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Judgment
Swamikkannu, J.—It is argued on behalf of the appellants herein that the sum of Rs. 10,000/- granted by the Tribunal as damages to the
claimants for mental agony, pain and suffering in the facts and circumstances of the case is not the one contemplated by law. In support of his
contention, the decision in Perumal v. Ellusamy Reddiar 1974 ACJ 182 (Mad) is relied on by the learned counsel for the appellants. Mr. V.
Sairam, the learned counsel for respondents 1 to 5 herein, refers to the decision in Smt. Imaman Vs. Union of India (UOI), in support of his
argument that the sum of Rs. 10,000/-granted by the Tribunal as damages for mental agony, pain and suffering in the facts and circumstances of the
case is correct and in accordance with law.
This appeal has been preferred in the instant case before us, by respondents 2 and 3 before the Tribunal. The claimants are respondents 1 to 5
herein. The first respondent before the Tribunal is the sixth respondent in this appeal.
The case of the third respondent Insurance Company namely second appellant herein, as seen from the counter filed before the Tribunal is to the
following effect: --
The allegations regarding the manner of accident as stated in the petition are not true. The occurrence was at about 6 p.m. The place of accident is
a very busy junction, full of shops on both sides. The first respondent was not driving his auto-rickshaw in a rash and negligent manner. Only the
deceased Thothathri had all of a sudden crossed the road without noticing the vehicle and fell back on the auto-rickshaw and sustained injuries.
The auto-rickshaw was only driven at a slow speed by the first respondent and there was no passenger in the auto-rickshaw at that time and it was
going on its proper side in anticipation of customers. Therefore, the accident was not due to any rashness or negligence on the part of the first
respondent/driver of the auto-rickshaw. It was only due to the contributory negligence of the deceased Thothatri who was an aged man without
proper eye sight.
In the instant case before us, it is seen that the Tribunal came to the conclusion that the occurrence was only due to rash and negligent driving of
the auto-rickshaw by its driver. ''It is also observed by the Tribunal that a sum of Rs. 5,000/- as damages for loss of gratuitous services and
another sum of Rs. 10,000/- as damages for mental agony, pain and suffering, totalling in all Rs. 15,000/-as damages to the claimants can be
awarded. It is contended by Mr. K. S. Narasimhan, learned counsel for the appellants Insurance Company that there cannot be any damages
awarded for mental agony, pain and suffering so far as the claimants/respondents 1 to 5 herein are concerned, especially when the death in the
instant case is the death of the father of the claimants. It is common ground that the deceased Thothathri is the son of A. Samu Iyer, aged about 73
years and residing at No. 6, Joseph Church Street, Gnanavolivupuram, Madurai 625016. It is also common ground that the deceased Thothathri
had been buried as a destitute. Ex. P. I is the telegram sent by one Sarma to the second respondent herein. Ex, P. 2 is the copy of the telegram
sent by the second respondent herein to Muralidharan. Ex. P. 3 is the telegram sent by Samapathkumar to the second respondent herein. It is the
evidence of P. W. 1 Viswanthan second respondent herein that they were searching for their father Thothathri for two days and only on 31-1-
1980 they came to know about the death of their father in the gruesome accident from the police and then the original under Ex. P. 2 was given Ex.
P. 5 is the admission chit of the deceased Thothathri in Madurai Government Rajaji Hospital who was admitted on 28-1-1980 at about 7 p.m.,
and who died on 29-1-1980 and in Ex. P. 5 it is mentioned as ""no relations''. Ex. P. 6 is the receipt issued by Madurari Corporation which would
go to show that the deceased Thothathri was buried as a destitute. Ex. P. 4 is the photograph of the deceased Thothathri taken by the police after
his death in the accident. A perusal of Ex. P. 4 photograph of the deceased Thothathri clearly shows that he was hale and healthy and he was a
man of religious instinct, in that even on his dead body, sacred thread is seen. It is also seen that blood had come out of his mouth and through his
ears and was wetting the place of accident. The deceased seems to have been leading a life of serene nature, in that he had grown some beard,
which shows that he is a man following the strict principles of religion. The deceased might have been aged about 50 or 55 years at the time of his
death, as seen from Ex. P. 4 photograph. No post-mortem certificate is available as an exhibit in instant case before us. Ex. P. 5 admission chit of
the deceased does not show the age of the deceased Thothathri, Ex. P. 9 disclosed that the deceased is an ''anathi''. In Ex. P. 6 receipt issued by
the graveyard authority of Madurai Corporation, the deceased was stated to be as 76 years old. We do not know how this age 76 has been
incorporated in Ex. P. 6. It is also seen from Ex. P. 6 that a case had been registered in Crime No. 7 of 1980 by the Town Traffic Wing of
Madurai police. It is also seen that a scavenger bearing No. 15, by name Kasi, had cremated the dead body of the deceased Thothathri --
whether it was burnt or buried is not clear from the contents of Ex. P. 6. It is only under such circumstances the dead body of a man of religious
bent of mind and belonging to a respectable family had been disposed of in the instant case before us. Certainly this would have hurt the feelings of
the sons and daughters as well as the relatives of the deceased. As such, whether such a kind of feeling which goes to the root of the matter can be
the subject-matter of compensation is the only question that has to be decided in this appeal by this Court. It is clear from the evidence available on
record, both oral and documentary, that the deceased had been hit by the auto-rickshaw driver who is the sixth respondent herein while he was
driving the auto-rickshaw in a rash and negligent manner, as found by the Tribunal itself, and his dead body had been disposed of as if he had no
relatives or no responsible off springs or when he is entitled to be buried with all honours as per the customs and religion. Therefore, there is
nothing artificial or out of the way for the claimants/ respondents 1 to 5 herein aggrieved over the disposal of the dead body of their father as an
''anathi'', as indicated in Ex.P. 6.
It is also in the evidence of P. W. 1 that they were searching for their father for two days and only on 31-1-1980 they came to know about the
death of their father in the gruesome motor accident from the police and then the original order Ex. P. 2 was given by the second respondent
herein. P. W. 2 Venkataraman, who is an independent witness, would also depose in his evidence that he knew the husband of the fourth
respondent herein and has identified Ex. P. 4 photograph as that of the deceased Thothathri who was hit by the auto-rickshaw and sustained
injuries and later on died in the hospital. P. W. 1 is working as a Headmaster and he is a respectable witness. Under the circumstances, the
Tribunal is perfectly correct in having observed that
It is too much for the respondents to state that the deceased Thothathri is not identified and the petitioners have not proved their case that the
deceased Thothathri was their father.
The evidence of P. W. 2, and the documents Ex. P. 1, Ex. P. 2, Ex. P. 3 and Ex. P. 5 and Ex. P. 6 lead us to the conclusion that respondents 1 to
5 herein came to know about the death of their father Thothathri only on 31-1-1980 and prior to that their father was buried as a destitute. It is
relevant in this connection to note that what would have been the feelings of the persons who are belonging to Brahmin community, whose normal
disposal of the dead body is burning the dead body in the burning ghat? The contents of Ex. P. 6 show that the dead body of the deceased was
buried, which itself goes to the root of the communal feelings. Under the circumstances, the Tribunal is perfectly correct in having fixed Rs.
10,000/- as damages for mental agony, pain and suffering in the circumstances of the case for the claimants/respondents 1 to 5 herein. It is not as if
that mental agony should be there with respect to the spouse of the deceased only. It can well be with the claimants, namely the sons and daughters
of the deceased whose feelings had been hurt to a very large extent in the instant case before us and that too, when the deceased had been so
religious, as could be seen from Ex. P. 4 photograph. In this case, the observation of the Tribunal in its award can never be said to be forcible
without basis. This Court appreciates the observation of the Tribunal.
The decision in 1973 TNLJ 511 and the decision in Perumal v. Ellusamy Reddiar 1974 ACJ 182 (Mad), are referred to by the learned counsel
for the Insurance Company/appellants herein in support of the contention that there cannot be any damages to the claimants for their mental agony.
The facts of those cases are not having similar facts as in the instant case before us. As such the decisions cited by he learned counsel for the
appellants herein are not followed. Similarly, the decision in Smt. Imaman Vs. Union of India (UOI), , cited on behalf of the claimants/respondents
1 to 5 herein also not applicable to the facts of the instant case before us. Each case has to be decided on the facts and circumstances available in
the evidence of that particular case. The compensation of Rs. 10,000/-awarded by the Tribunal for mental agony and pain and suffering to the
claimants/respondents 1 to 5 herein cannot be said to be adequate at all. Anyhow, this Court confirms the said amount of compensation awarded
by the Tribunal to the claimants/respondents 1 to 5 herein who are no other than the sons and daughters of the deceased Thothathri. No other
point has been raised by the learned counsel for the appellants. Under these circumstances, this Court finds no substance in the contentions raised
on behalf of the appellants, and as such, this Court confirms the award of the Tribunal.
In the result, the appeal is dismissed with costs.