The Managing Director Vs v.Chitra

PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the Judgement and Decree passed in M.C.O.P.No.227 of 2017 dated 05.03.2024 on the file of the learned Motor Accident Claims Tribunal, Additional District and Sessions (Fast Track) Court, Palani, Dindigul District and allow the appeal.

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For Appellant : Mr.P.Veera Kathiravan, Additional Advocate General, Assisted by, Mr.S.C.Herold Singh For R-1 & R-2 : M/s.N.V.Subha Priya For R-3 : No appearance For R-4 : Mr.B.Anandan

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JUDGMENT

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(Judgment of the Court was made by L.VICTORIA GOWRI, J .)

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This Civil Miscellaneous Appeal is directed against the judgment and decree dated 05.03.2024 passed by the Motor Accident Claims Tribunal, Additional District and Sessions (Fast Track) Court, Palani, Dindigul District in M.C.O.P.No.227 of 2017, whereby the Tribunal awarded a total compensation of Rs.1,13,81,664/- (Rupees One Crore Thirteen Lakhs Eighty One Thousand Six Hundred and Sixty Four only) with interest at 7.5% per annum for the death of one T. Vivekananthan in a motor accident that occurred on 05.04.2010.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal, unless otherwise indicated.

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Factual background:

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The brief facts necessary for disposal of this appeal are as follows:

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On 05.04.2010, at about 9.00 p.m., the deceased, T. Vivekananthan, was travelling from Krishnagiri to Hosur in a Tata Indigo car bearing registration No.KA-04-ME-9145 on the National Highway. The car was driven by his driver slowly, carefully and cautiously towards Hosur. When the vehicle proceeded near Samalpallam ‘U’ turn, a bus belonging to the Tamil Nadu State Transport Corporation, bearing registration No.TN-29-N-1892, came from the opposite direction at a high speed, hit the central median, crossed over to the opposite lane and dashed against the Tata Indigo car. Due to the impact, the deceased sustained multiple injuries and died on the spot.

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At the time of accident, the deceased was stated to be aged about 45 years, hale and healthy, employed as Senior Zonal Manager in Coromandel International Limited, Bangalore, earning Rs.15,00,000/-

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(Rupees Fifteen Lakhs only) per annum and paying Rs.6,730/- (Rupees Six Thousand Seven Hundred and Thirty only) per month as income tax. The wife, daughter and mother of the deceased, claiming to be dependants, filed M.C.O.P.No.227 of 2017 under Section 166 of the Motor Vehicles Act, 1988, seeking a total compensation of Rs. 2,60,00,000/-, (Rupees Two Crores and Sixty Lakhs only) towards loss of dependency, loss of consortium, loss of love and affection, and other conventional heads.

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The first respondent before the learned Tribunal, namely, the driver of the Corporation bus, did not contest the proceedings and was set ex parte . The second respondent before the learned Tribunal, namely, the Tamil Nadu State Transport Corporation (hereinafter referred to as “the Corporation”), contested the claim petition.

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Pleadings before the tribunal:

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In the counter filed by the Corporation, it was contended that the petition was not maintainable in law or on facts and that the petitioners were not entitled to any compensation from the Corporation. The Corporation denied the age, income, occupation of the deceased,

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dependency of the petitioners and the nature of the accident as pleaded in the claim petition, and put the petitioners to strict proof of each and every allegation.

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It was the specific plea of the Corporation that while the bus bearing No.TN-29-N-1892 was proceeding from Hosur to Krishnagiri near Samalpallam Koot Road, a travels bus, in a rash manner, attempted to overtake and hit the front left side of the Corporation bus, causing the driver to get unnerved and the bus to run over the centre median and then collide with the car coming from the opposite direction. It was further pleaded that if the driver of the car bearing No.KA-04-ME-9145 had turned slightly towards the left side of the road, the accident could have been averted and hence the accident was due to the negligence of the driver of the travels bus and the driver of the car and not due to the negligence of the Corporation bus driver. The Corporation also contended that driver, owner and insurer of the Tata Indigo car and the travels bus were necessary parties and nonimpleadment rendered the claim petition bad for non-joinder of necessary parties.

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As regards quantum, the Corporation contended that the claim of Rs.2,60,00,000/- (Rupees Two Crores and Sixty Lakhs only) was highly exaggerated, arbitrary and unsustainable and that the petitioners had not produced sufficient documentary evidence to substantiate the alleged annual income of Rs.15,00,000/- (Rupees Fifteen Lakhs only) or the payment of income tax. It was also pleaded that the FIR was wrongly registered against the Corporation bus driver and that mere registration of FIR and filing of charge sheet would not be conclusive of negligence.

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During the pendency of the claim petition, the third petitioner, namely, the mother of the deceased, Thayarammal, died on 12.09.2019. Her daughter Hemalatha sought to come on record as legal heir and claimed her mother’s share of the compensation on the basis of a registered Will dated 04.12.2013. Initially, the learned Tribunal dismissed I.A.No.172 of 2018 filed by Hemalatha, but in CRP(MD) No. 1076 of 2021, this Court set aside the dismissal and directed that she be impleaded as a party in the claim petition, leaving open the question of her entitlement to be decided at trial.

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To substantiate their claim, the first petitioner was examined as P.W.1. She reiterated the averments in the claim petition regarding the manner of accident, negligence of the bus driver, age and income of the deceased and the extent of loss suffered by the family. She marked Exhibits P1 to P10. On the side of the petitioners, P.W.2, an authorised official from Coromandel International Limited, was examined to speak about the employment and salary particulars of the deceased, and Exhibits P14 to P16 were marked through him. Exhibits P11 to P13 were marked on consent.

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On the side of the Corporation, the bus driver was examined as R.W.1. He supported the version that a travel bus had hit the Corporation bus and that he was not negligent. No documents were marked through him. The impleaded fourth respondent, Hemalatha, was examined as R.W.2 and Exhibits R1 to R3, including the Will, were marked through her.

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Findings of the learned Tribunal:

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On a consideration of the pleadings, oral and documentary evidence, the learned Tribunal framed the following points for

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consideration:

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(i) Whether the accident occurred due to the rash and negligent driving of the driver of bus bearing Reg.No.TN-29-N-1892?

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(ii) Whether the petitioners are entitled to compensation; if so, what is the quantum and from whom?

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(iii) Whether the fourth respondent (impleaded legatee) is entitled to the share of the deceased third petitioner? and

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(iv) To what other reliefs?

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As regards negligence, the learned Tribunal took note of Ex.P1 (FIR), registered on the complaint of the Village Administrative Officer of Immittinaickenpalli Village, which clearly recorded that the bus belonging to the Corporation, driven in a rash and negligent manner, hit the centre median, crossed over to the opposite lane and dashed against the car. Ex.P3 (Inquest Report) and Ex.P5 (Charge Sheet) were also relied on, in which the Investigating Officer had categorically opined that the accident occurred due to the rash and negligent driving of the Corporation bus driver. The learned Tribunal found that there was no reference in any of these contemporaneous documents to the alleged involvement of a travels bus as claimed by the Corporation.

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The learned Tribunal recorded that P.W.1 was not an eyewitness to the accident and hence her testimony on the manner of accident was based on hearsay; however, the learned Tribunal rightly held that the FIR, Inquest Report and Charge Sheet, being contemporaneous official documents, could be relied upon as strong corroborative material. The learned Tribunal also noted that though the Corporation had pleaded the involvement of a travels bus, it did not examine any independent witness nor produce any documentary evidence to substantiate that plea. Therefore, it held that the accident had occurred solely due to the rash and negligent driving of the driver of the Corporation bus.

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As regards age and avocation, the learned Tribunal relied upon Ex.P6 (Higher Secondary Course Mark Sheet), which disclosed the date of birth of the deceased as 28.11.1966. On that basis, it held that the deceased was 43 years, 4 months and 6 days old as on the date of accident, i.e., 05.04.2010, and fixed the age as 43 years. This finding was recorded in preference to the age of 45 years stated in the claim petition.

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With respect to income, the learned Tribunal relied on Ex.P8 (salary slip for March 2010) and the testimony of P.W.2, the official from Coromandel International Limited, and held that the deceased was earning Rs.77,690/- (Rupees Seventy Seven Thousand Six Hundred and Ninety only) per month as net pay. Though the Corporation contended that no salary slips for other months and no prior year Income Tax Returns were produced, the learned Tribunal held that Ex.P8 salary slip and Form-16 coupled with oral evidence constituted sufficient proof of income for the purpose of determining loss of dependency.

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Having fixed the monthly income at Rs.77,690/- (Rupees Seventy Seven Thousand Six Hundred and Ninety only), the learned Tribunal applied the principles laid down in National Insurance Co. Ltd. v. Pranay Sethi and others¹ , and determined the annual income, added future prospects and applied the appropriate multiplier as under:

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Since the monthly income was Rs.77,690/- (Rupees Seventy Seven Thousand Six Hundred and Ninety only), the annual income would become Rs.77,690 x 12 = Rs.9,32,280/- (Rupees Nine Lakhs Thirty Two Thousand Two Hundred and Eighty only). Addition of 30% towards future prospects (as the deceased was a permanent employee

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aged below 50): Rs.2,79,684/- (Rupees Two Lakhs Seventy Nine Thousand Six Hundred and Eighty Four only). Hence, the total annual income including future prospects: Rs.12,11,964/- (Rupees Twelve Lakhs Eleven Thousand Nine Hundred and Sixty Four only)

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Since there were three dependants at the time of accident, the Tribunal deducted 1/3^rd towards personal and living expenses of the deceased, namely, 1/3^rd deduction: Rs.12,11,964 ÷ 3 = Rs.4,03,988/-

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Contribution to family: Rs.12,11,964 – Rs.4,03,988 = Rs. 8,07,976/-

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For the age of 43 years, the Tribunal applied the multiplier “14”

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as per Sarla Verma and others vs. Delhi Transport Corporation² and National Insurance Co. Ltd. v. Pranay Sethi and others³ , and arrived at the loss of dependency as Rs.8,07,976 x 14 = Rs. 1,13,11,664/-

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The learned Tribunal then awarded conventional amounts under the following heads and arrived at the total compensation as under, in tabulated form:

2 (2009) 6 SCC 121

3 (2017) 6 SCC 680

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S.No.	Description	Amount awarded by the Tribunal Rs.
1.	Loss of Dependency	Rs.1,13,11,664/-
2.	Funeral Expenses	Rs. 10,000/-
3.	Tranport Expenses	Rs. 10,000/-
4.	Consortium to the 1^stclaimant	Rs. 50,000/-
	Total	Rs.1,13,81,664/-

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The learned Tribunal held that the petitioners were entitled to a total compensation of Rs.1,13,81,664/- (Rupees One Crore Thirteen Lakhs Eighty One Thousand Six Hundred and Sixty Four only) with interest at 7.5% per annum from the date of petition till the date of deposit, together with costs. On liability, the learned Tribunal held that the bus involved in the accident belonged to the Corporation, that the driver was in the course of employment, and therefore, the Corporation was vicariously liable to satisfy the award.

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As regards the claim of the fourth respondent, Hemalatha, the learned Tribunal noted the directions issued by this Court in CRP(MD)

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No.1076 of 2021, dated 04.01.2022, especially the operative portion that if the Court holds that the mother (Thayarammal) was entitled to a share in the compensation, then the share would automatically go to the legatee under the Will. Holding that the mother of the deceased was a legal heir and entitled to a share in the award, the learned Tribunal held that her share had to be paid to Hemalatha based on the Will.

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Accordingly, the Tribunal apportioned the award as follows:

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(i) 1^st petitioner (wife): Rs.53,31,664/- + Rs.50,000/- (consortium)

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= Rs.53,81,664/-

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(ii) 2^nd petitioner (daughter): Rs.50,00,000/-

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(iii) 3^rd petitioner (mother) : Rs.10,00,000/-, to be paid to fourth respondent (Hemalatha) as legatee under Will dated 04.12.2013 and issued directions regarding mode of deposit and withdrawal, including fixed deposit directions.

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Grounds of appeal:

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In the memorandum of grounds of appeal, the Corporation has, inter alia , contended that the judgment and decree of the Tribunal

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are contrary to law, weight of evidence and probabilities of the case. The learned Tribunal failed to appreciate that the accident occurred due to the rash and negligent driving of a travels/Omni bus which hit the front left side of the Corporation bus, resulting in loss of control, and hence negligence ought not to have been fixed solely on the driver of the Corporation bus and contributory negligence ought to have been apportioned.

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The learned Tribunal erred in fixing the monthly net income of the deceased at Rs.77,690/- (Rupees Seventy Seven Thousand Six Hundred and Ninety only) solely on the basis of one pay slip for March 2010, without any material as to his income in other months or in earlier years. The learned Tribunal failed to consider that the basic pay was only Rs.26,985/- and that the special allowance was Rs.55,585/and that P.W.2 admitted in cross-examination that she did not know the salary of the deceased for other months, thereby rendering the proof of annual income inadequate.

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The Tribunal improperly relied on Form-16 for the assessment year 2010–2011, which was issued after the accident, and the

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petitioners did not file earlier Income Tax Returns to prove the real income of the deceased. There was inconsistency with regard to the age of the deceased, as the claim petition mentioned the age as 45 years, whereas the Tribunal fixed the age at 43 years based on school certificate. During the pendency of M.C.O.P.No.227 of 2017, the mother of the deceased died. The impleadment petition in I.A.No.172 of 2018 filed by the fifth respondent (present fourth respondent) and the subsequent CRP(MD) No.1076 of 2021 caused substantial delay, but the Corporation was nevertheless fastened with interest for the entire period. Hence, the interest for the period consumed in the CRP proceedings ought to have been waived.

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Despite the plea of involvement of a travels bus and contributory negligence, the petitioners did not take steps to implead the travels bus and its insurer, as well as the driver, owner and insurer of the car, which was fatal to the claim. The appellant reserved its right to raise additional grounds, if necessary.

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Submissions:

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The learned Additional Advocate General appearing for the

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appellant-Corporation reiterated the above grounds and contended that the learned Tribunal erred in ignoring the plea of contributory negligence and non-joinder of necessary parties; that no acceptable proof of real annual income was placed; that the learned Tribunal simply accepted the pay slip for one month and Form-16 filed after the accident; that the fixation of age and income were both flawed; and that the award of interest for the entire period, including the period consumed by the proceedings in CRP(MD) No.1076 of 2021, was unjust and liable to be interfered with.

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Per contra, the learned counsel for the first and second respondents/claimants supported the award and submitted that the learned Tribunal had correctly relied on FIR, Inquest Report and Charge Sheet, all of which consistently fixed negligence on the Corporation bus driver; that the Corporation had not produced any material to substantiate the involvement of a travels bus; that the income and age were correctly determined on the basis of documentary evidence and employer’s testimony; that the quantum was strictly in tune with the guidelines laid down in National Insurance Co. Ltd. v. Pranay Sethi and others⁴ and Sarla Verma and others vs. Delhi Transport

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Corporation

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Corporation⁵ , and that there was no ground whatsoever to interfere with the award or with the award of interest.

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The learned counsel for the fourth respondent adopted the submissions of the learned counsel for the claimants insofar as entitlement to the share of compensation is concerned and drew attention to this Court’s order in CRP(MD) No.1076 of 2021, emphasising that the learned Tribunal has only given effect to the directions contained therein.

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Points for consideration:

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In the light of the rival submissions and materials, the following points arise for consideration in this appeal:

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(i) Whether the finding of the learned Tribunal that the accident occurred solely due to the rash and negligent driving of the Corporation bus driver calls for interference?

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(ii) Whether the learned Tribunal was justified in determining the age and income of the deceased and in computing the compensation as tabulated in paragraph (20) supra?

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(iii) Whether the appellant-Corporation is entitled to waiver of interest for any specific period on the ground of alleged delay caused by CRP(MD) No.1076 of 2021?

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(iv) Whether the direction of the learned Tribunal recognising the entitlement of the fourth respondent (Hemalatha) to the share of the deceased third petitioner requires interference?

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(v) To what relief the appellant is entitled?

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Analysis:

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As noted by the learned Tribunal, P.W.1 is admittedly not an eyewitness to the accident. The case regarding the manner of accident and negligence has, therefore, been established primarily on the basis of documentary evidence. Ex.P1 (FIR) is based on the complaint lodged by the Village Administrative Officer, a neutral public official. The contents of Ex.P1 clearly narrate that the Corporation bus was driven in a rash and negligent manner, hit the central median, went across the road and collided head-on with the Tata Indigo car.

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Ex.P3 (Inquest Report) prepared by the Investigating Officer in

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the presence of Panchayatdars and Ex.P5 (Charge Sheet) also attribute the cause of the accident to the rash and negligent driving of the driver of the Corporation bus alone. There is absolutely no reference in these contemporaneous documents to the involvement of a travels bus in the manner now pleaded by the Corporation.

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R.W.1, the bus driver, in his oral evidence, attempted to introduce the theory that a travels bus, while overtaking, had hit the front left side of the Corporation bus, which allegedly caused the bus to lose control and cross the median. However, this plea is unsupported by any complaint lodged at the relevant point of time or any independent eyewitness testimony or any investigation record. No effort was made to produce the alleged travels bus driver or any other corroborative evidence.

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It is a settled principle that in a claim petition under Section 166 of the Motor Vehicles Act, 1988, the standard of proof is that of preponderance of probabilities and not proof beyond reasonable doubt. Contemporaneous police records like FIR, inquest and charge sheet are relevant and can be relied upon unless discredited. In the present case,

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there is nothing on record to discredit Exs.P1, P3 and P5. On the contrary, they are internally consistent and corroborative.

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In the absence of any convincing contrary material from the Corporation, we find no perversity or infirmity in the conclusion of the learned Tribunal that the accident occurred solely due to the rash and negligent driving of the driver of the bus bearing Reg.No.TN-29-N-1892 belonging to the appellant-Corporation. The plea of contributory negligence and involvement of a travels bus is clearly an afterthought and cannot be accepted.

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Accordingly, Point (i) is answered against the appellant.

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As regards age, Ex.P6 (Higher Secondary Certificate) is a primary document showing the date of birth of the deceased as 28.11.1966. The learned Tribunal has rightly calculated that as on the date of accident, 05.04.2010, the deceased was 43 years, 4 months and 6 days old and fixed the age as 43 years. The mere mention of 45 years in the claim petition is only a pleading discrepancy and cannot override a clear documentary proof. We find no reason to disturb this finding.

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As regards income, Ex.P8 (salary slip for March 2010) shows that the deceased received Rs.77,690/- as net pay for the said month. P.W.2, an authorised officer from Coromandel International Limited, has deposed in support of this salary slip. Though the Corporation contends that salary slips for other months, previous year Income Tax Returns, etc., were not produced, the salary slip for the month immediately preceding the accident, coupled with the employer’s oral evidence and Form-16, is sufficient to determine monthly income in a claim proceeding, where mathematical precision is not insisted upon.

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The contention that the basic pay was only Rs.26,985/- and the balance was “special allowance” does not by itself disqualify the entire amount from being treated as income for the purpose of computation of loss of dependency. The question in such cases is what the deceased was actually earning and contributing to the family at the time of death, not how the components of salary are labelled.

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The learned Tribunal has thereafter strictly followed the principles laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi and others⁶ and Sarla Verma

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6 (2017) 6 SCC 680

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and others vs. Delhi Transport Corporation⁷ in adding 30% towards future prospects for a permanent employee aged below 50, deducting 1/3rd towards personal expenses for three dependents, and applying the multiplier “14” for the age group of 41–45. The Tribunal has then prepared the computation in a clear tabular form, reproduced in paragraph (20) supra, and awarded the total compensation accordingly.

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On a careful scrutiny of the tabulation, we find that the determination of loss of dependency at Rs.1,13,11,664/- (Rupees One Crore Thirteen Lakhs Eleven Thousand Six Hundred and Sixty Four only) and the addition of conventional sums under funeral expenses, transport expenses and consortium, culminating in a total of Rs. 1,13,81,664/- (Rupees One Crore Thirteen Lakhs Eighty One Thousand Six Hundred and Sixty Four only), is entirely in consonance with the settled law and is neither excessive nor arbitrary. We, therefore, confirm the tabulated computation of the learned Tribunal.

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Accordingly, Point (ii) is answered against the appellant and in favour of the claimants.

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7 (2009) 6 SCC 121

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The appellant contends that because of the proceedings in I.A.No.172 of 2018 and CRP(MD) No.1076 of 2021, there was delay in disposal of the claim petition and hence the interest for that period ought to have been waived. We are unable to accept this contention. The proceedings for impleadment of a legal heir/legatee are part and parcel of the due adjudicatory process. That process cannot be treated as a delay attributable to the claimants so as to deprive them of interest on the compensation for the relevant period.

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The award of interest is compensatory in nature and is intended to recompense the claimants for the denial of use of the amount from the date of claim. In the absence of any specific direction by this Court in the earlier CRP proceedings limiting interest for any particular period, the Tribunal has rightly awarded interest at 7.5% per annum from the date of petition till date of deposit. We find no illegality in this.

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Accordingly, Point (iii) is answered against the appellant.

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In CRP(MD) No.1076 of 2021, this Court has clearly observed

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that the present fourth respondent sought impleadment not as a dependent but as a legatee of the deceased third petitioner and further directed that her right to receive compensation, if any, would depend upon the learned Tribunal’s finding as to whether the deceased mother was entitled to a share and the validity and effect of the Will executed in her favour.

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It is not in dispute that the mother of the deceased, Thayarammal, was a legal heir and entitled to a share in the compensation as a dependant parent. In view of the registered Will dated 04.12.2013 (Ex.R1) executed by Thayarammal, bequeathing her share in the claim amount to her daughter, Hemalatha, and in the light of the directions of this Court in CRP(MD) No.1076 of 2021, the Tribunal has rightly held that the share of the deceased third petitioner shall be paid to the fourth respondent. We find no ground to interfere with this part of the order.

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Accordingly, Point (iv) is answered in favour of the fourth respondent and against the appellant.

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In the result, this Civil Miscellaneous Appeal fails and the same is dismissed. The judgment and decree dated 05.03.2024 made in M.C.O.P.No.227 of 2017 by the learned Motor Accident Claims Tribunal, Additional District and Sessions (Fast Track) Court, Palani, Dindigul District, including the tabulated assessment of compensation and apportionment, are confirmed in toto.

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The appellant/Transport Corporation is directed to deposit the entire award amount of Rs.1,13,81,664/- (Rupees One Crore Thirteen Lakhs Eighty One Thousand Six Hundred and Sixty Four only) with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and with proportionate costs, after deducting the amount, if any, already deposited, to the credit of M.C.O.P.No.227 of 2017 on the file of the Motor Accident Claims Tribunal, Additional District and Sessions (Fast Track) Court, Palani, within a period of eight (8) weeks from the date of receipt of a copy of this judgment.

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On such deposit, the claimants and the fourth respondent shall be entitled to withdraw their respective shares as apportioned by the learned Tribunal, subject to the conditions and fixed deposit

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directions imposed by the learned Tribunal, which are left undisturbed. If any amount has already been deposited and withdrawn, the same shall be duly accounted for and adjusted. There shall be no order as to costs in this appeal. Consequently, the connected miscellaneous petition is closed.

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