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Judgment
S. Palanivelu, J.—This is a case, where two vehicles, namely, a van and a lorry, collided head on, whereby two drivers of the said vehicles
breathed their last. Pursuant to the said accident, legal heirs of the lorry driver preferred an M.C.O.P. on the file Motor Accident Claims Tribunal,
Chengalpattu, wherein, as against a claim of Rs. 4,00,000/-, a sum of Rs. 3,36,000/- was awarded by the Tribunal. Aggrieved over the said
award, owner and insurer of the van have filed this appeal.
The ill-fated accident occurred on 03.05.1992 at about 00.15 hours, near S.R.M.College on G.S.T.Road. When the deceased Baskar was
driving a lorry, bearing registration No. TMX 793, a van, bearing registration No. TN 04 5996, came in the opposite direction and collided head
on with the lorry, resulting in the deaths of both the drivers. Fifth respondent is the owner and sixth respondent is the insurer of the lorry. Similarly,
first appellant is the owner and second appellant is the insurer of the van. Owners of both the vehicles did not project their appearances before the
Tribunal, by remaining ex parte.
In the counter of second appellant, who is the insurer of the van, it was alleged that the driver of the lorry was negligent at the time of accident,
as he drove the vehicle in a rash and negligent manner, and, therefore, the driver of the van could not at all be fastened with any liability.
Per contra, fourth respondent in original petition had put forth a plea that the driver of the van was at fault and that the driver of the lorry was
driving the vehicle carefully, following the traffic rules and further the legal representatives of the driver of the van filed MCOP No. 618 of 1992 on
the file of Additional Sub-Court, Chengalpattu, for compensation, in which it was held that both the drivers were at fault.
Even though the learned Counsel for the appellants canvasses the said point before this Court, he has not produced any document to that effect.
Neither the Tribunal nor this Court had an occasion to verify the above said point, by perusing the relevant copy of order, allegedly passed by the
Tribunal.
Coming to the aspect of oral evidence, it transpires that both the drivers lost their lives. P.W.2 was a person, travelling in the lorry as a Load-
man along with the deceased Baskar, who stated in definite terms that the van came in a hectic speed and dashed against the lorry. In the cross-
examination, he denied a suggestion that since the van was comparatively smaller than lorry, it could not have the much impact of having caused the
death of the driver of the lorry. Insurer of the van had not adduced any oral evidence nor produced any document to establish that both the drivers
were at fault at the time of accident. In the absence of such evidentiary background, it is difficult to arrive at a conclusion that both the drivers were
negligent.
Mrs.Hema Sampath, learned Senior Counsel for the respondents, has drawn the attention of this Court, by vehemently arguing about the failure
on the part of the appellants in adducing relevant and proper evidence before the Tribunal. She also relied upon a decision of a learned single
Judge of this Court in S.A. Kuppammal Vs. Parthasarathy @ Govindaswamy (died) and others, , wherein various judgments of Hon''ble Supreme
Court were followed, for a proposition of law that a judgment, not inter-parties, is inadmissible in evidence. The relevant portion of the Supreme
Court ruling is as follows:
15... In State of Bihar Vs. Radha Krishna Singh and Others, , the Supreme Court had an occasion to consider the position and declared the law in
the following terms:
A judgment in rem e.g., judgments or orders passed in admiralty, probate proceedings etc., would always be admissible irrespective of whether
they are inter parties or not. A judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to ''who
the parties were and what was the decree passed and'' the properties which were the subject matter of the suit. The recitals in a judgment like
findings given in appreciation of evidence made or arguments or generalogy referred in the judgment would be wholly inadmissible in a case where
neither the plaintiff nor the defendant were parties.
The said view was expressed in respect of matter relating to decision rendered in regular civil proceedings.
It is not known whether the claimants/respondents herein, namely, legal representatives of the deceased Baskar, were parties to the proceedings
in M.C.O.P.No.618 of 1992. Further, since a copy of the award is not available, it is not possible at all to fasten liability on the deceased driver
Baskar also.
Learned Counsel for the appellants produced a copy of an unreported judgment of this Court passed by a learned single Judge in
C.M.A.No.514 of 1997, in which it is held thus:
The Tribunal, based on the evidence of P.W.2, the driver of the tanker lorry, which came behind the mini lorry involved in the accident, found
that the bus driver was responsible for the accident. But, in view of the fact that another Court of law has decided that both the drivers of the
vehicles are responsible for the accident and hence, both insurance companies are equally liable for payment of compensation, as evident from the
evidence of R.W.2, the administration officer of the appellant/insurance company, and as had been repeatedly held by the Apex Court that there
cannot be different findings by different Courts in respect of one set of facts, I am of the opinion that the Tribunal has failed to appreciate the
evidence in proper manner.
Hence, considering the facts and circumstances of the case, I am of the opinion that the appellants and respondents 4 and 5, owner and insurer
of the mini lorry, are equally liable for payment of compensation and they shall borne 50% of the compensation awarded by the Tribunal.
In the above said case, dealt with by the learned single Judge, it appears that the insurance company had examined the administrative officer as
R.W.2 and, on the strength of his oral testimony, the matter was decided and that aspect was considered by the learned single Judge. But, the
circumstances in this case are different. Here, the appellants did not examine anybody, in order to unearth any fact. So, the observations contained
in the above said decision cannot be made use of by the appellants.
Based on the oral evidence of P.W.2, which plays a vital role in this case, and also considering the other circumstances, the inferential finding
would be, that the driver of the van was at fault at the time of accident.
Adverting to the aspect with regard to quantum of compensation awarded by the Tribunal, Mrs.Hema Sampath, learned Senior Counsel for
the respondents/claimants, would strenuously contend that even though there is neither a cross-objection nor an appeal on behalf of the claimants
for enhancement of compensation, the settled legal principles pave the way for this Court to award an enhanced compensation, which would meet
the interest of justice.
Claim in the petition was Rs. 4,00,000/-, whereas the award by the Tribunal was Rs. 3,36,000/-
P.W.1, who is the wife of the deceased Baskar, deposed in her evidence that her husband was aged 30 years and he was getting a salary of
Rs. 3,000/- per month. In cross-examination, she stated that her husband was getting monthly wages of Rs. 1,500/- apart from the receipt of Rs.
1,500/- per month, towards batta.
Considering the above said aspect, the Tribunal fixed dependency at Rs. 1,750/- per month and annual contribution at Rs. 21,000/-. Since the
deceased was aged 32 years at the time of accident as per post-mortem certificate, multiplier ''16'' was adopted and thereby a sum of Rs.
3,36,000/- was fixed, towards total loss of income. However, the Tribunal miserably failed to annex the compensation, to be awarded to the
claimants under other heads, which resulted in failure of justice. Towards the heads ''loss of consortium'', ''loss of love and affection'', ''loss of
estate'' and ''funeral expenses'', the Tribunal did not award anything, which will, definitely, be a loss to the family of the deceased.
At this juncture, learned Senior Counsel for the respondents/claimants, would contend that though no cross-objection or appeal is filed by the
claimants, there is no embargo for the Court to award enhanced compensation under the above said heads. It is also contended that whether it is
Tribunal or appellate authority, there is no restriction to the amount of compensation, claimed in the claim petition, and it may exceed. For this
proposition of law, the learned Senior Counsel placed reliance upon a Full Bench decision of the Hon''ble Supreme Court in Nagappa Vs.
Gurudayal Singh and Others, , the relevant portion of which is as under:
Firstly, under the provisions of Motor Vehicles Act,1988, there is no restriction that compensation could be awarded only up to the amount
claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to
get more compensation than claimed, the Tribunal may pass such award. Only embargo is it should be ''Just'' compensation, that is to say, it
should be neither arbitrary, fanciful nor unjustifiable from the evidence....
In view of the dictum laid down in the above said decision, the quantum of compensation, to be awarded by the Tribunal/Court, must be ''just
compensation''. The figure arrived at by the Tribunal in this case does not reflect the term ''just compensation''.
Learned Senior Counsel for the respondents/claimants also garnered support from a decision of a learned single Judge of this Court in
Managing Director, Thanthai Periyar Transport Corporation, Villupuram, v. Sundari Ammal and Ors. 1999 (3) L.W.182, wherein, following the
ratio laid down in a decision of the Hon''ble Supreme Court, it was decided that even though there was no cross-objection, in order to render
justice to the parties, enhancement of compensation may be ordered. The relevant portion of the said judgment is as follows:
As pointed out by the Apex Court in The State of Punjab and Others Vs. Bakshish Singh, , the reading of the provision would make it clear
that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree as
sought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be
exercised has not filed any appeal or cross-objection.
Following the principles formulated in the above said decision and also considering the peculiar circumstances of this case, I feel, it is just and
necessary to make the award as ''just compensation'', directing the appellants for payment of compensation under various heads. Since the
Tribunal ignored the grant of any compensation towards ''loss of consortium'', I feel it appropriate to award a sum of Rs. 10,000/- under the said
head. Further, on account of ''loss of love and affection'', a sum of Rs. 10,000/- may be made available to the claimants. For ''loss of estate'' , a
sum of Rs. 5,000/- and for ''funeral expenses'', a sum of Rs. 2,000/- may also be awarded.
Thus, award of the Tribunal is enhanced by Rs. 27,000/- to Rs. 3,63,000/-. As such, the appellants are directed to deposit the enhanced
amount with the Tribunal, with interest at 7.5% per annum from the date of claim petition till the date of deposit, within a period of eight weeks
from the date of receipt of a copy of this order. Out of the enhanced amount, first respondent is entitled to Rs. 12,000/- and respondents 2 to 4 to
Rs. 5,000/- each. On other aspects, award of the Tribunal stands.
With the above modification of the award, this appeal is dismissed. No costs.