Partly allowed

The Managing Director v. Nagamalli

Madras HC1 Dec 2015CMA/2257/2015

Case brief

AI extract

What is this about?

This appeal challenges the compensation awarded for a fatal road accident. The High Court quashed portions of the Tribunal's award due to evidence fabrication regarding the deceased's income and directed the Tribunal to initiate proceedings under Section 340 Cr.P.C. against the fabricating witnesses.

What did the court decide?

Compensation reduced to Rs. 23,25,000 along with interest; Regional Transport Tribunal directed to initiate inquiry under Section 340 Cr.P.C. against witnesses for false evidence.

The Managing Director Vs Nagamalli — Motor Accident Claims | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.12.2015

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CORAM

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THE HON'BLE MR. JUSTICE S.MANIKUMAR and THE HON'BLE MR. JUSTICE M.VENUGOPAL

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C.M.A. No.2257 of 2015 M.P.No.1 of 2015

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The Managing Director, Tamil Nadu State Transport Corporation KUM Ltd., Kumbakonam Railway Station New Road, Kumbakonam 612 001. ..Respondent/ Appellant vs

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1.Nagamalli 2.Anjalai 3.Panchanathan 4.The Registrar, Sathyabama University, Jeppiaar Nagar, Old Mamallapuram Road, Chennai-119. ..Petitioners/ Respondents

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(4^th Respondent impleaded suo-motu, vide order, dated 07.10.2015, in CMA.2257/15)

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Appeal against the fair and decretal order dated 22.12.2014 passed in M.C.O.P.No.2088 of 2013 by the IVth Judge, Small Causes Court, Motor Accidents Claims Tribunal, Chennai.

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For Appellant .. Mr.D.Venkatachalam For Respondents .. Mr.F.Terry Chellaraja JUDGMENT (Judgment of the Court was delivered by S.MANIKUMAR, J.)

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Being aggrieved by the finding, fixing negligence on the driver of the Tamil Nadu State Transport Corporation bus, bearing Registration No.TN 68 N 0328 and the quantum of compensation of Rs.29,77,000/-, with interest, at the rate of 7.5% per annum, from the date of claim, till deposit, awarded to

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the legal representatives of the deceased in M.C.O.P.No.2088 of 2013, dated 22.12.2014, on the file of the Motor Accident Claims Tribunal (IV Court of Small Causes), Chennai, the Tamil Nadu State Transport Corporation has filed this appeal.

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Material on record and the impugned judgment shows that on 27.01.2013, about 12.30 Hours, when Mr.Damodharan, was riding a two-wheeler, bearing Registration No.TN 19 H 4694, at ECR, Hajjiya Nagar, Pudupattinam, a Tamil Nadu State Transport Corporation bus, bearing Registration No.TN 68 N 0328, driven by its driver, in a rash and negligent manner, dashed against the two-wheeler, causing fatal injuries and he died on the same day. In this regard, a case in Cr.No.17 of 2013, has been registered against the driver of the bus, on the file of Kalpakkam Police Station, Kancheepuram District. Contending inter-alia that the deceased was working as a Plumber in Satyabama University and earned Rs.15,000/- per month, wife and parents, claimed compensation of Rs.40,00,000/-.

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The Tamil Nadu State Transport Corporation, Kumbakonam, in its counter affidavit, has denied the manner of accident. They submitted that the accident occurred only due to rash and negligent act of the rider of the Motorcyclist. Hence, they submitted that owner and insurer of the two-wheeler ought to have been impleaded as party respondents in the claim petition and for the abovesaid reasons, disputed negligence and consequently, their liability to pay compensation. Without prejudice to the above, the Corporation has disputed the age, avocation and income of the deceased and the compensation claimed under various heads.

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Before the Claims Tribunal, wife examined herself as PW.1 and reiterated the averments made in the claim petition. PW.2 is stated to have witnessed the accident. PW.3, Mr.Nagaraj, is stated to be the Manager in Sathyabama University, under whom, the deceased was claimed to have worked as Plumber. Documents, Ex.P1 – FIR, Ex.P2 – Postmortem Certificate, Ex.P3 – Charge Sheet, Ex.P4 – Sketch, Ex.P5 – Legal Heir Certificate, Ex.P6 – Pay Slip, Ex.P7 – Identity Card, Ex.P8 – Diploma Certificate, Ex.P9 – Educational Qualification Certificate, Ex.P10 – Sports Certificate, Ex.P11 – Original employment office registration card, Ex.P12 – Service Certificate and Ex.P13 – Identity Card of PW.2, have been marked, on behalf of the respondents/claimants. RW.1, is the driver of the Tamil Nadu State Transport Corporation bus. No document has been marked.

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Evaluating the pleadings and evidence, the Claims Tribunal, fixed negligence on the driver of the Tamil Nadu State Transport Corporation bus, bearing Registration No.TN 68 N 0328 and computed the overall compensation as Rs.29,77,000/-, with interest, at the rate of 7.5% per annum, from the date of claim,

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till realisation, as hereunder:

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Loss of Dependency : Rs.26,56,000/Loss of Consortium : Rs. 1,00,000/Loss of Love and Affection: Rs. 2,00,000/Funeral Expenses : Rs. 25,000/-------------------Total : Rs.29,77,000/-

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Assailing the correctness of the judgment, Mr.D.Venkatachalam, learned counsel appearing for the appellantTransport Corporation submitted that the Claims Tribunal ought not to have considered the evidence of PW.1, wife of the deceased, an interested witness. He further submitted that the evidence of PW.2, has not been corroborated by any other witness. According to him, mere registration of crime, against the driver of the Transport Corporation bus, is not sufficient to hold him negligent.

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It is also the contention of the learned counsel appearing for the appellant-Transport Corporation that the Claims Tribunal has failed to consider the evidence of RW.1, driver of the bus, who is competent to speak about the manner of accident, in proper perspective. It is his further contention that while overtaking the car, the motorcyclist dashed against the bus and thus, he had contributed to the accident.

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On the quantum of compensation, learned counsel appearing for the appellant-Transport Corporation submitted that in the absence of any legally acceptable evidence, the Claims Tribunal has committed a gross illegality in fixing the monthly income of the deceased and consequently, erred in computing the loss of contribution to the family, under the head, future prospects. It is also his contention that the Claims Tribunal ought to have made deduction towards income-tax. According to him, the award of Rs.2,00,000/- under the head, loss of love and affection, is excessive.

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When the matter came up for hearing, we called for the records from the file of the Motor Accident Claims Tribunal (IV Court of Small Causes), Chennai. Upon perusal of the same, we found that the documents, marked as Exs.P1 to P13, were xerox copies. The learned IV Judge, Small Causes Court, Chennai, has not made any endorsement, by recording that she has perused/compared the said documents, with the originals. As regards marking and admissibility of documents, the learned Judge, ought to have followed the procedure.

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Perusal of the materials on record further shows that the legal representatives of the deceased have submitted that prior to the accident, the deceased was a Plumber in Sathyabama University. PW.3, Mr.Nagaraj, has filed an affidavit, dated 14.11.2014, before the learned IV Judge, Court of Small Causes, Motor Accident Claims Tribunal, Chennai, stating that the deceased was employed under him, as a Plumber, on a monthly salary of Rs.15,750/-. However, the said Mr.Nagaraj, PW.3, has not produced any document, to prove that he was a Building Maintenance Manager in Sathyabama University. In the absence of filing any proof of employment of the said Mr.Nagaraj, PW.3, as a Building Maintenance Manager, as on 14.11.2014, the date on which, he has sworn to an affidavit and filed before the Claims Tribunal, wherein, he has stated that the monthly income of the deceased was Rs.15,750/- and upon perusal of Ex.P7 – Identity Card of the deceased, Mr.Damodaran, where, there is no date or signature of the Director and taking note of the fact that the period of employment of Damodharan, the deceased was conspicuously absent in Ex.P7 – Identity Card and for the purpose of ascertaining the fact, as to whether, the deceased was actually employed in the abovesaid University, at the relevant time and as to whether, Mr.Nagaraj, who had adduced evidence, was actually engaged as a Building Maintenance Manager, during the relevant period, this Court felt it appropriate and necessary, to suo-motu implead Sathyabama University and call for the details, for adjudication of the case. Accordingly, the University was impleaded, vide order, dated 07.10.2015 and records were directed to be produced.

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Responding to the directions, Dr.S.S.Rasu, Registrar, Sathyabama University, Jeppiar Nagar, Rajiv Gandhi Salai, Chennai-119, has filed an affidavit, dated 08.10.2015, wherein, he has stated that the deceased, Mr.P.Dhamotharan, was working in the University, from 2^nd January, 2009 to 26^th January, 2013 and he died, in the accident on 27^th January, 2013. According to the Registrar, the deceased has joined the University on 2^nd January, 2009 and his designation was Plumber. The Last Drawn Gross Salary was Rs.9,750/-. His salary was credited into his Indian Bank Savings Account No.8703396986. The salary details of the deceased, during his tenure in the University and Provident Fund Contribution from January, 2009, are appended in the form of Typed Set of papers, filed by the University.

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The Registrar, Sathyabama University, has further stated that a Demand Draft drawn on Indian Bank, Sathyabama University Branch (DD.No.968014, dated 23.02.2013), for Rs.48,250/- has been handed over to Mrs.D.Nagamalli, wife of the deceased, towards Gratuity and Final Settlement. He has further stated that the salary certificate and other details, submitted by Mr.Nagarajan, before the Court of Small Causes, Chennai, were totally false and without authority. He has also added that

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Mr.Nagarajan, is not an employee of the University and no such post as Building Maintenance Manager is available in the University. He has also stated that the University has not filed any documents, before the Small Causes Court and the University is not aware of Mr.Nagarajan, claimed to be Building Maintenance Manager in the University.

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On the above averments and the material documents, filed in the form of typed set of papers by the University, duly certified as true copies of the originals, Mr.F.Terry Chellaraja, learned counsel appearing for the claimants submitted that if any mistake was committed by PW.1 or PW.3, as the case may be, the same may be condoned by this Court. Without prejudice to the above, he submitted that considering the date of accident, a sum of Rs.15,000/-, fixed as monthly income for a Plumber, is not on the higher side. He also added that computation of compensation, by application of multiplier method and the quantum of compensation awarded under various heads, do not require any interference.

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The respondents have not chosen to file any counter affidavit, denying the averments made by the Registrar, Sathyabama University.

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

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On the finding, fixing negligence on the driver of the appellant-Transport Corporation bus, from the perusal of the award, it could be seen that the oral testimony of PW.1, is duly supported by PW.2, stated to be an eye-witness and duly corroborated by Ex.P1 – FIR, Ex.P2 – Postmortem Certificate, Ex.P3 – Charge Sheet and Ex.P4 – Sketch. Whereas, the evidence of RW.1, driver, is not supported with any independent witness. No document has also been marked.

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16. In N.K.V.Brother's Private Limited v. Kurmai reported in AIR 1980 SC 1354, while dealing with the scope of the enquiry in the Claims Tribunal, the Hon'ble Apex Court has held that,

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"Accident Claims Tribunal, must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plaint cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary

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control over the drivers in the matter of careful driving."

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In a decision in Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, High Court of Gauhati has held in Paragraph 6 as follows:

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"The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case."

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18. In Bimla Devi & Ors. Vs. Himachal RTC reported in 2009 (13) SCC 530, the Supreme Court held as follows:

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“It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.”

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19. It is well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required. In the absence of any concrete rebuttal evidence, the finding of the Tribunal regarding negligence cannot be termed as perverse or it is not a case of no evidence. Hence, the finding on negligence, is confirmed.

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As regards quantum of compensation, age has been determined, on the basis of the entries made in Ex.P9 – School Transfer Certificate and accordingly, multiplier has been applied. On the avocation that the deceased was a Plumber, Ex.P7 – Identity Card issued by the Director, Sathyabama University, has been marked. But there is no date, in the Identity Card. Ex.P6 – Pay Slip submitted before the Tribunal, is as follows:

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SATHYABAMA UNIVERSITY

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Salary Slip for January 2013 Name: P.DHAMODHARAN Department : PLUM Designation: PLUMBER PF Number: TN26881/2234 Basic Pay : 14,100.00 I.T : 0.00 DA: 900.00 P.T: 0.00 HRA: 750.00 P.F: 1,014.00 CCA: 0.00 LOP: 0.00 Loan: 0.00 ME/Phd: 0.00 Hostal: 0.00 Gross: 15,175.00 Amount: 1,014.00 Net Salary : 13,736.00 21. There is no date and signature in Ex.P6 – Salary Slip for the month of January, 2013. Gross salary mentioned in the said document filed by the claimants, is Rs.15,175/-. The learned IV Judge, Small Causes Court, Chennai, has committed a gross error, in marking Ex.P6, for the purpose of fixing the monthly income of the deceased. The said document does not even bear any seal of the University. The learned IV Judge, Small Causes Court, Chennai, has not even verified the originals of any documents. 22. Affidavit of Mr.Nagaraj, PW.3, dated 14.11.2014, is handwritten and the same is reproduced hereunder: “ehd; nkw;fzl Kfthpapy; trpj;J tUfpd;nwd;/ nkYk; ehd; rj;jpaghkh gy;fiy fHfj;jpy; Building Maintenance Manager Mf gzpg[hpe;J tUfpd;nwd;/ nkw;fz;l tpgj;J caph; ,He;j jpU/jhnkhjud; vd;gth;. Vdf;F fPH; jhd; Plumber Mf gzpg[hpe;J. mjd; K:yk; khjk; U:/15.750-=j;jpid rk;gskhf bgw;Wte;jhh;/ mth; gzpapy; jpwikrhsp rpwg;ghf bfhLj;j gzpia bra;J Kof;f Toath;/ nkYk; mth; jw;nghJ capUld; ,Ue;jpUe;jhy; gzp cah;t[ bgw;W. mjw;fhf U:/20.000-=j;jpw;F nky; rk;gskhf bgw;wpUg;ghh;/ 2/ nkYk; ehd; j';fspld; gzpe;J. bjhptpj;J bfhs;tJ ahbjdpy;. nkw;fz;l jpU/jhnkhjud; vd;gth;. ehd; gzpbra;a[k; rj;jpaghkh gy;fGfj;jpy; jhd; ntiy bra;jhh;/ nkYk; k/rh/6 rk;gs rhd;wpjH;. kw;Wk; k/rh/7 Employer ID Card v';fSila gy;fiyfHfj;jpy; tH';fgl;lJ jhd;/ mjd;go mth; U:/15.750-=j;jpid rk;gskhf bgw;Wte;jhh; vd;gij fzk; ePjpgp mth;fspld; gzpe;J bjhptpj;J bfhs;fpnwd;/”

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Mr.Nagaraj, PW.3, has also adduced oral evidence, during trial. Though he has not produced any document to prove that he was working as a Building Maintenance Manager in Sathyabama University, the Tribunal has simply accepted his evidence. He has also stated that the deceased was working as a Plumber, under him and earned Rs.15,750/-, for which, Ex.P6 – Salary Slip, has been produced. He has denied the suggestion that false evidence has been adduced. In Ex.P6, Salary Slip, submitted by the claimants, the gross pay has been mentioned as Rs.15,175/- and after deducting a sum of Rs.1,014/-, the net pay has been arrived at Rs.13,736/-.

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In the Salary Certificate, dated 13.10.2015, issued by the Registrar, Sathyabama University, it is certified that the deceased, Mr.P.Dhamotharan, was working in the University from 2^nd January, 2009 to 26^th January, 2013 and his designation during his tenure was “Plumber”. Details of his last drawn Gross Salary, from November, 2012 to January, 2013, are given, as hereunder:

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PAR	TICULARS	NOVEMBER, 2012	DECEMBER, 2012	JANUARY, 2013
GROSS SALAR	Y	9,750.00	9,750.00	9,750.00
LESS: LOSS	OF PAY	NIL	NIL	1,300.00
LESS: CO	NTRIBUTION	TO 1,170.00	1,170.00	1,014.00
PROVIDENT F	UND
NET SALARY		8,580.00	8,580.00	7,436.00

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As per the affidavit of the Registrar, Sathyabama University, PW.3, Mr.Nagaraj, was not employed in the University. There is no such post in the University. Salary Certificate and other details, submitted by PW.3, Mr.Nagaraj, before the learned IV Judge, Small Causes Court, Motor Accident Claims Tribunal, Chennai, are said to be totally false and without authority. As per the version of the Registrar, Sathyabama University, University is not aware of such person and the documents. As observed earlier, the above averments and the material documents have not been disputed by the claimants. Mr.F.Terry Chellaraja, has only sought for condonation, on the premise, whatever done by PW.1 or PW.3, as the case may be, is only a mistake.

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Thus, from the averments and documents produced by the University, it is evident that PW.1, Nagamalli and PW.3, Nagaraj, have fabricated Ex.P6 and adduced false evidence, before the Tribunal, claiming that the deceased earned Rs.15,175/- as his monthly income. PW.3, Nagaraj, not employed in Sathyabama University, has adduced false evidence, posing

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himself as Building Maintenance Manager in the said University and has marked Ex.P6 – Salary Slip, stated supra. Sathyabama University has filed an affidavit, through its Registrar, stating that the abovesaid document is not genuine and false.

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Thus, it is evident that for the purpose of claiming higher compensation, PW.1, Nagamalli, has adduced evidence, for which, PW.3, Mr.Nagaraj, has lent his active support, posing himself as a Building Maintenance Manager, which post does not exist in the University. The learned IV Judge, Small Causes Court, Motor Accident Claims Tribunal, Chennai, has failed to exercise her care and caution, in marking Ex.P6 – Salary Slip, based on which, income has been determined. Prima facie, we are of the opinion that the Motor Accident Claims Tribunal ought to have conducted a preliminary enquiry, under Section 340 Cr.P.C., and taken appropriate action.

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Section 340 of the Criminal Procedure Code, deals with procedure in cases mentioned in section 195 and the same reads as follows:

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“(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—

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(a) record a finding to that effect;

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(b) make a complaint thereof in writing;

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(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and

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(e) bind over any person to appear and give evidence before such Magistrate.

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(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.

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(3) A complaint made under this section shall be signed,—

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(b) in any other case, by the presiding officer of the Court. (4) In this section, "Court" has the same meaning as in section 195.”

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Now that the gross income of the deceased, reflected as per the Salary Certificate, dated 13.10.2015, issued by Sathyabama University, is only Rs.9,750/-, the same is taken for the purpose of computing the loss of dependency. The Tribunal has added 30% under the head, future prospects. However, taking note of the age of the deceased, 27 years, this Court is inclined to add 50%, as per the decision of this Court in M/s.Royal Sundaram Alliance Insurance Co. Ltd., v. T.Vennila [C.M.A.No.3273 of 2014, dated 13.10.2015], which comes to Rs.14,625/-. Applying '17' multiplier, applicable to the age of the deceased and after deducting 1/3^rd towards the personal and living expenses of the deceased, loss of dependency works out to Rs.19,89,000/- (Rs.14,625 x 12 x 17 x 2/3). As the annual income does not exceed the ceiling limit for the year 2013, the submission to the contra, is rejected.

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An award of Rs.1,00,000/- under the head, loss of consortium, can be justified in terms of the decision in Rajesh and Others v. Rajbit Singh and Others reported in 2013 (2) TNMAC 55 (SC). A sum of Rs.2,00,000/-, awarded under the head, loss of love and affection and Rs.25,000/- awarded under the head, Funeral Expenses, are reasonable. A sum of Rs.10,000/- can be added towards transportation expenses. Rs.1,000/- is also awarded towards damages to clothes and articles.

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Hence, after re-working, the total compensation payable is Rs.23,25,000/-, as hereunder:

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Contention of Mr.F.Terry Chellaraja, learned counsel appearing for the appellants that what was done by PW.1 or PW.3, as the case may be, is only a mistake and that the same be condoned, cannot be accepted. As the Tribunal has failed to

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advert to the aspects, in terms of Section 340 Cr.P.C., and since a preliminary enquiry is required to be conducted by the Tribunal, in accordance with the procedure, contemplated in Section 340 Cr.P.C., before referring the matter to the Court of competent Criminal jurisdiction, while re-assessing the quantum of compensation and reducing the same in the appeal, we direct the learned IVth Judge, Small Causes Court, Motor Accidents Claims Tribunal, Chennai, to act in accordance with the provisions of Section 340 Cr.P.C. It is made clear that the Court should rectify the mistake, in future.

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For the reasons, stated supra, the Civil Miscellaneous Appeal is partly allowed, by reducing the quantum of compensation. The appellant-Transport Corporation is directed to deposit the amount, now determined by this Court, with proportionate accrued interest and costs, after deducting the statutory deposit to the credit of M.C.O.P.No.2088 of 2013, on the file of the IVth Judge, Small Causes Court, Motor Accidents Claims Tribunal, Chennai, within a period of four (4) weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also closed.

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-s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
skm
To
The Motor Accidents Claims Tribunal
( IVth Judge, Small Causes Court), Chennai.
copy to
The Managing Director,
Tamil Nadu State Transport Corporation KUM Ltd.,
Kumbakonam Railway Station New Road,
Kumbakonam 612 001.

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C.M.A. No.2257 of 2015

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aa05/01/2016

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The Managing Director v. Nagamalli

Case brief

What is this about?

What did the court decide?

The Managing Director v. Nagamalli

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

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