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Judgment
M. Venugopal, J.—The Civil Miscellaneous Appeal is preferred by the Tamil Nadu State Transport Corporation (Coimbatore Division I)
Limited by its Managing Director, Coimbatore, against the award of the Motor Accident Claims Tribunal viz., Sub Judge, Tiruppur dated
28.2.2002 passed in M.C.O.P. No. 1085 of 1999, granting compensation of Rs. 6,30,000/-. The respondents being the wife, children and
parents of the deceased have filed M.C.O.P. No. 1085 of 1999 claiming a restricted compensation of Rs. 15,00,000/-.
The short facts paving the way to the present appeal are summarised as follows:-
On 07.02.1999 at about 21.30 hours when the deceased Govindasamy was riding his motorcycle bearing Registration No. T.N.39.H.1110, the
bus bearing Registration No. T.N.38.N.0423 came in a rash and negligent manner and dashed against the deceased, as a result of which he was
thrown out and died due to injuries. The accident was caused due to the rash and negligent driving of the driver of the appellant/Transport
Corporation and hence, the appellant is liable to pay compensation to the claimants.
The appellant/Transport Corporation pleaded that the driver of the bus did not drive the bus either rashly or negligently and that the driver of the
bus was driving the vehicle from Erode to Coimbatore observing the road rules in its 7.50 p.m. Trip and when the bus stopped at Citra bus stop,
after the passengers alight and got into the bus, the bus moved near Aravindh Eye Hospital and the conductor gave signal and the bus slow down
to stop and at that point of time, the deceased came in a Bullet Motor Bike bearing Registration No. T.N.39.H.1110 in a high speed on the
opposite direction, overtook a lorry and lost control and dashed against the front side of the bus and fell down. The pillion rider also fell down and
therefore, the deceased was responsible for his death and that the claimants should prove that the deceased had a valid driving licence at the time
of accident and in any event, the deceased was responsible for his contributory negligence and that the appellant/respondent Corporation is not
liable to pay any compensation.
The Tribunal examined witnesses P.W.1 to P.W.3 on the side of claimants and marked Exs.A.1 to A.8 and on the side of appellant/respondent,
R.W.1 was examined and no exhibits were marked. On appreciation of oral and documentary evidence, the Tribunal came to the conclusion that
the accident took place due to the negligence of the appellant/ respondent bus driver and passed an award of Rs. 6,30,000/- (Rupees six lakhs
and thirty thousand only) with interest at 9% per annum from the date of petition fall date of payment. Assailing the same, the Transport
Corporation has projected the instant appeal.
P.W.2-Shanmugam in his cross examination has deposed that he witness the accident and that he has not complaint before the Police and that
the bus without stopping came in high speed. Ex.A.1 is the xerox copy of FIR dated 07.02.1999. In this, the name of the informant is mentioned as
Gurumath Singh, Coimbatore. A perusal of Ex.A.1-Xerox copy of FIR clearly points out that in Crime No. 135 of 1999 u/s 279, 304A I.P.C., a
case has been registered against the driver of the bus Rajee, bearing Registration No. T.N.38.N.0423. Admittedly, the complainant Gurumath
Singh was not examined before the Tribunal. However, in Ex.A.1-Xerox copy of FIR, it is inter alia mentioned as follows:
Today 7.23.1999 I have gone to hopes for Private Business and when I was returning to my restaurant on my two wheeler T.N.37.F.3949 along
the Avanashi road from west to east, when at about 21.30 hrs I noticed two persons going ahead of me on the two wheeler at P.S.G. Arts College
the above two persons travelling on a Bullet had gone a little of the Centre of Road. When all of a sudden the Bus (Govt. Bus) which was coming
from east to west along the same road hit the motor cyclist and the pillion rider and they were thrown from the vehicle and at the same time the
motor cycle was ... in the right front wheel of the bus and ... to the spot where the two persons had been thrown. The motor cyclist and pillion rider
suffered severe head injuries and injuries on other parts of the motor cyclist and as result the both Expired on the spot, etc."".
Ex.P.2 is the Xerox copy of M.V. Inspection Report. In this, it is candidly mentioned that ""the accident was not due to any mechanical defect of
the vehicle"". Ex.A.3 is the Xerox copy of the Postmortem Certificate relating to the deceased Govindasamy in which the Doctor has opined that
the deceased would appear to have died of multiple injuries sustained by him.
R.W.1-Rajee, the driver of the bus has deposed that the driver who drove the motorcycle Bullet bearing Registration No. T.N.39.H.1110,
drove the motorcycle under influence of alcohol in high speed and he made an endeavour to overtake the lorry, which was coming in front and
while coming to the right side of road, he lost control and dashed against the front right side of the bus and that the deceased Govindasamy,
Motorcycle driver was responsible for the accident. Notwithstanding the fact that the complainant Gurumath Singh, who lodged the FIR was not
examined in the case, bearing in mind the evidence of P.W.2-Shanmugam (who witness the accident) has stated that the driver drove the bus in
high speed without slowing down the same, this Court accepts his evidence and therefore, comes to the conclusion that the accident took place on
account of the negligent driving of the driver of the bus and that the driver of the bus was squarely responsible for causing the accident and the
point is answered accordingly.
According to the learned counsel for the appellant/ Transport Corporation, the Tribunal erred in relying on Ex.A.6-salary certificate which was
marked in the case without examining the author of the document and that the Tribunal failed to note that no documentary evidence was produced
to prove the occupation and income of the deceased and that the Tribunal was wrong in fixing the monthly income of the deceased Govindasamy
at Rs. 5,000/- without any basis and in any event, the award of compensation of Rs. 6,30,000/- with interest at 9% per annum from the date of
filing of the petition etc., is unsustainable in me eye of law.
In the claim petition, the age of the deceased Govindasamy is mentioned as 30. In Ex.A.3-Xerox copy of Postmortem Certificate, the age of the
deceased Govindasamy is stated to be about 38 years. Ex.A.4 is the Certified copy of Death Certificate pertaining to deceased Govindasamy,
wherein the date of death is mentioned as 07.02.1999. Ex.A.5 is the Legal Heir Certificate dated 07.04.1999 issued by the Tahsildar, Avanashi
wherein, the claimants/respondents 1 to 5 names are found. Ex.A.6 is the letter dated 10.03.1999, issued by the S.K. Textiles Proprietor, wherein
it is mentioned that the deceased Govindasamy was employed as Supervisor in their concern for the past five years, drawing a monthly salary of
Rs. 6,000/- etc. No doubt, the author of Ex.A.6-letter dated 10.3.1999 was not examined before the Tribunal to prove the monthly salary of Rs.
6,000/-, (relating to the deceased Govindasamy).
It is pertinent to point out that marking of a document is one thing and proving the contents of the same is a different one, in the eye of law. Even
though, the author of Ex.A.6, letter dated 10.03.1999 was not examined on behalf of the claimants, yet in this case no steps were taken on behalf
of the appellant to examine the author of Ex.A.6 to disprove the version projected by the claimants in regard to the monthly salary of Rs. 6,000/-of
the deceased. But the initial burden rests on the claimants. Thereafter, the burden shifts in the eye of law. It is evident that Ex.A.6, letter dated
10.03.1999 has been filed by the claimants. At this stage, it is useful to refer to the evidence of the Partner-Shanmugam in S.K. Textiles to the
effect that the deceased Govindasamy worked in their concern as Supervisor, getting a monthly income of Rs. 6,000/-. Besides the evidence of
P.W.2 and Ex.A.6-letter dated 10.03.1999, no records or relevant vouchers or salary registers were produced and filed before the Tribunal to
know about the exact salary of deceased Govindasamy. In the absence of the same, the Tribunal is not at fault in determining the monthly salary of
the deceased Govindasamy at Rs. 5,000/-, ignoring the claim of salary of Rs. 10,000/-, as spoken to by P.W.1-Baby, the wife of the deceased.
Inasmuch as the age of the deceased is stated to be at about 38 in Ex.A.3-Postmortem Certificate dated 08.02.1999, this Court determines the
age of the deceased Govindasamy at the time of his death as 38 years. Consequently, the appropriate multiplier to be adopted is 16 as per Second
Schedule to Section 163-A of the M.V. Act. The monthly dependency of Rs. 5,000/- as fixed by the Tribunal is just and proper, in the opinion of
this Court on the facts and circumstances of the instant case on hand. Based on the monthly dependency of Rs. 5,000/-, per year it works out to
Rs. 60,000/-. Adopting the multiplier of 16, then Rs. 60,000/- x 16 it comes to Rs. 9,60,000/-as compensation. This Court grants Rs. 2,500/-
towards loss of estate, Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of consortium, in all a sum of Rs. 9,500/- towards
general damages. Out of a sum of Rs. 9,60,000/-, if 1/3rd Rs. 3,20,000/- is deducted towards the personal expenses of the deceased
Govindasamy, then the balance comes to Rs. 6,40,000/-. Thus, the respondents/claimants are entitled to a sum of Rs. 6,49,500/- (Rs.6,40,000/-
+ Rs. 9,500/-) as compensation.
Accordingly, this Court concludes that the respondents/claimants are entitled to a sum of Rs. 6,49,500/- (Rupees six lakhs forty nine thousand
and five hundred only) as compensation for the death of the deceased Govindasamy and therefore, the quantum of Rs. 6,30,000/-, fixed as
rounded off compensation by the Tribunal is inadequate. It is borne in mind that Lord Moris in 1970 AC1 has rightly observed that ''to
compensate in money for pain and physical consequences is invariably difficult by ... no other process can be devised than that of making a
monetary assessment''. No doubt, it is the bounden duty of the Tribunal to determine the just compensation and apportion the liability. However,
since the respondents/claimants have not preferred any appeal against the award of Rs. 6,30,000/-, this Court is not disturbing the award of Rs.
6,30,000/- as fixed by the Tribunal, at this distance of time to prevent aberration of justice. The lawyer''s fee fixed as Rs. 13,300/- by the Tribunal
is also not disturbed by this Court. Equally, this Court is of the view that nothing whatsoever absolutely has been made out for reducing the rate of
interest at 9% per annum awarded by the Tribunal and the interest of 9% per annum is also affirmed.
It appears that a sum of Rs. 8,65,000/- has been deposited. Earlier, on 31.3.2004 in CM.P. No. 11427 of 2003 while making the interim stay
already granted as absolute, this Court has given permission for withdrawal of amounts etc., besides giving directions to the Tribunal to invest the
amount in Indian Bank, Tiruppur, etc., as stated therein.
In the backdrop of aforesaid detailed discussions and on examination of material evidence on record and on an overall assessment of the facts
and circumstances of the case, this Court opines that the appeal is devoid of merits and the same is dismissed for the reasons assigned by this
Court in the present appeal, to promote substantial cause of justice. Resultantly, the order passed by the Motor Accident Claims Tribunal viz., Sub
Judge, Tiruppur, dated 28.2.2002 in M.C.O.P. No. 1085 of 1999 is confirmed. It is open to the respondents/claimants to withdraw the balance
amount due to them lying to the credit of M.C.O.P. No. 1085 of 1999 on the file of the Motor Accident Claims Tribunal viz., Sub Judge, Tiruppur
by filing necessary payment out application in accordance with law. Further, the Tribunal is directed to ensure that the appropriate Court Fee is
collected from the respondents/claimants (if not collected already) before making the balance payment. Bearing in mind the facts and circumstances
of the case, there shall be no order as to costs.