The Managing Director Vs. V.Santhiya and ors. - Court Judgment

Excerpt:
indian penal code (ipc) - sections 279 - rash driving or riding on a public way -- on 26.12.2004, deceased vijayakumar was proceeding in tata indica car bearing regn.no. in so far as the quantum of compensation, the tribunal has taken the income of deceased vijayakumar as rs.12,000/- and deducted 1/4th for personal expenses. adding conventional damages, the tribunal has awarded total compensation of rs.14,24,000/- for the death of deceased vijayakumar. in so far as deceased jagadheeswari, the tribunal has taken her monthly income as rs.5,500/- and deducted 1/4th for personal expenses. since the deceased jagadheeswari was aged 40 years the tribunal has adopted multiplier 15 and calculated loss of dependency at rs.7,65,000/-. adding conventional damages, the tribunal has awarded compensation of rs.7,77,000/-. the learned counsel would further submit that the deceased vijayakumar was an income-tax assessee and the tribunal has awarded just compensation and the quantum of compensation awarded by the tribunal warrants no interference.  being aggrieved by the award passed in m.c.o.p.nos.151 of 2006 and 150 of 2006 for the death of r.vijayakumar and his wife jagadheeswari, the transport corporation has preferred these appeals. 2. on 26.12.2004, deceased vijayakumar was proceeding in tata indica car bearing regn.no. ka03/mb 6534 along with his wife jagadheeswari and three others from thiruvannamalai to return back to bangalore. while they were proceeding in uthangarai to samalpatti main road near heritage dairy, the appellant's corporation bus bearing regn.no.tn.32/n1853 was driven by his driver in a rash and negligent manner, came in the opposite direction and hit against the tata indica car. due to the impact, the deceased vijayakumar and his wife jagadheeswari sustained fatal injuries and died on the spot itself. three others, who travelled in the car along with the deceased, sustained severe injuries and they were admitted in the hospital. the deceased vijayakumar died on his way to the hospital. regarding the accident, a criminal case was registered in crime no.62 of 2004 under sections 279, 337 and 304(a) of ipc of samalpatti police station. the deceased vijayakumar was a specialist in erecting and repairing all types of borewell pumps and borewells and he was also a partner in m/s.rajarajeswari kalyana mantapam at bangalore. the deceased was earning rs.1,85,766/- per annum and he was an income tax assessee. the deceased jagadheeswari was also a partner in the said rajarajeswari kalyanamantapam and she was also earning income. alleging that the accident was due to rash and negligent driving of the appellant corporation bus by its driver, the minor children of deceased vijayakumar and jagadheeswari have filed two claim petitions  m.c.o.p.nos.150 of 2006 claiming compensation of rs.45,00,000/- for the death of vijayakumar and m.c.o.p.no.151 of 2006 claiming compensation of rs.20,00,000/- for the death of jagadheeswari. 3. the appellant corporation resisted both the petitions contending that the corporation bus was driven by its driver in a correct direction, whereas the deceased was driving tata indica car bearing regn.no.ka03/mb 6534 in the middle of the road and the accident occurred only due to the rash and negligent and careless driving of the deceased/driver of the tata indica car only and therefore the appellant corporation is not liable to pay any compensation to the claimants. the appellant corporation also denied the income of deceased vijayakumar as well as jagadheeswari and contended that the quantum of compensation claimed by the claimants is on the higher side. 4. before the tribunal, both the claim petitions were taken up together and common evidence was adduced. the 1st claimant sandhya was examined as p.w.1. sriram, who was travelling along with the deceased at the time of accident, was examined as p.w.2. on the side of the claimants, exs.p.1 to p.16 were marked. no oral and documentary evidence was adduced on the appellant side. upon consideration of oral and documentary evidence, tribunal held that the accident was due to the rash and negligent driving of the bus driver and that the deceased was not responsible for the accident. in so far as the quantum of compensation, the tribunal has taken the income of deceased vijayakumar as rs.12,000/- and deducted 1/4th for personal expenses. since the deceased vijayakumar was aged 48 years, as per the ii schedule, the tribunal adopted multiplier 13 and calculated the loss of dependency at rs.14,04,000/-. adding conventional damages, the tribunal has awarded total compensation of rs.14,24,000/- for the death of deceased vijayakumar. 5. in so far as deceased jagadheeswari, the tribunal has taken her monthly income as rs.5,500/- and deducted 1/4th for personal expenses. since the deceased jagadheeswari was aged 40 years the tribunal has adopted multiplier 15 and calculated loss of dependency at rs.7,65,000/-. adding conventional damages, the tribunal has awarded compensation of rs.7,77,000/-. being aggrieved with the fastening of liability upon the appellant corporation as well as raising objection regarding the quantum of compensation awarded by the tribunal, the appellant corporation has preferred these appeals. 6. we have heard mrs.b.vijayalakshmi, learned counsel appearing for the appellant corporation and mr.v.vijayakumar, learned counsel appearing for the respondents/claimants. 7. learned counsel for the appellant corporation mrs.b.vijayalskhmi has contended that the tribunal failed to consider that the accident had happened on the middle of the road and did not direct the claimants to produce the model sketch. it was further submitted that the deceased was driving tata indica car bearing regn.no.ka03/mb 6534 and the accident was due to the negligence of the deceased vijayakumar, which the tribunal has not appreciated in proper perspective. in so far as the quantum, the learned counsel would submit that the quantum of compensation awarded by the tribunal is very much on the higher side and prayed for allowing of the appeals. 8. taking us through the award passed by the tribunal, the learned counsel for respondents has submitted that the appellant has not chosen to adduce any evidence and therefore the tribunal was right in fastening the liability upon the appellant corporation. the learned counsel would further submit that the deceased vijayakumar was an income-tax assessee and the tribunal has awarded just compensation and the quantum of compensation awarded by the tribunal warrants no interference. 9. upon consideration of the contentions and the perusal of the materials on record, the following points arise for consideration in these appeals:- 1.whether the accident was due to the rash and negligent driving of the appellant corporation bus driver? 2.whether the deceased vijayakumar was responsible for the accident and whether he contributed for the accident? 3.whether the quantum of compensation awarded by the tribunal is just and reasonable and whether it warrants interference? 10. point nos.1 and 2:- on 26.12.2004, the deceased vijayakumar was driving the tata indica car bearing regn.no.ka03/mb 6534. on the early hours of 26.12.2004, when the car was proceeding in uthangarai to samalpatti main road, near heritage dairy, the state transport corporation bus bearing regn.no.tn.32/n 1853 came in the opposite direction and hit against the tata indica car. regarding the accident, one sriram, who was travelling in the tata indica car was examined as p.w.2. p.w.2, being an eye-witness, has spoken about the manner of accident as to how the bus was driven in a rash and negligent manner. based on the complaint lodged by p.w.2  ex.p.1  f.i.r. was registered in cr.no.62 of 2004 of samalpatti police station. p.w.2, being a co-traveller in the tata indica car and being complainant, much credence has to be attached to his evidence that the bus was driven in a rash and negligent manner. 11. in the counter affidavit, the appellant corporation has alleged that the driver of the appellant bus had driven the bus slowly and cautiously and the accident occurred in the middle of the road only due to the rash and negligent driving of tata indica car by the deceased vijayakumar. in the counter, it was further alleged that due to the bad condition of the road, deceased/driver of tata indica car came to the middle of the road and driver of the bus applied sudden brake, but the car dashed against the bus and that the deceased was responsible for the accident. even though the appellant corporation has taken the defence plea that the deceased was responsible for the accident, the appellant corporation has not chosen to adduce any oral or documentary evidence. the driver or conductor of the transport corporation have not been examined. the appellant corporation has not produced the sketch or the report prepared by their inspecting authorities. 12. when ever a defence plea of contributory negligence is taken, it is for the appellant corporation to adduce appropriate evidence to substantiate the plea of contributory negligence. since the appellant corporation has not adduced any oral or documentary evidence, the defence plea of contributory negligence remains unsubstantiated. the evidence of p.w.2  eye witness as well as the complainant remains unrebutted. considering the fact that the appellant corporation has not adduced any evidence and by taking into consideration the evidence of p.w.2, we are of the view that the tribunal has rightly held that the accident had occurred due to the rash and negligent driving of the bus driver. we do not find any reason to take a different view from the factual findings recorded by the tribunal. 13. point no.3:- compensation in respect of deceased  vijayakumar in c.m.a.no.2174 of 2010 (m.c.o.p.no.150 of 2006):- in her evidence, p.w.1 has stated that the deceased vijayakumar was an industrialist and businessman and he was running an industry  m/s.vijayakumar industrial works at bangalore. he was also a dealer in pipes, hand pumps, jet pumps and submersible pumps. the deceased vijayakuamr was also partner in rajarajeswari kalyanamantapam. it is seen from ex.p.4 series that he was also an income tax assessee. he was also holding a driving licence. exs.p.4 and p.8 are the income-tax returns of deceased vijayakumar from which it is seen that he was running the business - vijayakumar industrial works and paying income tax for the income which he derived from his industry. he was also a partner in rajarajeswari kalyanamantapam for which also he has paid income-tax (ex.p.8). the deceased vijayakumar, being an industrialist and also partner in kalyanamantapam, in future, he would have further developed his business and would have earned more. considering that he is an income-tax assessee and that he is an industrialist the tribunal has taken the monthly income of vijayakumar at rs.12,000/- per month. in our considered view, the income of the deceased taken at rs.12,000/- per month. in our considered view, the income of the deceased taken at rs.12,000/- per month by the tribunal is very reasonable amount. since the deceased vijayakumar was having three daughters and one son, the tribunal has chosen to deduct only 1/4th for personal expenses and his annual income was taken at rs.1,44,000/- taking 1/4th for personal expenses, the loss of dependency was taken at rs.1,08,000/- per annum. 14. ex.p.2 - postmortem certificate would indicate that the deceased was aged 48 years. as per second schedule, the proper multiplier to be adopted is 13, which the tribunal has correctly adopted. adopting the multiplier 13, the tribunal has calculated the total loss of dependency at rs.14,04,000/ (rs.1,08,000/ x 13). in so far as conventional damages, tribunal has awarded rs.10,000/- for loss of life, rs.5,000/- for transport expenses and rs.5,000/- for funeral expenses. the conventional damages awarded is also quite reasonable warranting no interference. 15. the respondents 1 to 4/ claimants have lost both the parents and are left in the lurch and the claimants/ daughters and son, being in their young age would have to depend upon others for taking care of the industries and also the kalyanamantapam. considering the facts and circumstances of the case, we are of the view that the total compensation of rs.14,24,000/- awarded for the death of vijayakumar is just and reasonable and we find no reason to interfere with the quantum of compensation. 16. compensation in respect of deceased  jagadheeswari in c.m.a.no.2165 of 2010 (m.c.o.p.no.151 of 2006):- jagadheeswari, who is the wife of deceased vijayakumar and mother of claimants was also a partner in rajarajewari kalyanamantapam. from ex.p.18 - income-tax returns, it is seen that for the income derived from the kalyanamantapam, the deceased jagadheeswari was also getting income. based upon ex.p.8, the tribunal has taken the monthly income at rs.5,500/- and taken the annual income at rs.66,000/-. deducting 1/4th for personal expenses, tribunal has calculated loss of dependency at rs.51,000/- per annum. income of the deceased jagadheeswari taken as rs.51,000/- per annum is very reasonable. apart from being a partner in rajarajeswari kalyanamantapam, deceased jagadheeswari being mother of the claimants, would have showered all love and affection and would have taken care of the entire house. as held by the supreme court in anil kumar agarwal and another vs. national insurance co.& others, (2010) 9 scc 218, the courts will have to take into consideration the services rendered by a housewife, who is also a home maker. the deceased was also a home maker and applying the ratio of the said decision, in our considered view, the income taken for the deceased jagadheeswari at rs.5,500/- per month is very reasonable. 17. the tribunal has rightly taken 1/4th for personal expenses and taken the annual loss of dependency at rs.51,000/-. coming to the multiplier, the deceased jagadheeswari was aged 40 years. as per second schedule, the tribunal has adopted multiplier 15 and calculated the total loss of dependency at rs.7,65,000/- (rs.51,000 x 15). in so far as the conventional damages, the tribunal has awarded rs.10,000/- for loss of life and rs.2,000/- for funeral expenses and awarded total compensation of rs.7,77,000/-. the quantum of compensation of rs.7,77,000/- awarded by the tribunal for the death of the deceased jagadheeswari is just and reasonable warranting no interference by this court. the tribunal has awarded interest on the compensation at the rate of 6%, which warrants no interference. 18. in the result, the appeals are dismissed and the quantum of compensation of rs.14,24,000/- awarded by the tribunal in m.c.o.p.no.150 of 2006 and the compensation of rs.7,77,000/- awarded by the tribunal in m.c.o.p.nos.151 of 2006 are confirmed. 19. as per the order dated 3.9.2010 made in m.p.nos.1 of 2010, in these appeals, the appellant corporation has deposited the entire compensation amount along with accrued interest. out of the amount so deposited, claimants 1 to 3/respondents 1 to 3  daughters of the deceased and the 5th respondent were permitted to withdraw 60% of the respective shares of apportioned compensation along with proportionate accrued interest. the respondents 1 to 3 and 5 are hereby permitted to withdraw the balance 40% of their respective shares of apportioned compensation along with proportionate accrued interest. in so far as the compensation awarded to the 4th claimant/4th respondent, the 4th respondent shall file necessary application before the tribunal for declaring himself as major. on such declaration, the 4th respondent/4th claimant is also permitted to withdraw the entire compensation awarded to him with accrued interest. consequently, the connected miscellaneous petitions are closed. both parties are directed to bear their own costs in this appeal.