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2008 DIGILAW 699 (MAD)

M. Chakrapani & Another v. T. Vasantha & Others

2008-02-27

R.BANUMATHI

body2008
Judgment :- Being aggrieved by the award of compensation of Rs.7,77,500/- for the death of Thillai Govindan, who died in a road traffic accident on 24.06.1998, the injured and the Insurance Company have filed this appeal. 2.Brief facts which are necessary for disposal of these appeals are as follows: - On 24.06.1998 at about 8.15 a.m., while the deceased Thillai Govindan was travelling in the bus belonging to the State Transport Corporation bearing Registration No.TN 32 N 1026 from Varakalpet to Panruti at Andipalayam, lorry bearing Registration No.TMH 5067 belonging to the 1st respondent came in the opposite direction at a very high speed and hit against the bus in which the deceased was travelling. In the accident, Thillai Govindan and ten others died on the spot. Several other passengers sustained injuries. The driver of the bus also died on the spot. Alleging that the accident was due to rash and negligent driving of the lorry, wife and sons and daughters of deceased Thillai Govindan filed claim petition under Section 166 M.V.Act, claiming compensation of Rs.15,00,000/-. 3.The Insurance Company of the offending lorry filed counter stating that the accident was due to negligence of the bus driver, who has suddenly swerved the bus to the middle of the road. Consequently, the driver of the lorry could not avoid the accident inspite of his best efforts and the accident was an inevitable one. Since the accident was due to negligent driving of the bus driver, the owner of the lorry and the insured of the offending lorry are not liable to pay the compensation. Insured and the insurer have also disputed the age and income of the deceased and also the loss of dependency of the claimants. 4.Before the Tribunal, first claimant examined herself as PW-1. Eye witness was examined as PW-2 and the Agent of Winner Dairy, to whom the deceased was supplying milk, was examined as PW-3. Ex.P-1 to P-16 were marked. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the lorry driver. Referring to the evidence of P.W.s 1 and 3, the Tribunal had taken the monthly income of the deceased at Rs.6,000/-and calculated the annual income as Rs.72,000/-. Deducting 1/3rd for personal expenses, i.e. Rs.24,000/-, Tribunal has calculated loss of dependency at Rs.48,000/-. Referring to the evidence of P.W.s 1 and 3, the Tribunal had taken the monthly income of the deceased at Rs.6,000/-and calculated the annual income as Rs.72,000/-. Deducting 1/3rd for personal expenses, i.e. Rs.24,000/-, Tribunal has calculated loss of dependency at Rs.48,000/-. As the deceased was aged 40 years, Tribunal has chosen multiplier 16 and calculated total loss of dependency at Rs.7,68,000/-. Adding conventional damages, the Tribunal has awarded total compensation at Rs.7,77,500/-. 5.Challenging the impugned Order, on behalf of the appellants, two fold contentions are raised : Firstly on negligence and secondly on quantum. The learned Counsel for the Appellants submitted that when PW-2 has deposed that both vehicles are responsible for the accident, the Tribunal erred in fixing the entire liability upon the lorry driver and the Tribunal ought to have apportioned the negligence on the bus driver also. It was further submitted that the Tribunal has not properly analyzed the evidence adduced by the appellants to establish contributory negligence on the part of the bus driver. Insofar as quantum, it was submitted that the monthly income of the deceased taken at Rs.6,000/- is very much on the higher side and the total compensation of Rs.7,77,500/-awarded is excessive and the same is to be considerably reduced. 6.Drawing the attention of the Court to First Information Report and Ex.P-5 Charge sheet, the learned Counsel for the STC has submitted that the bus was moving slowly after the passengers alighted from the bus and the lorry driven in a rash and negligent manner hit against the bus and the Tribunal has rightly held that the lorry driver was responsible for the accident. Submitting that there are number of casualties and several passengers were injured, the learned Counsel for the STC has submitted that the factual finding of the Tribunal holding the lorry driver responsible for the accident cannot be interfered with. 7.The claimants though served have not entered appearance. Pursuant to the direction of the Court Mr.S.Arunachalam was appointed as counsel, by the High Court Legal Services Committee, to appear for the claimants. 8.The learned Counsel for the claimants submitted that based on the evidence of PW-2, the Tribunal has rightly come to the conclusion that the lorry driver was solely responsible for the accident. Pursuant to the direction of the Court Mr.S.Arunachalam was appointed as counsel, by the High Court Legal Services Committee, to appear for the claimants. 8.The learned Counsel for the claimants submitted that based on the evidence of PW-2, the Tribunal has rightly come to the conclusion that the lorry driver was solely responsible for the accident. Laying emphasis upon the evidence of PW-3, it was submitted that based on the materials on record, Tribunal has rightly taken monthly income at Rs.6,000/- and the compensation awarded by the Tribunal is very reasonable and the same cannot be interfered with. 9.The deceased Thillai Govindan was travelling in the town bus belonging to the STC and the bus was proceeding from Varakalpet to Panruti. PW-2 – Veerappan, who also sustained injuries on the accident was travelling with the deceased in Andipalayam Bus Stop. Most of the passengers alighted from the bus and thereafter the bus was proceeding, keeping its left. At that time, the lorry driven in a rash and negligent manner in the opposite direction came and hit on the right side of the bus and thereafter, swerved to the other side of the road and the lorry capsized. There were several casualties including death of deceased Thillai Govindan. The bus driver also died on the spot. 10.Based on the complaint lodged by one Arumugham against the lorry driver, criminal case in Cr.No.647/1998 was registered under Section 279, 337, 338 and 304 A IPC. In his evidence, PW-2 has clearly stated that the accident was due to negligent driving of the lorry driver. Evidence of PW-2 is strengthened by the following recitals in Ex.P-1 FIR:- PW-2 himself being an injured witness, much credence is to be attached to his evidence. 11.The contention of the appellant that the bus driver was also equally responsible for the accident has no force. As noted earlier, FIR Ex.A-1 was registered only against the lorry driver. Ex.A-5 – Charge Sheet was filed against the lorry driver for many casualties and injuries to several passengers. Registration of FIR against lorry driver and filing of charge sheet is strong circumstance which would establish rash and negligent driving of the lorry driver. 12.By careful analysis of evidence of PW-2 and the recitals in Ex.P-1 FIR, it is amply clear that after the passengers alighted in Andipalayam Bus Stop, the bus was slowly proceeding. Registration of FIR against lorry driver and filing of charge sheet is strong circumstance which would establish rash and negligent driving of the lorry driver. 12.By careful analysis of evidence of PW-2 and the recitals in Ex.P-1 FIR, it is amply clear that after the passengers alighted in Andipalayam Bus Stop, the bus was slowly proceeding. At that time, the lorry which came in the opposite direction hit against the bus, due to which, nearly ten passengers of the bus, including the driver, died on the spot. By perusal of Exs.P-2 and P-3, reports of Motor Vehicle Inspector of the bus and the lorry, it is seen that front side of the bus and driver seat was dislocated. Top roof of right side of the bus and right side seats were damaged. Per contra, by perusal of Ex.P-3, M.V.I. Report of the lorry, it is seen that the entire front side of the lorry was damaged and the vehicle could not be road tested, since it capsized and badly damaged. The pattern of damages would also indicate that there was direct collision of the lorry with the right side of the bus. The pattern of damages would strengthen the evidence of PW2 as to the negligent driving of the lorry driver. 13.Based on the evidence of PW-2 and materials on record, Tribunal has rightly held that the accident was due to rash and negligent driving of the lorry driver. Absolutely there is no acceptable evidence to substantiate the defence plea that the bus driver was also responsible for the accident. The contention that the driver of the bus was also responsible for the accident and that the Tribunal ought to have apportioned the liability is unacceptable. 14.Coming to the quantum, at the time of accident, deceased Thillai Govindan was aged 50 years. He was doing milk vending business and was supplying milk to PW-3, who was an agent for procuring milk for Winner Dairy. In her evidence, PW-1 has stated that her husband was supplying milk to Winner Dairy and that he was also letting his bullock cart on hire and earning Rs.10,000/- p.m. 15.To prove the income of the deceased, Jagadeesan, who was the agent of Winner Dairy was examined as PW-3. In her evidence, PW-1 has stated that her husband was supplying milk to Winner Dairy and that he was also letting his bullock cart on hire and earning Rs.10,000/- p.m. 15.To prove the income of the deceased, Jagadeesan, who was the agent of Winner Dairy was examined as PW-3. In his evidence, PW-3 has stated that the deceased used to supply 100 to 200 litres of milk every day and that he used to pay Rs.6/- per litre. PW3 has further stated that the deceased used to supply milk from his own farm and also by procuring from others. Based on the evidence of P.W.s 1 and 3, the Tribunal had taken the monthly income of the deceased at Rs.6,000/- p.m. 16.To prove that the deceased was doing milk vending and that he was supplying milk to Winner Dairy, claimants have produced Exs.P-10 to P-16. Exs.P-10 to P-16 are the extract of Accounts showing details of milk supplied by PW-3 and the amount paid to PW-3 – Jagadeesan. Exs.P-10 to P-16 are to the effect that PW-3 is the agent of Winner Dairy with agent code BB 129. By perusal of Exs.P-10 to P-16, it is seen that PW-3 himself was supplying about 24 to 25 litres of milk, each in the morning and in the evening. While so, the evidence of PW-3 that deceased was supplying 100 to 200 litres of milk per day appears to be exaggeration. That apart, PW-3 himself being an agent, it cannot be said that PW-3 would have procured the entire milk supplied only from the deceased. Being an agent, PW-3 might have procured milk even from other milk vendors. The Tribunal does not appear to have taken note of the quantity of milk supplied by agent – PW-3 to Winner Dairy as is shown in Exs.P-10 to P-16. In my considered view, based on the evidence of PW-3 and Exs.P-10 to P-16, the Tribunal was not right in fixing the monthly income of the deceased at Rs.6,000/-. 17.Admittedly, the deceased was supplying the same quantity of milk to PW-3. That apart, PW-1 has also stated that her husband was letting bullock cart on hire and earning income. In my considered view, based on the evidence of PW-3 and Exs.P-10 to P-16, the Tribunal was not right in fixing the monthly income of the deceased at Rs.6,000/-. 17.Admittedly, the deceased was supplying the same quantity of milk to PW-3. That apart, PW-1 has also stated that her husband was letting bullock cart on hire and earning income. On the evidence of PW-1 and other materials on record, the monthly income of the deceased is taken at Rs.4,500/- p.m. Deducting 1/3rd for personal expenses i.e. 1,500/-, the deceased would have contributed Rs.3,000/- p.m. to the family. Annual loss of dependency is calculated at Rs.36,000/-. The deceased being aged 40 years, as per Second Schedule, multiplier 16 is to be adopted. Total loss of dependency is calculated at Rs.5,76,000/- [Rs.3,000/- x 12 x 16]. 18.First claimant has lost her husband at the young age of 32 years. Therefore, compensation of Rs.20,000/- is awarded for loss of consortium. Rs.5,000/- is awarded for funeral expenses. Claimants 2 to 4 have lost their father at a young age and therefore, compensation of Rs.50,000/- is awarded for loss of love and affection. 19.The total compensation of Rs.7,77,500/- is reduced to Rs.6,51,000/- as under:- TABLE 20.The compensation amount is to be apportioned amongst the claimants. First claimant would be entitled to Rs.2,51,000/- and the minor claimants would be entitled to Rs.1,00,000/- each. 21.The Tribunal has awarded interest @ 12% p.a. The interest awarded at the rate of 12% p.a. is reduced to 9% p.a. from the date of Petition as per the decision of the Supreme Court in 2001 (1) Supreme Today 5 (Kaushnuma Begum & Others v. The New India Assurance Co. Ltd.). 22.Compensation of Rs.7,77,500/- is reduced to Rs.6,51,000/- and the appeal is partly allowed. 23.In the result, "The compensation amount of Rs.7,77,500/- is reduced to Rs.6,51,000/- and this C.M.A. is partly allowed; "Compensation amount is payable with interest @ 9% p.a. "The amount of compensation along with accrued interest shall be apportioned amongst the claimants as stated in paragraph 20. "The claimants are entitled to withdraw the entire compensation amount payable to them as per the Judgment in this appeal. "Excess amount lying to the credit of M.C.O.P.No.54/1999 on the file of the Motor Accident Claims Tribunal, (Sub Court), Cuddalore, shall be refunded to the second appellant – Oriental Insurance Company along with accrued interest. "The claimants are entitled to withdraw the entire compensation amount payable to them as per the Judgment in this appeal. "Excess amount lying to the credit of M.C.O.P.No.54/1999 on the file of the Motor Accident Claims Tribunal, (Sub Court), Cuddalore, shall be refunded to the second appellant – Oriental Insurance Company along with accrued interest. "There is no order as to costs in this appeal.