Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 506 (MAD)

Mary v. Rajendran

2012-02-01

S.VIMALA

body2012
Judgment : The endlessly enduring victims of accident have filed this appeal against the unwarranted dismissal of their claim petition. The appellants/claimants are the wife and children (aged 27 years, 7 years, 5 years and 4 years respectively, at the time of accident in 1995 ) of the deceased-Shanmugaiah. The deceased was aged 29 years, fruit vendor, earning a sum of Rs.100/-per day. On 10.06.1995, at about 09.15 am., when the deceased was walking on the Ukkadam to Pour Bye-Pass Road, the driver who was driving the vehicle bearing registration No.TN-37-N-0096, drove it in a rash and negligent manner and hit against Shanmugaiah and another person, which rendered both dead. The legal representatives of the deceased Shanmugaiah, filed a claim petition, claiming a sum of Rs.5,00,000/- as compensation. 2. The claim was resisted by the Transport Corporation on the ground that there was no rash and negligent driving on the part of the driver and that the amount of compensation claimed is excessive. Inter alia, the age, occupation, income and loss of dependency of the deceased were all disputed. 3. The Tribunal jointly considered the claim made in respect of death of Shanmugaiah as well as death of Mukkaiah devar and dismissed the claim in respect of death of Shanmugaiah in M.C.O.P.No.677 of 1995 and allowed the petition in respect of death of Mukkaiah Devar made in M.C.O.P.No.1109 of 1996. 4. The Tribunal has considered the oral evidence of P.Ws.1 to 3 and R.W.1 and the documentary evidence i.e. Exs.P.1 to P.8. The Tribunal has given a finding that the accident arose due to the rash and negligent driving of the driver/first respondent, working under the second respondent/Transport Corporation. While, considering the claim in respect of death of Shanmugaiah, the Tribunal has given a finding that the claim petition is not maintainable as the parents of the deceased is not impleaded as parties in the claim petition. 5. Perusal of the order passed by the Tribunal reveals that the Legal Heir Certificate of the deceased-Shanmugaiah has been filed as Ex.P.5, in which the name of the parents of deceased Father-Rasudevar and Mother-Subbammal, find a place in Ex.P.5. In the evidence, P.W.1, the wife of the deceased-Shanmugaiah, has stated that the parents of the deceased are dead. However, the petitioners/claimants failed to file the death certificate of the parents of the deceased. In the evidence, P.W.1, the wife of the deceased-Shanmugaiah, has stated that the parents of the deceased are dead. However, the petitioners/claimants failed to file the death certificate of the parents of the deceased. The Tribunal has given a finding that the oral evidence of the deceased cannot be believed in the absence of documentary evidence i.e., death certificate and on that ground, citing the reason of non-joinder/non-impleadment of the parents of the deceased, the claim petition has been dismissed. 6. In the opinion of this court, those who are alive are made to wither, simply because of their inability to implead the dead and gone as parties in the claim petition. The justification for this opinion would be evident only when the purpose and object of the legislation, the nature of the proceedings before the Tribunal are appreciated. 7. No doubt, the Legal Heir Certificate reveals the existence of the parents of the deceased. Admittedly, they are not impleaded. Whether it is mandatory that all the legal heirs of the deceased should have been impleaded? In case of non-impleadment, whether it can be dismissed? Whether dismissal is justified/warranted? What is the nature of litigation before the Tribunal? What is the role and responsibility of the Litigants before the Tribunal? What is the role and responsibility of the Tribunal, while making enquiries in respect of Claim made? These are the issues to be answered before answering the issues regarding the negligence on the part of the tort-feasor and the quantum of compensation payable to the claimants. 8. The Motor Vehicles Act, as amended from time to time provides for compensation to the Dependants/injured persons in respect of death/injury resulting in an accident, thereby providing support, solace and substitution to the parties in terms of money. It is a piece of benevolent legislation providing for social justice. 9. The proceedings before the Tribunal is not a trial. The language employed is enquiry. The proceedings before the Tribunal is totally different from adversarial type of litigation. In the adversarial litigation, the endeavour of each party, would normally be to defeat each other. But, in the case of enquiry regarding claim petitions, the duty of both parties is to mutually assist each other all the while assisting the Court in arriving at the just compensation. The claimant should be appropriately compensated and the compensation should come from the tort-feasor/insurer in appropriate measure. But, in the case of enquiry regarding claim petitions, the duty of both parties is to mutually assist each other all the while assisting the Court in arriving at the just compensation. The claimant should be appropriately compensated and the compensation should come from the tort-feasor/insurer in appropriate measure. The responsibility of the Court also, is not to remain mute, but to be pro-active. Time and again, the Honble Supreme Court has emphasied the need and necessity of the Tribunal to be pro-active. 9.1. In Sri Laxman Vs. D.M., Oriental Insurance Co. Ltd., reported in 2012 ACJ 191 & Govind Yadav Vs. New India Assurance Co. Ltd reported in2012 ACJ 28, the Hon’ble Apex Court has countenanced the imperative need of striking a proactive approach in disposal of claim petitions under Motor Vehicles Act, with an ultimate aim of providing speedy disposal and adequate compensation in the following words :- " ....... Sometimes the delay and litigation expenses make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Section 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and non- pecuniary damages….” It has been emphasized that the Tribunal ought not to be hesitant to make use the provision of Section 165 of the Evidence Act, liberally which is extracted for ready reference:- "The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.......” 10. The Motor Vehicles Act provides for enquiry by Motor Accidents Claims Tribunal. The Tamil Nadu Motor Vehicles Claims Tribunal Rules would provide procedural roadmap, while emphasizing the role and responsibility of the Claims Tribunal. The Motor Vehicles Act provides for enquiry by Motor Accidents Claims Tribunal. The Tamil Nadu Motor Vehicles Claims Tribunal Rules would provide procedural roadmap, while emphasizing the role and responsibility of the Claims Tribunal. The procedure and powers of the claims Tribunal has been provided under Section 169 of the Motor Vehicles Act, 1988. In holding any enquiry under Section 168, the Claims Tribunal may follow such summary procedure as it thinks fit.It is provided that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of a. taking evidence on oath b. enforcing the attendance of witnesses c. compelling the discovery and production of documents and material objects and d. for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal procedure, 1973 (2 of 1974).It is settled law that the Claims Tribunal will have all the trappings of the Civil Court. 11. The Motor Accidents Claims Tribunal can use the powers under the criminal procedure code as provided under Rule 25 OF TNMVAT Rules, 1989 The provision reads as follows:-The Claims Tribunal shall follow the procedures of summary trial as contained in the Code of Criminal Procedure 1973 (Central Act 2 of 1974) for the purpose of adjudicating and awarding a claim under Chapter X of the Act. 12. Section 166 of the Motor Vehicles Act, 1988 provides for filing of application for compensation. Where death has resulted from the accident, the application can be filed by all or any of the legal representatives of the deceased. Where all the legal representatives are not joined, those who have not joined shall be impleaded as respondents to the application. 12.1. Whenever problem arises due to identification and fixation of legal heirs of the deceased, the situation is not without solution. Rule 25(6) of Tamil Nadu Motor Accident Claims Tribunal Rules provides for the procedure to be followed in such circumstances. "The procedure of adjudicating the liability and award of compensation may be set apart from the procedure of disbursement of compensation to the legal heirs in case of death. Rule 25(6) of Tamil Nadu Motor Accident Claims Tribunal Rules provides for the procedure to be followed in such circumstances. "The procedure of adjudicating the liability and award of compensation may be set apart from the procedure of disbursement of compensation to the legal heirs in case of death. Where the Claims Tribunal feels that the actual payment to the claimant is likely to take time because of the identification and the fixation of legal heirs of the deceased the Claims Tribunal may call for the amount of compensation awarded to be deposited with the Claims Tribunal and then proceed with the identification of the legal heirs for deciding the payment of compensation to each of the legal heirs." 12.2. Under Rule 25(2) of Tamil Nadu Motor Vehicle Claims Tribunal Rules, the Tribunal is empowered to call for any details from police authorities/transport authorities or from any authority to assist the Tribunal. 12.3. When such an all embracing power has been conferred on the Tribunal and when under Section 165 of the Evidence Act, the Tribunal can put any question to anybody, can call anybody as a witness and can summon any document, it is unfortunate that the Tribunal has chosen to dismiss the petition on the mere technical ground of nonimpleadment of the parents of the deceased. It is the duty of the Tribunal to call upon the parties, to fill up the lacunae and not to dismiss it on the mere technicalities. 13. The object and purpose behind the establishment of the Tribunal and the very purpose of providing time limit to dispose of the claim petition has been rendered meaningless by the Tribunal by making the claimants to wait for 16 years. This case cannot be construed merely as one instance of denial of compensation, but, it is a typical example of shutting the avenues of remedies offered by a social legislation by a reckless mechanical system still refuse to come of age. If, we consider the plight of wife/mother of the deceased/claimants 2 to 4 at the young age of 23 years suffering due to the unexpected sudden demise of the sole breadwinner whose lap the children missed and whose shoulder the wife lost, one cannot take the dismissal easy. If, we consider the plight of wife/mother of the deceased/claimants 2 to 4 at the young age of 23 years suffering due to the unexpected sudden demise of the sole breadwinner whose lap the children missed and whose shoulder the wife lost, one cannot take the dismissal easy. What is denied, is in fact, is the very right to exist (to all of them), the right to grow, the right to education, and the right to develop (to the children). 14. This is not a case where there is a suppression of material fact. The claimant had stated in the evidence that the deceased had parents but, they are no more. Under such circumstances, what is the option open to the Claims Tribunal to give early disposal. Very easily, the Tribunal could have summoned the Village Administrative Officer, who is the Registrar of birth and death or the Police officer who could make enquiries and inform the Court as to whether the death is true or not as alleged by the first claimant. Even otherwise, while making the award, for a limited duration, some amount could be set apart for the parents and that can be ultimately dispersed among the claimants if no parent is forth coming. what is evident here is humanity has become a causality, considering the circumstances in totality. Under such circumstances, this Court hold that the dismissal of the claim petition on the ground of non-impleadment of the parents is not correct and it is liable to be set aside. 15. It is admitted by the learned counsel representing the Corporation, that so far no claim petition has been filed by the parents of the deceased. There is clear oral evidence lthat the parents are dead. Even assuming that they are not heard off from that date, when a person is not heard for 7 years, the presumption is that he is not alive. The first claimant has stated before the Tribunal that the parents are dead. In the absence of any claim petition for nearly 16 years, one can safely conclude that the evidence of the first claimant that the parents are dead must be true and it must be accepted. For the limited purpose of this petition, the parents are treated as dead. 16. In the absence of any claim petition for nearly 16 years, one can safely conclude that the evidence of the first claimant that the parents are dead must be true and it must be accepted. For the limited purpose of this petition, the parents are treated as dead. 16. Now, the next point to be considered is what is the reasonable amount of compensation to be payable to the Claimants. The deceased is aged about 29 years at the time of death. Therefore, as per the decision in Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, the multiplier would be 17. The averment with regard to income is that he was earning a sum of Rs.100/- per day. Monthly income would be Rs.3,000/-per month. Taking the modest estimate of monthly income at Rs.2500/- and reducing Rs.500/-towards his personal expenses, the monthly dependency would be Rs.2000/-. When the deceased had to maintain the family originally consisting of 6 persons, and later reduced to 4, one cannot expect the deceased to spend more on himself. Therefore, 1/5th is reduced towards his personal expenses. The annual loss of dependency would be Rs.2,000/-x 12 x 17=Rs.4,08,000/-. Loss of consortium and loss of love and affection is awarded at Rs.30,000/- to the first claimant. Funeral expenses is allowed at Rs.2,000/-. For loss of love and affection to the claimants i.e. claimants 2, 3 and 4 are entitled to a sum of Rs.20,000/- each, totalling to Rs.60,000/-. The details of amount awarded by this Court are shown in the table:- 17. In this case, the future expected increase in the income of the deceased has not been taken into consideration. Even though, this Court is empowered to award more compensation than what is claimed [as per the decision of the Supreme Court reported in Raj Kumar Vs. Ajay Kumar ( 2011 ACJ 1 (SC))] and if the Court decides to do that once again it will lead to delay as the other side should be given opportunity on the proposed increase. Moreover, the accident had taken place during 1995 and therefore, it may not be appropriate to take that step now. 18. In the result, the fair and decretal order of the Tribunal, is set aside. The appeal is allowed as prayed for. Moreover, the accident had taken place during 1995 and therefore, it may not be appropriate to take that step now. 18. In the result, the fair and decretal order of the Tribunal, is set aside. The appeal is allowed as prayed for. The respondents shall be liable to pay a sum of Rs.5,00,000/-(Rupees Five Lakhs only) to the appellants/claimants with interest at the rate of 7.5% per annum from the date of petition till the date of payment and the second respondent shall deposit the amount within a period of one month from the date of receipt of a copy of this judgment. The amount of compensation would be apportioned with proportionate interest among the claimants at Rs.1,25,000/-, equally. On such deposit being made, the first appellant is permitted to withdraw her share with accrued interest. As appellants 2, 3 and 4 might have attained majority by now, they are also permitted to withdraw their respective share with proportionate interest after obtaining necessary orders from the Tribunal. There shall be no order as to costs.