(Order of this Court was made by S.MANIKUMAR, J.) Being aggrieved by the common award made in M.C.O.P.Nos.2790/96, 2469/98, 5120 and 5121/2000 and 938/2001, dated 30.04.2010, Tamil Nadu State Transport Corporation, Cuddalore, has preferred the instant appeals.
2. Short facts leading to the appeals are as follows:
That on 23.02.1996, about 17.45 hours, when the breadwinner of the claimants in M.C.O.P.No.2790 of 1996 and other claimants in M.C.O.P.Nos.2469/98, 5120 and 5121/2000, were travelling in a car, bearing Registration No.TN-07-Y-0999, driven by the claimant in M.C.O.P.No.2469 of 1998, from Karaikkal to Chennai, via. Tindivanam, a bus, bearing Registration No.TN 32 N 0410, owned by the appellant-Transport Corporation, which came in the opposite direction, driven by its driver, in a rash and negligent manner, dashed against the above car and thereafter, dashed against a Motorcycle, bearing Registration No.PY 01 D 5913, causing death of one Thomas Antony Rajan, passenger in the car, bearing Registration No.TN-07-Y-0999 and injuries to the other claimants, including the motorcyclist. They filed separate claim petitions, for compensation.
3. Before the Tribunal, appellant-Transport Corporation denied the manner of accident and negligence attributed to the driver of the bus. Without prejudice to the above, Transport Corporation has disputed the compensation, claimed under different heads.
4. Claimants have adduced evidence and marked documents. On the side of the appellant-Transport Corporation, driver of the bus has been examined as RW.1 and Ex.R1 - Judgment in C.C.No.244 of 1996, dated 06.01.1998 and Ex.R2 - Rough Sketch, has been marked.
5. On evaluation of pleadings and evidence, the Tribunal found that the driver of the bus, bearing Registration No.TN 32 N 0410, owned by the appellant-Transport Corporation was negligent in causing the accident. In M.C.O.P.No.2790 of 1996, filed seeking compensation for the death of Thomas Antony Rajan, the Claims Tribunal, quantified the compensation as Rs.16,38,750/-. The nature of injuries sustained by the injured claimants and quantum of compensation awarded, in respect of their claims, under various heads, are as follows:
6. Assailing the correctness of the finding of negligence, Mr.J.Lokesh, learned counsel representing counsel on record, for the appellant-Transport Corporation submitted that the Tribunal ought to have given credence to the evidence of RW.1, driver of the bus, and consequently, should have held that the accident occurred, only due to the negligence of the motorcyclist and the driver of Contessa Car, who according to him, had driven the abovesaid vehicles, without following the traffic rules, and dashed against a stationed bus. He further submitted that the Tribunal has failed to note that after a full fledged trial, the driver of the Transport Corporation bus was acquitted by the criminal Court and that the Judgment in C.C.No.244 of 1996, dated 06.01.1998 has been marked as Ex.R1. Except in M.C.O.P.No.938 of 2001, quantum of compensation awarded by the Tribunal, in all other cases, is disputed.
Heard the learned counsel for the parties and perused the materials available on record.
7. Passengers, who had travelled in the Car, including the legal representatives of the deceased, and the motorcyclist, have adduced evidence. They are also the eye-witnesses to the accident. To substantiate oral evidence, regarding the manner of the accident, they have placed reliance on FIR, registered against the driver of the bus in Cr.No.87 of 1996, registered under Sections 279, 337 and 304(A) IPC, on the file of Kiliyanur Police Station. On the side of the appellant-Transport Corporation, RW.1, driver of the bus has adduced evidence, stating that the accident occurred only due to the negligence of the driver of the Car and motorcyclist. But his evidence is not supported by any independent evidence. All the witnesses examined on behalf of the claimants, have categorically deposed that it was the bus driver, who has caused the accident. Their version is corroborated by Ex.P56 - FIR, Ex.P57 - Motor Vehicles Inspector's Report, Ex.P58 - Accident Register and Ex.P59 - Summons issued by the learned Judicial Magistrate Court, Vanur and their evidence.
8. Though RW.1, driver, has been acquitted by the criminal Court, as per Ex.R1 - Criminal Court judgment, it is not binding on the Tribunal, which on appreciation of evidence to consider, as to whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition and evidence adduced. Strict proof of evidence, is not required.
9. In Vinobabai and others versus K.S.R.T.C. and another, reported in 1979 ACJ 282, the High Court of Karnataka held as follows:
“8. ....Thus, the law is settled that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes admissible in evidence in a civil proceeding and it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The converse is not true ; because the driver is acquitted in a criminal case arising out of the accident, it is not established even prima facie that the driver is not negligent, as a higher degree of culpability is required to bring home an offence.”
10. In N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354, a bus hit an over-hanging high tension wire resulting in 26 casualties. The driver earned acquittal in the criminal case on the score that the tragedy that happened was the Act of God. The Hon'ble Apex Court held that the plea that the criminal case had ended in acquittal and that, therefore, a civil suit must follow suit, was rightly rejected by the Tribunal. It is worthwhile to reproduce para 2 of the judgment herein:
“2. The Facts: A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an over-hanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused- driver was acquitted on the score that the tragedy that happened was an act of God. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded:
"We therefore sustain the finding of the Tribunal that the accident had taken place due to the rashness and negligence of R.W.1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant."
The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirements of culpable rashness under Section 304A, I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to re-open the holdings on culpability and compensation.”
11. In Oriental Insurance Co. Ltd., v. K.Balasubramanian reported in 2007 (2) TN MAC 399, as follows:
"It is a well settled proposition of law that the judgments of the Criminal Courts are neither binding on the Civil Court/Motor Accident Claims Tribunal no relevant in a Civil Case or a claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is convicted based on his admission, the judgment of the Criminal Court becomes admissible and relevant in Civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the Criminal Court, but as a document containing an admission. Of course, admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence."
12. In In Himachal Road Transport Corporation and another versus Jarnail Singh and others, reported in 2009 ACJ 2807, wherein it has been held that acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal, as to whether the driver was negligent or not in causing the accident. At Paragraph 15, it is held as follows:
“15. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court and the judgments cited hereinabove, it is now well settled law that the acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligence or not in causing the accident.”
13. In Geeta Devi v. Rajesh reported in 2011 ACJ 279, the Rajasthan High Court held as follows:
"It is, indeed, trite to state that while the finding of a civil Court is binding on the criminal Court, the finding of the criminal court could not and should not influence the decision of the Tribunal. The Tribunal is supposed to adjudge the case on the basis of evidence produced before it and not on the basis of testimonies given before the criminal Court."
14. What is required to be proved in Motor Accident Claims is negligence. 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.
15. At this juncture, this Court also deems it fit to consider a decision in Jacob Mathew v. State of Punjab reported in 2005 (4) CTC 540, wherein, the Hon'ble Apex Court has explained the distinction between a tort and crime, where negligence is the fact, required to be proved and at Paragraphs 13 to 17, held as follows:
“13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case-
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13)
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
16. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423, a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.”
16. In the light of the above decisions and giving due consideration to the facts and circumstances of this case, this Court is of the considered view that the findings recorded by the Tribunal regarding negligence, cannot be termed as perverse or without any basis and hence, confirmed.
17. In respect of quantum of compensation of Rs.16,38,750/- awarded in M.C.O.P.No.2790 of 1996, as per Ex.P45 Post-Mortem Certificate, the deceased was aged 46 years. According to the legal representatives, the deceased, Thomas Antony Rajan, was an Architect and an efficient person, in the field of consultancy, and earned Rs.5 Lakhs, per month. However, the Tribunal, after considering the oral and documentary evidence, fixed the annual income as Rs.1,10,000/-, and added 50% of the income, towards future prospects and determined, the annual contribution to the family, as Rs.1,65,000/-. Considering the number of dependents, the Claims Tribunal deducted, 1/4th towards the personal and living expenses and after applying 13 multiplier and computed Rs.16,08,750/-, as loss of contribution to the family. That apart, the Tribunal has awarded Rs.15,000/- for loss of love and affection, Rs.10,000/- towards loss of consortium and Rs.5,000/- towards funeral expenses. Altogether, the Claims Tribunal has awarded Rs.16,38,750/- with interest, at the rate of 7.5% per annum.
18. On the aspect, as to whether, average annual income, as determined by the Tribunal, by considering the income-tax returns, filed for the financial years 1993-94 to 1995-96, can it be said to be erroneous? we deem it fit to consider a decision in Kalpanaraj v. Tamil Nadu State Transport Corporation reported in 2015 (2) SCC 764, wherein, the Hon'ble Apex Court held that income shown in the Income-Tax Returns can be fixed as the annual income of the deceased.
19. Compensation awarded under other heads, in our view, is megre and not according to the principles laid down by the Hon'ble Apex Court. There is no compensation for transportation and damages to clothes. In the light of our discussion and decisions, we are of the view that the compensation awarded by the Tribunal, cannot at any stretch of imagination, be excessive or bonanza to the family.
20. In respect of M.C.O.P.Nos.2469/98, 5120 and 5121/2000 and 938/2001, on evaluation of both oral and documentary evidence, the Claims Tribunal has awarded a just and reasonable compensation, which cannot be said to be excessive. In M.C.O.P.No.938/2001, the Claims Tribunal has awarded Rs.12,000/- as compensation for the injuries sustained, for which, no appeal ought to have been filed.
21. In view of the discussion and decisions, findings of the Tribunal, both on negligence and quantum of compensation, awarded in the claim petitions, cannot be said to be arbitrary and excessive. Hence, the same are confirmed. In the result, the Civil Miscellaneous Appeals are dismissed.
22. The appellant-Transport corporation is directed to deposit the entire award amount, with proportionate accrued interest and costs, less the amount already deposited, to the credit of M.C.O.P.Nos.2790/96, 2469/98, 5120 and 5121/2000 and 938/2001, on the file of the Motor Accidents Claims Tribunal, (VI Court of Small Causes), Chennai, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the respondents/claimants in M.C.O.P.Nos.2469/98, 5120 and 5121/2000 and 938/2001, are permitted to withdraw the same, by making necessary applications before the Tribunal.
23. In respect of M.C.O.P.No.2790 of 1996, the share of the minors shall be deposited in any one of the Nationalised Banks in fixed deposit under the reinvestment scheme initially for a period of three years. The interest accruing on the share of the minors shall be paid to the guardian once in three months, till they attain majority. On such deposit being made, except the minors, the respondents/claimants are permitted to withdraw the same, by making
S. MANIKUMAR, J.
AND M.GOVINDARAJ, J.
skm necessary application before the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are also closed.
skm To The Motor Accident Claims Tribunal, (VI Court of Small Causes), Chennai.
(S.M.K., J.) (M.G.R., J.) 05.06.2017
C.M.A.Nos.1392 to 1396 of 2017
and Connected Miscellaneous Petitions
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