Madras High Court
The Managing Director vs R.Gokila Mani on 3 December, 2021
C.M.A.No.1596 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1596 of 2014
and
M.P.No.1 of 2014
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
No.137, Mettupalayam Road,
Coimbatore. .. Appellant
Vs.
1.R.Gokila Mani
2.R.Priyanka .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 30.09.2013
made in M.C.O.P.No.236 of 2012, on the file of the Sub Court, (Motor
Accidents Claims Tribunal), Gobichettipalayam.
For Appellant : M/s.K.J.Sivakumar
For Respondents : Mr.Ma.P.Thangavel
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C.M.A.No.1596 of 2014
JUDGMENT
(The matter is heard through Video Conferencing/Hybrid mode)
This Civil Miscellaneous Appeal has been filed by the appellant-
Transport Corporation to set aside the award of the Tribunal dated
30.09.2013 made in M.C.O.P.No.236 of 2012, on the file of the Sub Court,
(Motor Accidents Claims Tribunal), Gobichettipalayam.
2.The appellant is the respondent in M.C.O.P. No.236 of 2012, on the
file of the Sub Court, (Motor Accidents Claims Tribunal), Gobichettipalayam.
The respondents/claimants filed the said claim petition, claiming a sum of
Rs.5,00,000/- as compensation for the death of one K.Ramachandran, who
died in the accident that took place on 21.05.2012.
3.According to the respondents, while the deceased was travelling in
the Bus owned by the appellant on 21.05.2012 between 06.10 – 08.15 hours
from Coimbatore to Gobichettipalayam as a passenger, at that time, due to the
jerk of the Bus, the said K.Ramachandran sustained heart problem and died
in the bus itself. Immediately after the Bus reached Gobichettipalayam Bus
stand, the Conductor and Driver of the appellant Bus admitted the said
K.Ramachandran in Gobichettipalayam Government Hospital, wherein the
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C.M.A.No.1596 of 2014
Doctor informed that the said K.Ramachandran died. FIR was registered in
Gobichettipalayam Police Station in Crime No.268/2012, under Section 174
of I.P.C. The deceased was aged 54 years at the time of accident and was
doing Yarn business and was earning a sum of Rs.40,000/- per annum. He
was the sole bread winner of the family. The respondents are dependents of
the deceased and they filed the present claim petition against the appellant,
claiming a sum of Rs.5,00,000/- as compensation for the death of
K.Ramachandran.
4.The appellant-Transport Corporation filed counter statement and
denied all the averments in the claim petition. According to appellant, there
was no accident and the averments with regard to death of the said
K.Ramachandran as mentioned in the claim petition are not correct. The
driver of the Bus owned by the appellant-Transport Corporation drove the
Bus cautiously at moderate speed. The said K.Ramachandran died due to
heart attack. The deceased, due to his age and by his ill-health, died himself
while on journey. At the time of journey, the deceased has not complained to
any co-passengers or Conductor for his nervesness or any inconvenience in
travelling. All the passengers travelled in the Bus in that particular trip were
safely arrived and there is no complaint from them about the jerk travel of the
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C.M.A.No.1596 of 2014
Bus. The deceased alone was responsible for the incident. There was no
accident involving the vehicle of the appellant and hence, the appellant is not
liable to pay any compensation to the respondents and prayed for dismissal of
the claim petition.
5.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one U.K.Subramanian, was examined as P.W.2 and 3 documents viz., FIR,
Post Mortem report and Legal heirship certificate were marked as Exs.P1 to
P3 respectively. The appellant examined the Conductor of the Bus as R.W.1
and marked the Final Report as Ex.R1.
6.The Tribunal, considering the pleadings, oral and documentary
evidence, especially the evidence of P.W.2 and R.W.1 and the fact that only
Conductor of the Bus was examined and Driver of the Bus was not examined,
held that the said K.Ramachandran died only due to rash and negligent
driving by driver of the Bus owned by the appellant and directed the
appellant-Transport Corporation to pay a sum of Rs.3,84,000/- as
compensation to the respondents.
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C.M.A.No.1596 of 2014
7.To set aside the award of the Tribunal dated 30.09.2013 made in
M.C.O.P.No.236 of 2012, the appellant – Transport Corporation has come
out with the present appeal.
8.The learned counsel appearing for the appellant-Transport
Corporation reiterated the averments stated in the counter statement before
the Tribunal and submitted that the Tribunal failed to consider the averments
in the counter statement filed by the appellant and evidence of R.W.1 –
Conductor of the Bus properly. The Tribunal failed to consider the FIR and
Final Report, wherein no negligence was attributed against the driver of the
Bus. Referred charge sheet was filed by the Police. The Post Mortem Report
clearly revealed that the death is only due to the heart attack. The Tribunal
erroneously relied on the evidence of P.W.2. The said erroneous report is
liable to the set aside and prayed for allowing the appeal.
9.Per contra, the learned counsel appearing for the respondents
submitted that death of said K.Ramachandran has occurred due to
involvement of the Bus owned by the appellant-Transport Corporation. The
respondents filed the claim petition under Section 163A of the Motor Vehicles
Act. Hence, they need not plead and prove the negligence on the part of the
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C.M.A.No.1596 of 2014
driver of the vehicle. In any event, the Tribunal, considering the evidence of
P.W.2, held that the deceased died due to the jerk of the Bus. The appellant
did not examine the driver of the Bus. The Tribunal considering the entire
materials, directed the appellant to pay the compensation and relied on the
judgment reported in (2019) 12 SCC 398 [United India Insurance Co. Ltd.,
Vs. Sunil Kumar and another], wherein the relevant portion reads as follows:
“9.For the aforesaid reasons, we answer the
question arising by holding that in a proceeding under
Section 163-A of the Act, it is not open for the Insurer to
raise any defence of negligence on the part of the victim.”
10.Heard the learned counsel appearing for the appellant-Transport
Corporation as well as the respondents and perused the entire materials
available on record.
11.From the materials on record, it is seen that no accident has
occurred on the alleged day, when the deceased travelled in the Bus. It is the
case of the respondents that death of K.Ramachandran was due to jerk of the
Bus and due to rash and negligent driving by driver of the Bus. To
substantiate their contention, the 1st respondent examined herself as P.W.1
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C.M.A.No.1596 of 2014
and examined one U.K.Subramanian as P.W.2. On the other hand, it is the
case of the appellant that death was naturally due to heart attack. The driver
of the Bus drove the Bus cautiously and there is no complaint by passengers
with regard to jerk driving. To substantiate this, the appellant examined
Conductor of the Bus as R.W.1 and marked Ex.R1 – Final Report referred
charge sheet. P.W.2 is alleged to have travelled in the Bus in which the
deceased also travelled. He deposed that due to jerk of the Bus only, the said
K.Ramachandran died. The evidence of P.W.2 is not acceptable as he has not
given any complaint to the Police or he did not accompany the driver or
Conductor of the Bus when the said K.Ramachandran was taken to Hospital.
However, the respondents have not produced any proof like ticket issued by
the Conductor to P.W.2 for having travelled in the Bus on that day. Further,
P.W.2 has deposed that the deceased was earning Rs.40,000/- per month.
This shows that P.W.2 is person known to the deceased. When a known
person died in the Bus or did not get down from the Bus, naturally, P.W.2
would have helped him to get down from the Bus and taken to the Hospital.
Considering the evidence of P.W.2 in its entirety, this Court is of the
considered view that evidence of P.W.2 is not reliable and doubtful as to
whether he really travelled in the Bus on that day. The appellant has
examined Conductor of the Bus as R.W.1, who deposed that driver of the Bus
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C.M.A.No.1596 of 2014
drove the Bus carefully and there was no jerk in the Bus. The respondents
have not disputed that R.W.1 was a Conductor of the appellant's Bus in which
the deceased K.Ramachandran travelled. The Conductor of the Bus is also
equally eligible and capable of deposing as to how the Bus was driven on that
day. The Tribunal, erroneously rejected the evidence of R.W.1 on the sole
ground that Driver of the Bus was not examined. In the FIR, no negligence is
attributed against the driver of the Bus. The Police, after investigation, closed
the FIR and filed referred charge sheet. There is no material to show that the
deceased complained of any discomfort due to jerk of the Bus to his co-
passengers or Conductor or Driver. The Post Mortem report produced and
marked by P.W.1 as Ex.P2 clearly reveals that death of K.Ramachandran was
only due to heart attack.
12.From the claim petition it is seen that the respondents have filed
claim petition under Section 163A of the Motor Vehicles Act and counsel for
the respondents relied on the judgment reported in Sunil Kumar case (cited
supra). When the claim petition is filed under Section 163 A, the claimants
need not allege and prove the negligence. But they must prove the accident
involving the vehicle. In the present case, the respondents failed to prove the
accident involving the Bus owned by the appellant. The Tribunal failed to
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C.M.A.No.1596 of 2014
consider the materials placed before it and erroneously held that death of the
said K.Ramachandran is due to rash and negligent driving by driver of the
Bus owned by the appellant. For the above reason, the award of the Tribunal
is set aside and the claim petition is dismissed.
In the result, the Civil Miscellaneous Appeal is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed. The appellant-
Transport Corporation is permitted to withdraw the amount available in the
deposit to the credit of M.C.O.P. No.236 of 2012, if any already deposited by
them. It is made clear that if the respondents have already withdrawn the
entire award amount, the appellant/Transport Corporation is not entitled to
recover the same from the respondents.
03.12.2021
Index : Yes/No
gsa
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C.M.A.No.1596 of 2014
V.M.VELUMANI, J.
gsa
To
1.The Subordinate Judge,
(Motor Accidents Claims Tribunal),
Gobichettipalayam.
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.1596 of 2014
03.12.2021
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