High Court Of Judicature At Madras

The Managing Director, Tamil Nadu State Transport Corporation V. Mallika & Others

C.M.A. No.534 of 2010 & M.P. No.1 of 2010. 15-03-2010

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree, made in M.C.O.P. No.416 of 2008, dated 4.2.2009, on the file of the Motor Accident Claims Tribunal (Sub-Court), Rasipuram.)

1. In an accident which occurred on 12.9.2005, husband of the First Respondent and father of the minor children, Respondents 2 to 4, died. According to them, at the time of accident, the deceased was aged 36 years and as a Powerloom worker, earned Rs.5,000/- per month. The Transport Corporation disputed the manner of accident and contended inter alia that the accident occurred due to the negligence of deceased. They also disputed the age, avocation and monthly income of the deceased. However, the Tribunal, on evaluation of pleadings and evidence, awarded compensation of Rs.4,08,000/- with interest at the rate of 7.5% per annum from the date of claim till the date of realisation. Being aggrieved by the finding with regard to negligence and the quantum of compensation, the Transport Corporation has preferred this Appeal.

2. Assailing the finding with regard to negligence and quantum of compensation, learned counsel for the Appellant-Transport Corporation submitted that the Tribunal has erred in giving weightage to the evidence of PW.1, though the Inspector of the Transport Corporation, examined as RW.1, has clearly deposed that immediately after the accident, he had given a Complaint to Namagiripettai Police Station and that a case in Cr. No. 638 of 2005 was registered against the deceased, which has been marked as Ex.P1-FIR. He therefore submitted that when FIR has been registered against the deceased, the Tribunal, having regard to the oral testimony of RW.1, corroborated by Ex.P1-FIR, ought to have held that the deceased alone was responsible for the accident and that therefore, the Transport Corporation, cannot be mulcted with the liability to pay compensation to the Respondents/claimants.

3. Without prejudice to the above, on the quantum of compensation, learned Counsel for the Transport Corporation submitted that in the absence of any documentary evidence to prove that the deceased was employed as Powerloom Worker, the determination of monthly income on the basis of the oral testimony of PW.3 and the consequential computation of dependency compensation, is without any basis and therefore, the Tribunal has committed a material irregularity. It is his further contention that considering the age of the deceased, the Tribunal ought to have applied ‘13’ multiplier for computing dependency compensation.

4. Justifying the award, learned Counsel for the Respondents/claimants submitted that the Tribunal has properly analysed the evidence let in by both parties and arrived at a proper conclusion regarding negligence. He further submitted that FIR can be taken on record, only for the purpose of accident and the contents of the same, cannot be accepted, unless it is supported by the oral testimony. According to him, before the Tribunal, the claimants have established that the accident occurred due to the negligence of the drive of the Transport Corporation and therefore, the finding cannot be termed as perverse. On the quantum of compensation, he submitted that the award of Rs.4,08,000/- for the death of the sole breadwinner of the family, who was a Powerloom Worker, cannot be said to be exorbitant.

Heard the learned Counsel for the parties and perused the materials available on record.

5. Before the Tribunal, PW.1, wife of the deceased has deposed that on 12.9.2005 about 6.30 a.m., when the deceased was riding a TVS-Suzuki bearing Registration No.TN-28-3902 along with the pillion rider from Vadugam Pavankadu to Malayampatti for taking a rental car, a bus bearing Registration No.TN-27-N-1161, owned by the Appellant-Transport Corporation, came in the opposite direction and driven by its driver in a rash and negligent manner, dashed against the motorcyclist and in the accident, both the rider and the pillion rider were thrown away. Due to the accident, the motorcyclist sustained injuries in his head and immediately, he was taken to Suriya Hospital for first aid. Thereafter, the injured was referred to Kamala Hospital, Salem for further treatment on the same day and he was treated as in-patient from 16.09.2005 to 27.09.2005. After discharge, he was taken to Government Hospital, Salem, but he died on the way to the hospital.

6. According to the claimants, the driver of the Appellant-Transport Corporation was responsible for the accident. The accident was reported to Nammagiripettai Police Station and a case in Cr. No. 838 of 2005 was registered against the motorcyclist, Subramanian, who died. Perusal of the award shows that though a Criminal case was stated to have been registered, no oral or documentary evidence was let in by the Transport Corporation to prove the course of action taken by the Police. Though it appears that an argument was advanced before the Tribunal that the Police, on investigation, laid a charge before the learned Metropolitan Magistrate, Rasipuram, no oral or documentary evidence has been adduced in support of the said contention. In these circumstances, the Tribunal has observed that finding of negligence cannot be fixed on the deceased merely on the basis of Ex.P1-FIR.

7. Mere registration of a case against a person cannot be the conclusive proof of negligence unless the content of the same is proved before the Tribunal. FIR can, at best, be taken on record for the purpose to prove that an accident had occurred resulting in injury or death or damage to the property, as the case may be.

8. Since a Complaint had been given against the motorcyclist, the Tribunal has proceeded to analyse the entire evidence placed before it. PW.2, supposed to be an eye-witness, has deposed that when two persons in a motorcycle, came from the Northern side, a bus was proceeding from Rasipuram and at the place of accident, there was a curve. According to him, the accident has occurred purely due to the negligence of the driver of the bus. He has further submitted that both the injured were taken by him to Suriya Hospital, where the Police, obtained a statement from him. According to him, the accident was caused purely due to the negligence of the driver of the Transport Corporation bus. Finding that the oral testimony of PW.2, an eye-witness, as cogent and in the absence of any motive or ill-will against the driver of the Transport Corporation, the Tribunal has found that the driver alone was responsible for the accident.

9. The thrust of the argument of the Appellant-Transport Corporation is that FIR, being a primary document, reported to by the Investigating Agency, immediately after the accident, ought to have given due consideration with reference to its content and in such circumstances, the deceased-motorcyclist alone was responsible. It is well settled that FIR is not an encyclopedia. First Information Report given to the Police is to set the criminal law in motion. All that is said in the FIR may not be true, except to the limited extent of setting the law in motion and the contents of the same have to be proved by oral and supportive documents. If the contents of the Appellant-Corporation that an FIR has been lodged against the motorcyclist and therefore, whatever is said in the FIR has to be accepted as true, then any false Complaint can also be lodged, implicating the involvement of any vehicle of the Transport Corporation for the purpose of making a false claim. Similarly, to implicate an innocent person in a Crime, relating to Motor Vehicle Accident and blame such person for the accident, FIR can be lodged and even the erring vehicle driver, can give a false Complaint against the other.

10. If two vehicles collide, the drivers can make Complaints against each other, fixing negligence and in such circumstances, the Police, on investigation, would file the charge-sheet against the one, who has committed the crime. Therefore, more lodging of an FIR against a person alone is not sufficient to prove that he was negligent in causing the accident. Negligence requires to be proved by letting in sufficient evidence. In the case of hand, though a Complaint has been preferred against the motorcyclist, no evidence has been let in to prove that the said Complaint was investigated further by the Police and whether a report was filed before the Court. The Appellant-Transport Corporation has not even summoned the Inspector of Police, Nammagiripettai Police Station to appear as a witness on their side. On the contrary, PW.2, stated to be an eye-witness, has clearly deposed that the accident had occurred purely due to the negligence of the driver of the Transport Corporation and immediately after the accident, he had taken both the motorcyclist and the pillion rider to Suriya Hospital.

11. Perusal of the impugned judgment further shows that the driver of the Transport Corporation bus has not been examined. RW.1 is the Inspector of the Transport Corporation. According to him, he had enquired some persons at the place of occurrence and came to know that it was the motorcyclist, who cause the accident. During cross-examination, he has refused to give the particulars of the persons, whom he had examined. It is well settled that the rash and negligent driving, is a personal act of the driver/rider, of a vehicle, attributed to the cause of the accident. In such circumstances, the best evidence about the manner of accident is normally expected from the driver of the vehicle against whom the allegation is made and it can be supported by a passenger or even conductor, who travelled in the bus. In the case on hand, the Inspector of the Transport Corporation, who is said to have been conducted the enquiry and not witnessed the accident, cannot step into the shoes of the driver and speak about the manner of accident.

12. Further, as rightly observed by the Tribunal that since the motorcyclist died in the accident, there is every possibility of the driver of the bus, lodging a Complaint with the Police. If the bus driver was not negligent, nothing prevented the Appellant-Transport Corporation from compelling the driver to let in evidence. No acceptable reasons have been given before the Tribunal for his absence. If any enquiry, as deposed by RW.1, at the place of occurrence, had been conducted, he could have very well given the particulars of the persons, whom he had examined. Though it may not be necessary that in every case that the author of the FIR has to be examined before the Tribunal to prove the manner of accident, yet, in the case on hand, when according to the Appellant, the drive of the bus, had chosen to lodge a Complaint against the motorcyclist, he could have let in evidence before the Tribunal to prove the manner of accident and in that event, the Respondents/claimants would have had an opportunity to cross-examine the driver. In the absence of examination of the driver of the bus, and when RW.1, Inspector of the Transport Corporation has refused to divulge the details of his so-called enquiry, the Tribunal, on the basis of the oral testimony of the claimants, has rightly come to the conclusion, fixing responsibility on the driver of the bus, for causing the accident. In view of the above, this Court is not inclined to reverse the findings regarding negligence.

13. On the quantum of compensation, taking into consideration, the age mentioned in Ex.P2-Post-Mortem Certificate, the Tribunal has fixed the age of the deceased. Though the Respondents have contended that the deceased worked as a Powerloom worker and earned Rs.5,000/- prior to the accident, and produced Ex.P26-Salary Certificate, dated 12.3.2007 and also let in supportive evidence through PW.3, the employer, yet the Tribunal, by observing that PW.3, employer had not produced Salary Register, held that Ex.P16, cannot be taken as proof for its contents and fixed the annual income of the deceased at Rs.36,000/-.

14. Perusal of the judgment shows that immediately after the accident on 12.09.2005, the injured was admitted in Suriya Hospital, Rasipuram and thereafter, he was treated in Kamala Hospital upto 27.09.2005 and probably, when his condition worsened, he was taken to Government Hospital, Salem for further treatment, but he died on the way to the Hospital. Upon perusal of Exs.P8 – Prescription Notes, Exs.P9, P13 and P14 – Medical Bills, and EX.P10 – Medical Reports, the Tribunal has observed that the injured was treated in Kamala Hospital, Salem and thereafter, died on his way to Government Hospital, Salem.

But the Tribunal has disbelieved the testimony of the Respondents that prior to the death, the deceased was given treatment between 16.9.2005 and 27.9.2005 in Suriya Hospital, Rasipuram and declined to accept the medical bills to the tune of Rs. 63,333.35. But at the same time, when the Tribunal has accepted the contention of the respondents/claimants that they had incurred a sum of Rs. 33,673/- for Medical Expenses and accordingly, awarded the same, the said amount has not been included in the award.

15. The Tribunal, by fixing the monthly income of the deceased at Rs. 3,000/- applied 16 multiplier, as per the Second Schedule to section 163-A of the Motor Vehicles Act and after deducting 1/3rd towards Personal Expense, has computed the dependency compensation at Rs. 3,84,000/-. In addition to the above, the Tribunal has awarded a sum of Rs. 20,000/- for the Loss of Consortium to the wife and Loss of Love and Affection to other Dependants. A sum of Rs. 4,000/- has been awarded for Funeral Expenses. It could be seen from the above, the legal representatives of the deceased, wife, aged 27 years, two minor daughters, aged 10 and 8 years respectively and a minor son, aged 5 years, have been awarded compensation of a consolidated sum of Rs. 20,000/- for Loss of Consortium and Loss of Love and Affection, put together.

16. Considering the overall quantum of compensation, for the death of the sole breadwinner, this Court is not inclined to interfere with the same. In the result, the Respondent/claimant would be entitled to a sum of Rs. 4,41,500/- with interest at the rate of 7.5% per annum, as apportioned hereunder:

Dependency Compensation : Rs. 3,84,000/-

Medical Expenses incurred prior to the death : Rs. 33,300/

(not added in the award)

Loss of Consortium for the wife and Loss of Love and

Affection to the minor children : Rs. 20,000/-

Funeral Expenses : Rs. 4,000/-

Total : Rs. 4,41,500/-

17. The Appellant-Transport Corporation is directed to deposit the award amount, now determined by this Court, with proportionate accrued interest at the rate of 7.5% per annum and costs, within a period of six weeks from the date of receipt of a copy of this order.

18. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition closed.

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