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2013 DIGILAW 3684 (MAD)

R. Valliammal v. V. Arunachalam

2013-10-23

S.VIMALA

body2013
Judgment : 1. One Ramaraj, the driver of the Tamil Nadu State Transport Corporation Limited, aged 50 years, earning a sum of Rs.5,800/-per month, met with an accident, while being employed as the driver of the bus, bearing Registration No.TN33-688. 1.1. On 22.08.1997, while he was driving his vehicle from south to north, the lorry bearing Registration No.TN37-6211, came in the opposite direction, in a rash and negligent manner, and hit against the bus, causing multiple injuries leading to death. He was admitted in the hospital on 22.08.1997 and he died on 04.09.1997. 2. In respect of death of Ramaraj, originally the Claim Petition has been filed by the wife, children and parents. During pendency of the Claim Petition, petitioners 4 and 5 died and the remaining persons are appellants 1 to 3 herein. 3. The Claims Tribunal came to the conclusion that the Legal Representatives and the dependents are entitled to compensation of Rs.50,000/-on the principle of 'No Fault Liability' (as per the provisions of Section 140 of the Motor Vehicles Act). Challenging the finding on liability and quantum, appellants 1 to 3 have preferred this appeal. 4. Admittedly, it is the case of collision between the Corporation Bus and the lorry. Complaint has been preferred by the lorry driver, which has been registered as First Information Report (Ex.P-1). The driver of the Transport Corporation had been admitted in the hospital, immediately after the accident. 4.1. Relying upon the First Information Report and the evidence of R.W.1, the Tribunal has given a finding that the accident took place only on account of rash and negligent driving on the part of the deceased, i.e., driver of the Corporation bus and therefore, has chosen to award the compensation, invoking the principle of 'No Fault Liability'. 5. Whether the finding of the Tribunal, accepting the First Information Report and the Enquiry Report, filed through R.W.1, and rejecting the evidence of P.W.2, the eye witness, can be accepted as correct, is the issue raised in this appeal. 6. Learned counsel for the third respondent sustained the findings given by the Claims Tribunal on the following points:- (i) According to the First Information Report given, the fault is only on the part of the Corporation Driver and therefore, the Tribunal is right in allowing the Claim only under 'No Fault Liability'. 6. Learned counsel for the third respondent sustained the findings given by the Claims Tribunal on the following points:- (i) According to the First Information Report given, the fault is only on the part of the Corporation Driver and therefore, the Tribunal is right in allowing the Claim only under 'No Fault Liability'. (ii) It is further pointed out that the only witness examined on the side of the claimants, i.e., P.W.2, is an interested witness and equally, he is not a person, who preferred the First Information Report and therefore, when the credibility of P.W.2 is in doubt, the Tribunal has rightly rejected the evidence of P.W.2. 6.1. Whether the evidence of an eye witness can be rejected, just because he did not prefer any complaint with respect to the incident he has seen, is the issue to be considered? 6.2. Normally innumerable persons may witness an incident / accident. One cannot expect sensitivity on the part of everybody to prefer a complaint and for justifiable reasons, one may not chose to prefer a complaint. Just because, one did not prefer a police complaint, it will not lead to the conclusion that he is not an eye witness. Therefore, just because, P.W.2 did not prefer the complaint, his evidence cannot be discarded. When he is examined before the Court as a witness, it is open to the other side to test the credibility of the witness, by examining / cross-examining that witness and without that being done, the credibility of P.W.2 cannot be impeached on the ground that he did not prefer the First Information Report. 6.3. The further contention that P.W.2 is an interested witness also cannot be accepted, because only, those who are interested in the welfare of the person alone, would come forward to give evidence. India do not have Witness Protection Act. The only requirement is his evidence has to be tested by cross-examination. Moreover, it is relevant to point out that the person, who is in possession of the best evidence, is bound to assist the Court, by producing the appropriate witness before the Court. Admittedly, it is the lorry driver, who was the only witness alive, after the death of the Corporation Bus Driver, is the person in possession of best evidence. He has not been examined before the Court. Admittedly, it is the lorry driver, who was the only witness alive, after the death of the Corporation Bus Driver, is the person in possession of best evidence. He has not been examined before the Court. No explanation has been offered as to why, the best evidence was withheld before the Tribunal. Instead of examining the driver, the respondents have chosen to examine the Investigating Officer of the Insurance Company. The Investigating Officer of the Insurance Company has examined the witnesses, recorded the statements and has given the report. When the report is based upon statement of living persons and those persons are not examined before the Tribunal, the report assumes no importance. 7. Learned counsel for the third respondent / Insurance Company seriously contended that in any event, it is the case of contributory negligence and the compensation awarded has to be apportioned between the Corporation and the Insurance Company, in the ratio of 50:50. 7.1. In a case of collision, there is a possibility of the contributory negligence, provided there is evidence to establish the same. As rightly pointed out, the driver of the lorry has not been examined before the Tribunal. The evidence available before the Court is that of P.W.2 and the First Information Report. Admittedly, the First Information Report has been registered, based upon the complaint of the lorry driver. The lorry driver has not been examined before the Tribunal. 7.2. At this juncture, the decision reported in 2006 (2) TN MAC 37 (The New India Assurance Co. Ltd., v. G.Vijaya Kandiban & another) is relied upon, where-under it was held that the statement recorded in the First Information Report cannot be raised to a pedestal higher than that of statement made before the Tribunal on solemn affirmation. Admittedly, P.W.2 was examined on solemn affirmation and therefore, the evidence of P.W.2 stands on a higher pedestal than that of the First Information Report and to prove the First Information Report, nobody connected with it, either the person who preferred the complaint or the person who recorded the statement, has been examined before the Tribunal. Therefore, the theory of contributory negligence, as propounded by the learned counsel for the third respondent, cannot be accepted. 7.3. The evidence of P.W.2 clearly goes to show that the accident had taken place only on account of the rash and negligent driving on the part of the lorry driver. 8. Therefore, the theory of contributory negligence, as propounded by the learned counsel for the third respondent, cannot be accepted. 7.3. The evidence of P.W.2 clearly goes to show that the accident had taken place only on account of the rash and negligent driving on the part of the lorry driver. 8. Then the issue to be considered is what is the quantum of compensation payable to the family of the deceased. 8.1. Admittedly, the date of birth / death of the deceased was 01.01.1946 and 04.09.1997, respectively. Therefore, the age of the deceased was 51', on the date of death of the deceased. In respect of the people aged 51-55, appropriate multiplier to be adopted is 11'. The gross salary, according to the pay certificate, is Rs.4,681/-. Adding a sum of Rs.702/-, towards 15% increase in the prospective income, the amount of salary would be Rs.5,383/-, rounded off to Rs.5,300/-. Applying the multiplier of 11', the compensation payable would be Rs.6,99,600/- (Rs.5,300/- x 11 x 12). Deducting 1/4th towards the personal expenses of the deceased, the compensation payable on account of the loss of dependency would be Rs.5,24,700/-, rounded off to Rs.5,25,000/-. Awarding a sum of Rs.5,000/- towards funeral expenses, Rs.20,000/- towards loss of consortium to the wife, Rs.10,000/-each to the children towards loss of love and affection and Rs.20,000/- towards loss to estate (on account of pain and sufferings which was suffered for 12 days), the total compensation is quantified at Rs.5,90,000/-. 9. In the result, the order of the Claims Tribunal is set-aside and this Civil Miscellaneous Appeal is allowed. The third respondent / Insurance Company shall pay compensation of Rs.5,90,000/-, along with interest at 7.5% interest, per annum, from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the first appellant (wife) will be entitled to a sum of Rs.3,00,000/-, along with proportionate interest and the balance will be payable equally to appellants 2 and 3. The claim made by the fourth respondent is dismissed. No costs.