THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CMA NO. 2862 of 2000 ORDER : This is an appeal preferred under Section 173 of the Motor Vehicles Act, 1988 by the claimants. The 1st claimant/appellant is the brother of the deceased while the 2nd claimant/appellant is the natural son of the 1st claimant, said to have been given in adoption to the deceased. The 1st respondent is the driver of the offending bus, which is owned by the APSRTC, the 2nd respondent. The facts, which are relevant, are this: On 17.8.1995 at about 7.25 AM when the 1st petitioner and deceased after taking a cup of tea in a nearby hotel while they were proceeding by walk, a bus belonging to the 2nd respondent corporation bearing No. AAZ 7184 driven by the 1st respondent – driver rashly and negligently knocked down the deceased and ran over him causing instantaneous death of the deceased. The deceased was aged about 40 years and the claimants therefore laid a claim for compensation in a sum of Rs.1 lakh. On behalf of the claimants, two witnesses have been examined and Exs.A1 to A4 have been got marked. The 1st respondent has been examined as RW1. The 1st claimant/appellant is examined as PW1. He has deposed in detail as to how the accident had occurred resulting in the instantaneous death of the deceased, due to fracture of his skull and other injuries, which proved fatal. Ex.A1 is the FIR lodged by the 1st appellant – claimant with the police at Amalapuram. Ex.A2 is the certified copy of the post- mortem examination certificate. Ex.A3 is the Inspection Certificate issued by the Motor Vehicle Inspector after inspecting the offending bus. Ex.A4 is the certified copy of the charge sheet laid by the police against the 1st respondent – driver. On behalf of the respondents, the judgment rendered in CC No. 27 of 1996, relating to which case Ex.A4 relates, has been filed to demonstrate that the criminal court had acquitted the driver. According to PW1, he and his brother, the deceased had taken their morning cup of tea at a hotel run by one Appari Venkateswara Rao and that they were proceeding by walk towards their house and just about that time a bus bearing Regn. No. AAZ 7184 driven in a rash and negligent manner came in the opposite direction and knocked down his brother and ran over him. Due to the accident, the deceased sustained multiple fractures to his skull severing the brain from its cavity and thus the deceased died on the spot. It is alleged that the deceased was earning Rs.2000/- per month and that he was aged about 40 years. Therefore, the claim for a sum of Rs.1 lakh has been laid as compensation payable for the death caused by the accident of the bus owned by the 2nd respondent. Though RW1, the driver of the bus tried to impress upon the Tribunal that that the bus has not caused any such accident, but, however, the Tribunal had placed reliance upon Ex.A1, FIR which is registered at about 8.30 AM on the same day by the police where the registration number of the bus has been clearly mentioned. After investigation, the charge-sheet Ex.A4 has been filed into the case against the driver of the bus. Therefore, the Tribunal has no hesitation whatsoever to arrive at a conclusion that the accident has been caused involving the bus bearing Registration No. AAZ 7184 owned by the 2nd respondent. It will be important to notice at this stage that admittedly the bus is operating from Amalapuram Bus Depot and that it had commenced its trip at 7.10AM. No attempt has been made by the 2nd respondent to examine the conductor of the bus or from any other reliable material to demonstrate that the bus in question could not have reached the accident spot in about 15 minutes time after its commencement of journey at Amalapuram Bus Depot. The 2nd respondent – APSRTC has also not bothered to place on record any material by way of investigation carried out by it’s officers into the fatal accident. Every incident involving a bus in a fatal accident is bound to be investigated and enquired into and that material which is in possession of the 2nd respondent Corporation should be brought forth before the Tribunal. Failure to do so would give scope for an adverse inference to be drawn in terms of Section 114 of the Indian Evidence Act, particularly, in view of Illustration (g) contained therein. I, therefore, do not have any hesitation to hold that the finding recorded by the Tribunal that the accident in question has been caused wholly due to the rash and negligent manner of driving by its driver, is correct. Ex.A2 is the post-mortem examination carried out from 3.30 PM on 17.8.1995, the date of accident on the deceased. It clearly revealed that the skull of the deceased had suffered four fractures and that the brain is absent in the cavity of the skull. There are also several other ante mortem grevious injuries noted. It is thus clear that a gruesome death of this nature could have occasioned only due to an injury caused by running over of a motor vehicle. The FIR in the matter has been lodged with the police within an hour’s time of the accident. Therefore, if the respondents sought to disown any responsibility for the accident involving their bus, they should have led positive and independent material to demonstrate that the bus in question has not caused the accident. Looked at it from this angle also, the finding recorded by the Tribunal, deserves acceptance. Then comes the question of awarding compensation. The claimant No.1 has deposed that the deceased is an unmarried individual. He further stated that the 2nd claimant – appellant who is his natural son has been given in adoption to his deceased brother. To establish this factum of adoption, PW2 was examined. PW2 claimed himself to be a community elder and he has deposed that he has witnessed the adoption ceremony. PW2 was only 42 years old. He is almost of the same age as that of the deceased and is younger in age than the 1st appellant/claimant. Therefore, his deposition did not carry much of a conviction in the mind of the Tribunal. The Tribunal has also pointed out that PW2 could not give satisfactory explanations as to why the unmarried deceased was required to adopt a son at all. Further if one were to act as a community elder, he has to enjoy the respectability of the community by virtue of his age, standing in the society and his experience. Since these factors were absent in the case of PW2, his testimony has not been believed at all. Perhaps rightly so. At best it was a crude attempt on the part of the 1st claimant to introduce the theory of adoption of his son by the deceased. Since the adoption of the 2nd appellant – claimant by the deceased has not been proved, the Tribunal held that since the deceased is not a married person the claimants/appellants are not entitled to any compensation against the respondents. The reasoning adopted by the Tribunal in this regard leaves much to be desired. It is not in dispute that the parties are Hindus. It has been brought on record that the deceased is not a married person. But the relationship between the 1st appellant/claimant and the deceased has not been put in issue at all. PW1 has not been treated or doubted as an unrelated person to the deceased. PW2 has also deposed about this relationship. In fact, Ex.A1 – FIR itself lodged by the 1st appellant/claimant describes that he is the brother of the deceased. It is therefore clear that the relationship between the deceased and the 1st appellant is not doubted at all. What was in fact doubted was the status of the 2nd appellant – claimant as the adopted son of the deceased. If the 2nd appellant- claimant is not liable to be held as the adopted son of the deceased, he continues and remains to be the nephew of the deceased being the son of a brother of the deceased. That factor does not cast any shadow on the relationship between the 1st appellant-claimant and the deceased. Unfortunately, the Tribunal had not noticed that Section 8 of the Hindu Succession Act, 1956 clearly specifies that that the property of a male Hindu dying intestate shall devolve firstly upon the heirs specified in Class I of the Schedule, and secondly, if there is no heir of Class I, then upon the heirs in Class II of the Schedule and so on. Further, a look at Class II of the Schedule clearly discloses that brother of deceased male Hindu is notified as a Class II heir. Further, a brother and brother’s son are both notified as Class II heirs. Therefore, the tribunal should have treated the claimants as the Class II heirs of the deceased. It is not in dispute that the deceased was an unmarried person and consequently he could not have left behind a widow or a son or a daughter. The only remaining Class I heir in the given circumstances could be a mother, if at all she is surviving the deceased. The Tribunal should have focused its attention to ascertain as to whether the mother of the deceased was surviving him at all or not, for it to justifiably deny the right of succession to Class II heirs like the appellants. The Tribunal could have directed the appellants to indemnify the 2nd respondent corporation against any possible later claim for payment of compensation, from the mother of the deceased or any other Class I heir. That would have solved the problem. Unfortunately, the Tribunal has concluded the issue holding that the appellants are not entitled for payment of compensation at all. The Tribunal had not concentrated on the issue of determining the income of the deceased. In the instant case, the deceased was himself a 40 year old individual. His contribution to the family of his brother could not have been more than RS.500/- per month and on that basis the annual contribution could have been assessed at Rs.6,000/-. Since fatal accidents are ever on the increase, the statute itself has been amended incorporating a minimum compensation of Rs.50,000/- to be paid even if such an accident had been caused for no fault of the vehicle driver or its owner. Therefore, a conscious effort has been made to secure mitigation of the loss caused in fatal accidents by awarding a minimum compensation amount of Rs.50,000/-. In the instant case, the Tribunal should have awarded this amount of Rs.50,000/- as compensation, taking guidance in that regard. It will be apt to notice in this context the judgment rendered by the Supreme Court in U.P.State Road Transport Corporation v. Trilok Chandra[1]. While tracing out as to how the principles relating to payment of compensation for causing death by negligent driving have been settled by the Supreme Court in earlier judgments rendered in Gobald Motor Service Ltd. v. R.M.K.Veluswami[2] and Municipal Corporation of Delhi v. Subhagwanti[3] and C.K.Subramonia Iyer v. T.Kunhi Kuttan Nair[4] and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas[5], the Supreme Court in Trilok Chandra’s case (supra ) has pointed in paragraph 18 as under : “….. Neither the Tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bacherlor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of multiplier…..” Thus, the Supreme Court has pointed out the jurisdictional parameters of the courts while fixing the quantum of compensation in fatal accidents. These principles have been reiterated to eliminate the otherwise unjust element of subjectivity on the part of the Tribunals and courts. Therefore, the guiding factors which are contained in the Statute should not have been overlooked. Hence, the Tribunal, instead of bothering to adopt a suitable multiplier should have adopted the formula of compensation which is liable to be paid under no fault liability theory as an apt principle in matters of this nature, as the age of the 1st claimant is more that of the deceased. Therefore, I allow this appeal, setting aside the judgment of the Motor Accidents Claims Tribunal in OP No. 243 of 1996 and direct the payment of compensation of Rs.50,000/- subject of course to the condition that the 1st claimant will keep the 2nd respondent – APSRTC indemnified against any claims by any third parties claiming themselves as Class I heirs of the deceased. No costs. ------------------------------------------ --- NOOTY RAMAMOHANA RAO,J Dt :24.12.2009 knk [1] 1996 ACJ 831 (SC) [2] 1958-65 ACJ 179 (SC) [3] 1996 ACJ 57 (SC) [4] 1970 ACJ 110 (SC) [5] 1994 ACJ 1 (SC)