Metropolitan Transport Corporation Ltd., Chennai Divn.-II v. A.M.O. Shahul Hameed

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.02.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.M.A No.9 of 2004andC.M.P.No.43 of 2004Metropolitan Transport Corporation Ltd.,Chennai Divn.-II, rep. by its Managing Director,Ayanavaram, Chennai 600 023.(Cause Title accepted vide order dated07.06.2000 in CMP No.6426/2000) ... Appellant/RespondentVs.1.A.M.O.Shahul Hameed2.Jaseem Begum ... Respondents/PetitionersPrayer: Petition filed under Section 173 of M.V.Act 1988 against theaward and decree of the Motor Accident Claims Tribunal, III Judge,Small Causes Court, Chennai.)made in M.C.O.P.No.387/1995 dated24.11.98.For Appellant : Mr.S.RamachandranFor Respondents: Mr.S.Udayakumar J U D G M E N TThis Civil Miscellaneous Appeal is preferred by the MetropolitanTransport Corporation Limited, represented by its Managing Director,Chennai 23 (formerly known as Dr.Ambedkar Corporation Limited) as anappellant, aggrieved against the award of the Motor Accident ClaimsTribunal viz., III Judge, Court of Small Causes dated 24.11.1998passed in M.C.O.P.No.387 of 1995 awarding a total compensation ofRs.1,58,100/- with interest at 12% p.a. from the date of filing ofthe petition till date of deposit.2.The respondents/claimants have filed a claim petition, claiminga compensation of Rs.2 lakhs with interest and costs for the death oftheir son Sathik in an accident that has taken place on 22.01.1995 at https://hcservices.ecourts.gov.in/hcservices/ about 20.45 hours at Anna Salai opposite to Trade Fair ground, S.M.Nagar Bus Stop.3.The short facts of the present appeal are set out in brief asfollows:-On 22.01.1995 at about 20.45 hours at Anna Salai opposite toTrade Fair ground, S.M.Nagar stop, when the deceased Sathik (son ofthe claimants) along with his friend boarded the bus TML 1911(through back side stairs) and without seeing them, the driver of thebus has suddenly moved it with jerk as a result of which the deceasedSathik fell down from the bus resultantly he sustained grievousinjuries and died. The accident has taken place due to rash andnegligent driving of the driver of the bus. The appellant/respondentis the owner of the offending D.A.T.C. Bus TML 1911 and therefore isvicariously liable to pay the compensation to therespondents/claimants, has claimed in the petition.4. According to the learned counsel for the appellant/TransportCorporation, the factum of the accident on 22.01.1995 is denied andthat its Conductor and driver have denied the accident involving inthe bus TML 1911 and that they have completed their trips on that dayand that the respondents/claimants cannot claim any amount ascompensation unless they prove that the accident is occurred only dueto the negligence of the appellant's driver and in the present case,the Tribunal has not appreciated the evidence of R.W.1 and R.W.2,driver and conductor of the bus who have denied the accidentinvolving the bus TML 1911 on 22.01.1995 and that the timing charthas not mentioned about any accident in the scheduled trips on thatparticular day and further that the Tribunal has committed an errorin adopting the multiplier as 16 and the proper multiplier to beadopted is only 13 and in any event the award of Rs.1,58,100 togetherwith interest at 12% p.a. from the date of petition till date ofpayment is excessive and therefore prays for allowing the appeal inthe interest of justice.5.However, the learned counsel for the respondents/claimantssubmits that the Tribunal has awarded a sum of Rs.1,58,100/- towardscompensation together with interest at 12% p.a. from the date offiling of the petition till the date of payment and in fact, theTribunal ought to have awarded more amount and further that thisCourt has power to enhance the amount of compensation even in theappeal filed by the appellant/Transport Corporation. It issignificant to point that the respondents/claimants have notpreferred any appeal praying for enhancement of compensation (thanthe one awarded by the Tribunal). Hence, this Court is perforced toconfine itself to the appeal filed by the Transport Corporation.6. Before the Tribunal on the side of the respondents/claimants,witnesses P.Ws.1 to 3 were examined and Exs.P1 to P5 were marked. On https://hcservices.ecourts.gov.in/hcservices/ the side of the appellant/Transport Corporation, witnesses R.Ws.1 and2 were examined and Ex.R1 was marked. The Tribunal on appreciationof oral and documentary evidence has come to the conclusion that theaccident has occurred due to rash and negligent driving of the bus bydriver and granted a compensation of Rs.1,58,100/- together withinterest at 12% p.a. from the date of filing of the petition till thedate of payment. The Tribunal has fixed the Advocates fee atRs.6,162/-.7. It is the evidence of P.W.1/first claimant that he has notseen the occurrence directly and that his son Sathik died in a roadaccident that is taken place on 22.01.1995 involving a bus and hisson died on the way while being taken to the hospital. P.W.2 SheikMohamed in his evidence has deposed that on 22.01.1995 at about 08.45p.m. after witnessing the Trade Fair, when he has been standingoutside the Trade Fair waiting for the bus, at that time the bus TML1911 coming from Parrys has stopped near the Trade Fair bus stop andhe along with his friend Sathik boarded the bus on its back sideentrance when the bus has proceeded to a short distance (after itsstart), the driver of the bus has applied a sudden brake and as aresult of which his friend Sathik has fallen down from the bus andthe sharp long rod which has been protruding on the back sideentrance of the bus has pierced his ribs deeply resulting in aninjury and that he has taken his friend Sathik to the GovernmentGeneral Hospital and that the bus has proceeded without stopping andthat he has given a police complaint and that the driver of the busis responsible for the happening of the occurrence.8. P.W.3 the Sub Inspector of Police has stated that theInspector of Police in Cr.No.291/95 has registered a case underSection 304(A) of I.P.C. and as per Section 184 of the Motor VehiclesAct and after investigation, the charge sheet has been laid againstthe D.A.T.C. Bus driver Ganesan before the VI MetropolitanMagistrate, Chennai in C.C.No.3845/95 and that the case is pendingand that the Post Mortem Certificate is Ex.P5.9. R.W.1, the driver of the bus in his evidence has stated thaton 22.01.1995, he has driven the bus TML 1911 and he has taken thebus at 20.45 hours at Parrys and that near the Trade Fair ground nooccurrence has taken place and that near the Trade Fair at about08.50 p.m. on 22.01.1995 his vehicle has reached the place and thatthe passengers have boarded the bus and since the TrafficSuperintendent and the police have been present there, the accidenthas not taken place and that the criminal case in connection with theaccident is pending against him and that he has not attended duty on23.01.1995 and 24.01.1995 respectively. In fact R.W.1 the driver inhis cross-examination has specifically denied that his vehicle hasbeen involved in the accident on 22.01.1995.10. R.W.2, the Conductor of the bus has deposed that on https://hcservices.ecourts.gov.in/hcservices/

22.01.1995 he has been the conductor for the bus Route No.7B bearingRegistration No.TML 1911 and on that day at about 08.45 p.m., the bushas proceeded from Parrys to Korattur and near the Trade Fair, nooccurrence has taken place and that the bus has 6 + 2 trips to itscredit on that day and that the accident has not occurred at Parrys.11. Ex.R1 is the xerox copy of the time chart. In the instantcase, the friend of the deceased Sathik has been examined as P.W.2,who has been an eyewitness to the occurrence. The categoricalevidence of P.W.2 is to the effect that the offending bus driver ofthe bus TML 1911 ha applied the sudden brake as a result of which hisfriend deceased Sathik has fallen down from the bus and that the siderod of the bus has pierced his ribs causing injury and he has takeninto the Government General Hospital and that the bus has notproceeded without stopping, etc.,. In Ex.P5, the Post MortemCertificate in respect of the deceased Sathik, the doctor has opinedthat 'Died of shock and haemorrhage due to multiple injuries.' Ex.P1is the xerox copy of the First Information Report. A perusal ofEx.P1 First Information Report indicates that P.W.2 is thecomplainant. Further, the offending bus is mentioned as ' D.A.T.C.Route No.7B, bearing Registration No. TML 1911'. Inasmuch as theevidence of eyewitness P.W.2 is unassailable, cogent and convincing(in regard to the manner and happening of occurrence), this Court isof the considered view that the same is worthy of acceptance andrightly accepts the same. Moreover, P.W.3 the Sub Inspector ofPolice has also deposed that a criminal case has been registeredagainst the driver of the bus viz., R.W.1 and later a charge sheethas been filed before the VI Metropolitan Magistrate, Chennai.Though a plea is taken on the appellant side that no such accidenthas taken place on 22.01.1995 involving the bus TML 1911 placingreliance on evidence of R.W.1 and R.W.2, this Court rejects theirevidence as interested testimonies, besides a self serving one.Therefore, this Court is in agreement with the finding rendered bythe Tribunal that the accident has taken place on account of the rashand negligent driving of the driver of the bus and resultantly, theappellant's driver R.W.1 is held squarely responsible for causing theaccident.12. Coming next to the quantum of compensation to be awarded, itis to be pointed out that the respondents/claimants (being theparents of the deceased son Sathik) in the claim petition haveclaimed the total sum of Rs.2 lakhs as compensation and the break updetails are as follows:-Funeral Expenses: Rs. 2,000Loss of Estate: Rs. 2,500Loss of Income: Rs.1,95,50013. P.W.1, the father of the deceased in his evidence has statedthat his son deceased Sathik at the time of his death has been 20 https://hcservices.ecourts.gov.in/hcservices/ years of age and that he has been working as Sales Assistant in anIron shop at Mannadi getting monthly salary of Rs.1,500/- and hisdaily batta has been Rs.25/- and that his son after keeping a sum ofRs.200/- or 300/- for himself will hand over the balance salary tothe family and that they depended on his income and that he has noother income apart from his son's salary and that since he is notkeeping well, he is remaining idle and that his son's total salaryhas been Rs.2,000/- inclusive of daily batta. In Ex.P5, the PostMortem Certificate (in respect of the deceased Sathik) the doctor hasnoted down the following injuries:-'1.Reddish abrasions over:back of left shoulder 6X2 cm; nearleftaxilla 3X3 cm; right side of hip 7X3cm; upper end of left thigh10X6cm; left gluteal region 6X4cm; back of trunk near the renal angle14X6 cm (graze abrasion) tyre marking present.2.Lacerated wound over right hip 7X2X1cm3.Fracture of right iliac boneat its middle and fracture ofpubic bone on right side.4.Entire right kidney bruised. Retro peritoneal haematoma nearthe right kidney, pelvic muscles bruised. Urinary bladder containsclotted blood.5.Peritoneum contain 1350 ml of fluid blood.6. Laceration over anterior surface of right lobe of liver8X3X2cm, etc.,'.The claimants have filed Ex.P3 Legal Heirship Certificate dated23.04.1998 issued by the Tahsildar wherein the respondents/claimantshave been mentioned as legal heirs of the deceased, with theirrelationship as parents. A perusal of Ex.P4 Salary Certificateissued by (employer of the deceased Sathik) shows that Sathik hasbeen earning Rs.2,000/- as wages per month by way of wages and otheractivities in their concern and this Ex.P4 can be looked into andrelied upon by the Tribunal for determining the compensation to beawarded, notwithstanding the fact that no one from the Company hasbeen examined as witness before the Tribunal, in the consideredopinion of this Court, for the simple reason that strict rules of theEvidence Act are not applicable to the Motor Accident Claims Casesbefore the Tribunals.14. As a matter of fact, the trial Court has taken into account asum of Rs.1,200/- being the monthly dependancy and it has adopted amultiplier of 16 and has arrived at total sum of Rs.2,30,400/-. Outof Rs.2,30,400/-, it has deducted 1/3rd sum of Rs.76,800/- inconsideration of the expenses which the victim would have incurredtowards maintaining himself had he been lived and has arrived at an https://hcservices.ecourts.gov.in/hcservices/ amount of Rs.1,53,600/- being the Compensation amount to which therespondents/claimants are entitled to receive. One cannot ignore animportant fact that at the time of Sathik's death, he has been 20years of age. Towards funeral expenses, the Tribunal has awarded asum of Rs.2,000/-, for loss of Estate, the Tribunal has awardedRs.2,500/-. Thus, it has awarded a total sum of Rs.1,58,100/- beingthe compensation amount to the respondents/claimants.15. In the decision BIKISH V. UNITED INDIA INSURANCE CO. LTD. &ANOTHER, (2008) 1 TN MAC 307 (SC), for the death of the bachelordeceased (aged 20 years) the Honourable Supreme Court has applied themultiplier at 12 instead of 11 adopted by the Tribunal and it hasalso awarded 9% interest p.a. as against 6% p.a.16. Since the P.W.1 (father of the deceased)/first claimant inhis evidence has stated that his deceased son Sathik will retainRs.200 or 300/- p.m. and will part with the balance amount to thefamily, this Court fixes the monthly dependency at Rs.1,300/- as aprudent one and per annum, the same works out to Rs.15,600/-(Rs.1,300 X 12) and applying the proper multiplier at 12, then itcomes to Rs.1,87,200/-, (Rs.15,600 X12) to which sum the claimantsare entitled to receive as compensation. Further, out of sum ofRs.1,87,200/-, if 1/3rd viz., Rs.62,400/- is deducted towardspersonal expenses of the deceased then it comes to a sum ofRs.1,24,800/- (Rs.1,87,200/- - Rs.62,400) to which sum therespondents/claimants are entitled to receive from the appellantCorporation. Apart from the aforesaid sum of Rs.1,24,800/-, therespondents/claimants, the respondents/claimants are entitled toreceive a sum of Rs.2,000/- towards Funeral Expenses and further sumof Rs.2,500/- towards Loss of Estate in the considered opinion ofthis Court. Thus in all, the respondents/claimants are entitled toreceive a total compensation of Rs. 1,29,300/- together with interestat 9% p.a. from the date of filing of the petition till the date ofpayment and the appellant/Transport Corporation is directed to paythe same. The Lawyer's fee is fixed at Rs.5,586/- by this Court.17.In the result, on an overall assessment of the facts andcircumstances of the case in an integral fashion and on examinationof available materials and evidence on record, this Court comes tothe conclusion that the award of Rs.1,58,100/- as compensation fixedby the Tribunal to the respondents/claimants for the death of theirson Sathik is on the higher side and the correct multiplier is only12 and resultantly, awards only a sum of Rs.1,29,300/- as just andprudent compensation together with interest at 9% p.a. from the dateof filing of the petition till the date of payment along withproportionate cost and interest and in that view of the matter,allows the Civil Miscellaneous Appeal on above terms. The Lawyer'sfee is fixed at Rs.5,586/-. Consequently, the parties are givenliberty to claim/receive their respective balance due amount (lessthe amount drawn if any) from the Tribunal in the manner known to law https://hcservices.ecourts.gov.in/hcservices/ by filing necessary application before the Tribunal as per the CivilRules of Practice. Bearing in mind the facts and circumstances ofthe case, the parties are directed to bear their own costs.Consequently, the connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvriTo1.The Motor Accident Claims Tribunal, III Judge, Small Causes Court, Chennai.2.The Section Officer,V.R.Section,High Court, Chennai-1041 CC To Mr.S.Udayakumar, Advocate, SR NO.65791 CC To Mr.S.Ramachandran, Advocate, SR NO.6580C.M.A No.9 of 2004gv(co)pmk/4.2.2009.