Judgment:
C.V. Govardhan, J.
1. This appeal arises out of the order passed by Motor Accidents Claims Tribunal, Madras in M.C.O.P. No. 534 of 1983.
2. The petitioners' case is as follows: On 28.11.1982 at about 2.30 p.m. at Tiruvallur High Road, Ambattur in front of the Dunlop Company the bus belonging to the respondent was driven in a rash and negligent manner by its driver and it has dashed against the van coming from the opposite direction. In the accident the driver of the van succumbed to injuries. The petitioners are the dependants being the wife and children of the deceased. They make a claim for compensation of Rs. 1,00,000/-.
3. The respondents in their counter contend as follows: The accident was not due to the rash and negligent driving of the bus as alleged. After dropping the passengers at the Dunlop Bus Stop, the bus was taken and at that time the van driven by the deceased at a high speed dashed against a pedestrian and came in front of the bus and collided with the same. The accident was only due to the rash and negligent driving of the diiver of the van. At any rate, the accident was due to the contributory negligence of both the drivers. The petition is bad for non-joinder of the owner of the van and the insurer.
4. On the above pleadings, the Tribunal held an enquiry and gave a finding that the accident was due to the rash and negligent driving of the bus by its driver and awarded a compensation of Rs. 70,000/- to the petitioners with interest at 6 per cent per annum up to the date of the order and thereafter at 12 per cent per annum till payment. Aggrieved over the same the respondent has come forward with this appeal.
5. The learned Counsel appearing for the appellant has argued that the Tribunal has committed an error in holding that the accident was due to the rash and negligent driving of the bus since it has failed to take note of the contradictions between the evidence of PWs 2 and 3, eyewitnesses to the occurrence and since it has failed to accept the version of the driver of the respondent, viz., RW 1. The petitioners who have filed the claim petition have examined two eyewitnesses to speak to the manner in which the occurrence had taken place. PW 2, during cross-examination, has given evidence in such a way that he is not worthy of acceptance. PW 2 has claimed that he had been to the scene of occurrence to meet a friend. But he has stated during cross-examination that he does not know the name of the person whom he wanted to meet, his residence, his whereabouts, and other details. He has also admitted that he is residing about seven miles away from the scene of occurrence. Taking the unnatural manner in which PW 2 has given evidence in cross-examination, the Tribunal has rejected his evidence altogether. On the other hand, it has accepted the evidence of PW 3 who is residing near the scene of occurrence and who has stated that he was going to the bus stop near the Dunlop Company to go to Madras and at that time, the bus came from the opposite direction, overtook a bullock-cart and dashed against the van. He has also stated that the right side of the bus as well as the van have been damaged on account of this collision and the van driver who had sustained serious injuries died. The evidence of PW 3 being natural and cogent, the Tribunal has accepted the same. Therefore, the argument of learned Counsel appearing for the appellant that the Tribunal has not considered the contradictions between the evidence of PWs 2 and 3 is not convincing and acceptable to hold that there was contributory negligence on the part of the van driver. The driver of the bus who has been examined as RW 1 has stated that the van overtook a Tempo and at that time, a pedestrian came across the road and it had actually hit at the pedestrian and he had taken the pedestrian who was injured to the hospital. But, he has pleaded ignorance with regard to the registration number of the Tempo which is said to have been over-taken and the particulars of the pedestrian who is said to have been injured by the van hitting him. In the above circumstances, the Tribunal has rightly rejected the evidence of RW 1 as unacceptable. On the materials placed before it, the Tribunal has correctly come to the conclusion that the accident was due to the rash and negligent driving of the bus by its driver and I am of the opinion that there is no ground to interfere with the same.
6. The learned Counsel appearing for the appellant has argued that the insurance company of the van has not been made a party and petition is bad for non-joinder of necessary party. When the specific case of the petitioner is that the accident was due to the rash and negligent driving of the bus driver, there is no necessity for impleading the owner or insurer of the van. If on the materials placed before the court, the Tribunal comes to the conclusion that there was contributory negligence on the part of the van driver, at least it can be stated that the petition is bad for non-joinder of necessary party, viz., the insurance company, since as an insurer, the liability of the owner of the van would be fastened on the insurance company. The owner of the van is nobody else other than the wife of the deceased. Therefore, non-impleading of the insurer of the vehicle cannot be a ground to hold that the petition is bad for non-joinder of the insurance company.
7. The learned Counsel appearing for the appellant would argue that the age and income of the deceased has not been proved and there is contributory negligence on the part of the van driver and therefore the compensation awarded should be reduced accordingly. We have already held that there is no contributory negligence on the part of the van driver. The learned Counsel appearing for the respondents would argue that PW 1 has stated that there will be an income of Rs. 2,400/-per month excluding maintenance expenses for the van and instead of calculating the compensation payable to the petitioner on that basis, the Tribunal has proceeded to calculate the compensation as if the deceased would have earned a sum of Rs. 800/- per month for which there is no evidence at all and if the income is taken as Rs. 2,400/- per month, excluding maintenance expenses, the compensation awarded would be much more than what has been awarded by the Claims Tribunal. According to the learned Counsel, the compensation awarded would come to nearly Rs. 1,92,000/- and in this case, where the petitioners have made a claim for Rs. 1,00,000/- the Tribunal and the court are entitled to take into consideration the materials placed before it to come to a conclusion regarding the just compensation for which the petitioners are entitled to even if it is more than what has been prayed for in the petition. According to the learned Counsel, even though the respondents have not filed any cross-appeal against the order passed by the Tribunal to seek a higher compensation, courts have held that even without a cross-objection, the respondent in an appeal is entitled to challenge the finding of the court which has passed the order against which the appeal has been preferred and relies upon the decision reported in Dhangir v. Madan Mohan : [1988]1SCR679 , for the above proposition. With regard to the payment of just compensation to the claimants, the learned Counsel relies upon the decision reported in Surjit Singh v. Waryam Singh and would contend that the Act nowhere enjoins upon the claimant to specify the amount of compensation and the procedure prescribed also does not prevent a Claims Tribunal in limiting the compensation when the amount is claimed by the claimant and the Tribunal is entitled to assess the just compensation, even in excess of the amount claimed. There is no dispute over the propositions of law canvassed by the learned Counsel appearing for the respondent to the effect that the Tribunal and appellate court are entitled to award just compensation even if it is more than what has been claimed by the claimant if the evidence establishes payment of higher sum and the respondents in appeal are entitled to challenge the order of the court below against which the appeal has been preferred even without cross-objection. But the question is whether these propositions of law canvassed by the learned Counsel appearing for the respondent can be pressed into service in this particular case to award a higher compensation to the claimants. The first petitioner examined as PW 1 has no doubt stated that there will be an income of Rs. 2,400/- from the van excluding the maintenance charges. Compensation is payable to the claimants due to the death of the husband of the first petitioner and not on the basis of the income from the van. PW 1 would have earned a lot by operating the van. All the income derived by the operation of the van by the petitioner No. 1 cannot be said to be the income of her husband who died in the accident. It is from this income of the van, she has to repay the loan received for purchasing the van and make profit. What the driver, viz., the husband of the petitioner would be entitled by way of salary and which has been deprived to the petitioners on account of his death can only be the subject of the pecuniary loss sustained by the petitioners. Pecuniary loss suffered by the petitioners is the loss occurred due to the death of the deceased and not on the other aspects. The deceased would have earned a sum of Rs. 1,000/- by way of salary or income, viz., whatever name is attributed to the same. He has to meet his personal expenses also. Strictly speaking, the amount which the deceased would have contributed if he had been a driver on a salary of Rs. 1,000/- would be merely Rs. 665/-and the said amount alone can be considered as the pecuniary loss or the loss of dependency caused to the petitioners on the death of the husband of PW 1. Assuming that the deceased had taken only Rs. 250/- for his personal expenses, the monthly dependency can be fixed as Rs. 750/- per month. The annual dependency would work out to Rs. 9,000/-. The deceased was aged 50 years. The maximum multiplier can only be 18. Therefore, adopting a multiplier of 7 would be very reasonable when we consider the age of the deceased and that of PW 1. When we calculate the loss of dependency which the petitioners suffer, it works out to Rs. 63,000/-. the petitioner No. 1 being the wife and the petitioner No. 6 being the minor child of the deceased, are entitled to compensation under the heading non-pecuniary loss, viz., loss of consortium and loss of love and affection. Awarding a sum of Rs. 5,000/- to the petitioner No. 1 and Rs. 2,000/- to the petitioner No. 6 under this heading would be reasonable. The total compensation payable to the petitioners works out to Rs. 70,000/-. That is what the Tribunal has awarded. Therefore, there is no scope for enhancing the compensation payable to the petitioners on the basis that the compensation awarded by the Tribunal is not just compensation and the just compensation which the petitioners are entitled to would be more than they have claimed in the petition and they are entitled for the same even without a cross-objection. It all depends upon the facts of each case. When we consider the facts in the present case, and the evidence available on record, I am of opinion that the compensation awarded by the Tribunal itself has to be treated as just compensation and there is no scope for either enhancing it as the respondents would like to have or reducing it as the appellant would desire to have. In other words, there is no ground to interfere with the order passed by the Tribunal.
8. In the result, the appeal is dismissed. No costs.