WP/2950/1996 of KRISHNAKUMAR G Vs S/TN BY SECY,MA & WS DEPT, on 2 December 2002

:ORDER

Heard the learned counsel appearing for the parties.

2. This writ petition has been filed by the parent of one K.Ramya, agirl aged about 12 years who expired on 25.6.95 on account of the accidentcaused by the bullock cart belonging to respondent No.2 – Corporation, whichhas been driven by an employee of the Corporation for the purpose ofscavenging.

3. A counter affidavit has been filed in this writ petition. Since some factual disputes had been raised, after hearing the counsel for bothparties, D.Murugesan,J. had called upon the parties to furnish a list ofpersons to be appointed as Arbitrator. Subsequently, the learned counsel forthe respondent had submitted the name of Sri.N.P.K. Menon, a Retired DistrictJudge and practising Advocate in this Court. The aforesaid name was acceptedby the learned Judge and Sri.N.P.K.Menon was appointed as Arbitrator to submithis report on the following questions:

1. Whether the petitioner is entitled to any compensation for the loss of life of his minor daughter due to the reckless driving on the part of the secondrespondent employee?

2. If so, to what amount of compensation the petitioner is entitled to ?

4. Thereafter, the Arbitrator held enquiry in presence of both parties.

Evidence was adduced on behalf of the petitioners and the witnesses wereexamined and cross-examined. Some documents were marked. Upon considerationof the materials available on record, the Arbitrator has found that theaccident occurred due to negligence of the bullock cart driver. TheArbitrator has suggested a sum of Rs.4,10,000/- should be paid as compensationby calculating Rs.24,000/- as annual loss and by applying the multiplier of15. This conclusion was reached by the Arbitrator by placing reliance uponthe decision of the Supreme Court reported in 2001 AIR S.C.W 3430 (M.S.GREWALAND ANOTHER V. DEEP CHAND SOOD AND OTHERS).

5. In the objection to the findings of the Arbitrator, the main point relates to the question of contributory negligence on the part of thedeceased. The Corporation has also challenged the quantum.

6. It is to be noticed that the earlier order of the learned Judge appointing an Arbitrator had not been challenged by either party and in fact,both parties have participated in the enquiry conducted by the Arbitrator.

7. At the time of hearing of the matter, learned counsel for the Corporation has placed reliance upon the decision reported in 1997 (9) SCCpage 552 (RAJKOT MUNICIPAL CORPORATION V. MANJULBEN JAYANTILAL NAKUM ANDOTHERS). That decision relates to the death of a pedestrian on account of thefalling of branch of an old tree which had been planted and was supposed to bemaintained by the Rajkot Municipal Corporation. In the peculiar facts of thatcase, it was held that there was no negligence and the Corporation was notliable to pay any compensation. I think the said decision is not at allapplicable to the facts of the present case where a girl child who was ridinga cycle has been run over by the bullock cart which was coming from behind.

8. The learned counsel for the respondent No.2 also submitted that

there was no intention on the part of the bullock cart driver to cause theaccident and therefore no compensation is payable. This submission is equallyfallacious. Negligence is failure to take care as required of a man ofordinary prudence. If the bullock cart coming from behind had dashed against the cycle which was going in front of it, the only conclusion which can bearrived at is that the accident occurred on account of negligence on the partof the bullock cart driver. No other conclusion is possible in such ascenario.

9. In the counter affidavit as well as in the objection to the reportof the Arbitrator, a plea has been raised regarding the contributorynegligence on the part of the deceased. It has been submitted that theparents should not have allowed the girl child aged 12 years to ride a cycleon the road and thereby invite the accident. This submission is not onlyinsensitive but also fallacious. It cannot be said that no child below 12years should be allowed to ride a cycle on the road. Merely because a childrides a cycle on the road, it does not give a license to the other users ofthe road to drive any motor vehicle or the bullock cart negligently and runover such child. It is, of course, true that the child while riding a cycleis required to be careful. Whether the child in this particular case wascareless or not has to be judged on the basis of materials on record. TheArbitrator has referred to the evidence of P.W.2- an eye-witness to theoccurrence who has stated that while the child was riding the cycle, thebullock cart came from behind and dashed against the cyclist and subsequently,the left wheel of the bullock cart ran over the child. No evidence to thecontrary is adduced on behalf of the Corporation. Even the bullock cartdriver has not been examined by the Corporation to explain the circumstancesunder which the accident occurred. The evidence has been accepted by theArbitrator and I see no reason to discard such evidence or the finding thatthe accident occurred only due to negligence of the bullock cart driver whocame from behind and dashed against the cyclist who was going in front of it.In such a situation, there is negligence on the part of the driver only and nocontributory negligence can be attributed to the deceased.

10. The learned counsel for the respondent No.2 further submitted that the quantum of compensation arrived at by the Arbitrator is excessive andthere was no justification to fix the annual contribution at Rs.24,000/- andfurther there was no justification to apply the multiplier of 15. As alreadyindicated, the Arbitrator has relied upon the decision of the Supreme Courtreported in 2001 AIR SCW 3430. After going through the aforesaid decision, Ifind no reason to take a different stand. By no stretch of imagination, itcan be said that fixation of Rs.4,10,000/- is excessively high to warrantinterference by this Court.

Conclusion

11. It is of course true that in the writ petition itself, thepetitioner had claimed for compensation of Rs.4,00,000/-. In the course ofhearing, I had suggested to the learned counsel appearing for the respondentsto ascertain as to whether the Corporation is willing to pay a sum ofRs.3,50,000/-. This suggestion was given to ensure prompt payment and avoidfurther legal wranglings. The learned counsel for the Corporation hasexpressed the inability of the Corporation to make any such payment. On theother hand, after the matter was adjourned for the aforesaid purpose,objection to the report of the Arbitrator has been filed. Even though thequantum suggested by the Arbitrator appears to be just, there is nojustification to direct payment of any lesser amount, the learned counsel for the petitioner has fairly submitted that the petitioner is still willing toaccept Rs.3,50,0 00/- to bring about an early end to the matter.

12. Keeping in view the fair submission of the learned counsel for thepetitioner, I direct that even though a sum of Rs. 4,10,000/- is payable bythe Corporation, the petitioner would accept a sum of Rs. 3,50,000/-(RupeesThree Lakhs and Fifty Thousand only) provided such amount is paid to thepetitioner within a period of two months from the date of communication ofthis order. However, if the said amount is not paid within two months, theentire sum of Rs.4,10,000/- will be payable with interest at the rate of 9%per annum thereafter.

13. The Arbitrator in his memo has indicated that 13 sittings havetaken place and has prayed for payment of Rs.20,000/-(Rupees Twenty Thousandonly) as remuneration. This appears to be reasonable. It is directed thatthis amount of Rs. 20,000/-may be paid by the petitioner and the respondentsin equal proportion within a period of two months.

14. The writ petition is ordered accordingly. There will be no orderas to costs. Consequently, W.M.P.No.4711/1996 is also disposed of.

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To

1. The SecretaryState of Tamil NaduMunicipal Administrationand Water Supply DepartmentFort St. GeorgeMadras 600 009

2. The CommissionerCorporation of madrasRipon BuildingsMadras 600 003