Madras High Court
The Managing Director vs Anjali on 18 February, 2021
C.M.A.No.340 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.340 of 2021
and
C.M.P.No.2343 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
Kumbakonam. .. Appellant
Vs.
1.Anjali
2.Shankar
3.Usharani
4.Kumar
5.Kavitha .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
16.10.2019 made in M.C.O.P.No.26 of 2018 on the file of the Motor
Accidents Claims Tribunal, Sessions Judge, Fast Track Mahila Court,
Nagapattinam.
For Appellant : Mr.D.Gopal
for Mr.D.Raghu
For Respondents : Mr.S.Nedunchezhiyan
1/11
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C.M.A.No.340 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 16.10.2019 made in M.C.O.P.No.26 of 2018 on the file of the Motor
Accidents Claims Tribunal, Sessions Judge, Fast Track Mahila Court,
Nagapattinam.
2.The appellant is the respondent in M.C.O.P.No.26 of 2018 on the file
of the Motor Accidents Claims Tribunal, Sessions Judge, Fast Track Mahila
Court, Nagapattinam. The respondents filed the above said claim petition
claiming a sum of Rs.10,00,000/- as compensation for the death of one
Ponnusamy, who died in the accident that took place on 23.01.2016.
3.According to respondents, on 23.01.2016 at about 07.30 P.M., while
the deceased Ponnusamy was washing his hands outside his house, the driver
of the bus bearing Registration No.TN 49 N 1395 belonging to appellant,
who was driving the bus towards Thiruvarur via Thirupanaiyoor, where the
deceased and his family members were residing, drove the bus in a rash and
neglignt manner and dashed against the deceased and caused the accident. In
the accident, the said Ponnusamy sustained severe grievous injuries all over
his body and he was taken to Government Medical College Hospital,
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C.M.A.No.340 of 2021
Thiruvarur. Inspite of treatment, the said Ponnusamy succumbed to injuries
on 24.01.2016. Therefore, the respondents filed the said claim petition
claiming a sum of Rs.10,00,000/- as compensation against the appellant.
4.The appellant-Transport Corporation filed counter statement and
denied all the averments made by the respondents. The appellant-Transport
Corporation denied the manner of accident as alleged by the respondents.
According to the appellant, at the time of accident, while the driver of the bus
was driving the bus slowly by observing all traffic rules towards Thiruvarur,
he saw the deceased Ponnusamy trying to cross the road. On seeing this, the
driver of the bus to avoid the accident, turned the bus to the right side of the
road. But, the deceased who was an aged person, on seeing the bus, in a
hurried manner went to the right side of the road, lost his balance, dashed on
the back side steps handle of the bus and invited the accident. The deceased
who was residing near the road for many years, in a negligent manner
crossed the road without minding the vehicles plying in the road. Therefore,
the accident has occurred only due to the negligence on the part of the
deceased and not due to the negligence on the part of the driver of the bus
belonging to appellant-Transport Corporation. Hence, the appellant is not
liable to pay any compensation to the respondents. The respondents have to
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C.M.A.No.340 of 2021
prove that they are the legal heirs of the deceased by producing valid
documents. The appellant-Transport Corporation denied the age, avocation
and income of the deceased. In any event, the quantum of compensation
claimed by the respondents is highly excessive and prayed for dismissal of
the claim petition.
5.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Selvaraj was examined as P.W.2 and 13 documents were marked as
Exs.P1 to P13. On behalf of the appellant-Transport Corporation, one
Ravichandran, driver of the bus belonging to appellant was examined as
R.W.1 and no document was marked.
6.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the bus belonging to appellant-Transport Corporation,
awarded a sum of Rs.10,10,000/- and directed the appellant to pay a sum of
Rs.10,00,000/- as compensation to the respondents as claimed by them.
7.To set aside the award dated 16.10.2019 made in M.C.O.P.No.26 of
2018, the appellant has come out with the present appeal.
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C.M.A.No.340 of 2021
8.The learned counsel appearing for the appellant contended that on the
date of accident the deceased went for agricultural work and when the bus
was proceeding to Thiruvarur near Thirupanaiyur, Manalmettutheru in front
of Ponnusamy house, the deceased suddenly attempted to cross the road and
dashed himself on the handle of the back side steps of the bus and invited the
accident. The Tribunal erroneously fixed entire negligence on the part of the
driver of the bus belonging to appellant. Therefore, this assessment of fixing
negligence is only based on discretion and not based on oral and documentary
evidence. The respondents failed to prove the avocation and income of the
deceased by producing valid documents. In the absence of any material
evidence to prove the avocation and income, a sum of Rs.10,000/- per month
fixed by the Tribunal as notional income of the deceased is excessive. The
amounts awarded by the Tribunal towards loss of love and affection and loss
of consortium are excessive. In any event, the total compensation awarded by
the Tribunal at Rs.10,00,000/- is highly excessive and prayed for setting aside
the award passed by the Tribunal.
9.Per contra, the learned counsel appearing for the respondents
contended that the Tribunal considering the evidence of P.W.1,
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C.M.A.No.340 of 2021
P.W.2/eyewitness and Ex.P1/F.I.R., which is registered against the driver of
the bus belonging to appellant, fixed negligence on the part of the driver of
the bus belonging to appellant and there is no error in the finding of the
Tribunal. The deceased was aged 65 years at the time of accident, working as
an Agricultural Coolie and was earning a sum of Rs.10,000/- per month. The
Tribunal considering the evidence of P.W.1, fixed a sum of Rs.10,000/- per
month as notional income of the deceased and the same is not excessive. The
Tribunal considering entire materials on record, has awarded a sum of
Rs.10,10,000/- as compensation, but directed the appellant to pay only a sum
of Rs.10,00,000/- as compensation to the respondents and the same is not
correct. The respondents are entitled to entire award amount of
Rs.10,10,000/- as compensation and prayed for dismissal of the appeal.
10.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 on record.
11.It is the case of the respondents that at the time of accident, while
the deceased Ponnusamy was washing his hands outside his house, the driver
of the bus bearing Registration No.TN 49 N 1395 belonging to appellant,
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C.M.A.No.340 of 2021
who was driving the bus towards Thiruvarur via Thirupanaiyoor, where the
deceased and his family members were residing, drove the bus in a rash and
neglignt manner and dashed against the deceased and caused the accident. In
the accident, the said Ponnusamy sustained severe grievous injuries all over
his body and inspite of treatment, the said Ponnusamy succumbed to injuries
on 24.01.2016. To prove the said contention, the 1st respondent examined
herself as P.W.1 and one Selvaraj, eyewitness to the accident was examined
as P.W.2 and marked F.I.R., which was registered against the driver of the
bus belonging to appellant as Ex.P1 and other documents. On the other hand,
it is the case of the appellant-Transport Corporation that at the time of
accident, while the driver of the bus was driving the bus slowly by observing
all traffic rules towards Thiruvarur, he saw the deceased Ponnusamy trying to
cross the road. To avoid the accident, the driver of the bus turned the bus to
the right side of the road. But, the deceased who was an aged person, on
seeing the bus, in a hurried manner went to the right side of the road, lost his
balance, dashed on the back side steps handle of the bus and invited the
accident. To prove the said contention, one Ravichandran, the driver of the
bus belonging to appellant was examined as R.W.1. R.W.1 is an interested
witness and the appellant has not examined any other independent witness to
prove their case that accident has occurred only due to the negligence on the
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C.M.A.No.340 of 2021
part of the deceased. The Tribunal considering the evidence of P.W.1, P.W.2,
Ex.P1/F.I.R., which was registered against the driver of the bus, held that
accident has occurred only due to the negligence on the part of the driver of
the bus belonging to appellant-Transport Corporation. There is no error in the
said finding of the Tribunal warranting interference by this Court.
12.As far as quantum of compensation is concerned, it is the claim of
the respondents in the claim petition that at the time of accident, the deceased
was aged 65 years, working as an Agricultural Coolie and was earning a sum
of Rs.10,000/- per month. But they failed to prove the said contention. In the
absence of any material evidence to prove the avocation and income of the
deceased, the Tribunal considering the judgment of the Hon'ble Apex Court
reported in 2014 (1) TNMAC 459 (SC), [Syed Sadiq, etc., Vs. Divisional
Manager, United India Insurance Company Limited] and the Division
Bench judgment of this Court reported in 2019 (1) TNMAC 54 (DB), [Andal
and two others Vs. Abhinav Kannan and New India Assurance Company
Limited, Chennai], fixed a sum of Rs.10,000/- per month as notional income
of the deceased, which is meagre. The further contention of the appellant that
deceased was aged more than 65 years as per the evidence of P.W.1 is
concerned, the Tribunal fixed the age of the deceased as 64 years after
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C.M.A.No.340 of 2021
considering Ex.P2/Postmortem certificate and the same is proper. The further
contention of the learned counsel appearing for the appellant that the amounts
awarded by the Tribunal towards loss of love and affection and loss of
consortium to 1st respondent are excessive is concerned, the Tribunal has
rightly granted a sum of Rs.40,000/- towards loss of consortium to 1st
respondent, who is the wife of the deceased. The amount awarded by the
Tribunal towards loss of love and affection is excessive. In view of the
meagre amount of Rs.10,000/- per month fixed by the Tribunal as notional
income of the deceased, the excessive amount of Rs.3,00,000/- awarded by
the Tribunal towards loss of love and affection is not interfered with. The
Tribunal considering entire materials on record, has awarded a sum of
Rs.10,00,000/- as compensation to the respondents, which is not excessive
warranting interference by this Court.
13.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.10,00,000/- awarded by the Tribunal as compensation to the
respondents, along with interest and costs is confirmed. The appellant-
Transport Corporation is directed to deposit the award amount along with
interest and costs, less the amout if any already deposited, within a period of
twelve weeks from the date of receipt of a copy of this judgment to the credit
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C.M.A.No.340 of 2021
of M.C.O.P.No.26 of 2018 on the file of the Motor Accidents Claims
Tribunal, Sessions Judge, Fast Track Mahila Court, Nagapattinam. On such
deposit, the respondents are permitted to withdraw their respective share of
the award amount as per the ratio of apportionment fixed by the Tribunal
along with proportionate interest and costs after adjusting the amount, if any
already withdrawn, by filing necessary applications before the Tribunal.
Consequently the connected Miscellaneous Petition is closed. No costs.
18.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Sessions Judge,
Motor Accidents Claims Tribunal,
Fast Track Mahila Court,
Nagapattinam.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.340 of 2021
V.M.VELUMANI, J.
krk
C.M.A.No.340 of 2021
18.02.2021
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