Common Judgment (P. Sathasivara, J.)
Aggrieved by the award of the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court) Madras in MA.CT.0 P. No. 1998 of 1993 dated 05.08.1996, Pallavan Transport Corporation has filed the above appeal. Regarding disallowed claim, the claimants have filed cross-objection No. 38 of 1998;
2. Since the appeal and cross objection arise from the same order, they are being disposed of by the following common judgment
3. In respect of death of one Sunil Goyal, the widow, minor son and parents of the deceased prayed for a compensation of Rs. 15 lakhs. The tribunal after considering the oral and documentary evidence after holding that the accident was caused due to the negligence of the driver of the Transport Corporation, passed an award for Rs. 6,15,000.00 with interest at the Rate of 12 per cent per annum from the date of the claim petition till the date of deposit. Aggrieved by the said award, the Transport Corporation has filed the above appeal and with regard to disallowed claim the claimants have filed cross-objection.
4. It is seen that the accident took place on 07.04.1993 at 2.20 p.m, in Kilpauk Garden Road, Madras involving the Bus belonging to the Pallavan Transport Corporation and the deceased who was coming in a Motor Cycle sustained multiple injuries. He died in Apollo Hospital on 10.04.1993 due to the injuries sustained in the course of the said accident. It is the case of the claimants that the accident was caused solely due to the rashness and negligence on the part of the driver of the bus and on the other hand the Corporation has denied any rashness and negligence on the part of its driver.
5. With regard to question relating to negligence, admittedly the only witness examined on the side of the claimants is P.W.2 He deposed before the court that on 07.04.1993 at about 2.00 p.m, while he was proceeding in his cycle in Kilpauk Garden Road from east to west, the deceased was proceeding in his motor cycle from east to west. At that time according to him, the bus belonging to the Transport Corporation coming from the opposite direction came to the wrong side of the road and dashed against the Motor Cycle of the deceased. He further deposed that, because of the said impact, the Motor Cyclist was thrown away. The injured was taken in an auto to the hospital by the driver of the Corporation Bus. He further deposed that the accident was caused solely due to the negligence and rashness of the driver of the Corporation Bus and he was enquired by the Police. In the cross examination, it is suggested to P.W.2 that, it was only the deceased that in order to overtake other vehicles, came to the right side of the road and dashed against the bus. The said suggestion has been denied by him. No doubt, P.W.2 though deposed before the Court highlighting the manner of accident, he did not make any complaint to the police. However as stated earlier, even in the Chief Examination, he has specially stated that, he was enquired by the police regarding the accident. No doubt, the claimants have not summoned Police Records, first information report and sketch as well as the outcome of the investigation. Likewise, the Corporation has also not taken any step for summoning those documents. In the absence of such material, we have considered the oral evidence of P.W.2 and the evidence of driver-R.W.1
6. In his evidence as R.W.1, the driver has stated that, the Kilpauk Garden Road is running east to west and at the time of accident, he was driving his bus from west to East According to him he was proceeding on the left side of the Road and he saw that two Motor Cyclist were coming from the opposite side. He further deposed that while overtaking the other motorcyclist the deceased came to the right side of the road. According to him, the deceased dashed against the bus on the front left side pumper of the bus in spite of halting his bus. He also admitted that he was he, who took the injured to the hospital. In cross examination he has admitted mat the Kilpauk Garden Road is wide enough to drive three buses at a time. In this regard, learned counsel appearing for the claimants would point out that the stand taken by the Corporation in their counter statement. In the counter statement filed before the Court below, the Deputy Manager (Legal) Pallavan Transport Corporation Ltd., has specially stated that while proceeding near ESI employees quarters in Kilpauk Garden Road, at about 2.35 p.m, a Motor Cyclist in a very rash and negligent manner came from the opposite direction (East to West) without observing the Road Traffic Rules had suddenly crossed the road from left side to right side entrance and on seeing mis, the driver suddenly applied the brake of the bus. The present version of RW.1 is not in consonance with the stand taken in the counter statement Even though it is not admitted mat the bus in question was examined by the Motor Vehicle Inspector after the accident, they failed to produce the certificate issued by him. Had the certificate of the motor vehicle Inspector is before the court, it would be possible to ascertain whether there was any impact or damage on the left side pumber of the bus as claimed by R.W.1
7. First of all, the evidence of R.W.1 is quite contrary to the stand taken by the Corporation in their counter statement and secondly, they also failed to summon the relevant documents from the police with regard to the said accident. Though P.W.2 did not make any complaint to the police regarding the accident, it is his definite case that he was enquired by the police and according to him, it was R.W.1 who took the injured to the hospital. The fact that the driver of the ill-fated bus alone had admitted the injured to the hospital has not been denied by R.W.1 Considering all the above aspects, as rightly contended by Mr. S. Gangaram Prashsad, learned counsel appearing for the claimants, merely because of the non-production of police documents such as first information report and sketch before the Court below, the evidence of P.W.2 cannot be rejected Though we have observed that the claimants failed to place first information report, sketch relating to the scene of accident, in as much as the Accidents Claims Tribunal must take special care to see that innocent victims did not suffer and owners and drivers do not escape liability merely because of some doubt here and there, culpability must be inferred from the circumstances where it is fairly reasonable. As observed by their Lordships of the Supreme Court in N.K.V Bros. (p) Ltd. v. M. Karumai Ammal (1980 ACJ 435 (SC)), the Court should not succumb to niceties, technicalities and mystic maybes. We have already observed that though it is the responsibility of the claimants to allege and prove by placing acceptable evidence, the fact remains, the Transport Corporation an undertaking of Government of Tamil Nadu also did not take any care to summon the police records in order to ascertain the cause and the manner of the accident. After perusing the entire evidence of P.W.2 and R.W.1, we are of the view that the evidence of P.W.2 is more probable and acceptable. In such a circumstance, we hold that even in the absence of materials i.e, police records, first information report, sketch etc., if the evidence of eye-witness who is said to have witnessed the occurrence is acceptable, the Tribunal and other Higher Courts can safely rely upon the said evidence. We are in agreement with the similar view expressed by the learned single Judge of Delhi High Court in a decision reported in Mahipal Coop. Society Ltd., and others v. Prabhati and others (1986 ACJ 46).
8. Likewise, merely because the eye witness did not inform the police nor made any specific complaint it did not diminish his statement before the Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable, even in the absence of the fact that he did not inform the police regarding the manner of accident, it can safely be accepted. In this regard learned counsel appearing for the claimants very much relied upon Natchathiram and others v. Jayasekaran and others (2000 ACJ 902). The learned Judge in a similar circumstance has held,
“10. ……The mere fact that he has not given any complaint to the police will not diminish the credibility of the witness to any extent as observed by the tribunal…….”
We are in agreement with the view expressed by the learned judge.
9. In Varadamma v. H. Mallappa Gowda and others (1972 A.C.J 375), the Division Bench of the High Court of Mysore at Bangalore has held that, merely because the witness was not examined by the police or that he was not examined in the connected criminal case, it cannot be said that his evidence should not be relied upon. We are also in respectful agreement with the said observation of the Division Bench.
10. After going through the entire evidence of P.W.2, R.W.I as well as the stand taken by the Corporation in their counter statement, we are impressed with the evidence of P.W.2 and hold that the accident was caused due to the rashness and negligence of R.W.1 Further, it is not the case of the Corporation that there is any adjacent street in the north in which case it could be stated that the deceased suddenly took a right rum to enter the northern side. It is the definite case of both side that Kilpauk Garden Road is a straight road running from east to west. As rightly observed by the tribunal compare to the evidence of both, we are of the firm view that evidence of P.W.2 is probable and acceptable, accordingly we concur with the conclusion of the tribunal that the accident was only due to rashness and negligence on the part of the driver of the Corporation Bus.
11. Coming to the quantum of compensation, father of the decessed 4th claimant A. Shanthilal was examined as P.W.1 In the claim petition, the claimants have stated that the deceased was doing business as marble consultant and earning Rs. 7,500.00 per month. In support of their claim, apart from the evidence of P.W.1 father of the deceased also produced Ex.P.7- Partnership deed dated 01.10.1984 Ex.P.8- agreement dated 01-04-1992. The perusal of the said documents discloses that deceased, along with the other three, were running a partnership firm under the name and style of “M/s. Ever Bright Marbles”. The firm was doing consultancy business in marble. Ex.P.7 further discloses that the deceased and other partners contributed each a sum of Rs. 10,000.00. Ex. P.6 series are the assessment orders made by the Income-tax Authorities for the Financial Years 1992-1993 and 1993-1994. Though in the year 1992-1993, the deceased has been assessed towards the income from the business which is valued at Rs. 40,000.00, in the year 1993-1994, larger amount is shown as income of the petitioner. In as much as the said assessment is after the date of accident (accident took place on 07.04.1993), the tribunal rightly has not taken into consideration. However on the basis of the oral evidence of P.W.1 and Exs. P.6 to P.9, the court below has fixed that the deceased was getting atleast Rs. 5,000.00 per month as income.
12. Mr. Gangaram Prashad, learned counsel appearing for the claimants after drawing our attention to the consent given by the counsel appearing for the Transport Corporation for marking certain documents on the side of the claimants vehemently contended that, in the light of the contents of those documents. The tribunal committed an error in fixing income of the deceased as Rs. 5,000.00 per month. He also very much relied on the decision of E. Padmanabhan, J., reported in Dhanu Pandarum v. Kali Pandaram (1999 2 L.W 317). It is true that the learned counsel who appeared for the Transport Corporation has made an endorsement saying that, he has no objection in marking the Xerox copies of the documents, particularly Exs.P.6 to P.9 “In 1999 (2) L.W 317 (cited supra), the learned single Judge has held that, since the document in question (Ex.A.1) has been admitted with the consent of either side and P.W.1 who is the purchaser under Ex.A.1 had deposed about the contents of the document has held that Ex.A.1 is admissible and found that the same has been proved. In this regard, we clarify the position that, by giving consent to mark Xerox copies/photostat copies of certain documents cannot be presumed that the contents of those documents are either admitted nor disputed by the other side. We hold that the endorsement (no objection) would be confined only for marking those Xerox copies of the documents and not for accepting the contents of the documents, in other words, after marking the said documents, it is for the concerned parties to establish and prove the contents of those documents. Though the father of the deceased was examined as P.W.1, he was not a party to those documents. However, in the light of the fact that we have assessed the quantum of compensation due to the death of the deceased Sunil Goyal, we are not rejecting those documents as contended by the learned counsel for the Transport Corporation.
13. Though Ex.P.9 - Income Tax return shows that a sum of Rs. 6,243.00 had been paid toward income-tax for the assessment year 1993 - 94, admittedly the said amount was actually paid only on 04.01.1996 i.e, after the date of accident and at the time of hearing of the case. Hence, as rightly contended by the learned counsel for Transport Corporation, we need not give importance for the payment of higher Income Tax at the time of enquiry of the compensation claim.
14. Mr. Gangaram Prashad, learned counsel appearing for the claimants would contend that merely because the partnership business is being continued even after the death of one of the partners, the same is not a ground to reduce the amount. Learned counsel appearing for the claimants has relied on the Division Bench decision of this court reported in Mrs. Maya Devi & others v. Mrs. Dhanalakshmi, etc, (1996 (I) L.W 660) (one of us P. Sathasivam, J. is party to the said decision). After referring the earlier decisions of the Supreme Court reported in Rukmani Devi v. Om Prakash (1991 A.C.J 3) M.G Brothers Lorry Service v. S. Andalammal (1982 (Supp.) A.C.J 408), the Bench has rejected the contention that in as much as the business is being continued even after the death of the deceased by the children, it can be taken only that there is a loss of 25 per cent of the income from the business resulting from the death of the deceased. We are in respectful agreement with the view expressed by the Division Bench. The same view has been expressed by the Hon'ble Supreme Court in a decision reported in 1991 A.C.J 3 (cited supra). We are also in agreement with the similar view expressed by the learned single Judge of the Rajasthan High Court (Jaipur Bench) in Chander and others v. Bhawanisingh and others (1989 A.C.J 106). There is no dispute with regard to the above mentioned legal position. However, in our case though an amount of Rs. 6,243.00 had been paid by way of Income-tax for the assessment year 1993-1994, it has not been explained as to why the same was not paid at the appropriate time and actually paid only on 01.04.1996 viz. at the time of taking up of the compensation petition. As rightly observed by the Division Bench of this Court reported in Union Bank of India v. Suseela and others (2000 I M.L.J 728), while fixing compensation in accident cases, the court should take a practical and reasonable liberal view with the existing evidence available on record. In our case, as per the oral evidence of P.W.1 and Exs.P.6 to P.9, we are unable to fix higher income than that of the amount fixed by the tribunal. In the light of the fact that the deceased was hailing from a business family and with materials placed, we hold that the deceased would earn Rs. 5,000.00 per month from and out of the said business.
15. Coming to the other contention that the tribunal is not justified in deducting 1/3rd for the maintenance of the deceased, the deceased being a business man undoubtedly he has to tour various places and he would spend considerable amount towards his personal expenses. On this ground, we agree with the deduction of 1/3rd of the amount towards the maintenance and personal expenses of the deceased and reject the contra argument made by the learned counsel appearing for the cross-objectors.
16. The next question we have to consider is, whether the Court below has applied the correct multiplier? There is no dispute that for determination of just and proper compensation multiplier method is the appropriate method and the Supreme Court has not accepted for adopting different method of calculating compensation. This is clear from the decisions reported in General Manager, Kerala State Road Transport Corporation v. Susanna Thomas and others 1994 A.C.J 1 (SC) and U.P State Road Transport Corporation and others v. Trilok Chandran & others (1996 (2) L.W 266 (SC)). Accordingly, we hold that proper method to be adopted to ascertain the quantum of compensation is the “multiplier method” and the same has been rightly applied by the tribunal. As per the oral evidence of P.W.1 as well as Xerox copy of S.S.L.C first page which has been marked as Ex.P.1, the deceased was aged about 29 years at the time of his death. The proper multiplier to be adopted as per the second schedule to Motor Vehicles Act, 1988 is 18. However, the tribunal has erroneously applied the multiplier of 15, which cannot be accepted. We have already approved that the “years purchase” of the deceased comes to Rs. 40,000.00. In view of the fact that the proper multiplier is 18, we have to add another sum of Rs. 1,20,000.00 towards pecuniary loss to the family of the deceased.
17. Learned counsel appearing for the claimants would state that even though the deceased had sustained various injuries in the accident that took place on 07.04.1993 at 2.20 p.m, he actually died in Apollo Hospital, Madras only on 10.04.1993 due to the said injuries. This aspect has not been seriously challenged by the Transport Corporation. It is clear that during the said period viz., from 07.04.1993 to 10.04.1993 considerable amount had been spent towards medicines and treatment. Ex.P.5 series of bills show that a total sum of Rs. 17,000.00 had been spent on this account. Unfortunately this amount has not at all been considered by the tribunal. After pursuing Ex.P.5 series of bills we hold that the claimants are entitled a sum of Rs. 17,000.00 towards medical expenses for the period from 07.04.1993 to 10.04.1993
18. Mr. Gangaram Prashad, learned counsel appearing for the claimants would state that though father of the deceased was also depending on the income of the deceased, tribunal has not granted any amount for him. Father of the deceased viz., A. Shanthilal is the 4th claimant in the said claim petition. The court below after holding that 4th petitioner is neither a legal heir nor a dependant on the deceased has not awarded any amount. We are unable to accept the view expressed by the learned judge. In this regard it is useful to refer the decision of the Supreme Court reported in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another (1987 A.C.J (Volume II) 561 (SC)). The following conclusion of their lordship is relevant,
“12. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a Motor Vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the motor accidents claims tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit, an application may be filed under Section 110-A of the Act, have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread winner of the family and if the bread winner is killed on account of a Motor Vehicle accident, there is no justification to deny them compensation relaying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the act in relation to cases arising out of Motor Vehicle accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chatubhai Taljabhai (1977 A.C.J 253 (Gujarat); and hold that the brother of a person who dies in a Motor Vehicle Accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representatives of the deceased.”
It is clear that their Lordships have held that even brother of a deceased is entitled to maintain a petition under Section 110-A of the Motor Vehicles Act, 1939 if he is a legal representative of the deceased. Ex.P.4 — Legal Heirship Certificate marked on the side of the claimants shows that the 4th petitioner A. Shanthilal is one of the Legal heirs of the deceased. In as much as at the time of accident, the 4th claimant is aged about 60 years depending on the income of the deceased, we are of, the view that reasonable amount has to be granted in favour of him. In as much as third claimant-mother was granted a sum of Rs. 50,000.00, we fix that a sum of Rs. 25,000.00 to the father of the deceased-4th claimant would be reasonable. Accordingly we grant a sum of Rs. 25,000.00 in favour of the 4th claimant viz., A. Shanthilal.
19. In the light of what is stated above, in addition to the sum granted by the tribunal, we award a sum of Rs. 1,62,000.00 with interest at the Rate of 12 per cent per annum from the date of filing of the claim petition viz., 23.03.1993 till the date of deposit with proportionate costs. Accordingly, the appeal filed by the State Transport Corporation viz., CMA. 134 of 1996 is dismissed. No costs Cross-objection No. 38 of 1998 filed by the claimants is allowed to the extent mentioned above.
PR/VCS.