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Judgment
M. Karpagavinayagam, J.—Inbaraj, the deceased and the Janakiraman, the injured, were working as Head Constables (Wireless) at
Karaikal Town Police Station. On 12.10.1986 night, both of them travelled in the bus bearing Registration No. TCP 6645 from Nagapattinam to
Mahi on duty. On next day, early morning i.e., 3.30 a.m., while the bus was proceeding in Karur to Trichy Main Road, near Pasupathipalayam at
Selva Nagar, at a high speed, in a rash and negligent manner, it dashed against the parked lorry bearing Registration No. TMT 6616. As a result of
the impact, Inbaraj and Janakiraman sustained multiple injuries all over their body. Inbaraj died on the same day in the hospital. Janakiraman, who
was admitted in the Government Hospital, Karur, was referred to Pondicherry Jimper Hospital. After two days, his left leg, which got crushed,
ultimately, was amputated. He had also lost fourth and fifth toe in his right leg. A plastic surgery was also conducted on his right foot.
On the basis of these materials, Janakiraman, thee injured filed O.P.No.810/86 claiming compensation of Rs.1,00,000/- and the legal
representatives of the deceased-Inbaraj filed O.P.No.812/86, claiming compensation of Rs.4,00,000/-
The Tribunal, after common enquiry, concluded that the injured-claimant would be entitled to the entire amount of Rs.1,00,000/-as
compensation and the legal representatives of the deceased would be entitled to get Rs.2,20,000/- as against the total compensation of
Rs.4,00,000/-, in a common judgment.
Aggrieved by the finding of the Tribunal, holding that the driver of the bus was negligent and the owner of the bus - Thiruvalluvar Transport
Corporation is liable to pay the said amount, these appeals have been filed in C.M.A. Nos.1206 and 1207 of 1991.
C.M.A. No. 1206 of 1992 would relate to the MCOP No.812/86 filed by the legal representatives of the deceased and CMA No.1207/91
would relate to the MCOP No.810/86, which was filed by the injured.
During the pendency of the Appeal in C.M.A. No.1207/91, which is relating to the claim of the injured, a cross objection has been filed by the
claimant in Cross Objection No.33/93, objecting to the rate of interest at 6% fixed by the Tribunal, while passing the award.
It is submitted by the counsel appearing for the legal representatives of the deceased in CMA No.1206/91 that the Cross Objection was filed in
the said appeal also, requesting for enhanced compensation. However, the Cross Objection has not yet been numbered.
The main contention urged by the counsel for the appellant - Thiruvalluvar Transport Corporation, in both the appeals, is that the Tribunal
wrongly held that the bus driver was negligent and at the most, the drivers of both the bus as well as lorry shall be attributed for composite
negligence and that, at any rate, the quantum fixed in both the cases is exorbitant. This submission was resisted by the learned counsel appearing
for the respondents-claimants.
I have carefully considered the submissions made by the counsel for parties.
On going through the judgment impugned, and the records, I am of the view that the claimants have clearly proved that the bus driver alone
was negligent.
Janakiraman, the injured, was examined as PW.1 in this case. He had stated that at about 3 a.m., the bus, in which both of them travelled,
went at a high speed and hit against the lorry, which was parked on the left side of the road.
On the other hand, the driver of the bus, who was examined as R.W.1, would state that while he overlook the stationed lorry, the driver of the
lorry suddenly started the same and came to the wrong side, as a result of which, the impact had taken place. This evidence of R.W.1 has to be
rejected as unreliable, in view of the fact that the Sketch which is marked as Ex.A3 in this case, would clearly show that the bus came to the wrong
side and hit against the parked lorry. The total width of the main ''Tar'' Road is 22 feet.
According to P.W.1, the lorry was parked at the extreme left side of the road and there was a red light burning. On a perusal of the sketch, it
is clear that the bus, instead of going in the middle of the road, went to the left side and dashed against the lorry. The distance between the left
corner and the bus was only 3-1/2 feet, whereas the available spate at the right side of the road was about 12-1/2 feet. The bus, which is expected
to go in the middle of the road and that too, when a lorry was parked on the left side with red light burning, went to the left side of the road and
dashed against the parked lorry. Therefore, the Tribunal is correct in concluding that the driver of the bus alone was negligent and there cannot be
any composite negligence, as there are no materials to come to such a conclusion.
In regard to the quantum, in the case which relates to the injured-Janakiraman, the counsel for the appellant would fairly state that she would
not propose to challenge seriously with reference to that, since the amount of Rs. 1,00,000/- claimed, has been awarded and the same is ""just
amount of compensation.
However, the learned counsel appearing for the claimant-Cross objector in Cross Objection No.33/93 would cite the decisions reported in
Managing Director (Metro), Pallavan Transport Corporation Ltd. Vs. Kalavathy and Others, and Surjit Singh Vs. Waryam Singh and Another,
and submit that the Tribunal and the Appellate Court are empowered to award ""just"" compensation even if it is more than what has been claimed
by the claimants, if the evidence establishes payment of higher sum.
In the instant case, the Tribunal awarded Rs.40,000/- for permanent disability, Rs.40,000/- for loss of future prospects, Rs.15,000/- for pain
and suffering and Rs.5,000/-for medical expenses and extra nourishment.
It is true that the disability certificate, which has been produced before the Tribunal under Ex.A14, shows that the injured suffered permanent
disability of 85% in left lower limb and 10% in right lower limb. It is also clear from the evidence of PW.1 that he was in-patient for four months
and that subsequently, for eight months, he was outpatient. He has also produced medical records Ex. A4 and Ex.A5, to show that he took
treatment for a long time and the loft leg got amputated. The claim petition and the evidence of PW.1 show that he has claimed Rs.5000/-for
medical expenses, transport charges to hospital and extra nourishment, Rs.15,000/- for pain and suffering and Rs.40,000/- for permanent disability
and Rs.40,000/- for loss of earning power. Thus, whatever he claimed, the Tribunal awarded.
There is no dispute in the proposition that the Tribunal has to make an award of compensation which has to be make ""just"". It means, the
Tribunal is not powerless in making the award, even in excess of the award of compensation, as claimed.
In the light of the facts and circumstances of the case, if this Court finds that the injuries to the claimant are serious in nature, it can assess the
compensation on making a proper analysis of the materials available on record and fix the quantum, which shall appear to be ""just"".
When the claimant-injured sustained serious injuries, which resulted in amputation and which certainly affects his promotion chances, as in the
present case, this Court can very well consider the same for awarding some more amount. But, the Apex Court in the decision reported in
Adikanda Sethi (Dead) through Lrs. and Another Vs. Palani Swami Saran Transports and Another, held that though the claimants would be
entitled to Rs.1.40 lakhs towards compensation, the award could be passed only for Rs.1 lakh, since the claim of the claimants was restricted to
the said amount.
In the light of the above decision, I am of the opinion that the award of Rs.1 lakh, being the restricted claim is perfectly justifiable, as in my
view, the said amount cannot be said to be too low or unjust. Consequently, the finding with reference to the quantum in this appeal is sustained.
But, one aspect of the award needs modification.
As correctly pointed out by the counsel for Cross Objector, the interest rate was fixed at 6% for two months and in the even) of default in
making the payment, the appellant was directed to pay the amount with 12% interest. This approach of the Tribunal is not proper.
The rulings of this Court as well as the Apex Court would show that the rate of interest would be invariably fixed at 12% per annum from the
date of petition till the date of realisation. Accordingly, it is made clear that the injured-claimant would be entitled to 12% interest on the said
amount from the date of the petition till the date of realisation. Hence, the Cross Objection is allowed.
The learned counsel appearing for the appellant in CMA.1206/91 which is relating to the death of the deceased, would submit that the monthly
dependency was wrongly fixed at Rs.800/- and that the multiplier of 20 has been adopted.
On the other hand, learned counsel for respondents-legal representatives of the deceased, would submit that the amount of Rs.2,20,000/- is
very much on the lower side and so, this Court may enhance the amount so as to award the ""just"" amount of compensation, by invoking Order 41
Rule 33 of Civil Procedure Code.
On the date of the accident, the age of the deceased, who was Head Constable then, was 37 years. The claimants are wife, children and
parents of the deceased. He was getting Rs.1200/- per month as salary. He would have got fair chances of promotion and enhancement of salary,
but for the accident. The evidence of PW.1, the injured-claimant, would show that at the time of giving evidence, his salary was Rs.2300/-. He is
of the same cadre as that of the deceased.
PW.2, the wife of the deceased, would state that her husband was getting Rs.1345/-per month. She also marked Ex.A12 to show that her
husband passed the examination in Wireless subject. These things would make it clear that if the deceased is alive, he would be promoted as Sub-
Inspector of Police and obtained more-income.
Under these circumstances, the monthly dependency fixed as Rs.800/- by the Tribunal and adopting of 20 as multiplier, may not be a proper
calculation.
In the light of the future prospects of the deceased, it can be safely held that he would have spent Rs.1250/- for family expenses. If the monthly
dependency of Rs.1250/- is multiplied by adopting the multiplier of 16, the total calculation would work out to Rs.2,40,000/-(i.e.1250 x 12 x 16).
It is seen from the records that the deceased died only in the hospital. Therefore, for pain and suffering Rs.10,000/- can be fixed. The age of
the wife, at the time of the death of her husband, was 34 years. So, towards loss of consortium, Rs.15,000/- can be awarded. Further
Rs.15,000/- for the loss of love and affection, Rs.10,000/- towards the loss of companionship to the parents and Rs. 10,000/-towards mental
agony can be awarded. So, the total amount would work out to Rs.3,00,000/-. Thus, the claimants be entitled to Rs.3 lakhs as compensation. The
claimants are directed to pay the balance Court fee in respect of the enhanced amount.
Here also, the Tribunal wrongly fixed 6% interest for 2 months and in the event of default payment 12% rate of interest. Therefore, this also
has to be modified. In the result, the Thiruvalluvar Transport Corporation is directed to pay the amount of Rs.3 lacs along with 12% rate of interest
per annum from the date of claim petition till the date of payment in MCOP.No.812/86.
Accordingly, the appeals are disposed of. No costs.