Managing Director, T.N.S.T.C. Ltd. vs N. Anjali Devi

V.Dhanapalan, J.—This Civil Miscellaneous Appeal arises against the judgment and decree passed in M.C.O.P.No.3559 of 2007 dated 14.12.2010, on the file of the Motor Accident Claims Tribunal - Chief Judge, Small Causes Court, Chennai.

The appellant was the respondent before the Tribunal. The respondents/claimants are wife, son, daughter and mother of the deceased Narasimhan respectively, who, while driving his motor cycle bearing Regn. No.TN-05-V-1580 from Perambur to Ponneri at GNT road opposite to Janappan Chatram Muneeswarar Koil, met with an accident on 16.09.2007 at about 11.10 hours on account of the rash and negligent driving of the appellant Corporation bus bearing registration No.TN-21-N-0826, due to which, the deceased sustained fatal injuries and crushed by the left wheel of the bus. The deceased was working as Line Man Inspector in Tamil Nadu Electricity Board, Chennai for a monthly salary of Rs.15,000/-. The claimants, by filing claim petition before the Tribunal, sought compensation of a sum of Rs.25,00,000/-.

Before the Tribunal, on behalf of the claimants, two witnesses were examined and the following exhibits were marked:

(a)Ex.P1 : Copy of F.I.R

(b)Ex.P2 : Copy of Sketch

(c)Ex.P3 : Copy of charge sheet

(d)Ex.P4 : Copy of Post Mortem Certificate

(e)Ex.P5 : Death Certificate

(f)Ex.P6 : Legal heir certificate

(g)Ex.P7 : Identity card of the deceased

(h)Ex.P8 : Pay slip for the month of August, 2007

On behalf of the appellant/respondent, one witness was examined and no exhibit was marked.

On appreciation of materials before it, the Tribunal awarded compensation of a sum of Rs.13,50,000/- together with interest at 7.5% p.a. from the date of petition till the date of deposit. The said award is being challenged by the appellant/Corporation on the following grounds:

(i) that the Tribunal has erred in examining the evidence of claimants in respect of negligence aspect, who was an interested witness added for getting higher compensation;

(ii) that the award of Tribunal is quite against the principle laid down by the Hon''ble Supreme Court as well as this Court and the same is passed without any basis and material evidence on record;

(iii) that deduction of �th income instead of ?rd towards deceased''s personal and living expenses is totally wrong.

Learned counsel for the appellant/respondent would submit that the Tribunal has arrived at the compensation based on the evidence adduced on the side of claimants, which is against the principles laid down by the Hon''ble Supreme Court as well as this Court. He would further submit that the Tribunal has deducted �th income towards personal and living expenses instead of deducting ?rd of his income. He has also raised the question of negligence, as the said plea has not at all been considered by the Tribunal.

Per contra, learned counsel appearing for the claimants/respondents has vehemently contended that the deceased was employed as Lineman Inspector in the Tamil Nadu Electricity Board, thereby drawing a sum of Rs.15,000/- per month as salary as per Ex.P8. Therefore, there is no error in deducting �th of his income towards personal and living expenses by the Tribunal, which is as per the settled principle only. Thus, the award of the Tribunal cannot be called in question.

We have heard the learned counsel on either side and perused the material documents available on record.

A circumspection of the fact would reveal that on 16.09.2007 at about 11.10 hours, when the deceased was driving his motor cycle bearing Reg. No.TN-05-V-1580 from Perambur to Ponneri at GNT road, opposite to Janappan Chatram Muneeswarar Koil, the respondent Corporation bus bearing Reg.No.TN-21-N-0826, driven by its driver in a rash and negligent manner dashed against the deceased, resulting in sustenance of fatal injuries and death subsequently. Therefore, as against the claim of a sum of Rs.25,00,000/- the Tribunal has awarded a sum of Rs.13,50,000/- as compensation. Aggrieved over the same, the appellant/Transport Corporation is before this Court for determination of their liability by this Court.

To the above claim, appellant/respondent has made a statement to the effect that on the date of accident, the bus bearing Reg.No.TN-21-N-0826 was proceeding to Tirupathy from Koyambedu bus stand and the same was driven by its driver cautiously and carefully with normal speed. At that time, the two wheeler of the deceased bearing Reg.No.TN-05-V-1580 tried to overtake the bus through its left side without minding traffic rules and as there was a plenty of river sand, the deceased has lost his control, skidded and also slipped from the vehicle inside the rear left wheel of the bus, which caused serious fatal injuries. Therefore, negligence is totally on the part of the deceased person and the same cannot be reversed against the driver of the appellant Corporation bus.

The Tribunal, on looking into the claim and rival submissions, has framed the following two questions for consideration:

(i) whether the accident happened due to the rash and negligent driving of the respondent''s vehicle?

(ii) whether the petitioners are entitled to get compensation? If so, to what amount?

The Tribunal has firstly examined the negligence aspect and also the circumstances, under which, the bus of the respondent Corporation and the two wheeler were driven by the driver and the deceased. To arrive at a firm decision, the Tribunal has analysed thoroughly the evidence of P.W.2, an eye witness to the occurrence and given keen attention to exhibits, such as Ex.P1 (FIR), Ex.P2 (Sketch), Ex.P3 (charge sheet), Ex.P4 (Postmortem Certificate) and Ex.P5 (death certificate) produced by P.W1. After careful reading of the oral evidence of P.W.2, the Tribunal has arrived at a conclusion that negligence of the driver alone is responsible for entire accident and also for the death of the deceased. In support of such decision, the Tribunal has heavily relied on the evidence of R.W.1, driver of the bus, who has admitted in his examination that he did not see the deceased before the accident and when the bus was moving in the left side, the left back wheel ran over the deceased. Therefore, conclusion has been arrived that R.W.1 is not an eye witness to the occurrence, as he has seen the deceased after the occurrence only. Thus, based on the oral and documentary evidence, it was held that the respondent is liable to pay compensation.

The Hon''ble Punjab & Haryana High Court in the case of State of Rajasthan v. Shish Ram etc. (FAO No.1706 of 1999 (O&M), decided on 23.07.2013, in respect of assessment of negligence part, has been pleased to hold as under:

"9. So far as the stand taken by the driver of the offending bus that driver of the Van was drunk is concerned, it carries no weight, because had he been drunk, it must have been mentioned in the report of post-mortem examination (Exhibit-PF) of body of Roshan Lal. The matter does not rest here. The FIR (Exhibit PE) was lodged on the statement of Kuldeep Singh. He categorically stated in his version before the Police that the accident took place on account of rash and negligent driving of the offending bus by its driver. This Court is conscious of the fact that recording of FIR is not substantive piece of evidence, but in the motor accident cases it can be relied upon, particularly, when the FIR is lodged immediately after the accident. So, it appears that Kuldeep Singh was won over by the driver of the bus, but it does not mean to draw an inference that the accident did not occur on account of negligence of the driver of the offending bus. Rajender (PW11) has clearly deposed that the accident was caused on account of rash and negligent driving of the offending bus. He was cross-examined at length, but nothing material could be elicited from his statement that occurrence did not take place on account of rash and negligent driving of the offending bus by its driver. Of course, his name was not mentioned in the FIR, but that does not mean that he was not present at the spot and was a procured witness. It also needs mention here that the standard of proof in a criminal case is different from tortuous claims for accident victims that are required to be established before the Tribunal and the Tribunal will consider the issue of negligence by the evidence adduced before it, uninfluenced by the fact of pendency of the criminal case or acquittal given by the criminal court.

The plea raised by the appellants that two bottles of wine were found in the Van is also falsified by the report submitted by the Police under Section 173 of the Code of Criminal Procedure against the driver of the offending bus. No such recovery was effected from the place of accident. Man may tell lie, but the circumstances don''t. So, in the present case, the circumstances clearly raise finger towards Shyam Sunder, driver of the offending bus that the accident" took place on account on his rash and negligent driving."

The precept of "negligence" means failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The test of negligence lies in default to exercise the ordinary care and caution which is expected of a prudent man in the circumstances of a given case. The duty to exercise such a care and caution including reasonable use of his faculties of sight and intelligence to observe and appreciate danger or threatened danger of injury is undoubtedly on the driver of an automobile. If he fails to do so and such failure is the proximate cause of the injury or death, he is guilty of negligence. In other words, the test is whether the driver could, by exercising normal diligence and caution, avert the accident. "Negligence" is the omission to do which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It is trite, the negligence is not a question of evidence; it is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omission which could be reasonably foreseen to be likely to cause physical injury to persons. The degree of care required, of course, depends upon the facts in each case.

On analysing the overall background of the case and upon perusal of the deposition of P.W.2, no other conclusion can be arrived at, than the one that the accident occurred on account of the rash and negligent driving of the bus driver, as rightly held by the Tribunal negligence, in view of the settled proposition of law that the burden of establishing the defence of contributory negligence is on the side of the defendant and it is not for the claimant to disprove it.

The 2nd question in respect of fixation of compensation, the Tribunal has taken note of the age of the deceased as 53 years from Ex.P4, Postmortem Certificate and Ex.P5, death certificate. Though the age of the deceased was assessed as 53 years as per Ex.P4, in Ex.P5, it was mentioned as 48 years. Based on the oral and documentary evidence, the age of the deceased was finally figured out as 53 years by the Tribunal. Insofar as the decision with regard to disbursement of the compensation to legal heirs of the deceased was concerned, the Tribunal took note of Ex.P6, legal heir certificate produced by P.W.1, which revealed that petitioners 1 to 4/respondents herein are the legal heirs of the deceased. Since the deceased was the salaried employee, working as Lineman Inspector with TNEB, he was drawing the salary of Rs.14,907/- (which includes Basic Pay of Rs.6670/-, Dearness Pay of Rs.3335/-, Dearness Allowance of Rs.3502/-, HRA - Rs.1100/- and CCA - Rs.300/-) as per Ex.P8. Having deducted �th annual income towards personal and living expenses, remaining �th of his income was treated as loss of income and on adopting multiplier of 11, total loss of pecuniary benefits was arrived at Rs.13,28,217/-, with which, a sum of Rs.10,000/- towards loss of consortium to the 1st petitioner, Rs.10,000/- for love and affection to the petitioners 2 to 4 and Rs.1783/- towards funeral expenses and transport to hospital, were in addition added to come to the total compensation of Rs.13,50,000/-.

The Hon''ble Supreme Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation & Another, reported in 2009 ACJ 1298, has been pleased to hold as under with respect of determination of liability and quantum of compensation:

"18. The principles relating to determination of liability and quantum of compensation are different for claims made under section 163A of MV Act and claims under section 166 of MV Act. (See:Oriental Insurance Co. Ltd. v. Meena Variyal- 2007 (5) SCC 428). Section 163A and Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas, however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under section 166 of MV Act, by borrowing the principle underlying section 163A and the Second Schedule. This Court observed:

"Section 163-A begins with a non obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case..... Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier......What we propose to emphasise is that the multiplier cannot exceed 18 years'' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16..."

In New India Assurance Co. Ltd. v. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. v. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation v. Krishna Bala [2006 (6) SCC 249]."

In entirety, the Tribunal has gone into every factor involved in this case and given thoughtful consideration for each and every claim especially with respect to negligence and liability aspect. The adoption of multiplier is also well within the settled principles of law based on the oral and documentary evidence, placed before the Tribunal. The Tribunal has determined the compensation in a very reasonable and fair manner, which, in our consideration opinion, does not warrant any interference by this Court, as such determination arrived at by the Tribunal is perfectly valid in law.

Therefore, we find no reason whatsoever to interfere with the award of the Tribunal and the same is upheld. Accordingly, this Civil Miscellaneous Appeal is dismissed. No costs. Connected miscellaneous petition is closed.