Madras High Court
The Managing Director vs Nithya on 3 February, 2021
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.3495 of 2019
and C.M.P. No.20492 of 2019
and Cross Objection No.4 of 2021
C.M.A. No.3495 of 2019
The Managing Director,
Tamil Nadu State Transport Corporation (VPM) Ltd.,
Villupuram. .. Appellant
Vs.
1.Nithya
2.Minor Manigandan
3.Minor Iyyppan
(Minors R2 & R3 represented by their
mother & guardian, Nithya, R1)
4.Vijay .. Respondents
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https://www.mhc.tn.gov.in/judis/
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the award dated 07.04.2016, made in
M.C.O.P. No.1206 of 2015, on the file of the II Small Causes Court,
(Motor Accident Claims Tribunal), Chennai.
For Appellant : Mr.K.J.Sivakumar
For Respondents : M/s.R.Reena (For R1)
Cross Objection No.4 of 2021
1.Nithya
2.Minor Manigandan
3.Minor Iyyppan
(Minors R2 & R3 represented by their
mother & guardian, Nithya, R1)
4.Vijay .. Cross Objectors
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation (VPM) Ltd.,
Villupuram. .. Respondent
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https://www.mhc.tn.gov.in/judis/
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C
against the judgment and decree dated 07.04.2016, made in M.C.O.P.
No.1206 of 2015, on the file of the II Small Causes Court, (Motor
Accident Claims Tribunal), Chennai.
For Cross Objectors : M/s.R.Reena
For Respondents : Mr.K.J.Sivakumar
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant-
Transport Corporation against the award dated 07.04.2016, made in
M.C.O.P. No.1206 of 2015, on the file of the II Small Causes Court,
(Motor Accident Claims Tribunal), Chennai.
Cross Objection No.4 of 2021 has been filed against the award
dated 07.04.2016, made in M.C.O.P. No.1206 of 2015, on the file of the
II Small Causes Court, (Motor Accident Claims Tribunal), Chennai.
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https://www.mhc.tn.gov.in/judis/
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
2.The appellant is the respondent in M.C.O.P. No.1206 of 2015, on
the file of the II Small Causes Court, (Motor Accident Claims Tribunal),
Chennai. The respondents filed the said claim petition, claiming a sum of
Rs.50,00,000/- as compensation for the death of one Raji who died in the
accident that took place on 07.07.2014.
3.The parties are referred to as per their rank in appeal for the sake
of convenience.
4.According to the respondents, on the date of accident viz.,
07.07.2014, while the deceased was riding the Motorcycle bearing
Registration No.TN-25-L-8537 on Kanamangalam to Polur Road, CC
Road, from Thiruvannamalai to Vellore, driver of the Bus bearing
Registration No.TN-23-N-2341 belonging to the appellant-Transport
Corporation coming from Vellore to Thiruvannamalai drove the same in a
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
rash and negligent manner and dashed on the Motorcycle rode by the
deceased and caused the accident. In the accident, the deceased Raji
succumbed to fatal injuries. Hence, the respondents filed the said claim
petition against the appellant, owner of the offending vehicle.
5.The appellant-Transport Corporation filed counter statement and
denied all the averments made by the respondents in the claim petition.
According to the appellant, the driver of the Bus drove the same with due
care and caution, observing traffic rules and he was not rash and
negligent at the time of accident. The accident occurred only due to rash
and negligent riding of Motorcycle by the deceased. The claim petition is
bad for non-joinder of owner and insurer of the Motorcycle rode by the
deceased. The respondents have to prove the age, avocation and income
of the deceased to claim compensation. In any event, the total
compensation claimed by the respondents is excessive and prayed for
dismissal of the claim petition.
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
6.Before the Tribunal, the 1st respondent examined herself as
P.W.1, examined eyewitness as P.W.2, employer of deceased as P.W.3 and
marked 9 documents as Exs.P1 to P9. The appellant examined conductor
of the Bus as R.W.1, but did not mark any document.
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 and directed the appellant-Transport
Corporation to pay a sum of Rs.21,82,000/- as compensation to the
respondents.
8.Challenging the liability fixed on them and questioning the
quantum of compensation granted by the Tribunal in the award dated
07.04.2016, made in M.C.O.P. No.1206 of 2015, the appellant-Transport
Corporation has come out with C.M.A.No.3495 of 2019.
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
9.Not being satisfied with the amounts awarded by the Tribunal,
the respondents have filed Cross-Objection No.4 of 2021, seeking
enhancement of compensation.
10.The learned counsel appearing for the appellant-Transport
Corporation contended that the Tribunal failed to consider that the
accident occurred only due to rash and negligent riding of Motorcycle by
the deceased who came in the opposite direction and dashed against their
Bus. The Tribunal failed to consider that the FIR was registered against
the deceased/rider of the Motorcycle. The respondents failed to prove the
age, avocation and income of the deceased. In any event, the Tribunal
erroneously awarded excessive amount towards loss of love and
affection, loss of consortium and prayed for setting aside the award of the
Tribunal.
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
11.The learned counsel appearing for the respondents/Cross
Objectors contended that the accident has occurred only due to rash and
negligent driving by the driver of the Bus belonging to the appellant-
Transport Corporation. The respondents proved the same by examining
eye witness as P.W.2. The Tribunal considering the fact that the appellant
did not let in any contra evidence to disprove the evidence of P.W.2 and
the evidence of R.W.1 – conductor, who was not the eye witness, held
that the accident occurred only due to rash and negligent driving by
driver of the Bus. The deceased was aged 30 years, working as Mason
and was earning a sum of Rs.20,000/- per month, at the time of accident.
The Tribunal fixed only a meagre sum of Rs.7,000/- per month as
notional income of the deceased. The Tribunal failed to award any
amount towards loss of parental consortium to the respondents 2 and 3,
who are the children of the deceased. The Tribunal ought to have
awarded compensation towards mental agony, loss of expectation of life,
loss of cloth and articles and transportation. The total compensation
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
awarded by the Tribunal is meagre and prayed for dismissal of the appeal
filed by the appellant/Transport Corporation and for allowing the Cross
Objection filed by him for enhancement of the compensation.
12.Heard the learned counsel appearing for the appellant as well as
the respondents and perused the materials available on record.
13.It is the case of the respondents that while the deceased viz.,
Raji was riding his Motorcycle, the driver of the Bus belonging to the
appellant-Transport Corporation drove the same in a rash and negligent
manner and dashed on the Motorcycle rode by the deceased and caused
the accident. In the accident, the deceased sustained grievous injuries and
died. In support of their case, they examined the 1st respondent as P.W.1
and one Devendran, eye-witness was examined as P.W.2. On the other
hand, it is the case of the appellant that accident occurred only due to
rash and negligent riding by the deceased and FIR was registered only
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
against the deceased. The appellant examined conductor of the Bus as
R.W.1 to prove the negligence on the part of the deceased - rider of the
Motorcycle. From the award of the Tribunal, it is seen that the person
who lodged the complaint based on which FIR was registered was not
examined. R.W.1 - conductor of the offending Bus has admitted that he
was sitting in the rear side of the Bus and he came to know of the
accident only on hearing the sound. The appellant did not examine the
driver of the Bus. The Tribunal considering the above materials,
especially the evidence of P.W.2, accepted the evidence of P.W.2 and held
that respondents have proved that accident occurred only due to
negligence on the part of the driver of the Bus. There is no error in the
said finding of the Tribunal, warranting interference by this Court.
14.As far as the quantum of compensation is concerned, the
respondents claimed that the deceased was a Mason and was earning a
sum of Rs.20,000/- per month. They failed to prove the same. In the
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
absence of any materials, the Tribunal fixed a sum of Rs.7,000/- per
month as notional income of the deceased and granted 50% enhancement
towards future prospects. The deceased was aged 30 years at the time of
accident. 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.
The accident is of the year 2014. Considering the date of accident and
nature of work done by the deceased, a sum of Rs.9,000/- per month is
fixed as notional income. There are four dependants of the deceased.
Thus, deducting 1/4th towards personal expenses of the deceased and
applying the multiplier '17', the amounts awarded by the Tribunal
towards loss of dependency is modified to Rs.19,27,800/- {[Rs.9,000/- +
Rs.3,600/- (40% of Rs.9,000/-)] x 12 x 17 x 3/4}. The Tribunal has
excessively granted a sum of Rs.1,00,000/- for 1st respondent towards
loss of consortium. In addition to granting compensation towards loss of
consortium, the Tribunal has excessively awarded a sum of Rs.1,00,000/-
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
each towards loss of love and affection to all the respondents. The 1st
respondent, who is wife of the deceased, is only entitled to a sum of
Rs.40,000/- towards loss of consortium. The respondents 2 & 3 who are
the minor children and 4th respondent who is the mother of the deceased
are each entitled to a sum of Rs.40,000/- towards loss of love and
affection. The amounts granted by the Tribunal towards loss of estate and
funeral expenses are also excessive. Hence, the same are reduced to
Rs.15,000/- each. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted
1. Loss of pecuniary 16,06,500/- 19,27,800/- Enhanced
benefits
2. Loss of love and 4,00,000/- 1,20,000/- Reduced
affection to
respondents 2 to 4
3. Loss of consortium to 1,00,000/- 40,000/- Reduced
1st respondent
4. Loss of estate 50,000/- 15,000/- Reduced
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
5. Funeral expenses 25,000/- 15,000/- Reduced
Total 21,81,500/- 21,17,800/- Reduced by
Rs.64,000/-
rounded off to rounded off to
21,82,000/- 21,18,000/-
15. In the result, both the appeal and Cross-Objection are partly
allowed. The amount awarded by the Tribunal at Rs.21,82,000/- is
modified to Rs.21,18,000/- 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 directed to deposit the award amount, now
determined by this Court, along with interest and costs, within a period
of twelve weeks from the date of receipt of a copy of this judgment, to
the credit of M.C.O.P. No.1206 of 2015. On such deposit, the
respondents 1 and 4 are permitted to withdraw their share of the award
amount, now determined by this Court, along with proportionate interest
and costs, as per the ratio of apportionment fixed by the Tribunal, after
adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. The shares of the minor respondents 2
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C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
and 3 are directed to be deposited in any one of the Nationalized Bank,
till the minors attain majority. The 1st respondent, mother of the minor
respondents 2 and 3 is permitted to withdraw the accrued interest, once in
three months for the welfare of the minor respondents 2 and 3. The
appellant-Transport Corporation is permitted to withdraw the excess
amount, lying in the credit of M.C.O.P. No.1206 of 2015, if the entire
award amount has already been 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. Consequently, connected Miscellaneous Petition is
closed. No costs.
03.02.2021
Index : Yes/No
gsa
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https://www.mhc.tn.gov.in/judis/
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
To
1.The II Judge,
Small Causes Court,
(Motor Accident Claims Tribunal),
Chennai.
2.The Section Officer,
V.R Section,
High Court, Madras.
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https://www.mhc.tn.gov.in/judis/
C.M.A. No.3495 of 2019
and
Cross Objection No.4 of 2021
V.M.VELUMANI, J.,
gsa
C.M.A. No.3495 of 2019
and C,M.P. No.20492 of 2019
and Cross Objection No.4 of 2021
03.02.2021
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https://www.mhc.tn.gov.in/judis/
