Madras High Court
The Managing Director vs Elavarasi on 23 December, 2021
C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No.112 of 2021
in C.M.A.No.2307 of 2016
& M.P.Nos.1, 1, 1 of 2015 & C.M.P.No.16268 of 2016
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Kumbakonam Division II,
Periyamilaguparai, Trichy 1 .. Appellant in all C.M.As.
Vs.
1.Elavarasi
2.Devi .. Respondents in C.M.A.Nos.1456
& 1458 of 2015
1.Alamelu
2.Sundarraj
3.Ramesh .. Respondents in C.M.A.No.1457 of 2015
1.Sellappappu
2.Sellamuthu .. Respondents in C.M.A.No.2307 of 2016
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
03.04.2014, made in M.C.O.P.Nos.367, 368, 370 of 2010 & 311 of 2011, on
the file of the Principal District Court, (Motor Accidents Claims Tribunal),
Namakkal.
Cross Objection No.112 of 2021
1.Sellappappu
2.Sellamuthu .. Cross Objectors
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Kumbakonam Division II,
Periyamilaguparai, Trichy 1. .. Respondent
Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C against
the judgment and decree dated 03.04.2014 made in M.C.O.P.No.311 of 2011
on the file of the Motor Accident Claims Tribunal, Principal District Court,
Namakkal.
In all C.M.As.
For Appellant : Mr.D.Venkatachalam
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
In C.M.A.No.1456 to 1458 of 2015
For Respondents : Mr.C.Kulanthaivel
In C.M.A.No.2307 of 2016
For Respondents : Mr.Ma.Pa.Thangavel
In Cross Objection
For Cross appellants : Mr.Ma.Pa.Thangavel
For Respondent : Mr.D.Venkatachalam
COMMON JUDGMENT
The Civil Miscellaneous Appeals have been filed by the Transport
Corporation against the award dated 03.04.2014 made in M.C.O.P.Nos.367,
368, 370 of 2010 & 311 of 2011, on the file of the Principal District Court,
(Motor Accidents Claims Tribunal), Namakkal.
The Cross-Objection has been filed by the claimants in
M.C.O.P.No.311 of 2011, seeking enhancement of compensation granted by
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
the Tribunal in the award dated 03.04.2014 made in M.C.O.P.No.311 of 2011
on the file of the Motor Accident Claims Tribunal, Principal District Court,
Namakkal.
2.All the appeals and the cross-objection arise out of the same accident
and hence, they are disposed of by this common judgment. The parties are
referred to as per their rank in the Civil Miscellaneous Appeals.
3.The appellant in all the appeals is the respondent and respondents in
all the appeals are the claimants in M.C.O.P.Nos.367, 368, 370 of 2010 & 311
of 2011, on the file of the Principal District Court, (Motor Accidents Claims
Tribunal), Namakkal respectively. The claimants filed the said claim petitions
claiming a sum of Rs.10,00,000/-, Rs.10,00,000/-, Rs10,00,000/- and
Rs.15,00,000/- as compensation for the death of Gobi, Suresh, Prabu and
Vijayakumar respectively, who died in the accident that took place on
10.05.2010.
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
4.According to the respondents, on the date of accident, the deceased
Prabu along with 3 pillion riders was travelling in the motorcycle bearing
Registration No.TN 50 E 2352 on Padalur, Mascon TNEB, keeping left side
of the road. At that time, the driver of the bus bearing Registration No.TN 72
N 7328 owned by the Transport Corporation, who was coming in the opposite
direction drove the same in a rash and negligent manner, dashed against the
motorcycle and caused the accident. In the accident, all the four persons died.
Hence, the respondents filed the said claim petitions, claiming compensation
against the appellant-Transport Corporation.
5.The appellant-Transport Corporation filed separate counter
statements and denied all the averments made by the respondents in their
respective claim petitions. According to the appellant-Transport Corporation,
the driver of the bus owned by the Transport Corporation, drove the same
with due care and caution at a moderate speed. At that time, the deceased
Prabu along with three pillion riders of the motorcycle tried to overtake a
lorry, from the opposite direction. On seeing this, the driver of the bus
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
sounded horn, switched the head lights of the bus 'on' and 'off ' and alerted the
deceased and drove the bus to the extreme left side and applied brakes and
stopped. But, the deceased Prabhu along with 3 pillion riders, lost his balance
and dashed against the front portion of the bus. Therefore, the accident has
occurred only due to the negligence on the part of the rider as well as the
pillion riders of the motorcycle and not due to the negligence on the part of
the driver of the bus owned by the appellant-Transport Corporation. The
deceased Prabhu, rider of the motorcycle, was not possessing valid driving
license at the time of accident. Immediately after the accident, the driver of
the bus owned by the appellant preferred a complaint in Padalur Police
Station. The Police, after investigation, registered a Criminal Case in Crime
No.186/2010, against the deceased/rider of the motorcycle, under Sections
279, 337 and 304(a) of I.P.C. The deceased/rider of the motorcycle violated
the policy conditions by riding the motorcycle along with three pillion riders.
The claim petitions are bad for non-joinder of owner and insurer of the
motorcycle. Hence, the appellant-Transport Corporation is not liable to pay
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
any compensation to the respondents. In any event, the total compensation
claimed by the respondents are excessive and prayed for dismissal of the
claim petitions.
In C.M.A.Nos.1456 to 1458 of 2015
6(i).Before the Tribunal, the 1st respondent in C.M.A.Nos.1456 and
1458 of 2015 examined herself as P.W.1, one Sundararaj, father of the
deceased Suresh, who is 2nd respondent in C.M.A.No.1457 of 2015, was
examined as P.W.2, one Pachamuthu, eye-witness was examined as P.W.3 and
17 documents were marked as Exs.P1 to P17. The appellant-Transport
Corporation examined one Saravanan, driver of the bus as R.W.1 and did not
mark any document.
In C.M.A.Nos.2307 of 2016
6(ii).Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Sureesh, eye-witness was examined as P.W.2 and 18 documents were
marked as Exs.P1 to P18. The appellant-Transport Corporation examined one
Saravanan, driver of the bus as R.W.1 and did not mark any document.
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the bus owned by the appellant-Transport Corporation and directed
the appellant-Transport Corporation to pay a sum of Rs.5,60,000/-,
Ra.5,60,000/-, Rs.5,60,000/- and Rs.13,44,000/- as compensation to the
respondents.
8.Against the award of the Tribunal dated 03.04.2014, made in
M.C.O.P.Nos.367, 368, 370 of 2010 & 311 of 2011, the appellant has come
out with the present appeals.
9.Not being satisfied with the amounts awarded by the Tribunal, the
respondents in C.M.A.No.2307 of 2016 have filed Cross-Objection No.112 of
2021, seeking enhancement of compensation.
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
10.The learned counsel appearing for the appellant-Transport
Corporation contended that the Tribunal ought not to have considered the
evidences of P.W.1 and P.W.2, who are mother and father of the deceased
Gopi and Suresh respectively and not eye-witnesses to the accident. The
Tribunal failed to note that the First Information Report has been registered
against the deceased Prabhu/ rider of the motorcycle, as he rode the same
with three pillion riders, which caused the accident. The Tribunal ought not to
have relied on the evidence of P.W.3, who is friend of the deceased, as the
said evidence has not been corroborated by any independent witness and
documentary evidence. The appellant examined the driver of the bus as
R.W.1. The driver of the bus is the competent person to speak about the
accident, who deposed that the accident occurred when the Motorcycle which
came in the opposite direction in a rash and negligent manner, overtook a
lorry and dashed against the bus. The Tribunal ought to have considered the
evidence of R.W.1 and Ex.P1/FIR and fixed entire negligence on the part of
the deceased Prabhu/rider and pillion riders of the Motorcycle. In the absence
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
of any document to prove the age of the deceased, the Tribunal erred in fixing
the monthly income at Rs.5,000/-, for a student who is a non-earning person.
As per the Motor Vehicles Act, a sum of Rs.15,000/- has to be fixed as annual
income of the non-earning member. In any event, the total compensation
awarded by the Tribunal are excessive and prayed for setting aside the award
of the Tribunal and dismissal of Cross-Objection filed by the respondents in
C.M.A.No.2307 of 2016.
11.The learned counsel appearing for the respondents seperately
contended that the respondents have examined independent eye-witnesses
viz., one Sureesh as P.W.2 in M.C.O.P.No.311 of 2011 and one Pachamuthu
as P.W.3 in M.C.O.P.Nos.367, 368 and 370 of 2010, who deposed that the
accident has occurred only due to the rash and negligent driving by the driver
of the bus owned by the appellant-Transport Corporation. The appellant-
Transport Corporation, except examining the driver of the bus, did not
examine any eye-witness to prove their case. In the absence of contra
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
evidence to the evidence of P.W.2 and P.W.3, the Tribunal accepted the
evidence of P.W.2/Suresh and fixed negligence on the part of the driver of the
bus. There is no error in the award of the Tribunal fixing negligence on the
part of the driver of the bus owned by the appellant.
12.The learned counsel appearing for the respondents in
C.M.A.No.2307 of 2016/Cross objector in Cross Objection No.112 of 2021
further submitted that the amount awarded by the Tribunal is very meagre.
The deceased Vijayakumar was studying 4th year M.B.A in Annamalai
University at the time of accident. The Tribunal ought to have fixed notional
income of the deceased at Rs.20,000/- per month and granted 50%
enhancement towards future prospects and prayed for dismissal of
C.M.A.No.2307 of 2016 filed by the appellant/Transport Corporation and for
allowing the Cross Objection filed by him for enhancement of the
compensation. Both the counsel appearing for the respondents prayed for
dismissal of the Civil Miscellaneous Appeals.
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
13.Heard the learned counsel appearing for the appellant/Transport
Corporation as well as the learned counsel appearing for the respondents and
perused the entire materials available on record.
14.From the materials on record, it is seen that it is the case of the
respondents that when the deceased persons were traveling in the motorcycle,
the driver of the bus owned by the appellant-Transport Corporation drove the
same in a rash and negligent manner, dashed on the motorcycle and caused
the accident. In the accident, all four persons sustained grievous injuries and
died. From the case of the respondents itself it is seen that at the time of
accident, four persons have traveled in the motorcycle which is meant only
for two persons. It is consistently held that when more than two persons
travel in the motorcycle, the rider of the motorcycle will not have full control
over the motorcycle and he will not be in a position to ride the motorcycle
properly, as rider of the motorcycle will be almost sitting on the petrol tank.
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
In the present case, apart from the driver of the motorcycle, three pillion
riders have travelled at the time of accident and the same is not only in
violation of statutory provisions but also in violation of policy conditions.
The accident is head on collision and since four persons travelled in the
motorcycle, they have also contributed to the accident. This issue was
considered by a Division Bench of this Court and in paragraph numbers 11
and 12 of the judgment reported in 2003 1 MLJ 489 [The Managing
Director, Tamilnadu State Transport Corporation, Coimbatore Vs. Abdul
Salam and others], this Court has held as follows:
“11.We are concerned as to whether such action of
the individuals is permissible under law. The motor cycle
and any other two wheelers are meant only for two
persons, the rider and a pillion rider. If more than two
persons are travelling in a motor cycle or any other two
wheeler, undoubtedly such action of the individual would
become illegal and unauthorised. It is an awful sight when
we come across three persons travelling in a motor cycle.
They are sitting in such a cramped manner that the rider of
the motor cycle almost sitting on the petrol tank or at the
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
front edge of the seat. When he was sitting in such a
position, naturally because of the restricted movement of
his legs, he cannot have the complete control over the
brake. The movements of his hands also so restricted. When
that be so, this court is of the opinion that definitely the
rider of the two wheeler cannot have full control over the
vehicle.
12.Apart from that, when three persons are travelling
in a motor cycle, two as pillion riders, any unusual
movement of the pillion riders would make the rider of the
motor cycle to loose his control over the vehicle. Even
though such travelling of three persons in a motor cycle is
contrary to the statute, still the enforcement wing do not
care to take note of the same and failed to take action
against their illegal action. Virtually because of the failure
on the part of the enforcement wing, such travelling of
three persons in the two wheelers has become a regular
sight. Even though the highway patrolling is available but
it is a rare sight to see a highway patrolling vehicle. The
travelling of three persons has become rampant in the
mofussils and in the City; especially among the youngsters
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
like the college students. When that be the case, the
enforcing authority is Texpected to enforce the statute with
some strictness to avoid any untoward incident. There is no
purpose in conducting the Road Safety Week without
infusing the road sense in compliance of the Rules and
Regulations of the statute in the minds of those who are
using the vehicles.”
15.The Division Bench has taken a judicial note of the fact that when
three persons travel in a two-wheeler, the rider of the two-wheeler will not
have control over the handle bar and the brake. The rider of the motorcycle is
almost sitting on the petrol tank when three persons travel in the motorcycle.
This Court also held that law enforcing agency must prevent the practise of
three persons travelling in the two-wheeler. Even though the said judgment
was delivered in the year 2003, even in 2019 in most of the two-wheelers,
three persons travel and law enforcing agency has not taken any steps to
prevent such statutory violation. This Court held that when three persons
travel in two-wheeler, the rider of the two wheeler will not have control over
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
the handle bar and brake. The Tribunal failed to consider these aspects and
erroneously fixed entire negligence on the part of the driver of the bus.
Considering the entire materials on record in its entirety and the judgment of
the Division Bench of this Court referred to above, this court is of the view
that the rider of the motorcycle and pillion riders have also contributed
negligence to the accident. Hence, 35% contributory negligence is fixed on
the rider as well as the pillion riders of the motorcycle and 65% contributory
negligence is fixed on the part of the driver of the Bus owned by the
appellant-Transport Corporation. Hence, the respondents are entitled to only
65% of the compensation awarded by the Tribunal.
C.M.A.Nos.1456 to 1458 of 2015
16(i).As far as the quantum of compensation awarded by the Tribunal
in M.C.O.P.Nos.367, 368 and 370 of 2010 are concerned, the contention of
the learned counsel appearing for the appellant-Transport Corporation is not
acceptable as the amounts awarded by the Tribunal are not excessive. The
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
respondents are entitled to only 65% of the amount awarded by the Tribunal
as this Court fixed 35% on the part of the rider as well as the pillion rider.
The amount of Rs.5,60,000/- awarded by the Tribunal is not interfered with.
C.M.A.No.2307 of 2016
16(ii).As far as the quantum of compensation granted by the Tribunal
in M.C.O.P.No.311 of 2011 is concerned, it is the case of the appellant that
the deceased Vijayakumar was doing 4th year M.B.A in Annamalai University.
To prove the same, the respondents have produced Exs.B11 to B18. The
Tribunal fixed only a sum of Rs.7,000/- per month as notional income of the
deceased and the same is meagre. The accident is of the year 2010.
Considering the date of accident and educational qualification of the
deceased, a sum of Rs.10,000/- per month is fixed as notional income of the
deceased. The Tribunal has erroneously granted 50% enhancement towards
future prospects. As per the judgment of the Hon'ble Apex Court reported in
2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi
and others], the respondents are entitled to only 40% enhancement towards
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
future prospects. The deceased was a bachelor at the time of accident. The
Tribunal rightly deducted 50% towards personal expenses of the deceased
and applied multiplier “18”. Thus the compensation awarded by the Tribunal
towards loss of dependency is modified to Rs.15,12,000/- (Rs.14,000/-
(Rs.10,000/- + Rs.4,000/- [40% of Rs.10,000/-]) x 18 x 12 x ½). The Tribunal
has awarded Rs.10,000/- each towards funeral expenses and loss of love and
affection to the respondents, which are meagre and hence, the same are
hereby enhanced to Rs.15,000/- towards funeral expenses and Rs.40,000/-
towards loss of love and affection. The Tribunal has not awarded any
compensation towards loss of estate and hence, a sum of Rs.15,000/- is
awarded towards loss of estate. The compensation awarded by the Tribunal
under the head of Medical bills is hereby confirmed. Thus, the compensation
awarded by the Tribunal is modified as follows:
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
S. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court granted or
(Rs) reduced
1. Loss of dependency 11,34,000 15,12,000 Enhanced
2. Loss of love and affection 10,000 40,000 Enhanced
3. Funeral expenses 10,000 15,000 Enhanced
4. Medical bills 1,90,000 1,90,000 Confirmed
5. Loss of estate - 15,000 Granted
Total 13,44,000 17,72,000
65% of the award amount now
determined by this Court 11,51,800
17(i).In the result, C.M.A.Nos.1456 to 1458 of 2015 are partly allowed
and the sum of Rs.5,60,000/- each awarded by the Tribunal as compensation
to the respondents along with interest and costs are confirmed. The appellant-
Transport Corporation is directed to deposit a sum of Rs.3,64,000/- each
being 65% of the amount awarded by the Tribunal, along with interest and
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
costs, less the amount already deposited, if any, within a period of twelve
weeks from the date of receipt of a copy of this judgment. On such deposit,
the respondents are permitted to withdraw their respective share of the award
amount, as per the apportionment fixed by the Tribunal, along with
proportionate interest and costs, less the amount if any, already withdrawn, by
filing necessary petitions before the Tribunal. The appellant-Transport
Corporation is permitted to withdraw the excess amount lying in the deposit
to the credit of M.C.O.P.Nos.367, 368 & 370 of 2010, if the entire amount has
already been deposited by them. No costs. Consequently, connected
Miscellaneous Petitions are closed.
17(ii).In the result, C.M.A.No.2307 of 2016 is partly allowed and
Cross Objection No.112 of 2021 is partly allowed and the compensation
awarded by the Tribunal at Rs.13,44,000/- is hereby enhanced to
Rs.17,72,000/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The appellant-Transport Corporation is
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
directed to deposit a sum of Rs.11,51,800/- being 65% of the amount awarded
by the Tribunal, along with interest and costs, less the amount already
deposited, if any, within a period of twelve weeks from the date of receipt of
a copy of this judgment. On such deposit, the respondents are permitted to
withdraw their respective share of the award amount, as per the
apportionment fixed by the Tribunal, along with proportionate interest and
costs, less the amount if any, already withdrawn, by filing necessary petitions
before the Tribunal. The appellant-Transport Corporation is permitted to
withdraw the excess amount lying in the deposit to the credit of
M.C.O.P.No.311 of 2011, if the entire amount has already been deposited by
them. No costs. Consequently, connected Miscellaneous Petition is closed.
23.12.2021
Index : Yes/No
Speaking Order : Yes/No
vkr
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
To
1.The Principal District Court,
(Motor Accidents Claims Tribunal),
Namakkal.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No. 112 of 2021
V.M.VELUMANI, J.,
vkr
C.M.A. Nos.1456 to 1458 of 2015 and 2307 of 2016
and Cross Objection No.112 of 2021
in C.M.A.No.2307 of 2016
& M.P.Nos.1, 1, 1 of 2015 & C.M.P.No.16268 of 2016
23.12.2021
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