Pallavan Transport Corporation Ltd. vs Gowri and Others

Ramanujam, J.—On 25th January, 1972, at about 9 a.m. one T.V. Subramaniam got into a bus belonging to Pallavan Transport

Corporation Ltd., at the bus stop near Maharaja Talkies, T.H. Road, Madras and as there was no sufficient space inside the bus, he travelled

standing on the footboard of the bus. The bus after going to a certain distance went to the extreme left side of the road to avoid a lorry coming in

the opposite direction and as in that process the bus went very close to a telephone post, Subramaniam was hit by the telephone post and

sustained severe injuries as a result of which he died after two days in the General Hospital. His wife and six children filed a claim petition before

the Motor Accidents Claims Tribunal, Madras, for a compensation of Rs. 40,000/- on the ground that the accident was caused during the rash and

negligent driving of the bus and that as a result of the accident which resulted in the death of the said Subramaniam, they have suffered loss of

pecuniary benefit and also loss under other heads, such as, pain and suffering, etc. The said claim was resisted by the Pallavan Transport

Corporation Ltd., Madras, by putting the claimants to strict proof of their case in their claim petition. The Corporation has also stated that the claim

in any event is excessive.

The following two points arose for consideration before the Tribunal--

(1) Whether the accident resulting in the death of Subramaniam was as a result of rash and negligent driving of the bus by its driver?

(2) What, if any, is the compensation to which the Petitioners-claimants would be entitled ?

The Tribunal on a due consideration of the evidence before it adduced by both parties held the first point in favour of the claimants, as it took

the view that the accident was exclusively due to rash and negligent driving of the bus by the driver. On the question of quantum of compensation,

the Tribunal held that a sum of Rs. 15,000/- will be the loss of pecuniary benefit to the family and Rs. 5,000/- will be the compensation for pain

and suffering. Thus, the Tribunal on the aggregate gave a sum of Rs. 20,000/- as compensation as against a sum of Rs. 40,000/- claimed by the

claimants.

Aggrieved against the findings of the Tribunal on both the above questions, the Pallavan Transport Corporation has come up in appeal before

this Court. The claimants, who are Respondents in the appeal, have filed a memorandum of cross-objections, seeking enhanced compensation of

Rs. 40,000/-.

In this appeal, the first question to be considered is as to whether the accident resulting in the death of Subramaniam was due to rash and

negligent driving of the driver of the bus as alleged by the claimants or it was due to Subramaniam contributing his negligence by travelling on the

foot board of the bus.

The theory of contributory negligence on the part of the deceased was not specifically put forward before the Tribunal and the Tribunal had not

considered that aspect of the case. This plea of contributory negligence is however vehemently and seriously argued by the learned Counsel for the

Appellant before us. After due consideration of the matter, we are of the view, that the plea of contributory negligence cannot be taken to have

been duly established in the case. According to the learned Counsel for the Appellant the deceased having travelled in the bus by standing on the

foot board which is not authorised, he should be taken to have contributed to the accident by his negligence. There is no dispute in this case that

the deceased stood on the foot board of the bus at the time of the accident and it is because he was standing on the foot board, he was hit by the

telephone post which was on the left side of the road and died later. The question is whether from those admitted facts, the deceased should be

taken to have contributed by his negligence to the accident in question as contended for by the learned Counsel for the Appellant.

Even if the deceased had travelled on the foot board of the bus, he cannot be taken to have contributed to the accident by his negligence. The

deceased can be taken to have contributed to the accident by his negligence only if the accident had occurred as a result of his footboard travel. In

this case, it cannot be said that merely because of the footboard travel by the deceased, the accident occurred. The accident had occurred only

because the driver of the bus had swerved the bus to the left to avoid the lorry coming in the opposite direction and went to the extreme left side of

the road when the deceased was hit by the post. But for his swerving to the left rashly and negligently the accident could not have occurred. The

accident cannot be taken to have occurred merely because the deceased was travelling by standing on the footboard. We are in entire agreement

with the view taken by the Tribunal in this regard, that even assuming that there were two buses on his right side and that a lorry was coming from

the opposite direction, the driver could have stopped the bus and allowed the lorry to pass before proceeding further. Instead of doing that he

swerved to the extreme left, went very close to the telephone post and consequently the deceased was hit by the post. This shows that the driver

was driving the vehicle in a rash and negligent manner, especially when there was a large number of passengers in the bus and some of them

standing on the footboard. On the admitted facts of this case, we are not inclined to hold that by merely standing on the foot board the deceased

had contributed to the accident by his negligence. Even though the deceased has travelled by standing on the foot board, the accident could have

been averted, if the driver had driven the bus without rashness or negligence. We are, therefore, of the view that the plea of contributory negligence

on the part of the deceased has not been established in this case.

There is no dispute that the driver of the bus took it to the extreme left side of the road, as a result of which the deceased who was standing on

the footboard dashed against the telephone post which was on the left side pavement. This impact was due to the fact that the bus was taken very

close to the pavement. We have to therefore hold that the accident in this case had occurred due to the rashness and negligence of the driver of the

bus and the deceased cannot be taken to have contributed by his negligence to the accident in question. We, therefore, agree with the finding of the

Tribunal on the first point.

On the question of quantum of compensation the Tribunal found that the deceased was 68 years of age at the time of his death as seen from his

birth extract, that he was getting a pension of Rs. 55.80 per month as a retired Headmaster of a Corporation School, that in addition to his

pension, he was earning a sum of Rs. 150/- per month by giving private tuition to about 10 or 15 students and that he was also earning a sum of

Rs. 150/- as a booking clerk in a cinema theatre called Murugan Talkies. Thus according to the Tribunal, the deceased was earning a sum of Rs.

300/- per month and the loss of pecuniary benefit to the family can be assessed at Rs. 250/- per month. Taking the annual dependency at Rs.

3,000/- and adopting five years'' purchase the total amount of loss of pecuniary benefit to the family, the Tribunal has fixed the same at Rs.

15,000/- in this regard. In addition, the Tribunal has also awarded a sum of Rs. 5,000/- under the head of pain and suffering. The learned Counsel

for the Appellant contends that the Tribunal has proceeded merely on the basis of the interested evidence adduced on the side of the claimants,

that there is no evidence that the deceased was earning a sum of Rs. 150/- per month by giving private tuition and that even on the basis of the

evidence of P.W. 2, son of the deceased, he was only earning a sum of Rs. 90/- a month as a booking clerk in the cinema theatre and not Rs.

150/- as has been found by the Tribunal. It is seen from the evidence of P.W. 2 that his father was giving tuition to 10 to 15 students and was

earning thereby a sum of Rs. ISO/- and that in addition he was earning a sum of Rs. 90/- as a booking clerk in the cinema theatre. Apart from

P.W. 2, there is no other independent evidence to indicate that the deceased was giving tuition to any one. If really the deceased was giving tuition

to 10 to 15 students, at least a parent of one of the students could have been examined to show that the deceased was really giving tuition to the

students and was getting a particular amount as fee for tuition. Excepting the mere ipse dixit of P.W. 2, that his father was earning Rs. 150/- by

giving tuition to 10 to 15 students, there is no concrete or acceptable evidence on the question of the deceased having given tuition. In the absence

of any corroborative material the interested statement of P.W. 2 that the deceased was giving private tuition and was getting Rs. 150/- a month,

cannot straightway be accepted- The Tribunal, therefore, should not have accepted the mere statement of P.W. 2 that his father was earning Rs.

150/- a month by giving private tuition without insisting on further corroborative material on that point.

On the question as to whether the deceased was earning any sum as a booking clerk in the cinema theatre, P.W. 2 has himself stated that his

father was earning Rs. 90/- per month, that he was getting Rs. 3/- per day in the cinema theatre while P.W. 5, another booking clerk in that cinema

theatre deposed that the deceased was getting a daily wage of Rs. 5/-. Therefore, as between the two differing statements made by P.W. 2 and P

W. 5, the Tribunal has chosen to accept the evidence of P.W. 5. However we see considerable substance in the contention of the learned Counsel

for the Appellant that the Tribunal was not justified in ignoring the admission made by P.W. 2, that his father was earning a sum of Rs. 3/- per day

in the cinema theatre. P.W. 2, the son of the deceased should be taken to have known what his father was earning as a booking clerk. P.W. 2,

being an interested party, he would not have underestimated the earning of his father especially when he is claiming compensation based on his

father''s earnings. Therefore, we are of the view, the Tribunal is not justified in ignoring the admission made by P.W. 2, when he stated that his

father was getting Rs. 90/- a month as a booking clerk in Murugan Talkies. Thus, the total earnings of the deceased at the time of his death had not

been shown to be more then Rs 150/- per month, i.e. Rs. 90/- as a booking clerk and Rs. 60/- as pension. Having regard to the size of his family,

the deceased could be taken to have utilised his entire earnings for supporting his family. Therefore, the pecuniary loss to the family as a result of

the death of the deceased can be taken to be Rs. 150/- per month and the annual dependency Rs. 1,800/-. Having regard to the age of the

deceased at the time of his death, the Tribunal has taken five years'' as the multiplier. The learned Counsel for the Respondent, who is the cross-

objector, submits that the Tribunal was not justified in taking the multiplier as five years and that it should have adopted at least seven as one can

assume having regard to the healthy bodily condition of the deceased that he would have earned and contributed to his family till he attained the age

of 75 years. We are of the view in taking five years'' purchase the Tribunal has come to a reasonable conclusion on the point. Having regard to the

age of the deceased which was 68 at the time of his death, the Tribunal has proceeded on the basis that till the age of 73 he would have earned

and contributed to his family. There are no materials to indicate that the adoption of 5 years'' purchase by the Tribunal was erroneous. Taking five

years'' purchase as the basis the total pecuniary loss to the family comes to Rs. 9,000/-.

The learned Counsel for the Appellant questions the award of Rs 5,000/- under the head of pain and suffering on the ground that the claimants

themselves have asked only Rs. 3,000/- on this head and the Tribunal has exceeded its jurisdiction in giving an enhanced amount of Rs 5,000/- as

against a claim of Rs. 3,000/-. The Tribunal has awarded Rs. 5,000/- under this head having regard to the fact that the deceased had a large

number of fractures and that the deceased would have suffered considerable mental agony and pain on account of that. We are not inclined to

interfere with that portion of the award of the Tribunal merely on the basis that in the claim form the claimants have shown only Rs. 3,000/- under

the head of pain and suffering ignoring the actual fact that the claimants have claimed in all a sum of Rs. 40,000/- as compensation. The result of the

foregoing discussion is that the award of Rs. 5,000/- of the Tribunal for pain and suffering is sustained and the award of Rs. 15,000/- as the

pecuniary loss to the family will be restricted to Rs. 9,000/-. Thus the total comes to Rs. 14,000/-.

The Tribunal in this case has awarded interest on the compensation awarded at 6 per cent per annum from the date of its order and not from

the date of claim as is usually done. We see no reason to deprive the claimants the interest which they are entitled to from the date of the claim. We

therefore hold that the claimants will be entitled to the interest on the compensation awarded by us at 6 per cent per annum from the date of the

claim petition.

The Respondent in the appeal have filed an application for direction, C.M.P. No. 6676 of 1979. The seventh Respondent in the appeal is a

minor daughter of the deceased. The said minor daughter had died even before the Tribunal rendered its order. But by inadvertence the death of

the 7th (seventh) Respondent was not brought to the notice of the Tribunal. Because of this omission, the Tribunal has directed that the

compensation amount would be divided between the various claimants equally. It is now pointed out by the counsel for the Respondents that as the

seventh Respondent has died, the entire amount of compensation will have to be shared as between claimants 2 to 6 the first claimant having died

pending appeal. This factum of the death of Respondents 1 and 7 has not been disputed and therefore, the entire amount of compensation will

naturally have to be shared by claimants 2 to 6, who are not only the legal representatives of the deceased but also the legal representatives of the

first Respondent, the mother. In this view, we direct the compensation awarded in this Court to be paid equally to Respondents 2 to 6.

This appeal is allowed in part and the award of the Tribunal will be modified as indicated above. The cross-objection is dismissed. There will

be no order as to costs either in the appeal or in the cross-objections.