Komalam K. Nair and Others Vs. Tiruvalluvar Transport Corporation, Madras - Court Judgment

Excerpt:
motor vehicles - compensation - section 110b of motor vehicles act, 1939 - appeal challenging order of motor accidents claims tribunal reducing compensation payable to legal heirs of deceased persons to 50% - motor accident involving bus and car - in accident driver of car and passenger who engaged car died on spot - when claim for compensation made tribunal found that there was contributory negligence on part of driver of car and fixed compensation at 50% - no evidence to prove that there was negligence on part of driver of car - conclusion of tribunal unsupported by evidence - contributory negligence attributed to car driver not proved in absence of proper evidence - held, bus driver alone was negligent and therefore claimants entitled to entire sum of compensation - appeal allowed. - - he has stated that the spot is clearly seen from the photographs, i am not able to appreciate. reliance upon these photographs taken after the accident has taken place is not safe, when so many photographs were taken to locate the position of the bus and the car after the accident. for the childrens loss of love and affection rs. 6,000/- for loss of love and affection and funeral expenses) may be fixed as compensation to the driver's family.1. these four appeals arise out of the claims for compensation in respect of two dead persons in the motor accident dated 22-6-i98i involving the tiruvalluvar transport corporation bus bearing tmn 8192 and the ambassadar car bearing no. tmv 6260, near the meenambakkam air-port. in the accident, the driver of the car karunakaran and the passenger who engaged the car by name basuvaraj died on the spot.2. m.o.p. no. 397 of 1981 was filed by the wife of the driver of the car by name karunakaran, claiming compensation of rs. 78,000/-.3. m.o.p. no. 505 of 1981 was filed by the wife and children of the passenger travelled in the car, that is, basuvaraj, claiming compensation of rs. 9 lakhs.4. the motor accidents claims tribunal, chengalpattu granted rs. 17,500/- as compensation for the death of the driver karunakaran and rs. 4,65,000/- for the death of the passenger basuvaraj. the tribunal has also found that there was contributory negligence on the part of the driver of the car and fixed it at 50%. therefore the tribunal reduced the compensation payable to the two deceased persons to 50% only.5. aggrieved by ihe award of rs. 17,500/-passed by the tribunal, the claimants in m.o.p. no. 397 of 1981 have filed c.m.a. no. 556 of 1985. similarly aggrieved by theaward of rs. 4,65,000/- c.m.a. no.557 of 1985 has been filed by the wife and children of the aforesaid basuvaraj.6. the tiruvalluvar transport corporation has also filed two appeals. c.m.a. no. 1194 of 1986 is against the award of compensation in m. o. p. no. 505 of 1981. c.m.a. no. 1195 of 1986 is agaist the m.o.p. no. 397 of 1981. the tribunal has dealt with both the claim petitions together and passed a common order.7. since the above appeals arise out of a common order of the tribunal all the four appeals were heard together.8. the learned counsel for the appellants in c.m.a. nos. 556 and 557 of 1985 contended that the finding of the tribunal with reference to contributory negligence is not correct. the tribunal has not appreciated the evidence properly in this regard. the learned counsel mr. m. govindarajan, for the tiruvalluvar transport corporation on the other hand contended that the negligence was only on the part of the driver of the car and there was no negligence on the part of the driver of the bus. therefore, the finding of the tribunal that there was a contributory negligence on the bus driver is not correct.9. in the light of the above arguments, the questions that have to be decided in this case are:i) whether there was contributory negligence on the part of the driver of the car or the negligence was only on the part of the driver of the bus.ii) whether the quantum of compensation fixed at rs. 17,500/- to be paid to the family of karunakaran is just and fair.iii) what is the qnantum of compensation to be awarded to the family of the deceased basuvaraj.10. taking up the first question as to the contributory negligence, we have eye witnesses on this aspect, there are three eye-witnesses, namely, p.w.6, p.w. 10, and the other witness is r.w. 1, the conductor of the bus. p.w. 6 is a coolie employed in the air-port.11. according to p.w.6, while he was walking towards madras on the left-hand side of the road, the express bus was coming towards madras. at that time the car was coming towards tambaram. both were proceeding on the tar road. the bus came fast and hit the car. the front portion of the car was smashed. his evidence reads as follows:(vernacular mailer omitted.)the presence of this witness has been admitted by p.w. 5 -- inspector of police, who has investigated the case. therefore, it is not possible to accept the suggestion that this man was not there at all. in the cross-examination also he has not only reiterated the aforementioned facts, but has added that there was no bullock cart coming in the opposite directions of the car and the bus.12. next we have the evidence of p.w. 10. he has also blamed the driver of the bus only. he is a passenger in the bus and he was travelling in the bus sitting in the front side from villupuram. the relevant portion of his evidence is as follows:'i was an eye witness to the petition accident. it took place on 22-6-1981 at 5.15 a.m. i travelled in thiruvalluvar bus which was involved in this accident. the bus was driven very fast. it was going on the middle of the road, i.e., little bit right on the eastern side. on the opposite direction the car was coming on the correct side of the road with dip & dim light. but the bus dashed against the car. the bus then turned and swerved against left and dashed against the steel pipes and came to halt. the pipes are on the western side of the road. the car was turned towards north. both in the car were found dead. the car was dragged to 90 or 100 feet.'he has also corroborated the evidence of p.w. 6. even though it was suggested in the cross-examination that he was not travelling in the bus and did not attend the marriage at trichi, he has categorically denied it. from a reading of his evidence, we can see that there is no discrepancy at all. his statements are cogent. further the statements that after hitting the car the bus turned and swerved west, dashed against the steel pipes and cameto halt are corroborative. the pipes were on the western side of the road is also admitted. it is admitted that after the accident, the car went to the extreme left and stopped there. further, there is no motive alleged against the said witness to support the case of the claimants and give evidence against the tiruvalluvar transport corporation. he has also stated that there was no vehicle proceeding in front of the car before the accident. as against the two witnesses, we have the evidence of r.w. 1 -- periyasami, the conductor of the bus. he has stated as follows:(vernacular matter omitted)one thing i am not able to appreciate in thisevidence is that the car hit the bus on its rightside body and turned towards madras. if thecar has hit the right-side body of the bus, thereis no possibility of turning towards the northern side i.e., madras side. on the otherhand, as per the evidence of p.ws. 6 and 10,the bus hit the car on its right-hand side anddragged it for some distance. only if this hashappened the possibility of car turning towards madras side is possible. it is an admitted case that the car after the accident turnedtowards the madras and run for some distance also.13. this witness has also stated that there was a white line in the middle of the tar road and the car after over-taking the bullock cart crossed the white line and came towards the western side of the road. not only p.ws. 6 and 10 have denied the white line but also the inspector p.w. 5 has also denied the suggestion that there was any white line on the road. the sketch ex. a. 41 also does not show any white line dividing the tar road. further, he has also stated about the bullock cart coming towards tambaram and the car over-taking the same. according to this witness only because the car driver wanted to over-take the bullock cart, he had to come to the right extreme crossing the white line and hit the bus. if the presence of the bullock cart is found to be unbelievable then the entire case of negligence on the part of the car driver has to be eschewed. the first hurdle in believing the story of bullock cart is that the competent witness namely, the driver of the bus has notbeen examined. secondly, even in his absence, this witness has categorically stated that himself and the driver have given statements to the police and in the statements they have mentioned about the presence of the bullock cart. the transport corporation could have easily summoned these documents from the police authorities to corroborate the bullock can's presence, because p.ws. 6 and 10 have categorically denied that there was no such bullock cart coming from madras towards tambaram side. they have also denied the alleged over-taking of the bullock cart by the car driver. that apart, there is a specific suggestion to this witness that in his statement to the police, he has not stated about the bullock cart. even alter this no attempt has been made to summon his statement and produce before it the tribunal. that apart, if the bullock cart was there definitely the police could have noted it. after seeing such a gruesome accident; the bullock cart would not have left the spot immediately. apart from this, r.w. 1, no other witness has stated anything about the presence of the bullock cart. therefore, the evidence of r.w, 1 that in over-taking the bullock cart, the car driver came to the extreme right side crossing the white line and hit the right side of the bus is unbelieveable. that apart, the statement of this witness that the bus was moving in a very low speed that too at the rate of 20 kilometre per hour shows that he is deliberately giving such an evidence. if the bus was proceeding in such as low speed, the driver of the bus could have avoided the car by moving towards the western side, because he was proceeding in a very high speed such an avoidance was not possible for the bus.14. the tribunal is not correct in concluding that there was negligence on the part of the driver of the car. he has committed a mistake even at the beginning of the discussion on this aspect. he has stated in paragraph 8 that the tourist car was proceeding from madras to meenambakkam on g.s.t. road at 5.15 a.m. and while it was nearing meenambakkam it was proceeding from south to north. he has placed reliance on the photographs taken after the accident. in ex. b. 1 also it is seen that the bus went extreme toits left side and stood on the pipe line after crossing the cement portion of the road. from that it cannot be concluded that the accident could have taken place on the western portion of the tar road. ex. a.1 photo also would not show that the car was proceeding on the western portion of the tar road. ex. a. 41 shows that the accident has taken place almost on the middle of the tar road. in ex. a. 41 the spot of the accident is not shown. in the evidence of p.w. 5, the inspector of police, he has stated that he cannot say particularly on what side of the road the accident took place. when that is so, the tribunal cannot conclude as to on which part of the tar road the accident took place and its finding that it has taken place on the western side, is not supported by evidence. the tribunal says that in ex. b. 2 and ex. b, 3 the spot of the accident is seen. that is not correct. what we find is only the stones, not any scraps or parts of the bus or car lying on the road. he has stated that the spot is clearly seen from the photographs, i am not able to appreciate. ex. b. 4 shows the place where the car and bus were lying after the accident. he has also committed a fallacy in appreciating this. the claimants evidence is that after the accident the car was dragged on to a distance of 90' to 100'. so from the car's location after the accident it cannot be concluded at what side of the tar road the accident took place. ex. b. 5 also shows the place where the car was lying after the accident. reliance upon these photographs taken after the accident has taken place is not safe, when so many photographs were taken to locate the position of the bus and the car after the accident. the conclusion of the tribunal that the accident has taken place on the western side of the tar road is therefore unsupported by evidence. the tribunal has simply accepted the case of r. w. 1 that there was a bullock cart and while overtaking the same, the car swerved to the right extreme crossing the white line and hit the bus. as we have seen above, there is no evidence with reference to the white line or the bullock cart and the story of the bullock cart has been introduced only for the purpose of finding fault with the driver of the car and to save the driver of the bus. from a perusal ofthe evidence, i am of the view that there is no justification to conclude that there was negli-, gence on the part of the car driver. hence, the contributory negligence attributed to the car driver has to go. from the evidence mentioned above, it is also clear that the bus driver alone must be held to be negligent and therefore the entire damage has to be borne by. the transport corporation alone.15. now we will come to the damages to be awarded to the driver's legal heirs, i.e., claimants in o. p. no. 397 of 1981. from exs. a. 20 and a. 21 it is seen that the driver of the car was getting a salary of rs. 265/- per mensem during the year 1979 and 1980. from exs.p. i3top. 18 it is seen that the driver was given an allowance of rs. 150/- per mensem. as regards the free accommodation to the driver, only ex. a. 19 has been filed. this part of the evidence has been disbelieved by the tribunal. p.w. 1, the wife of the driver has stated that an house accommodation was given inside the company. ex, a. 19 letter shows the allowance and the free accommodation. but in this case, the appointment order of the driver has not been produced. only an office order dated 17-4-1975 has been produced as ex. a. 19. this order is only with reference to the providing of accommodation to the driver with electricity and water facilities free. the original of ex. a. 19 which must have been with p.w. 1, has not been produced. no explanation has also given as to why it has not been produced. that apart, a reading of ex. a. 19 shows that it has been issued just to show that he was given free accommodation and electricity and water. that apart, number of other allowances are also said to have been given to this driver. in my view i can only say that an attempt has been made by the claimants with the help of the employers to boost up the claim. therefore, tribunal has rightly rejected the provision of free accommodation and on that account the claim of rs. 200/- as unbelieveable.16. as regards the commission alleged to have been earned by the driver from the owner, the tribunal has rightly not considered it. in my view, as the evidence on this as-pect also is not acceptable. to show that the deceased driver was getting some commission also from the owner garriage, p.w. 3 has been examined. he has produced twelve receipts for payment of the commission, i.e., exs. a. 26 to a. 37. these receipts can be prepared easily. he has not produced any account book for the proof of the same. further a driver, who is supposed to be engaged in a company 24 hours a day will not be allowed to do this kind of work also. p.w. 1 also admitted that the account do not mention the payment. further, he has stated that he was given rs. 1000/- as brokerage per month. this is too much. when the salary and allowance put together comes to rs. 440/-only, he would not have earned so much, by way of commission. the calculation of rs. 3,000/- per year as loss of income for the driver's family, appears to be correct. the total loss on that account fixed at rs. 30,000/- appears to be not fair. for the childrens loss of love and affection rs. 5000/-has been fixed. the tribunal has also allowed another sum of rs. 1000/- for funeral expenses, which is also correct. but the adoption of interest theory is not in consonance with the latest pronouncements of the apex court. the multiplier, adopted is 15 years or 18 years. the multiplier of 15 years can be adopted in this case. therefore, a sum of rs. 51,000/- (rs. 45,000/- loss of income and rs. 6,000/- for loss of love and affection and funeral expenses) may be fixed as compensation to the driver's family. but by dividing it to a half is unacceptable, because, i have found that there was no negligence on the part of the car driver. hence, dividing the compensation into half is therefore not justified.17. as regards the compensation for the passenger, basuvaraj also i find that the appreciation of evidence by the tribunal is fair. ex. a. 40 shows that the deceased basuvaraj was functioning as financial director of a reputed company. it has been proved properly. the salary and other particulars of the deceased basuvaraj is mentioned in the said exhibit.18. as regards the finding with reference to the quantum of damage, the grievance ofthe counsel for the appellants appears to be that apart from the allowances mentioned in exs. a. 30, 38 and 40, he was also given an allowance of rs. 1250/- towards house allowance. exs. a. 51 to a. 58 is relied upon in this connection. p.w. 4 has also spoken about this aspect. p.w. 4, the management accountant of biological e ltd., hyderabad has stated that the deceased basuvaraj was entitled to get rent free accommodation. since he has residing in his house, he was paid the rent. exs. a. 51 to a. 58 have been produced to show that till death during 1981, the deceased was paid a sum of rs, 1250/-. this witness is an highly qualified person. even though the entries in exs. a. 51 to 58 have not been made by this witness, it has been maintained during the normal course of business. considering the position and the work performed by the deceased basuvaraj, it is not unusual that such a person was paid house rent also. therefore, the sum of rs. 1250/- per mensem has to be added.19. in my view, apart from this omission, one more aspect, which 1 am not able to agree with the tribunal is that he would have lived up to the age of seventy years. to arrive at the conclusion, it is stated that in the same company one 67 years old desai was functioning as the full time director of the company. this desai would be alive for another three years. therefore, basuvaraj also must be presumed to have lived up to the age of 70 years, but for the accident.20. in the case of karunakaran, the tribunal has fixed the compenation on interest basis. but i have adopted 15 years as the multiplier. the same can be adopted in the case of basuvaraj also.21. as regards the quantum, with reference to the income, allowance etc., there is not much dispute; because they arc all borne out from the documentary evidence. the learned counsel for the transport corporation also does not seriously dispute the quantum in this aspect. as stated above, his main argument was with reference to the contributory negligence only. but as we stated earlier, a sum of rs.1250/- per mensem has to be added to the income of deceased basuvaraj. the tribunalhas arreived at rs. 90,000/- as the annual income. another sum of rs. 15,000/- being the house rent allowance has to be added to this. then the total annual income would be rs. 1,05,000/-. in the case of the driver, the tribunal has found that from his monthly income of rs. 500/- he would have contributed rs. 250/- only to his family. but in the case of basuvaraj. the tribunal has taken the entire income of. basuvaraj us the contribution to his family without any deduction for the maintenance and personal expenses of himself. this is not correct. considering his status, atleast rs. 2 per mensem would be necessary towards the maintenance and other expenses of basuvaraj. annually on this account a sum of rs. 30,000/- would be necessary for him. this amount has to be deducted from the total annual income of rs. 1,05,000/-. if that is so, the net annual income loss to the family would be rs. 75,000/-. this has to be multiplied by the multiplier of 15. therefore, the total loss to the family has to be arrived at rs. 11,25,000/-.22. the tribunal has awarded rupees 20,000/- for the mental agony and pains. this appears to be reasonable. another rupees 10,000/- has been awarded for loss of expectation of life. this is reasonable. therefore, a sum of rs. 30,000/- can be added to the total of rs. 11,25,000/-. thus, totally the family would be entitled to a sum of rs. 11,55,000/-. there is no necessity for awarding 50% of the same, since i have found that there was no contributory negligence on the part of the driver of the car. even though, these claimants are entitled to a total sum of rs. 11,55,000/- as compensation, they have restricted their claim to rs. 9 lakhs. hence, a sum of rs. 9 lakhs has to be awarded in this case.23. with reference to the interest which has been granted at 12% p.a., i do not think that there is any interference is necessary. therefore, the claimants in m.o.p. no. 505 of 1981 are entitled to a compensation of rs. 9 lakhs with interest at 12% p.a. from the date of petition till the date of payment. similarly, the claimants in m.p. no. 397 of 1981 areentitled to a compensation of rs. 51,000/-with interest at 12% p.a. from the date of petition till the date of realisation.24. learned counsel for the transport corporation states that some deduction should be made for the payment of income tax, inasmuch as the said point has not been raised and discussed by the tribunal and as there is no ground also taken, i am not in a position to discuss the said question and arrive at a finding. for the foregoing reasons, the appellants/claimants in c.m.a. no. 556 of 1985 are entitled to a compensation of rs. 51,000/- with interest at 12% p.a. from the date of filing of the m.o.p. no. 397 of 1981 till the date of realisation and the appel-lants/claimants in c.m.a. no. 557 of 1985 are entitled to a compensation of rupees 9,00,000/- with interest at 12% p.a. from the date of filing of the m.o.p. no. 505 of 1981 till the date of realisation.25. in the result, c.m.a. nos. 556 and 557 of 1985 arc allowed and c.m.a. nos. 1194 and 1195 of 1986 are dismissed. however, there will be no order as to costs.26. order accordingly.