IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2010 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.488 of 2010 1.Valli 2.Minor Anbumani 3.Minor Alaiyamani 4.Minor Arulmani 5.Minor Asaimani ... Appellants(Petititioner) (Minors2 to 5 are represented by their mother 1st appellant herein) Vs... Tamilnadu State Transport Corporation Vellore. ... Respondent(Respondent) Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Acts, 1988, against the judgment and decree dated 11.03.2008 made in M.C.O.P.No.944 of 2005, on the file of the Motor Accidents Claims Tribunal, District Court, Cuddalore and praying to set aside the same. For appellants : Mr.D.S.Thirumavalavan For respondent : Mrs.B.Vijayalakshmi J U D G M E N T In an accident which occurred on 20.07.2003, father in law of the first appellant died and the appellants claiming themselves to be the legal representatives claimed compensation. The respondent transport corporation resisted the claim contending inter-alia, that the driver of the transport corporation bus was not responsible for the accident and they also disputed the entitlement of the appellants to claim compensation. On evaluation of pleadings and evidence, the Tribunal held that the bullock-cart was not provided with a lantern or reflector and due to the brightness of the headlight of the oncoming vehicle Tatasumo, the bullocks got perplexed and ran helter- skelter and came to the right side of the road and that therefore, the driver of the transport corporation bus was not responsible for the accident. Though the Tribunal held that the appellants were entitled to compensation, having regard to the finding of negligence fixed on the bullock-cart driver awarded Rs.50,000/- only, in terms of Section 140 of the Motor Vehicles Act. Being aggrieved with the finding of negligence and the quantum of compensation, the claimants have preferred this appeal. 2. Assailing the finding of the Tribunal with regard to negligence as perverse and seeking for its reversal, Mr.D.S.Thirumavalavan, learned counsel for the appellants, submitted that the Tribunal has failed to consider the oral testimony of P.W.2 eye-witness, who has categorically deposed that the driver of the transport corporation bus was negligent, the vehicle dashed against the bullock-cart from behind and in the result, the father in law of the first respondent, who was travelling in the bullock-cart was thrown away and that the rear wheel of the bus crushed his head, resulting in instantaneous dead. 3. He further submitted that when the oral testimony of the first appellant daughter in law is supported by the P.W.2, eye- witness and corroborated by Ex.P1 FIR, registered against the driver of the respondent transport corporation in Crime No.392/2003, under Sections 279, 377 read with 304(A) of IPC, the finding of the Tribunal on the basis of its observations that (i) as there was no lantern or reflector fixed in the bullock-cart and (ii) bullocks which got perplexed due to the dazzling light, pulled the cart to the right side of the road and the accident occurred only due to the fault of the bullock cart driver, is perverse. He further submitted that in the absence of examination of the driver of the bus, the Tribunal ought not to have given credence to the oral testimony of R.W.1 conductor, who was issuing tickets, at the time of accident. He also submitted that even assuming that there was no light at the place of occurrence, the driver of the transport corporation bus could have very well noticed the bullock cart going ahead of the vehicle and slowed down the heavy vehicle and avoided the accident. He also submitted that on the highway or main road, it is always possible to see a moving or stationed vehicle from a far away distance and therefore, submitted it is the driver of the bus owned by the transport corporation, who was responsible for the accident. On the quantum of compensation, learned counsel for the appellants submitted that having ragard to the evidence let in before the Tribunal, appropriate compensation may be awarded. 4. Supporting the finding of the Tribunal fixing negligence on the driver of the bullock-cart, learned counsel for the transport corporation submitted that the bullock-cart ought to have been fixed with a lantern or reflector and when there is categorical evidence of R.W.1, conductor of the bus, as regards the manner of accident as stated supra, the finding of the Tribunal cannot be said as perverse, warranting interference. He also submitted that when negligence is solely fixed on the bullock cart driver, the award under Section 140 of the Act is reasonable and in these circumstances, it does not warrant any estimation of loss of pecuniary and non-pecuniary damages. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. Before the Tribunal, daughter in law examined herself as P.W.1 and reiterated the manner of accident. Besides, she also deposed that at the time of accident, the deceased was a mason and earned Rs.150 per day and that he maintained the family. She has further deposed that, as she had lost her husband prior to the accident, the whole family was depending on the income of her father in law. P.W.2 supposed to have witnessed the accident has deposed that on 20.07.2003, when he was proceeding to attend a ceremony, the deceased and some other persons were returning in a bullock-cart and that the same was driven by one Mr.Suryakumar. It is his further evidence that when he was riding in a motor cycle near Annaivelanganni Polytechnic, he parked his motor cycle to pass urine and at that time, one bullock-cart was proceeding from east to west, on the left side of the road and a bus owned by the transport corporation, driven by its driver in a rash and negligent manner hit the bullock cart from behind and in the result one Mr.Nagappan who was a passenger in the bullock-cart was thrown away and the rear- wheel of the bus ran over his head and he died on the spot. 7. Perusal of the judgment shows that the said witness has further deposed that in the accident, six persons sustained injuries. He has categorically affirmed to have seen the accident. That the said witness has also denied the specific suggestion that the bullock-cart was dragged on to the right side of the road by the bullocks. Having regard to the statement of the witness that there was no light at the place of accident, the Tribunal has come to a conclusion that the bullock cart driver was responsible for the accident. 8. Denying the manner of accident, R.W.1, conductor of the bus has reiterated the averments made in the counter-affidavit, but in his cross-examination, he has candidly admitted that at the time of accident, he was issuing tickets to the passengers. If that be so, it is hard to believe as to how he could have witnessed the accident. Reading of the judgment further shows that though a complaint is stated to have been given against Tata-sumo vehicle to the police, it was not marked before the Tribunal. Eventhough R.W.I conductor has let in evidence, in his cross-examination, he himself has admitted that full details as to the manner of accident can be known only, if the driver of the vehicle was examined. Even assuming that the bullock-cart was not fitted with any lantern or reflector, the cart which was proceeding ahead of the bus can very well be noticed by the bus driver from a long distance. When the Tribunal has accepted to believe the version of R.W.I conductor that due to dazzling headlight of the Tata-sumo vehicle which came in the opposite direction, the bullocks got perplexed, how the driver of the heavy vehicle could not have seen the bullock cart. Thus it could be visualised that the driver of the bus coming from behind had miserably failed to maintain a minimum distance, so as to enable him to slow down the vehicle to avoid the accident. Looking from another angle that, if really the Tata-sumo vehicle was coming on the opposite direction, the driver of the bus ought to have slowed down the bus and avoided the accident. The oral evidence of R.W.I conductor of the bus ought not to have given credence to disprove the manner of accident, when admittedly, the driver of the bus was not examined before the Tribunal. Rash and negligent driving is a personal act of the driver resulting in accident. The conductor by any stretch of imagination cannot step into the shoes of the driver to speak on his behalf. He can give only a supporting evidence In the absence of examination of the driver of the bus, the Tribunal ought to have drawn inference against the driver against whom the allegation has been made. In New India Assurance Co. Ltd., v. Debajani Sahu reported in I (2002) ACC 103 (Ori.), the Orissa High Court held that, "8. In the present case, the Claims Tribunal found about the negligence of the bus driver on the basis of the evidence of the P.Ws. It is contended that P.W. 2 himself being the driver employed by the deceased was a highly interested witness and his evidence cannot be accepted as reliable. There is no dispute in the fact that the accident was caused involving the scooter and the bus. Even assuming that the evidence of P.W. 2 is not accepted, still then the doctrine of res ipsa loquitur is applicable. In such a situation, the owner of the bus should have examined the driver of the bus to explain the circumstances under which the accident occurred, as the other person involved in the accident having died cannot speak from the grave to explain the circumstances under which the accident had taken place. Of course, the bus owner has remained ex-parte, but no attempt was made by the Insurance Company which was contesting the case even on merit (whether justifiably or not is immaterial), has not chosen to adduce any evidence to rebut the evidence of P.W. 2, not has bothered to summon the bus driver to explain the circumstances under which the accident took place. In such a case, an adverse inference can be drawn against the owner/Insurance Company for not examining the bus driver who would have been the best witness to explain the circumstance under which the accident occurred. In such view of the matter, the finding of the Tribunal on the question of negligence cannot be assailed and the contention in this regard raised by the Counsel for the appellant cannot be accepted." In Sitabai v. Ishak Hussain reported in I (2001) ACC 761 (DB), the Madhya Pradesh High Court, at Paragraph 5, held as follows: "5. In this case, the claimants could not examine any eyewitness of the accident. It was difficult for the claimants to search an eyewitness as the claimants were not present on the spot at the time of accident. This difficulty is avoided by applying the maxim res ipsa loquitur. Their Lordships of the Supreme Court in case of Puspabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., reported in 1977 ACJ 343 (SC), observed: "The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care." In this case, the respondent No. 1 was driving the vehicle which left the road and dashed against a tree. In view of this maxim, the burden shifts on the respondent No. 1 to prove that he was not negligent. It was in the special knowledge of respondent No. 1 as to how the vehicle left the road and came down and struck against a tree. The respondent No. 1 did not examine himself. Under such circumstances, adverse inference that he drove the vehicle in a rash and negligent manner as a result of which this accident occurred, shall be drawn against him. The learned Tribunal committed error in not applying this maxim. We hold that the accident occurred due to rash and negligent driving of the vehicle by respondent No. 1." In Beni Bai & others v. A. Salim & another reported in II (1999) ACC 408 (DB) (M.P.), the Madhya Pradesh High Court, held as follows: In the circumstances, for non-examination of the material witnesses particularly the driver and the conductor, who had the first hand knowledge of the manner in which the accident occurred, necessarily an adverse inference has to be drawn against the respondents. For want of evidence on behalf of the respondents, the plea raised in defence cannot be said to be established. On the other hand, the appellants have examined Atmaram, A.W.1. who was at the spot, who stated that at the bus stop when the passengers were getting down from the bus, the driver without seeing that the passengers have got down or not, started the bus and there one boy came under the wheel of the bus. From the circumstances, it cannot be inferred that the deceased might have jumped from the running bus. Hence it was the duty of the driver and conductor to have taken care to see whether passengers have got down from the bus or not, then only the driver could have started the bus. As the driver and conductor have failed in their duties to take care, we hold that the accident occurred due to negligence of the driver of the city bus. This Court in similar circumstances where the same type of defence was taken, has observed that it is the driver of the passenger bus who has to take care that the passengers who wish to get down from the bus have got down and then to start the bus. But that care was not taken. Therefore, it was held that the accident was caused because of the negligence of the driver and conductor. 9. The claimants have let in oral evidence duly corroborated by Ex.P1-FIR. It could be seen from the judgment that P.W.2 eye- witness has categorically denied the suggestion that the bullocks got perplexed, due to the dazzling light of Tata-sumo vehicle. In such circumstances, the only evidence available on the side of the respondent transport corporation is the oral testimony of R.W.I conductor, where he had candidly admitted that at the time of accident, he was issuing tickets to the passengers. In the absence of any supporting evidence to corroborate the version of RW1, the Tribunal has failed to apply the test of preponderance of probability as to the manner of accident and in these circumstances, as rightly contended by the learned counsel for the appellants, the finding, with regard to negligence is contrary to evidence, probability, and it is nothing but perverse, which requires reversal. Assessment of Cumulative evidence, this Court is of the view that the driver of the transport corporation bus owned by respondent alone is responsible for the accident and therefore, they are liable to pay compensation to the appellants/claimants. 10. Before the Tribunal, P.W.1 has let in evidence to show that she has lost her husband prior to the accident and with her minor children, they were living in the same address with her father in law. In support of her contention, she has also produced Ex.P8- ration card for the period between 1998-2003. The Tribunal has noticed that the names of all the appellants/claimants are mentioned in the ration card, along with her deceased father in law. The Tribunal having regard to the same, has come to the conclusion that the appellants as legal representatives are entitled to maintain a claim petition. Since the Tribunal has arrived at a finding fixing negligence on the driver of the bullock-cart, has awarded a sum of Rs.50,000/- in terms of Section 140 of the Motor Vehicles Act. As the finding of negligence is now held to be perverse and reversed, this Court proceeds to estimate the pecuniary and non pecuniary loss sustained by the appellants. Though the deceased was stated to be a mason, no document has been filed to prove the same. However, this Court is of the view that to expect documentary proof from small traders, self employed skilled workers, construction workers, cannot be justified. All construction workers are not engaged by contractors or builders and during the relevant period, there was no chance for a skilled worker, to register himself with any agency or board. Based on the entry in Ex.P8 ration card for the period between 1998-2003, the Tribunal has fixed the age of the deceased as 55 years. Though the claimants have mentioned the age of the deceased as 45 years in the claim petition, considering the difference in age between the deceased father-in-law and the first appellant daughter-in-law, the determination of the age of the deceased, on the basis of the entry in the ration card cannot be said to be arbitrary. In this context, it is also useful to consider a judgment of this Court made in CM.A.No.547 of 2006, dated 31.05.2007, wherein, this Court, while adjudicating an issue relating to fixing the age of the deceased, whether it could be on the basis of entry in post-mortem certificate vis-a-vis ration card, held that an entry in the ration card being made by a member of a family and supported by his declaration furnished to the authorities under the Civil Supplies Corporation department, can be given weightage, than an entry in the Post Mortem Certificate, which can be given by anybody. The operative portion of the judgment made in CM.A.No.547 of 2006, dated 31.05.2007, is as follows "In the absence of any supporting document, the Ration Card being a property of the Government issued under Section 3 of the Essential Commodities Act, has to be given more weightage than the Post-mortem certificate. Registers maintained in the office of the Civil Supplies Department are certainly public documents. Whereby Ration Card/Family Card issued to an individual is a public document as per the Evidence Act is not decided in this case. Birth extract is the only primary evidence for proof of age as it is issued under the statute viz., Birth and Death Registration Act. But as between the age mentioned in Ex.P5 - Ration Card and Ex.P2 - Post-mortem certificate and in the absence of any supporting document, the entry made in the ration card deserves to be given more weightage than the post-mortem certificate. Therefore, I am of the considered view that although ration card is not a primary evidence to prove the age for the purpose of computation of dependancy compensation, the age mentioned in the ration card can be taken as the age of the deceased." 11. Having regard to the fact that the husband of the first appellant predeceased his father, and when Ex.P8 Ration card reveals that the appellants and the deceased father in law, were living under the same roof, and considering the number of members in the family and in the absence of any other male member, certainly, the deceased father-in-law would have contributed a portion of his income for providing food, cloth and shelter to the minor grand children. In such a view of the matter, this Court is inclined to fix the monthly income of the deceased at Rs.3,500/- for the purpose of computing dependency compensation. While applying the multiplier Courts have consistently held that the age of the deceased and that of the claimants, whichever is higher is the deciding factor. In the case on hand, the age of the deceased has been fixed at 55 years. For the age group of persons above 50 years, but not exceeding 55 years, as per second schedule to Section 163A of the Motor Vehicles Act, the appropriate multiplier is '11'. The deceased being a sole male member of the family would have certainly contributed 2/3rd of his income. Applying the multiplier, the dependency compensation works out to Rs.3,08,000/-. At the time of accident i.e., 20.07.2003, except the first appellant daughter in law, the grand children were minors aged between 5 to 10 years. The grand children and the first appellant have lost the love and affection and support of an elderly a male member. Therefore, for the loss of love and affection, they should be adequately compensated. The first appellant is now left with 4 minor children and she has every responsibility of raising them up without elderly support. In these circumstances, this Court is of the considered view that a sum of Rs.10,000/- can be awarded to each of the minor children, for the loss of love and affection, a sum of Rs.5,000/- is awarded to the first appellant under abovesaid head. As regards the conventional damages a sum of Rs.5,000/- is awarded for transportation and a sum of Rs.5,000/- is awarded for funeral expenses. In the result, the appellants are entitled to a compensation of Rs.3,63,000/- with interest @7.5% per annum from the date of claim is apportioned hereunder. Dependency Compensation : Rs.3,08,000/- (3,500x12x11x2/3) Loss of love and affection to children : Rs. 40,000/- to daughter-in-law : Rs. 5,000/- Transportation : Rs. 5,000/- Funeral expenses : Rs. 5,000/- ------------------ Total Rs.3,63,000/- ------------------ 12. In view of the above, the finding with regard to negligence is reversed and that the appellants are entitled to compensation of Rs.3,63,000/- with interest @ 7.5% per annum from the date of claim. A sum of Rs.50,000/- has already been awarded under Section 140 of the Motor Vehicles Act and therefore, the respondent transport corporation is directed to deposit the balance amount of Rs.3,13,000/-with interest at the rate of 7:5% from the date of claim-till the date of realisation. Out the total award, the first appellant is entitled to withdraw a sum of Rs.1,50,000/- with proportionate accrued interest and costs. At the time of accident, the minor children were aged between 5 to 10 years. As they continue to remain as minors even today, the remaining amount is apportioned to them and is directed to be deposited in a nationalised bank proximate to the residence of the first appellant. She being the mother and guardian, is permitted to withdraw the future interest from their share once in three months till they attain majority. The interest which has already accrued on the enhanced compensation apportioned to the share of the minors is permitted to be withdrawn by the first appellant by making necessary application. 13. In the result, the appeal is allowed as indicated above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nb To The District Judge Motor Accident Claims Tribunal Cuddalore 1 cc To Mr.D.S.Thirumavalavan, Advocate, SR.23442 1 cc To Ms.B.Vijayalakshmi, Advocate, SR.23311 C.M.A.No.488 of 2010 MBS(CO) sra 18/08/2010