Madras High Court
The Managing Director vs G.Vanitha on 25 February, 2021
C.M.A.No.437 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.437 of 2021
and
C.M.P.No.2780 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation (Salem) Limited,
Bharathipuram,
Salem Main Road,
Dharmapuri. .. Appellant
Vs.
1.G.Vanitha
2.Minor. Rajeshkannan @ Kannan
(Minor 2nd respondent represented by his
mother G.Vanitha, 1st respondent herein)
3.G.Chinnavan
4.C.Rajammal .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.1330 of 2018 on the file of the Motor
Accidents Claims Tribunal, Sessions Judge, Fast Track Mahila Court,
Krishnagiri.
1/11
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C.M.A.No.437 of 2021
For Appellant : Ms.P.Rajathi
for Mr.D.Raghu
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 30.08.2019 made in M.C.O.P.No.1330 of 2018 on the file of the Motor
Accidents Claims Tribunal, Sessions Judge, Fast Track Mahila Court,
Krishnagiri.
2.The appellant is the respondent in M.C.O.P.No.1330 of 2018 on the
file of the Motor Accidents Claims Tribunal, Sessions Judge, Fast Track
Mahila Court, Krishnagiri. The respondents filed the above said claim petition
claiming a sum of Rs.30,00,000/- as compensation for the death of one
Govindasamy, who died in the accident that took place on 10.09.2018.
3.According to respondents, on 10.09.2018 at about 16.30 hours, while
the deceased Govindasamy was riding his TVS Super XL motorcycle bearing
Registration No.TN 24 M 2235 carefully by observing all the rules of the road
on the Malayandahalli – Kaveripattinam road near one Govindan House, the
driver of the bus bearing Registration No.TN 29 N 2139 belonging to
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C.M.A.No.437 of 2021
appellant, who was driving the bus in a rash and negligent manner without
observing any rules of the road in a high speed, turned the bus from left to
right side and dashed against the motorcycle driven by the said Govindasamy
and caused the accident. In the accident, the said Govindasamy sustained fatal
injuries and immediately he was taken to Government Hospital, Krishnagiri
for first aid treatment. Thereafter he was taken to Government Hospital,
Kaveripattinam and the Doctors examined the said Govindasamy and
informed that he was brought dead. Therefore, the respondents filed the said
claim petition claiming a sum of Rs.30,00,000/- as compensation for the death
of Govindasamy, 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 with sounding horn,
the said Govindasamy, who was riding the motorcycle suddenly crossed the
road without minding the ongoing vehicles and not hearing the horn given by
the driver of the bus belonging to appellant. On seeing this, the driver of the
bus belonging to appellant applied sudden brake to stop the bus and also to
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C.M.A.No.437 of 2021
avoid the accident. But, before the bus came to halt, the deceased came and
had contact with the bus and invited the accident. 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. Therefore, the appellant is not liable to pay any
compensation to the respondents. Further, the deceased was not possessing
valid driving license to drive the motorcycle and hence, more than 75% of the
negligence has to be fixed on the part of the deceased. The owner and insurer
of the motorcycle driven by the deceased have to be impleaded as necessary
parties in the claim petition. The respondents have to 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 Periyasamy, eyewitness to the accident was examined as P.W.2 and 11
documents were marked as Exs.P1 to P11. On behalf of the appellant-
Transport Corporation, one V.Anbarasan, driver of the bus belonging to
appellant was examined as R.W.1, one Divya, Assistant from Krishnagiri
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C.M.A.No.437 of 2021
R.T.O. was examined as R.W.2 and two documents were marked as Exs.R1
& R2.
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
and directed the appellant to pay a sum of Rs.12,51,340/- as compensation to
the respondents.
7.To set aside the award dated 30.08.2019 made in M.C.O.P.No.1330
of 2018, the appellant has come out with the present appeal.
8.The learned counsel appearing for the appellant contended that the
deceased only drove his motorcycle in a rash and negligent manner and
dashed on the rear centre body of the bus as he could not control the speed,
fell down and invited the accident. The Tribunal ought not to have considered
the evidence of P.W.1, whose evidence was not corroborated by any other
independent witness. The Tribunal failed to consider the evidence let in by the
appellant and erroneously fixed negligence on the driver of the bus merely
relying on the FIR. FIR is not a cyclopedia. It is well settled that negligence
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C.M.A.No.437 of 2021
cannot be fixed relying on the FIR or judgments of the Criminal Court. The
Tribunal has to independently consider the evidence let in before it. The
appellant examined the driver of the bus and proved that driver of the bus was
not responsible for the accident and that the accident has occurred only due to
the negligence on the part of the rider of the motorcycle/ deceased. The
deceased was not possessing valid driving license at the time of accident.
Therefore, this assessment of fixing negligence is only based on discretion and
not based on oral and documentary evidence. In any event, 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.7,000/- per month fixed by the Tribunal as notional
income of the deceased is excessive. The amounts awarded by the Tribunal
under conventional heads are excessive. The total compensation awarded by
the Tribunal at Rs.12,51,340/- is highly excessive and prayed for setting aside
the award passed by the Tribunal.
9.Heard the learned counsel appearing for the appellant-Transport
Corporation and perused the entire materials on record.
10.It is the case of the respondents that at the time of accident, while
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C.M.A.No.437 of 2021
the deceased Govindasamy was riding his TVS Super XL motorcycle carefully
by following the rules of the road on the Malayandahalli – Kaveripattinam
road near one Govindan House, the driver of the bus owned by appellant,
drove the bus in a rash and negligent manner without observing any rules of
the road in a high speed and turned the bus from left to right side and dashed
against the motorcycle driven by the said Govindasamy and caused the
accident. To prove the said contention, the 1st respondent examined herself as
P.W.1 and one Periyasamy, 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 while the driver of the
bus was driving the bus slowly by observing all traffic rules with sounding
horn, the said Govindasamy, who was riding the motorcycle suddenly crossed
the road without minding the ongoing vehicles and without hearing the horn
given by the driver of the bus belonging to appellant. On seeing this, the
driver of the bus belonging to appellant applied sudden brake to stop the bus
and tried to avoid the accident. But, before the bus came to halt, the deceased
came into contact with the bus and invited the accident. To prove the said
contention, one V.Anbarasan, 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
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C.M.A.No.437 of 2021
examined any other independent witness to prove their case that accident has
occurred only due to the negligence on the part of the deceased. Further, the
appellant has examined one Divya, Assistant from R.T.O., Krishnagiri as
R.W.2 to prove that the deceased was not possessing driving license at the
time of accident. R.W.2 in her cross examination has deposed that she is not
sure whether the deceased was possessing driving license or not. The Tribunal
considering the evidence of P.W.1, P.W.2, R.W.1, R.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.
11.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 an Agriculturist aged 40 years and also doing Flower Business, earning a
sum of Rs.30,000/- per month. They did not filed any document to prove the
same. In the absence of any material evidence to prove the avocation and
income of the deceased, the Tribunal considering the guidelines for daily wage
workers, fixed a sum of Rs.7,000/- per month as notional income of the
deceased, which is not excessive. The deceased was aged 40 yrs. at the time of
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accident. The Tribunal, following the judgments of the Hon'ble Apex Court
reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd. v.
Pranay Sethi and others] and 2009 (2) TN MAC 1 SC [Sarla Verma &
Others vs. Delhi Transport Corporation & another] rightly granted 25%
enhancement towards future prospects and applied multiplier '15'. There are
four dependants of the deceased and the Tribunal has rightly deducted 1/4th
towards personal expenses of the deceased. The further contention of the
learned counsel appearing for the appellant that the amounts awarded by the
Tribunal under conventional heads is 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 and granted Rs.15,000/- each
towards loss of estate and funeral expenses to the respondents and the same
are not excessive. The Tribunal considering entire materials on record, has
awarded a sum of Rs.12,51,340/- as compensation to the respondents, which
is not excessive warranting interference by this Court.
12.In the result, this Civil Miscellaneous Appeal is dismissed and a sum
of Rs.12,51,340/- 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
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C.M.A.No.437 of 2021
interest and costs, less the amount if any already deposited, 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.1330 of 2018 on the file of the Motor Accidents Claims
Tribunal, Sessions Judge, Fast Track Mahila Court, Krishnagiri. On such
deposit, the respondents 1, 3 and 4 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. The share of the minor 2 nd respondent is directed to be deposited in
any one of the Nationalized Banks, till the minor 2nd respondent attains
majority. On such deposit, the 1st respondent, being the Mother of the minor
2nd respondent is permitted to withdraw the accrued interest once in three
months for the welfare of the minor 2nd respondent. Consequently the
connected Miscellaneous Petition is closed. No costs.
25.02.2021
krk
Index : Yes / No
Internet : Yes / No
V.M.VELUMANI, J.
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C.M.A.No.437 of 2021
krk
To
1.The Sessions Judge,
Motor Accidents Claims Tribunal,
Fast Track Mahila Court,
Krishnagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.437 of 2021
25.02.2021
http://www.judis.nic.in
