Judgment:
P. Sathasivam, J.
1. Aggrieved by the award of the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Madras in M.A.C.T.O.P. No. 1998 of 1993 dated 5.8.96, Pallavan Transport Corporation (for short 'the Corporation') has filed the above appeal. Regarding disallowed claim, the claimants have filed the 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 the death of one Sunil Goyal, the widow, minor son and parents of the deceased prayed for compensation of Rs. 15,00,000. The Tribunal after considering the oral and documentary evidence after holding that the accident was caused due to negligence of the driver of the Corporation, passed an award for Rs. 6,15,000 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 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 7.4.1993 at 2.20 p.m., in Kilpauk Garden Road, Madras involving the bus belonging to Pallavan Transport Corporation and the deceased who was coming in a motor cycle sustained multiple injuries. He died in Apollo Hospital on 10.4.93 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 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 PW 2. He deposed before the court that on 7.4.1993 at about 2 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 Corporation coming from the opposite direction came to the wrong side of the road and dashed against the motorcycle of the deceased. He further deposed that, because of the said impact the motorcyclist 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 inquired by the police. In the cross-examination it is suggested to PW 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, PW 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 specifically stated that, he was inquired 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 PW 2 and the evidence of driver RW 1.
6. In his evidence as RW 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 motorcyclists 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 bumper of the bus in spite of halting his bus. He also admitted that he was the one who took the injured to the hospital. In cross-examination he has admitted that 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 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, has specifically stated that while proceeding near the E.S.I. Employees Quarters in Kilpauk Garden Road, at about 2.35 p.m., a motorcyclist 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 this the driver suddenly applied the brakes 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 admitted that 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 been before the court it would be possible to ascertain whether there was any impact or damage on the left side bumper of the bus as claimed by RW 1.
7. First of all the evidence of RW 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 PW 2 did not make any complaint to the police regarding the accident, it is his definite case that he was inquired by the police and according to him it was RW 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 RW 1. Considering all the above aspects, as rightly contended by Mr. S. Gangaram Prasad, 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 PW 2 cannot be rejected. Though we have observed that the claimants failed to place first information report, sketch relating to the scene of accident, inasmuch as the Motor 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 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 PW 2 and RW 1 we are of the view that the evidence of PW 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 eyewitness who 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 in Mahipal Co-op. Society Ltd. v. Prabhati 1986 ACJ 46 (Del).
8. Likewise, merely because the eyewitness did not inform the police nor made any specific complaint 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, can safely be accepted. In this regard learned Counsel appearing for the claimants very much relied upon Natchathiram v. Jayasekaran 2000 ACJ 902 (Mad). 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 1972 ACJ 375 (Mys), 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 PW 2, RW 1 as well as the stand taken by the Corporation in their counter statement, we are impressed with the evidence of PW 2 and hold that the accident was caused due to rashness and negligence of RW 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 turn to enter the northern side. It is the definite case of both sides 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 PW 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 deceased, claimant No. 4, A. Shanthilal was examined as PW 1. In the claim petition the claimants have stated that the deceased was doing business as Marble Consultant and earning Rs. 7,500 per month. In support of their claim, apart from the evidence of PW 1, father of the deceased also produced Exh. P-7 Partnership Deed dated 1.10.1984 and Exh. P-8 Agreement dated 1.4.1992. The perusal of the said documents discloses that the deceased along with the other three were running a partnership firm under the name and style of 'Everbright Marbles'. The firm was doing consultancy business in marble. Exh. P-7 further discloses that the deceased and other partners contributed each a sum of Rs. 10,000. Exh. P-6 series are the assessment orders made by the income tax authorities for the financial years 1992-93 and 1993-94. Though in the year 1992-93 the deceased has been assessed towards the income from the business which is valued at Rs. 40,000, in the year 1993-94 larger amount is shown as income of the petitioner. Inasmuch as the said assessment is after the date of accident (accident took place on 7.4.93), the Tribunal rightly has not taken into consideration. However, on the basis of the oral evidence of PW 1 and Exhs. P-6 to P-9, the court below has found that the deceased was getting at least Rs. 5,000 per month as income.
12. Mr. Gangaram Prasad, the learned Counsel appearing for the claimants after drawing our attention to the consent given by the counsel appearing for the 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 per month. He also very much relied on the decision of E. Padamanabhan, J., in Dhanu Pandaram v. Kali Pandaram (1999) 2 LW 317. It is true that the learned Counsel who appeared for the Corporation has made an endorsement saying that he has no objection in making the xerox copies of the documents, particularly Exhs. P-6 to P-9. In Dhanu Pandaram v. Kali Pandaram (supra), the learned single Judge has held that, since the document in question Exh. A-l, has been admitted with the consent of either side and PW 1 who is the purchaser under Exh. A-l had deposed about the contents of the document has held that Exh. A-l 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/photocopies 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 making 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 PW 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 Corporation.
13. Though Exh. P-9 income tax return shows that a sum of Rs. 6,243 had been paid towards income tax for the assessment year 1993-94, admittedly the said amount was actually paid only on 4.1.96, i.e., after the date of accident and at the time of hearing of case. Hence, as rightly contended by learned Counsel for the Corporation, we need not give importance for the payment of higher income tax at the time of inquiry of the compensation claim.
14. Mr. Gangaram Prasad, the 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. The learned Counsel appearing for the claimants has relied on the Division Bench decision of this Court in Maya Devi v. Dhanalakshmi (1996) 1 LW 660 (one of us P. Sathasivam, J., is party to the said decision). After referring the earlier decision of the Apex Court in Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC) and M.G. Bros. Lorry Service v. 5. Andalammal 1982 ACJ (Supp) 408 (Mad), the Bench has rejected the contention that inasmuch 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 Apex Court in a decision in Rukmani Devi v. Om Prakash (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 v. Bhawani Singh 1989 ACJ 106 (Raj). There is no dispute with regard to the above-mentioned legal position. But however, in our case though an amount of Rs. 6,243 had been paid by way of income-tax for the assessment year 1993-94, it has not been explained as to why the same was not paid at the appropriate time and actually paid only on 4.1.96, viz., at the time of taking up of the compensation petition. As rightly observed by the Division Bench of this Court in Union Bank of India v. Suseela (2000) 1 MLJ 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 PW 1 and Exhs. 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 the materials placed we hold that the deceased would earn Rs. 5,000 per month from and out of the said business.
15. Coming to the other contention that the Tribunal is not justified in deducting '/3rd for the maintenance of the deceased, the deceased being a businessman 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 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 which 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 in General Manager, Kerala State Road Transport Corpn. v. Susamma Thomas and U.P. State Road Trans. Corpn. v. Trilok Chandra . 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 PW 1 as well as xerox copy of S.S.L.C. first page which has been marked as Exh. P-l 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. In view of the fact that the proper multiplier is 18, the court has to add another sum of Rs. 1,20,000 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 7.4.1993 at 2.20 p.m., he actually died in Apollo Hospital, Madras only on 10.4.1993 due to the said injuries. This aspect has not been seriously challenged by the Corporation. It is clear that during the said period, viz., from 7.4.1993 to 10.4.1993 considerable amount had been spent towards medicines and treatment. Exh. P-5, series of bills, show, that a total sum of Rs. 17,000 had been spent on this account. Unfortunately, this amount has not at all been considered by the Tribunal. After perusing Exh. P-5, series of bills, we hold that the claimants are entitled to a sum of Rs. 17,000 towards medical expenses for the period between 7.4.1993 and 10.4.1993.
18. Mr. Gangaram Prasad, the learned Counsel appearing for the claimants would state that though father of the deceased was also depending on the income of the deceased, the Tribunal has not granted any amount for him. Father of the deceased, viz., A. Shanthilal is the' claimant No. 4 in the said claim petition. The court below after holding that petitioner No. 4 is neither a legal heir nor a dependent 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 to the decision of the Apex Court in Gujarat State Road Trans. Corpn. v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC). The following conclusion of their Lordships 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 breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying 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. Chaturbhai Taljabhai 1977 ACJ 253 (Guj) 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 representative 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. Exh. P-4, legal heirship certificate, marked on the side of the claimants shows that the petitioner No. 4 A. Shanthilal is one of the legal heirs of the deceased. Inasmuch as at the time of accident the claimant No. 4 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. Inasmuch as claimant No. 3 mother was granted a sum of Rs. 50,000 we fix that a sum of Rs. 25,000 to the father of the deceased claimant No. 4 would be reasonable. Accordingly we grant a sum of Rs. 25,000 in favour of the claimant No. 4, 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 with interest at the rate of 12 per cent per annum from the date of filing of the claim petition, viz., 23.3.1993 till the date of deposit with proportionate costs. Accordingly, the appeal filed by State Transport Corporation, viz., C.M.A. No. 134 of 1996 is dismissed. No costs. Cross-objection No. 38 of 1998 filed by the claimants is allowed to the extent mentioned above.