Chief Workshop Manager v. V. Manimekalai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :: 29-09-2015

CORAM

THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.No.2110 OF 2014 & CROSS OBJECTION No.8 OF 2015 Chief Workshop Manager, Southern Railways Carriage Works, Perambur, Chennai-600 023 ...

Appellant/Respondent -vsV.Manimekalai ....

Respondent/Claimant CROSS OBJ.No.8/2015 :

V.Manimekalai ....

Cross Objector -vsChief Workshop Manager, Southern Railways Carriage Works, Perambur, Chennai-600 023 ...

Respondent C.M.A. filed under Section 173 of Motor Vehicles Act, 1988 and Cross Objection under Order 41, Rule 22 of CPC are against the judgment and decree, dated 31.10.2012, made in M.C.O.P.No.335 of 2010, as per oder in Memo dated 5/3/2014 on the file of Motor Accident Claims Tribunal, (Additional District Court), Kancheepuram District at Chengalpattu.

For appellant in C.M.A.& respondent in Cross Objection : Mr.V.Haribabu For respondent in C.M.A. & Cross Objector in Cross Objection : Mr.U.M.Ravichandran

J U D G M E N T

(Judgment of the Court was delivered by S.Manikumar,J.) Challenge in this appeal filed by Chief Works Manager, Southern Railways Carriage Works, Perambur, Chennai-600 023, is to the judgment and decree, dated 31.10.2012, made in M.C.O.P.No.335 of 2010, on the file of Motor Accident Claims Tribunal, (Additional District Court), Kancheepuram District at Chengalpattu, in which, the Claims Tribunal has fixed negligence on the driver of the car, bearing registration No.TN 01 W 4169, owned by Southern Railway Carriage Works, and also to the quantum of compensation of Rs.18,10,000/-, with interest, at the rate of 7.5% per annum, from the date of claim till deposit, awarded to the mother of the deceased, a P.hD., applicant, aged 25 years, at the time of death.

2. Facts, leading to the filing of this appeal, in a nutshell are, that on 05.06.2010, about 11.30 p.m., when the deceased Isaac Jebakumar was riding a two wheeler, bearing registration No.TN 21 AW 4169 from north to south direction on East Coast Road at Muttukadu, a car, bearing registiration No.TN 01 W 4169, which came in the opposite direction, driven in a rash and negligent manner by its driver, dashed against the motorcycle, causing grievous injuries to the rider, namely, Jebakumar, resulting in his death. In this regard, a case in Crime No.400 of 2010, under Sections 279 and 304-A, has been registered against the driver of the car, on the file of J08 Neelangarai Police Station.

3. Contending inter alia that at the time of accident the deceased was a prospective candidate of Ph.D., having applied for admission in Pondicherry University, which was also granted subsequently, and prior to the same, he had completed B.E., in Production Engineering, in Sathyabama Institute, and thereafter completed M.E., in CAD in St.Joseph College, Chennai, and based on the higher educational qualifications, the deceased, aged 25 years, had very bright prospects in future, mother/respondent has filed M.C.O.P.No.335 of 2010 on the file of Motor Accident Claims Tribunal, (Additional District Court), Kancheepuram District at Chengalpattu, claiming compensation of Rs.30,00,000/-. Chief Works Manager, Southern Railways Carriage Works, Perambur, appellant herein, has objected to the claim, contending among other things that it was the motorcyclist, who had caused the accident, while driving the motorcycle in a zig zag manner and dashed against the right side of

the car. He has denied negligence attributed on the driver of the car.

4. Before the Claims Tribunal, mother of the deceased, by examining herself as P.W.1, has reiterated the manner of accident. P.W.2 is stated to be the eye-witness. Ex.P-1-FIR; Ex.P-2-Postmortem report; Ex.P-3-Death certificate; Ex.P-4-Legal heir certificate; Ex.P-5-Transfer certificate, issued by St.Joseph's College of Engineering; Ex.P-6-B.E. Degree Certificate, issued by Sathyabama Deemed University; Ex.P-7-M.E.Certificate, issued by Anna University; Ex.P-8-Hall ticket for P.hD.-Mechanical Engineering, issued by Pondicherry University; Ex.P-9-Interview call letter, issued by Pondicherry University; Ex.P-10-CADD Certificate, issued by CADD Centre; Ex.P-11-"Recent Trends in Mechanical Engineering-RTIME'2008", Certificate of the deceased, issued by Sardar Raja College of Engineering, Alangulam; Ex.

P-12-Expenditure certificate of Sathyabama Institute of Science and Technology; Ex.P-13-Statement of Account of the deceased, issued by State Bank of India, Chengalpattu; Ex.P-14Statement of Account of the deceased, issued by State Bank of India, Chengalpattu; and Ex.P-15-Passport of the deceased, have been marked, on the side of the sole respondent/mother of the deceased.

5. On behalf of Southern Railways Carriage Works, Perambur, Chennai, appellant, two witnesses, namely, R.W.1-Driver of the car; and R.W.2-Chief Workshop Manager, Hubli, South-East Railway, have been examined. No document has been marked.

6. Evaluating the oral and documentary evidence, the Claims Tribunal held that the driver of the car, bearing registration No.TN 01 W 4169, owned by Southern Railway Carriage Works, Perambur, Chennai, was negligent in causing the accident. Based on the oral testimony of the mother, and the certificates evidencing the educational qualifications, though Rs.80,000/- was claimed as the monthly income, the Claims Tribunal has fixed the monthly income of the deceased as Rs.20,000/-. Thereafter, the Claims Tribunal deducted 1/3rd towards the personal and living expenses of the deceased and by applying 17 multiplier, has computed the loss of dependency to the mother/respondent as Rs.17,60,000/-. That apart, the Claims Tribunal has awarded Rs.10,000/- towards funeral expenses, Rs.25,000/- under the head loss of love and affection; Rs.

10,000/- towards damages to clothes and motorcycle; and Rs.5,000/- for transportation expenses. Altogether, as against the claim of Rs.30,00,000/-, the Tribunal has awarded Rs.18,10,000/-, with interest, at the rate of 7.5% per annum from the date of claim till deposit.

7. Assailing the correctness of the finding, fixing negligence on the driver of the car, Mr.V.Haribabu, learned counsel for the Southern Railway Carriage Works/ appeallant, submitted that when R.W.1, driver of the car, has adduced cogent evidence to the effect that the car was driven at a normal speed, and it was the

motorcyclist, who came on the wrong side of the road and dashed against the right side headlight of the Qualis car, and thus caused the accident, and when R.W.2, Chief Workshop Manager, Carriage and Wagon Works, Southern Railway, supported the version of R.W.1, the Claims Tribunal ought to have fixed negligence on the motorcyclist. It is also his further contention that when the testimony of P.W.2, stated to be the eye-witness to the accident, that when he was returning from the Boat House, after finishing his work was not supported by production of any document, the Claims Tribunal ought to have rejected his testimony, and, thus, by proper analysis of evidence adduced on both sides, the Claims Tribunal ought to have fixed negligence on the motorcyclist. It is his further contention that though P.W.2 has claimed to have called up 108 Ambulance service throuh mobile, he was not examined by the police, after the complaint was lodged.

8. On the quantum of compensation, Mr.V.Haribabu, learned counsel for the appellant submitted that at the time of filing of the claim petition, mother/respondent was stated to be an Associate Professor in Government College and aged 51 years, and that she had seven years of remaining service and she was an earning member, and, therefore, she cannot be said to be dependent on the deceased.

9. Learned counsel for the appellant further submitted that when the mother/respondent had not produced any document to show that at the time of accident the deceased was employed, the Claims Tribunal has grossly erred in fixing the monthly income of Rs.20,000/-, solely on the basis of educational qualifications of the deceased. He further submitted that judicial notice can be taken that there are many engineering graduates, without employment or getting a lesser income. It is also his contention that even after four years of completion of Post-Graduation, the deceased was not employed and mere registration for Ph.D. would not be a valid reason, for fixing the monthly income of the deceased as Rs.20,000/-, for the purpose of computing the loss of dependency. In addition, he would contend that the Claims Tribunal ought to have applied only the notional income of Rs.4,000/- per month, for computing loss of dependency.

10. Record of proceedings shows that after receipt of notice, in the present appeal, filed by the Chief Works Manager, Southern Railways Carriage Works, Perambur, Chennai, mother/respondent has filed Cross Objection No.8 of 2015, contending, inter alia, that the Claims Tribunal ought to have added 50% to the income fixed, towards the future prospects of the deceased, who was just 25 years, at the time of accident. Mr.U.M.Ravichandran, learned counsel for the cross-objector, has further submitted that the Claims Tribunal has committed a gross mistake in applying only 11 multiplier for assessment of loss of dependency and whereas, as per the decision of the Hon'ble Apex Court in Sarala Verma v. Delhi Transport Corporation, 2009 (6) SCC 121, the Tribunal ought to have applied 17 multiplier, for the age group between 25 and 30. He also

submitted that the quantum of compensation of Rs.10,000/- awarded under the head funeral expenses, and Rs.25,000/- awarded under the head loss of love and affection, require enhancement.

11. Opposing the said contention of the Chief Works Manager, Southern Railways Carriage Works, Perambur, Chennai, seeking for reversal of the finding, fixing negligence on the driver of the car, bearing registration No.TN 01 W 4169, owned by Southern Railway Carriage Works, involved in the accident, Mr.U.M.Ravichandran, learned counsel for the mother/respondent/cross objector, has further submitted that there is no perversity in the finding recorded by the Claims Tribunal, nor is it a case of no evidence. According to him, finding of the Claims Tribunal satisfies the principle of preponderance of probability.

He submitted that the said principle is applied in motor accident claims cases, which adjudge a tort, giving rise to a claim for compensation and, accordingly, prayed to sustain the finding, fixing negligence on the driver of the car. Taking this Court through the testimony of R.W.1 and R.W.2, examined on behalf of the appellant, learned counsel for the respondent/claimant submitted that the version of the appellant, as regards the manner of accident, is not acceptable, as there is no independent witness, to corroborate the same. For the reasons stated supra, he prayed to dismiss the C.M.A., and, consequently, to allow the Cross-Objection, by enhancing the compensation under the heads, loss of dependency, funeral expenses, and loss of love and affection.

12. Heard the learned counsel for the parties and perused the material available on record.

13. Accident has occurred on 05.06.2010, about 23.30 hours. The deceased was riding a motorcycle, bearing registration No.TN 21 AW 4169. He was proceeding on East Coast Road from North to South. At that time, a Toyota Qualis car, bearing registration No.TN 01 W 4169, owned by Southern Railway Carriage Works, Perambur, Chennai, was proceeding in the opposite direction. Near Muttukadu on ECR Road, and, due to the hit of the said car against the motorcycle, the accident has occurred. In this regard, a case in crime No.400 of 2010 under Sections 279 and 304-A of IPC has been registered on the file of J-8 Neelangarai Police Station, against R.W.1, driver of the car. Admittedly, P.W.1, mother of the deceased, has not witnessed the accident. But, P.W.2, claimed to have witnessed the accident, has adduced evidence that on 05.06.2010, about 11.

30 p.m., when he was waiting near the entrance of Boat Club, the accident has occurred, when a Toyota Qualis car, bearing registration No.TN 01 W 4169, driven in a rash and negligent manner by its driver, dashed against the motorcyclist, riding the same on the left side of the road, and thereafter, sent the victim in the Ambulance to Government General Hospital, for treatment. He has lodged a complaint with J-8, Neelangarai Police Station. Though P.W.2, in his cross-examination, has deposed that he did not produce any document to prove that he was working in J.C.

further deposed that he did not note down the registration number of the vehicle, still, he has deposed that he had witnessed the accident at 11.30 p.m., which occurred, at a distance of 10 feet away from the place, where he was standing, and then, he called up 108 ambulance, through his mobile phone and, thereafter, lodged the complaint. He has alsocategorically denied the suggestion of the appellant that the accident was not witnessed by him. He has also denied the suggestion, that false evidence was adduced, to support the case of the mother/respondent.

14. Per contra, though R.W.1, driver of the car, has adduced evidence that it was the motorcyclist, who rode the bike in a zig zag manner and dashed against the right side bumber/headlight of the car and fell down and thus caused the accident, in his cross-examination, he has categorically admitted that he had not lodged any complaint with the police and, added, that his officer had lodged a complaint. During the course of cross-examination, he has also admitted that the criminal case, registered against him, on 05.06.2010, was pending on the file of Judicial Magistrate, Alandur. Chief Works Manager, Hubli, South-Western Railway, who was travelling in the car Toyota Qualis car, bearing registration No.TN 01 W 4169, has deposed that he did not give any complaint to the police.

Thus, it is evident that the witnesses have adduced contradictory statements. If the driver of the car was not negligent in causing the accident, nothing prevented them from lodging a complaint with the police. After registering the F.I.R., the police, after due investigation, has laid chargesheet against the driver of the car.

15. In Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, High Court of Gauhati, at paragraph 6, has held as follows: "The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case.

In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case."

16. In Bimla Devi & Ors. Vs. Himachal RTC reported in 2009

(13) SCC 530, the Supreme Court held as follows: "It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not

have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

17. It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required. In the absence of any rebuttal evidence, the finding of the Tribunal regarding negligence cannot be termed as perverse or it is not a case of no evidence.

18. The version of P.W.1, mother/respondent, and P.W.2, stated to be the eye-witness, is duly corroborated by Ex.P-1, and it is also the statement of R.W.1, driver of the car, that a criminal case was pending during the trial of the claim petition. The contention of the learned counsel for the appellant, that in the absence of filing of any document to prove that P.W.2 was working in the Boat Club till 11.30 p.m., and, therefore, his testimony has to be rejected, cannot be countenanced, for the reason that the finding of negligence is always arrived at by assessing the evidence adduced by both the parties, on the principle of preponderance of probality, and not based on proof of strict evidence, as required, in the Criminal Court, for trying the accused of an offence of rash and negligent driving under Section 279 of IPC. In the light of the above discussion, this Court is not inclined to reverse the finding of the Claims Tribunal.

19. The next question to be considered is, whether the Claims Tribunal has committed a gross mistake in determining the monthly income of the deceased as Rs.20,000/-.

20. Perusal of Ex.P-6-B.E. Degree Certificate in Production Engineering, issued by Sathyabama Deemed University, shows that the deceased Isaac Jebakumar had passed the Degree Examination in April,2006, in First Class. Perusal of Ex.P-7-M.E.Certificate, issued by Anna University, shows that the deceased had obtained a Master's Degree in Engineering in Computer Aided Design in First Class, in the examination held in June,2009. The deceased had written an examination in Pondicherry for admission to Ph.D., Mechanical Engineering in Pondicherry University. Ex.P-9-Interview call letter, dated 30th September,2009, issued by Pondicherry University, shows that the deceased was directed to attend the interview on 07.10.2010, for admission to Ph.D.Programme, as a full time member.

He has also completed Diploma in Mechanical CAD, from CADD Centre, in 2008. Perusal of Ex.P-11- shows, that on 05.04.2008, the deceased had participated in a National Conference on "Recent Trends in Mechanical Engineering-RTIME'2008", organised by the Department of Mechanical Engineering, Sardar Raja College of Engineering, Alangulam.

21. Thus, going through the documents Exs.P-6 to P-11, it is evident that the deceased had an excellent academic record. Ex.P-15 is the Passport of the deceased, for the period from 14.07.2006 to 13.07.2016. Educational graph of the deceased clearly indicates that he had intended to pursue his higher education and obtain a doctorate degree, in Mechanical Engineering from Pondicherry University. Date of Birth of the deceased, as per the entry in the Passport is 07.05.1985. Thus, just above 23 years, the deceased had completed his Post-Graduation in Engineering and, thereafter, intended to pursue his Doctorate in Engineering. Though it is contended by the appellant that the Tribunal has erred in fixing the monthly income of the deceased, in the absence of any proof of employment and earning, having regard to the good academic record, and educational qualifications, it cannot be said that the deceased would not have good prospects in future. Had he been alive, he would have got a good placement, and earned a reasonable income.

22. Though the learned counsel for the appellant has further contended that many engineering graduates are unemployed, on account of excess human resources and that, therefore, the Claims Tribunal erred in fixing the monthly income at Rs.20,000/-, for the reasons stated supra, we are not inclined to accede to the said contention. On the facts and circumstances of this case, the academic record and pursuit of the deceased to achieve a doctorate degree in Mechanical Engineering at the young age, have to be considered, for fixing the income. "Education" should be given due respect. Therefore, determination of Rs.20,000/- as the monthly income of the deceased by the Tribunal is sustained.

23. Coming to the issue of addition of 50% under the head 'future prospects', based on the decision of Hon'ble Supreme Court in Santhosh Devi v. National Insurance Co.Ltd., reported in 2012 AIR SCW 2892, and, Rajesh and Others v. Rajbir Singh and Others, reported in 2013 (9) SCC 54, that for the consistent good academic record, were the deceased alive, there would have been good prospects in his career also. At this juncture, it is also to be noted, that the deceased had taken a passport in the year 2006 itself, thereby, indicating that he had a desire to go abroad, and the mothor and widow, who was working as an Assistant Professor, was the only claimant. Thus, on the facts and circumstances of the case, it could be reasonably presumed, that, after the completion of post-doctoral degree, the deceased would have intended to go abroad, or to seek for a good placement within India. In such view of the matter, addition of 50% of the income under the head 'future prospects', would not be unjust.

24. One of the contentions raised by the learned counsel for the appellant is that, at the time of accident, mother/respondent was working as an Assistant Professor and, that therefore, she cannot be said to be a dependant on the deceased and thus not entitled to claim compensation. The said contention is untenable, in the light of

Section 166 of the Motor Vehicles Act,1988, which speaks about the entitlement of the legal representatives, to claim compensation. It does not speak about dependency.

"166. Application for compensation.-

(1) An application for compensation arising out of an accident of the nature specified in sub-section

(1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application."

25. The expression "legal representative" has been explained in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another, reported in 1987 ACJ 561, as follows: "10. Clauses ( b ) and ( c ) of sub-section (1) of Section 110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased.

The proviso to sub-section (1) of Section 110-A provides that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. The expression "legal representative" has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines "legal representative" as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Clause (b) of subsection (1) of Section 110-A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and clause ( c ) of that sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to sub-section (1) of Section 110-A of the Act appears to be of some significance.

It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that ( i ) an application for compensation may be made by the legal representatives of the deceased or their agent, and ( ii ) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in Section 110-A of the Act." 30.

Interpreting Section 110-A (now amended as Section 166(1)), vis-a-vis, a corresponding provision in the Fatal Accidents Act, 1855, the Apex Court in Ramanbhai Prabhatbhai's case (stated supra) further held that, "These provisions are not merely procedural provisions. They substantively affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was "new in its species, new in its quality, new in its principles, in every way new" the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies."

31.

While confirming the decision of Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai reported in 1977 ACJ 253 (Guj.), the Supreme Court at Paragraph 12, held that, "We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-

F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law.

We should remember that in an Indian family brothers, sisters and brothers' children and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents."

32.

In United India Insurance Company v. Kasiammal reported in 1997 (III) CTC 346, one of the contentions raised therein, challenging the award, was that a married son, who was living separately and not a dependant, is not entitled to claim compensation. The short question framed by this Court, at Paragraph 6 of the judgment, was whether the claimants, who were married sons and married daughters, entitled for compensation? While addressing the abovesaid question, a learned Judge has considered two decisions relied on by the appellant-Insurance Company therein in Revanben v. Kantibhai Narottamehai Gohil reported in 1995 ACJ 548 and U.P.State Road Transport Corporation v. Tara Devi reported in 1995 ACJ 1220 and also the decisions of the Apex Court in Bhagwatidin v. Gheesalal reported in 1980 ACJ 116, Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai reported in AIR 1987 SC 1690 and Pushpam v. Nirmala reported in 1991 TLNJ 101, and at Paragraphs 15, 16 and 17, held as follows:

"15. As pointed out earlier, the compensation amount is being paid to the legal representatives on account of untimely death of their ancestor. The dependency of the legal representatives is a question to be considered and does not mean only the dependents can claim compensation. The compensation being the amount for the loss to the estate of the deceased, it has to be considered as to whether the legal representatives had been put to loss because of the death of the deceased. Wherever the deceased is an earning member, naturally his savings is an accumulation for the estate which can be divided by the

legal representatives after the death of the deceased. As the legal representatives had been put to loss of the earning of the deceased, the legal representatives are also entitled for the compensation.

16. Further in this case there is absolutely no evidence to show that the married sons are living separately. When they are residing with the mother, naturally the married sons had lost not only the assistance of the deceased mother but also lost her valuable advice in family matters. The deceased, being a widow, naturally she could have lived with any one of the sons. When the legal representatives, the married sons of the deceased are entitled for compensation even though they are residing separately, the claimants herein will be entitled for compensation; especially when they are residing with the deceased. More over, the aged parents in many a house are the watch dogs for the entire house, servants and the grand children except a few exceptional cases.

When the claimants had lost such valuable services of their mother they are entitle for compensation. The loss cannot be substituted by any other confident or responsible person either in the family or by appointing a servant. If the contention of the counsel for the appellant is accepted, I do not surprise that in future the appellant may plead that generally the aged ones are only a liability in the family and since due to the accident the aged one died, the family is get rid of the same and the driver should be suitably rewarded by the legal representatives instead of claiming any compensation for the death of the deceased.

17. Further if the contention of the counsel for the appellant that the claimants are entitled only for the no fault amount is accepted, then a person who sustained some grievous injuries will be paid more than the amount that would be paid to the legal representatives i.e., married sons and daughters of the deceased and in that case it would be cheaper to kill than maim. If the claimants are to be paid the no fault amount, that may mean that the claimants are being paid some ex gratia payment out of sympathy and not for the loss of life of their ancestor. Hence the contention of the counsel for the appellant cannot be countenanced and there is absolutely no merit in the appeal and is dismissed."

33.

It is worthwhile to reproduce the judgments in Pushpam's case (cited supra) and Bhagwatidin's case, which are as follows:

"10. In fact in judgment reported in Pushpam v. Nirmala reported in 1991 TLNJ 101, the question considered is whether in a petition claiming compensation for injuries sustained by the claimant, after his death whether the sister can come on record as the legal representative. Venkataswami, J/has held, that the sister of the deceased

claimant can be brought on record as the legal representative, in the following terms:- "In more or less identical circumstances, V. Ramaswami, J, a he then was, in 1981 ACJ 185 (supra), after noticing a Division Bench Judgment of this Court in C.P.Kandaswamy v. Mariappa Stores, 1974 ACJ 3 held that by introducing Section 110-A in the Motor Vehicles Act, Parliament intended not to restrict the statutory right to claim damages to the injured alone. In the case of claims arising out of motor accidents, Clause (b) provides that the cause of action would survive to the legal representative where death has resulted from the accident. This was an exception to the general principle actio personalis moritor cum persona.

It is true there is a distinction between case of death resulting from the accident and a case of other personal injuries not causing the death of the party, i.e., the party dying subsequently during the pendency of the proceedings not due to the accident. But the Motor Vehicles Act does not, in my opinion, make any distinction so far as the right to claim damages. The claims in all these cases are no statutory rights. Therefore, there appears to be no reason to restrict the right to the injured alone." Therefore, there appears to be no reason to restrict the right to the injured alone." The learned Judge further distinguished the Division Bench case (1974 ACJ 362) on facts.

The learned Judge ultimately held as reasonable question of recovering the actual expenses incurred by the deceased, I have no doubt that the claim will survive since that amount if had not been spent might have been available as the estate of the deceased to be succeeded by his legal representatives." In 1987 II ACJ 561 (supra) the Supreme Court has elaborately considered the expression 'legal representative' in Section 110-A of the Act. After noticing the divergent views of the various High Courts, the Supreme Court has held as follows:- "In the light of the principles laid down in the above two judgments, I am of the view that the decisions cited by the learned counsel for the first respondent, namely reported in Videowala v. Union of India, 1986 (II) MLJ 345 and reported in Kandaswamyv. Mariappa Stores, 86 L.W.

667, cannot be pressed into service. I am further of the view that the question of bringing on record or coming on record as legal representatives and the further question whether they are entitled to compensation on the facts and circumstances of the case are two different issues. Merely because they are brought on record, that does not automatically entitled them to get compensation.

cannot be sustained. Therefore, I hold that the petitioner is entitled to continue the proceedings and it is for the court below to decide whether the petitioner is entitled to compensation at all, and if so, how much in the light of the principles laid down in 1981 ACJ 185 (supra) and other cases."

26. Going through the impugned judgment, it is noticed, that after fixing the monthly income, the Claims Tribunal has deducted 1/3rd towards personal and living expenses of the deceased, and, thereafter, by applying 11 multiplier, has computed the loss of dependency. Mother is the sole claimant. Deceased was a bachelor. Therefore, in terms of Sarala Varma's case, referred to above, 50% decution should be made, towards the personal and living expenses of the deceased. Application of 11 multiplier is erroneous. For the age group between 25 and 30, '17' is the proper multiplier. Thus, applying multiplier 17 to the multiplicand of Rs.30,000/-, and, after deducting 50% of the same, towards personal and living expenses of the deceased, the loss of dependency works out to Rs.30,60,000/- (Rs.15,000/- x 12 x 17).

27. A sum of Rs.25,000/-, awarded under the head 'loss of love and affection', to the respondent/mother, is less. Having regard to the error committed by the Claims Tribunal in not awarding a just and reasonable compensation under the said head, this Court, in exercise of the powers under Order 41 Rule 33, is inclined to rectify the same and suo motu enhance the compensation. Reference can be made to few decisions :

(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows: "37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v.

Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture.

advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient.

38. Of course, the Claimants who are widow, minor daughter and mother have not filed any CrossObjection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] wherein it has been held as follows:

"(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T.

and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or Cross-Objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances.

total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure.

This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount.

It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Cross-Objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to.

Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice."

Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC." (ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the same issue and answered as follows:

"6. On point:

The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no crossobjection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006

(2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:

"Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.

The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:

"In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same."

To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition.

Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any crossobjection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company."

7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.

8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it.

It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under: (i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ 281.

(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.

(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ 151.

(iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222.

9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:

"Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants. In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C.

222, 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 or order as ought 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.

The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:

"The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is

wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court.

If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities."

10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus: "At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition.

The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre-tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v.

Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment."

11. Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:

"Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. Act?), 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. This would be clear by reference to the relevant provisions of the M.V. Act.

Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to subsection (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation.

Other important part of the said Section is subsection (4) which provides that ?the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 158 as an application for compensation under this Act?. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed."

(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:

"17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it,

even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India.

Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice."

28. In the light of the principles of law laid down, the meagre compensation of Rs.25,000/- awarded to the mother, under the head, loss of love and affection, requires to be enhanced and, we deem it fit to enhance the same to Rs.1,00,000/-.

29. Funeral expenses of Rs.10,000/- awarded is less. The Hon'ble Supreme Court in Rajesh's case, cited above, at paragraph 18, held as follows :

"18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head ''funeral expenses'' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-."

Following the said judgment, the amount awarded for funeral expenses is enhanced to Rs.25,000/-.

30. Before the Tribunal, respondent has claimed a sum of Rs.10,000/- for damages to motorcycle and clothes and the same is awarded. Transport of Rs.5,000/- is sustained. Total compensation now works out to Rs.32,00,000/-, as under :

Loss of dependency - Rs.30,60,000/- Loss of love and affection - Rs. 1,00,000/- Funeral expenses - Rs. 25,000/- Damages towards clothes and motorcycle - Rs. 10,000/- Transportation - Rs. 5,000/- ------------------------ TOTAL - Rs. 32,00,000/- ------------------------

31. It is represented by Mr.V.Haribabu, learned counsel for the appellant, that the entire award amount has already been deposited before the Tribunal. In view of the present order, modifying the award, the appellant is directed to deposit the balance amount with proportionate interest, at the rate of 7.5% per annum, from the date of claim till deposit, to the credit of M.C.O.P.No.335 of 2010, on the file of Motor Accident Claims Tribunal, (Additional District Judge), Kancheepuram District at Chengalpattu, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, respondent/cross-objector/claimant is permitted to withdraw the amount, with proportionate interest, by making necessary application before the Tribunal.

32. C.M.A.No.2110 of 2014 is dismissed. Cross Objection No.8 of 2015 is allowed, as above. Consequently, the connected M.P.No.1 of 2014 and 1 of 2015 are closed. No costs. -s/dAssistant Registrar True Copy Sub-Assistant Registrar To The Motor Accident Claims Tribunal, (Additional District Judge, Kancheepuram District at Chengalpattu.

copy to: The Section Officer, Vr Section, High Court Madras

+2 cc to Mr.V.Haribabu, Advocate sr.52914 & 52913 +2 cc to Mr.UM.Ravichandran Advocate sr.52907 C.M.A.No.2110 OF 2014 & CROSS OBJ.No.8 OF 2015 aa09/10/2015