The Managing Director vs Kalaperumal
2021 Latest Caselaw 24365 Mad

                                                         1

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 10.12.2021

                                                       CORAM :

                                  THE HONOURABLE MRS.JUSTICE S.ANANTHI

                                        C.M.A.(MD).Nos.320 to 324 of 2019
                                                      and
                                       C.M.P.(MD)Nos. 4034 to 4037 of 2019

                  C.M.A.(MD).No.320 of 2019

                  The Managing Director,
                  Tamil Nadu State Express Transport Corporation,
                  Pallavan Salai,
                  Chennai – 2.                             ...Appellant/Respondent

Vs.

                  1.Kalaperumal
                  2.Nambi                                      ...Respondents/Petitioners

PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to allow this Appeal, set aside the award and decree made in M.C.O.P.No.1453 of 2016, dated 18.07.2018 on the file of the learned Motor Accident Claims Tribunal/III Additional District Court, Tirunelveli.

In Both C.M.As.

For Appellant :Mr.P.Prabhakaran For Respondents :No appearance

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

COMMON ORDER

The appellant/Transport Corporation has filed these five appeals to set

aside the order, dated 18.07.2018 in M.C.O.P.Nos.1453 to 1456 & 1622 of

2016, passed by the learned Motor Accident Claims Tribunal/III Additional

District Court, Tirunelveli.

2.It is a case of fatal accident. On 08.08.2014, at about 17.30hrs., the

deceased persons and the claimants were travelled in a Maruthi Car bearing

Regn. No.TN-74-K-1292, Kavalkinaru – Nagercoil main road, in front of the

Library Aralvaimozhi Perumalpuram, north to south, a bus belonging to the

appellant/Transport Corporation which was driven by its driver with rash and

negligent manner and dashed against the Maruthi car. Due to the accident,

claimants have sustained injuries and three persons died.

3.The claimants have filed a petition in M.C.O.P.Nos.1453 to 1456 &

1622 of 2016, on the file of the learned Motor Accident Claims Tribunal/

III Additional District Court, Tirunelveli, seeking compensation.

4.Before the Tribunal, on the side of the claimants four witnesses have

examined as P.Ws.1 to 4 and marked sixteen documents as Exs.P.1 to P.16

and one witness was examined as Ex.R.1.

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

5.The Tribunal, after considering the pleadings, oral and documentary

evidences and the arguments of the counsel for the claimants, directed that

after paying the whole compensation amount the appellant/transport

corporation is entitled to recover the remaining contribution amount by filing

separate proceedings from the owner and insurance company of the Maruti

Car. Aggrieved by the said order, the present Civil Miscellaneous Appeal has

been filed.

6.Heard on either side. Perused the material documents available on

record.

7.The claimants have filed separate claim petition for the same

accident occurred on 08.08.2014. The Transport Corporation has filed this

appeal on the ground that eventhough the tribunal held that the driver of the

Maruthi car and the insurance company is liable to pay compensation and

directed the appellant/Transport corporation to pay entire compensation. The

First Information was registered against the driver Maruthi Car. The tribunal

in its order, dated 18.07.2018 decided that when the driver of the Maruthi Car

came wrongly on the right side and dashed the Transport Corporation bus and

also recorded that the First Information Report was registered against the

driver of the Maruthi car. But the driver of the Maruthi car died on the spot. https://www.mhc.tn.gov.in/judis

8.Again, it is further stated in paragraph No.18 of the order, the

tribunal discussed that the owner and the insurance company of the Maruthi

car was not added as a party in the M.C.O.P. Proceedings. Both the vehicles

dashed each other.

9.So, on the basis of the Judgment reported in 2008(3) SCC 748 (T.O.Anthony Vs. Karvarnan and Others, the tribunal assumed that the extent of negligence of the appellant and the first respondent is 50 : 50 because it was a case of composite negligence. The tribunal, we find, fell into a common error committed by several tribunals, in proceeding on the assumption that composite negligence and contributor negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicle in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

“Composite Negligence” refers to the negligence on the part of two or more person. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the chose of proceedings against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of https://www.mhc.tn.gov.in/judis

each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part bu the damages recoverable by him in respect of the injuries stand reduced in proportion to this contributory negligence. Therefore, when two vehicles are involved in an accident, and one of the drivers claim compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injuries is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error”.

10.All these findings shows that the driver of the Maruthi car and the

Insurance company are liable for paying compensation. The Tribunal has

wrongly fixed the appellant/transport corporation for entire liability to pay

compensation. Only 50% liability is to be fixed on the appellant/transport

corporation.

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

11.In M.C.O.P.No.1453 & 1622 of 2016, at the time of accident, the

deceased are bachelor. As a bachelor, in personal expenses 50% to be

deducted. The tribunal has wrongly deducted 1/3 in personal expenses. So,

in personal expenses 50% to be deducted.

12.Finally, all the Civil Miscellaneous Appeals are partly allowed and

the liability on the appellant/transport Corporation is fixed on 50%. The

appellant/Transport Corporation is directed to pay 50% of the award amount

passed by the Tribunal, within a period of six weeks from the date of receipt

of copy of the order. After depositing the award amount, all the claimants

are permitted to withdraw the same before the tribunal, on filing appropriate

application. The appellant/transport corporation is entitled to withdraw the

excess amount deposited, if any. No Costs. Consequently, connected

miscellaneous petitions are closed.

                  Index :Yes/No                                                       10.12.2021
                  Internet:Yes/No
                  ksa

Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. https://www.mhc.tn.gov.in/judis

To The Motor Accident Claims Tribunal/ III Additional District Court, Tirunelveli.

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

S.ANANTHI, J.

ksa

Common Order made in C.M.A.(MD).Nos.320 to 324 of 2019

10.12.2021

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