IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.03.2008 CORAM: THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH C.M.A.No.147 of 2003 The Managing Director, Tamil Nadu State Transport Corporation Periyamilaguparai (Kumbakonam Division II) Limited Trichy ...Appellant vs. 1.Anjalai 2.kandasamy 3.Tamilarasan 4.Selvi Appeal filed under Section 173 of the Motor Vehicles Act, 1998 against the judgment and decree dated 20.02.2002 passed in M.C.O.P.No.599 of 2000 on the file of the Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate) Perambalur. For Appellant : M/s.Rajinish Pathial For Respondents : M/s.A.Venkatesan J U D G M E N T This appeal is filed at the instance of the Tamil Nadu State Transport Corporation against the award passed by the Motor Accident Claims Tribunal, Perambalur in M.C.O.P.No.599 of 2000 dated 20.02.2002 praying to set aside the award of the tribunal. 2. The Tribunal after having considered the oral and documentary evidence adduced on either side had passed an award of Rs.1,33,000/- with interest at 9% p.a. as against the claim of Rs.5,00,000/- https://hcservices.ecourts.gov.in/hcservices/ 3. The appellant corporation was the respondent before the tribunal. The petition was filed claiming a compensation of Rs.5,00,000/- by the respondents herein, who are legal heirs of one Sengottaiyar, for the death of the said Sengottaiyar in a road accident due to the rash and negligent driving of the driver of the bus of the appellant Corporation. Accoring to the respondents, they are wife and children of the said Sengottaiyar who was an agriculturist and mason by profession. According to them, the deceased was also dealing with rice in retail and he was earning a sum of Rs.150/- per day and in all a sum of Rs.4500/- per month. They are dependents of the deceased. On 26.10.1998 when the said Sengottaiyar was proceeding in the road from Udayarpalayam to Udayarpalayam Veleppanchetty lake, by the extreme side of the road he was hit by a speeding bus bearing Regn. No. TN 45 N 0694 belonging to the appellant corporation. The accident occured due to rash and negligence driving of the driver of the bus of the appellant corporation. Due to the death of the deceased, the petitioners lost their dependency apart from various other losses. Therefore, they filed the petition claiming a sum of Rs.5,00,000/- towards compensation from the appellant corporation. 4. The appellant corporation resisted the claim and contended that the bus bearing Regn. No. TN 45 N 0694 belonged to the corporation was not involved in any accident on the date and time alleged in the petition. Even when the bus could reach the spot, a dead body was found lying on the road. The appellant corporation is an unnecessary party to the petition. The petition is bad for mis- joinder of necessary parties. In any event, the respondents/petitioners are put to strict proof as to the age, occupation and monthly earning of the deceased. 5. The tribunal, after having considered both oral and documentary evidence adduced on either side by an order dated 20.02.2002 passed an award granting compensation of Rs.1,33,000/- with interest at 9% in favour of the claimants. Challenging the above said award of the tribunal, the State Transport Corporation had preferred this appeal. 6. The learned counsel appearing for the appellant corporation would submit that the tribunal erred in finding that the respondent corporation's bus involved in the accident and that the driver of the bus was responsible for the accident. The appellant corporation denied the involvement of the bus in the accident and the evidence adduced by the conductor of the bus would clearly indicate that the appellant corporation's bus was not involved in the accident. According to the Transport Coporation the accident occured with the involvement of some other vehicle has been foisted against the https://hcservices.ecourts.gov.in/hcservices/ appellant corporation. Therefore, the award passed by the tribunal has got to be dismissed. He would further submit that the corporation could not able to examine its driver as he had gone abroad. The tribunal had taken adverse note and refused to accept the evidence of the conductor. Therefore, he would submit that in any event the quantum of compensation as awarded by the Tribunal is exorbitant. 7. The learned counsel appearing for the respondents would on the other hand submit that non examination of the driver would be fatal to the case of the appellant corporation as the best witness to speak about the accident would be the driver of the bus whereas the driver of the bus was not examined by the appellant corporation before the tribunal. There was no acceptable explanation in the evidence of the conductor, R.W.1 for non examination of the driver of the bus. He would further draw the attention of the court that the accident had taken place on 26.10.2008 and immediately first information was given to the police on the same day itself and immediately a case was also registered in Cr.No.404 of 1998 for offence under Section 304(A)of IPC as against the driver of the bus and this would amply show the involvement of the bus in the accident and therefore, the appeal has to be summarily dismissed. He would further submit that if the bus belonged to the appellant corporation did not involve in the accident, the trip sheet and other relevant documents in order to show the time and place where the bus took his trip at the relevant point of time could have been produced by the appellant before the tribunal. The evidence adduced on the side of the respondents/petitioners has not been disproved by the appellant corporation. When the driver has committed a civil wrong in committing the accident, the appellant Corporation has to necessarily pay the compensation on behalf of its driver. 8. The learned counsel for the respondents would further submit that on taking into consideration the avocation of the deceased and dependency, the award passed by the tribunal is lesser. However, as there is no appeal praying for enhancement of compensation, I am not inclined to go into that aspect. 9. I have carefully perused the oral and documentary evidence adduced on either side. The husband of the first respondent and the father of the respondents 2 to 4 namely Sengottaiyar succumbed to injuries in a road accident which took place on 26.10.1998 at about 8.30 p.m. on the southern side of Udayarpalayam Velappan Chetty Lake road and a complaint was given immediately. On a careful perusal of Ex.P.1 First Information Report, I could see that the case was immediately registered on 26.10.1998 itself against the driver of the bus bearing Regn. No. TN 45 N 0694 belonging to the appellant corporation. On the basis of complaint, the law was set in motion and the case was said to have been pending against the driver of the bus. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the burden is heavily on the respondent to disprove that the bus bearing Regn. No TN 45 N 0694 was involved in the accident and thereby it was not responsible for the death of Sengottaiyar. Admittedly, the driver of the bus was not examined. The tribunal did not accept the reason given for the non examination of the driver of the bus. No doubt, the conductor of the bus could be a substitute for the non examination of the driver of the bus, but in a case where the driver himself is shown as accused, it is for the driver to explain that he had not driven the bus at the time of accident. On considering the fact and circumstances in this case, I am of the view that the best witness would be the driver who could say that the bus in question was not involved in the accident. As rightly pointed out by the learned counsel appearing for the respondents, the appellant corporation did not produce the trip sheets and other relevant documents relating to the bus in question , which would naturally be available with the corporation, to disprove the claim of the respondents. Therefore, non examination of the driver of the bus by the respondent corporation and non production the best documentary evidence available with the appellant corporation would be fatal to the case of the appellant and ultimately the same would force this court to draw an adverse inference. 11. In these circumstances, I do not find any infirmity in the conclusion arrived at by the tribunal insofar as the rash and negligence aspect is concerned. Therefore, the appellant corporation is vicariously liable to pay the compensation to the respondents. 12. As far as the quantum of compensation awarded by the tribunal for the death of the deceased is concerned, as held by the tribunal, the deceased was aged about 52 years at the time of accident. The tribunal having considered the age of the deceased and attending circumstances took 11 as multiplier and with the notional income of Rs.1500/- per year and after applying one third deduction towards personal expenses which would have expended by himself had the deceased been alive, the tribunal has come to conclusion that the respondents are entitled to a sum of Rs.1,32,000/- towards loss of dependency. Apart from that a sum of Rs.1000/- is awarded towards transportation charges and in all the tribunal awarded a sum of Rs.1,33,000/- as compensation to the respondents. From the careful perusal of the award, it could be seen that no compensation was awarded for the loss of consortium to the first respondent and loss of love and affection to the respondents 2 to 4. However, this court cannot enhance the compensation without any appeal or cross objection from the respondents. Therefore, in my considered view, the appeal is devoid of merit. The award passed by the Tribunal does not warrant any interference from this court. https://hcservices.ecourts.gov.in/hcservices/ For all the above reasons, the appeal fails and accordingly the same is dismissed. No cost. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk To The Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate, Perambalur. + 1 CC To M/s.A.Venkatesan Advocate SR NO.13114 C.M.A.No.147 OF 2003 RS {CO} TP/12.6.08. https://hcservices.ecourts.gov.in/hcservices/