circumstances, the Tribunal’s finding on the question of negligence and answered against the first respondent is supported by legal evidence and legal inferences. I am of the view that no exception could be taken to such a finding of negligence and therefore, that finding is sustained. 5. Coming to the question of quantum of compensation, that may be determined, the Tribunal analysed the evidence of P.W.3, who is none else than the elder brother of the deceased himself. His evidence shows that he was carrying on business in the name and style of Meenakshi Transports and he was doing business as a transport contractor. He would state that his brother and persons like him had been working under him as sub-contractors and in that process they have been making money substantially. His evidence shows that he was carrying on business in the name and style of Meenakshi Transports and he was doing business as a transport contractor. He would state that his brother and persons like him had been working under him as sub-contractors and in that process they have been making money substantially. His further evidence is that he used to raise bills on the company’s name which engaged him as the transport contractor and in turn, he would pay the money due to the deceased by way of cheque. According to him, in the year 1983-84 he had paid the deceased a sum of Rs. 1,42,429.23 and for the year 1984-85 a sum of Rs.96,0272. Besides these two amounts he would also state that he had made two payments, for Rs.2343.93 and a sum of Rs.2016.87 to the deceased which payments are credited into the bank account of the deceased on 35. 1983. The pass-book issued by the bank to the deceased in support of his account is exhibited in this case as Ex.A- 8. It is true that Ex.A-8 contains credit entry to the extent of Rs.5,620.80 covering up of the two payments, referred to above. However, when the pass-book is analysed, I am not in a position to find any entries to substantiate the payment of Rs. 1,42,429.23 and the sum of Rs.9,60272. Even, P.W.1, the widow of the deceased would admit that the deceased used to receive all payments by cheque. P.W.3’s evidence is also on the same lines. This being so and there being no other evidence to show that the deceased maintained any other account in any other bank, then, one would certainly expect that these cheques would have been deposited to the bank which issued the pass-book, marked in this case as Ex.A-8 for collection. P.W.3 had also produced the ledgers of his business concerned, viz., Meenakshi Transports for the years 1983-84 and 1984-85 marked as Exs.A-2 and A-3. Exs.A- 6 and 7 are the relevant pages to support the payments stated to have been made by P.W.3 to the deceased. But, I find from the ledgers themselves and from the relevant pages also that there is no indication at all that the debit and credit entries found therein in any way relates to the payments made by P.W.3, to the deceased. But, I find from the ledgers themselves and from the relevant pages also that there is no indication at all that the debit and credit entries found therein in any way relates to the payments made by P.W.3, to the deceased. These two ledgers and the relevant pages relate to vehicle No. TMV 4323 and TNR 2936 respectively. There is no evidence in this case to show that the deceased was the owner of these two lorries. Under these circumstances, I am of the opinion that the evidence of P.W.3 seems to be an exaggerated version in favour of the deceased so that the claim for compensation can be boosted. 6. However, in view of the fact that the insurance company had accepted the award and had not filed any appeal against the award of the Tribunal, I am not inclined to disturb the finding on the monthly earnings of the deceased and the monthly dependency of the family arrived at by the Tribunal. At the same time, I find that the Tribunal had adopted a multiplier of 20 years. The deceased was aged 44 years on the date of the accident and the first claimant was aged about 39 years. The Supreme Court of India had laid down a decision in U.P. State Road Transport Corporation v. Trilok Chandra, 1996 A.C.J. 831 that the multiplier cannot exceed 18 years and the choice of the multiplier is left to the discretion of the Court to be adopted on the facts and circumstances available in each case. On the facts and circumstances available in this case and taking into account the fact that the minor claimants would attain majority which would enable them to stand on their own legs, to my mind a multiplier of 15 years seems to be appropriate. Therefore, taking a sum of Rs. 12,000 as the annual pecuniary loss suffered by the claimants as fixed by the Tribunal and multiplying the same by 15, a sum of Rs. 1,80,000 is arrived at as the loss under this head sustained by the claimants. The Tribunal had awarded a sum of Rs.20,000 to compensate the love and affection which the minor claimants were deprived of ; for the shock suffered by them and the support in the area of education which the minor claimants would have had from their father. 7. The Tribunal had awarded a sum of Rs.20,000 to compensate the love and affection which the minor claimants were deprived of ; for the shock suffered by them and the support in the area of education which the minor claimants would have had from their father. 7. Recently, a Division Bench of this Court in an unreported judgment dated 23. 1997 in C.M.A. No. 1283 of 1993 had held as follows: “Other fanciful claims under novel heads like the prospects of employment, after superannuation or the help of the deceased would have rendered for the children’s education, marriage, etc., do not enter in the calculation of annual loss of dependency. Only the immediate and proximate loss on account of the death of bread winner should be taken into consideration, before arriving at the multiplicand.” In the teeth of the judgment of this court, referred to above, the sum of Rs.20,000 awarded under this head has to be necessarily set aside and therefore, the claimants are not entitled to this sum of Rs.20,000. The damages awarded by the Tribunal to the vehicle involved is sustained. 8. Under these circumstances, the judgment and decree dated 12. 1988 in M.C.O.P. No. 64 of 1986 on the file of the Motor Accident Claims Tribunal (Sub Court), Srivilliputhur is set aside so far as the quantum of compensation is concerned. Instead, there shall be a decree in favour of the claimants for a total sum of Rs. 1,90,000 made up of Rs. 1,80,000 towards pecuniary loss sustained by the claimants and a sum of Rs. 10,000 as damages to the vehicle. This sum of Rs. 1,90,000 shall carry interest at 12% per annum from the date of petition till the date of realisation. In view of the policy condition in force and binding on the parties to it, the liability of the insurance company is restricted to Rs. 1,50,000 towards pecuniary loss as determined by the Tribunal itself, besides their liability to pay Rs.10,000 as damages to the vehicle is also sustained. Thus, the owner’s personal liability comes to Rs.30,000. In view of doubts expressed by me on the uncertainties in the income of the deceased, I fell that ends of justice would be met if the owner’s personal liability is rounded of f to Rs.25,000 with interest at 12% per annum from the date of petition till the date of realisation. Thus, the owner’s personal liability comes to Rs.30,000. In view of doubts expressed by me on the uncertainties in the income of the deceased, I fell that ends of justice would be met if the owner’s personal liability is rounded of f to Rs.25,000 with interest at 12% per annum from the date of petition till the date of realisation. Any amount deposited by any of the judgment debtors’ under the award of the Tribunal as it stood till today shall be taken into account while arriving at the judgment debtor’s liability pursuant to the judgment of this Court. 9. The appeal is accordingly allowed on the lines indicated above. No costs.