Madras High Court

The Managing Director vs S. Kavitha on 27 August, 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.08.2021

CORAM:

THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN

C.M.A.No.2434 of 2021

The Managing Director,
Tamilnadu State Transport Corporation Ltd.,
(Villupuram) Limited, Salamedu
Vazhathareddy & Post
Villupuram Taluk & District. ... Appellant

Vs.
1. S. Kavitha
2. R. Suresh
3. M. Suresh Babu
4. K. Rafi ... Respondents

PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of

Motor Vehicles Act, 1988, against the judgment and decree dated

04.01.2021 made in M.C.O.P.No.751 of 2018 on the file of the Motor

Accident Claims Tribunal, I Additional District and Sessions Court,

Vellore.

For Appellant : Mr.K.J.Sivakumar

https://www.mhc.tn.gov.in/judis/
2

JUDGMENT

The Civil Miscellaneous Appeal is filed against the award dated

04.01.2021 made in M.C.O.P.No. 751 of 2018 on the file of the Motor

Accident Claims Tribunal, I Additional District and Sessions Court,

Vellore.

2. The short facts of the case are as follows:

On 29.04.2017, the respondents 1 & 2 along with their daughters

minor Kaviya and deceased minor Lavanya were travelling in a share

auto-rickshaw bearing Registration No.TN-73-B-7774 from Walajapet

bus stand to Kadapperi Village, while so when the auto-rickshaw was

proceeding from west to east in M.B.T.road near “Ariznar Anna Arts

College for Women” Walajapet, at that time, the Government bus bearing

Registration No.TN 32 N 3778 drive by its driver came in the opposite

direction in a rash and negligent manner from East to West and dashed

against the auto-rickshaw on its front right side. In the accident minor

Kaviya sustained lacerated wound over the right knee joint, fracture of

right femur and injuries all over the body. Her sister, minor Lavanya

sustained bleeding injuries in the ear and nose, open lacerated dishy

wound 7x3x2 cm in scalp and open wound on right knee 3x2x2 cm in https://www.mhc.tn.gov.in/judis/

right knee and their mother Kavitha also sustained injuries all over the

body. Immediately the injured persons were admitted in the Government

Hospital, Walajah for first aid treatment. But the Doctor declared that the

minor Lavanya was brought dead. Walajapet Police registered the case in

Crime No.200/2017 under Sections 279, 337 and 304(A) of IPC

regarding the accident. The respondents 1&2/claimants filed the said

claim petition, claiming a sum of Rs.20,00,000/- as compensation for the

death of their daughter minor Lavanya, who died in the accident that took

place on 29.04.2017.

3. The appellant/Transport Corporation is the third respondent in

M.C.O.P.No. 751 of 2018 on the file of the Motor Accident Claims

Tribunal, I Additional District and Sessions Court, Vellore. The

respondents 1 & 2 filed the said claim petition, claiming a sum of

Rs.20,00,000/- as compensation for the death of their minor daughter

Lavanya, who died in the accident that took place on 29.04.2017. The

third respondent is the driver of the Auto rickshaw and 4th respondent is

the owner of the Auto-rickshaw.

4. The Tribunal, considering the pleadings, oral and documentary https://www.mhc.tn.gov.in/judis/

evidence, held that the accident occurred due to rash and negligent

driving by both the drivers of the vehicle and are equally responsible for

the accident and thus owner of the share auto-rickshaw, namely the

second respondnet is liable to pay 50% of compensation i.e.,

Rs.3,97,500/- and the owner of the bus namely the third respondent is

liable to pay 50% of compensation i.e., Rs.3,97,500/- to the claimants.

Challenging the said award dated 04.01.2021, made in M.C.O.P.No.751

of 2018 granting compensation to the respondents 1 & 2, the appellant-

Transport Corporation has come out with the present appeal.

5. The contention of the learned counsel appearing for the

appellant-Transport Corporation is that the Tribunal erred in attributing

contributory negligence on the ground that the drivers of both bus and

Auto-Rickshaw, in which the deceased was travelling, were responsible

for the accident. Learned counsel further submits that the accident

occurred only due to the rash and negligent driving of the Auto-rickshaw

and therefore, no liability could be fastened upon the appellant Transport

Corporation.

6. Heard the learned counsel appearing for the appellant and https://www.mhc.tn.gov.in/judis/

perused the materials available on record.

7. The minor girl child of the claimants aged 6 years met with a

fatal accident on 29.04.2017 and that the Tribunal has foisted the liability

at the ratio 50:50 on the Transport Corporation/appellant and the owner

of the Auto Rickshaw/fourth respondent on the ground that both of them

were negligent. Though it has been stated that the bus driver has driven

the bus in a careful and cautious manner, the driver of the share Auto

drove the vehicle in an uncontrollable manner and hit against the bus on

the right side which resulted in a fatal accident. The appellant herein has

contended that the claimants have not made the insurer of the Auto-

rickshaw as a party to the proceedings. A case has been registered against

the driver of the Auto-rickshaw which is marked as Ex.P.2. As per the

complaint, driver of the Auto-rickshaw has driven the vehicle in a rash

and negligent manner. PW1 has given evidence that the driver of the bus

belonging to Transport Corporation has driven the bus in a rash and

negligent manner and after investigation charge sheet has been filed

against the driver of the Auto-rickshaw. The Tribunal after analysing the

evidence on record and taking note of the evidence of PW1 came to the

conclusion that no individual witness has been examined by the https://www.mhc.tn.gov.in/judis/

Transport Corporation and foisted the liability equally on both the drivers

of the vehicle. The Tribunal has also come to the conclusion that there

was no valid driving license in possession of the Auto-rickshaw driver

and that both the drivers were responsible for causing the major accident

in which an infant lost her life. Therefore, the Tribunal taking note of the

fact that the future of the child is uncertain, has awarded compensation of

Rs.5,000/- per month as notional income and after deducting 1/3rd

towards personal expenses and applying multiplier “18” has awarded

Rs.7,20,000/- and a sum of Rs.50,000/- towards loss of love and affection

and Rs.15,000/- towards Funeral expenses. Since, I find no error in the

award of the Tribunal, the award is confirmed and the appeal filed by the

Transport Corporation is dismissed.

8. Transport Corporation is directed to deposit the amount awarded

by the Tribunal within a period of three months from the date of receipt

of a copy of the judgement. Thereafter the claimants are entitled to

withdraw the same. It is needless to mention that the claimants are also

entitled to withdraw the balance 50% of the amount if any deposited by

the owner of the Auto Rickshaw as per the award of the Tribunal and in

case of non deposit of the amount the claimants shall proceed against the https://www.mhc.tn.gov.in/judis/

owner of the auto rickshaw for the recovery of the balance 50% of the

award amount. No costs.

                                                                               27.08.2021

                     dpq
                     Index         : Yes/No
                     Internet      : Yes/No



                     To

                     1. The Motor Accident Claims Tribunal,

I Additional District and Sessions Court, Vellore.

https://www.mhc.tn.gov.in/judis/

S. VAIDYANATHAN, J.

dpq

C.M.A.No.2434 of 2021

27.08.2021

https://www.mhc.tn.gov.in/judis/