Madras High Court
Gomathi vs Umashankar on 5 February, 2021
C.M.A.No.4805 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.4805 of 2019
and
C.M.P.No.846 of 2020
1.Gomathi
2.Minor. Abishek
3.Minor. Sabari .. Appellants
(Minor appellants 2 and 3 are represented
by their mother and natural guardian,
Gomathi 1st appellant herein)
Vs.
1.Umashankar
2.The Managing Director,
Tamil Nadu State Transport Corporation,
(Coimbatore) Limited,
Chennimalai Road,
Erode. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
31.07.2019 made in M.C.O.P.No.81 of 2016 on the file of the Motor
Accident Claims Tribunal, Special District Court, Erode.
1/14
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C.M.A.No.4805 of 2019
For Appellants : Mr.S.Kaithamalai Kumaran
For R1 : No appearance
For R2 : Mr.K.J.Sivakumar
JUDGMENT
The matter is heard through “Video Conferencing”.
2.This Civil Miscellaneous Appeal has been filed against the award
dated 31.07.2019 made in M.C.O.P.No.81 of 2016 on the file of the Motor
Accident Claims Tribunal, Special District Court, Erode.
3.The appellants are the claimants in M.C.O.P.No.81 of 2016 on the
file of the Motor Accident Claims Tribunal, Special District Court, Erode.
They filed the above said claim petition, claiming a sum of Rs.20,00,000/- as
compensation for the death of one Eswaranmoorthy, who died in the accident
that took place on 28.10.2015.
4.According to the appellants, on 28.10.2015 at about 02.45 P.M.,
while the deceased Eswaranmoorthy was driving the Skoda car bearing
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C.M.A.No.4805 of 2019
Registration No.TN 56 P 3737 from North to South direction on the Erode –
Chennimalai Road, near Rangampalayam Joseph Hospital, the driver of the
bus bearing Registration No.TN 33 N 2277 belonging to 2 nd respondent who
was driving the bus on the Chennimalai – Erode road from South to North
direction, drove the bus in a rash and negligent manner and dashed against
the car driven by the said Eswaranmoorthy and caused the accident. In the
accident, the said Eswaranmoorthy sustained fatal injuries and died on the
spot. Therefore, the appellants filed the said claim petition claiming a sum of
Rs.20,00,000/- as compensation against the respondents.
5.The 2nd respondent filed counter statement denying all the averments
made by the appellants and the same was adopted by the 1st respondent.
According to the respondents, the appellants have to prove that the driver of
the car, the deceased was possessing valid driving license and also the car
was having valid insurance policy, permit and Registration Certificate at the
time of accident. The claim petition filed by the appellants has to be
dismissed on the ground that the insurer of the car was not impleaded as
necessary party in the claim petition. According to the respondents, at the
time of accident the 1st respondent was driving the bus slowly on the
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C.M.A.No.4805 of 2019
Chennimalai – Erode road by sounding horn and following the road traffic
rules. While nearing a curve at Chandrasekaran Wedding Hall,
Rangampalayam, the driver of the bus reduced the speed of the bus as he was
about to stop the bus at Joseph Hospital bus stop, which was about 20 feet
distance and also due to light rain. At that time, the said Eswaranmoorthy
drove the car from the opposite direction at a high speed and dashed on the
right side bumper of the bus and invited the accident. The Police Inspector,
Taluk Police Station, Erode in his final report has mentioned that the accident
has occurred due to rash and negligent driving by the deceased and the
appellants have given the complaint contrary to the facts. He has stated that
there was mistake in the case and he prepared the final report as per
R.C.S.No.19 of 2015 for submitting the final report in the Court. The F.I.R.
was registered against the driver of the bus only based on a false complaint.
Hence, the respondents are not liable to pay any compensation to the
appellants. F.I.R. was registered against the driver of the bus based on a false
complaint only with an intention to get money from the 2nd respondent. The
claim petition has to be dismissed as the deceased was not possessing valid
driving license at the time of accident and also the car driven by the deceased
was not having valid insurance and Registration Certificate. The respondents
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C.M.A.No.4805 of 2019
denied the age, avocation and income of the deceased. The appellants have to
produce the Income Tax particulars of the deceased for the past three years to
prove the income of the deceased. In any event, the quantum of compensation
claimed by the appellants is highly excessive and prayed for dismissal of the
claim petition.
6.Before the Tribunal, the 1st appellant examined herself as P.W.1, one
Seenivasan, complainant to the accident was examined as P.W.2 and one
G.Gunasekaran, eyewitness to the accident was examined as P.W.3 and 14
documents were marked as Exs.A1 to A14. On behalf of the respondents, the
1st respondent was examined as R.W.1 and no document was marked.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held both the deceased as well as the 1st respondent-driver of the
bus are equally responsible for the accident, fixed negligence equally in the
ratio 50% each, awarded a sum of Rs.18,61,936/- as compensation to the
appellants and directed the 2nd respondent to pay a sum of Rs.9,30,968/-
being 50% of the award amount as compensation to the appellants.
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C.M.A.No.4805 of 2019
8.Questioning the portion of the award fixing 50% contributory
negligence on the part of the deceased as well for enhancement of
compensation in the award dated 31.07.2019 made in M.C.O.P.No.81 of
2016, the appellants have come out with the present appeal.
9.The learned counsel appearing for the appellants contended that the
Tribunal without considering Ex.A1/F.I.R., A2/Rough Sketch,
A3/Observation Mahazar, erroneously fixed 50% contributory negligence on
the part of the deceased. The appellants examined P.W.2, who lodged the
complaint immediately after the accident and P.W.3/eyewitness. Without any
reason, the Tribunal brushed aside their evidence when there is no contra
evidence. There was a curve in the place of occurrence and the vehicle
coming in the opposite direction ought to have been careful while negotiating
the curve. The 1st respondent-driver of the bus ought to have taken utmost
care while negotiating the curve. The Tribunal erred in holding that deceased
was wrong in negotiating the curve without considering the place of
occurrence in Ex.A2/Rough Sketch. The Motor Vehicles Act is a benevolent
legislation enacted for the welfare of the victims of the road accident. The
reason given by the Tribunal for fixing 50% contributory negligence on the
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C.M.A.No.4805 of 2019
part of the deceased and granted lesser amount of Rs.9,30,968/- as
compensation is perse illegal. The Tribunal granted lesser amount without
considering the age, occupation and earning capacity of the deceased and
prayed for setting aside the portion of the award fixing 50% contributory
negligence on the part of the deceased and for enhancement of compensation.
10.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for him, either in person or
through counsel.
11.Per contra, Mr.K.J.Sivakumar, learned counsel appearing for the 2nd
respondent contended that the accident occurred only due to the negligent
driving by the deceased as he has crossed the center median and came to the
right hand side of the road. The Tribunal having held that deceased was not
driving the car in the left hand side of the road as alleged by the appellants
and accident has occurred in the right hand side of the deceased, ought to
have fixed entire negligence on the part of the deceased and exonerated the
2nd respondent-Transport Corporation from its liability. In any event, the
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C.M.A.No.4805 of 2019
appellants have not proved that Business done by the deceased was closed
and they are not getting any income from the same Business. In the absence
of acceptable evidence, the Tribunal rightly fixed a sum of Rs.10,000/- per
month as notional income of the deceased and granted compensation. The
total compensation awarded by the Tribunal is not meagre and prayed for
dismissal of the appeal.
12.Heard the learned counsel appearing for the appellants as well as
the learned counsel appearing for the 2nd respondent-Transport Corporation
and perused the entire materials available on record.
13.It is the case of the appellants that while the deceased was driving
the car on the left hand side of the road, the 1st respondent-driver of the bus
drove the bus in a rash and negligent manner, dashed on the car and caused
the accident. Due to the injuries sustained by him, the driver of the car died.
To substantiate their case, the 1st appellant examined herself as P.W.1 and
examined P.W.2, who lodged the complaint and P.W.3/eyewitness to the
accident. They marked Ex.A1/F.I.R., which was registered against the driver
of the bus. On the other hand, it is the case of the respondents that deceased
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C.M.A.No.4805 of 2019
drove the car in a rash and negligent manner and came to the right hand side
of the road crossing the center median and dashed on the front bumper of the
bus and caused the accident. To substantiate their case, the driver of the bus
was examined as R.W.1 and no document was marked. The Tribunal
considering Ex.A2/Rough Sketch and place of occurrence, held that
contention of the appellants that deceased was driving the car on the left hand
side of the road is not correct. P.W.1 in her cross examination admitted that
Police closed the case as mistake of fact and notice was also given to
P.W.2/complainant. The Tribunal considering Ex.A2/Rough Sketch, found
that there was a curve just before the place of occurrence and both the drivers
ought to have been careful while negotiating the curve and fixed negligence
equally on both the drivers. The Tribunal has given valid reason for fixing the
negligence and there is no error in the said finding of the Tribunal.
14.As far as quantum of compensation is concerned, it is the case of
the appellants that the deceased was running a Business in the name and style
of “Sree Maha Ganapathi Traders” and was earning a sum of Rs.30,000/- per
month. They filed Exs.A9 to A11-Income Tax Returns for the year 2012 –
2013, 2013 – 2014 and 2014 – 2015. The Tribunal considering the Income
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C.M.A.No.4805 of 2019
Tax Returns, held that deceased has declared his income as Rs.2,35,920/- in
Ex.A11/Income Tax Returns filed for the year 2014 – 2015, fixed the
monthly income as Rs.20,000/- per month. The Tribunal considering the facts
that appellants failed to prove that the Business run by the deceased was
closed and entire income was lost by the appellants, fixed a sum of
Rs.10,000/- per month as notional income of the deceased and granted
compensation for loss of dependency. The accident occurred in the year 2015
and a sum of Rs.10,000/- per month fixed by the Tribunal as notional income
of the deceased is meagre. Considering the year of accident, a sum of
Rs.14,000/- per month is fixed as notional income of the deceased. The
deceased was aged 33 years at the time of accident and 40% enhancement
granted by the Tribunal towards future prospects of the deceased, multiplier
'16' adopted and 1/3rd deduction made by the Tribunal towards personal
expenses of the deceased are proper. Thus, the compensation granted by the
Tribunal towards loss of dependency is modified to Rs.25,08,800/-
{Rs.19,600/- [Rs.14,000/- + Rs.5,600/- (40% of Rs.14,000/-)] X 12 X 16 X
2/3}. The Tribunal has not awarded any amount towards loss of love and
affection to appellants 2 and 3. The appellants 2 and 3 are entitled to a sum of
Rs.40,000/- towards loss of love and affection. The amounts awarded by the
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C.M.A.No.4805 of 2019
Tribunal under other heads are just and reasonable and hence, the same are
hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 17,91,936/- 25,08,800/- Enhanced
2. Loss of love and affection - 40,000/- Granted
to appellants 2 & 3
3. Loss of consortium to 1st 40,000/- 40,000/- Confirmed
appellant
4. Funeral expenses 15,000/- 15,000/- Confirmed
5. Loss of estate 15,000/- 15,000/- Confirmed
Total Rs.18,61,936/- Rs.26,18,800/- Enhanced by
50% of compensation Rs.9,30,968/- Rs.13,09,400/- Rs.3,78,432/-
(Rs.13,09,400/-
-
Rs.9,30,968/-)
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal at Rs.18,61,936/- is hereby
enhanced to Rs.26,18,800/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2 nd respondent-
Transport Corporation is directed to deposit 50% of the award amount now
determined by this Court (i.e., Rs.13,09,400/-) along with proportionate
interest and costs, less the amount if any already deposited, within a period of
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C.M.A.No.4805 of 2019
twelve weeks from the date of receipt of a copy of this judgment to the credit
of M.C.O.P.No.81 of 2016 on the file of the Motor Accident Claims Tribunal,
Special District Court, Erode. On such deposit, the 1st appellant is permitted
to withdraw her respective share of the award amount now determined by this
Court as per the ratio of apportionment fixed by the Tribunal along with
proportionate interest and costs, less the amount if any already withdrawn by
making necessary applications before the Tribunal. The share of the minor
appellants 2 and 3 are directed to be deposited in any one of the Nationalized
Banks, till the minor appellants 2 and 3 attain majority. On such deposit, the
1st appellant, being the mother of the minor appellants 2 and 3 is permitted to
withdraw the accrued interest once in three months for the welfare of the
minor appellants 2 and 3. Consequently, the connected Miscellaneous
Petition is closed. No costs.
05.02.2021
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.4805 of 2019
To
1.The Special District Judge,
Motor Accident Claims Tribunal,
Erode.
2.The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.4805 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.4805 of 2019
05.02.2021
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