Madras High Court
Tamil Nadu State Transport ... vs R.Devaraj on 25 January, 2021
C.M.A.Nos.4373 & 4374 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.4373 & 4374 of 2019
and C.M.P. Nos.24896 & 24901 of 2019
Tamil Nadu State Transport Corporation,
Rep. by its Managing Director,
No.37, Mettupalayam Road,
Coimbatore. .. Appellant in both
the appeals
Vs.
1.R.Devaraj
2.C.Velarumugam
3.V.Mylsamy
4.Iffco Tokio General Insurance Co. Ltd.,
Tulsi Chambers, III Floor,
TV Samy Road West, R.S.Puram,
Coimbatore 641 002. .. Respondents in
C.M.A.No.4373/2019
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C.M.A.Nos.4373 & 4374 of 2019
1.Kannithai
2.Minor Vinothini
3.Minor Indumathi
(Minors 2 and 3 rep. by their guardian and
next friend mother, Kannithai)
4.C.Velarumugam
5.V.Mylsamy
6.Iffco Tokio General Insurance Co. Ltd.,
Tulsi Chambers, III Floor,
TV Samy Road West, R.S.Puram,
Coimbatore 641 002. .. Respondents in
C.M.A.No.4374/2019
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the common judgment and decree
dated 10.04.2017, made in M.C.O.P. Nos.537 & 541 of 2011, on the file of
the Chief Judicial Magistrate, (Motor Accident Claims Tribunal), Tiruppur.
(In C.M.A.No.4373 of 2019)
For Appellant : Mr. K.J.Sivakumar
For Respondents : Mr.S.Arunkumar (For R4)
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C.M.A.Nos.4373 & 4374 of 2019
(In C.M.A.No.4374 of 2019)
For Appellant : Mr. K.J.Sivakumar
For Respondents : Mr.S.Arunkumar (For R6)
COMMON JUDGMENT
These matters are heard through "Video Conferencing".
These Civil Miscellaneous Appeals have been filed by the appellant-
Transport Corporation to set aside the common judgment and decree dated
10.04.2017, made in M.C.O.P. Nos.537 & 541 of 2011, on the file of the
Chief Judicial Magistrate, (Motor Accident Claims Tribunal), Tiruppur.
2.Both the appeals arise out of same accident and common award.
Hence, they are disposed of by this common judgment.
3.The parties are referred to as per their rank in the claim petitions, for
the sake of convenience.
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C.M.A.Nos.4373 & 4374 of 2019
4.The appellant in both the appeals is the 2nd respondent-Transportation
Corporation in M.C.O.P. Nos.537 & 541 of 2011, on the file of the Chief
Judicial Magistrate, (Motor Accident Claims Tribunal), Tiruppur. The 1st
respondent in C.M.A.No.4373 of 2019 filed M.C.O.P.No.537 of 2011,
claiming a sum of Rs.5,00,000/- as compensation for the injuries sustained by
him in the accident that took place on 19.01.2010 and respondents 1 to 3 in
C.M.A.No.4374 of 2019 filed M.C.O.P.No.541 of 2011, claiming a sum of
Rs.20,00,000/- as compensation for the death of one Sabareeswaran who died
in the accident that took place on 19.01.2010.
5.According to the claimant/claimants in both the appeals, on the date
of accident, when the deceased Sabareeswaran was riding his Motorcycle
bearing Registration No.TN-37-BF-0130 at Palladam to Pollachi main road
from North to South, adhering to the traffic rules and regulations, along with
the claimant in M.C.O.P.No.537 of 2011 as pillion rider, near Vadugapalayam
Sarvodayasangam, the 1st respondent, driver of the Bus bearing Registration
No.TN-38-N-1169 belonging to the 2nd respondent-Transport Corporation
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C.M.A.Nos.4373 & 4374 of 2019
drove the same in a rash and negligent manner from South to North direction
without blowing horn and suddenly hit on the Motorcycle in which the
claimant as well as the deceased Sabareeswaran traveled and caused the
accident. In the accident, both the rider as well as the pillion rider of the
Motorcycle were thrown away on the road and sustained severe injuries all
over their body. The said Sabareeswaran/rider of the Motorcycle died on the
same day of accident. Thus, the claimant/claimants filed the said claim
petitions, claiming compensation against the respondents 1 and 2 as driver
and owner of the Bus and respondents 3 and 4 as owner and insurer of the
Motorcycle.
6.The respondents 1 and 3 remained exparte before the Tribunal.
7.The 2nd respondent-Transport Corporation filed separate counter
statements and denied all the averments made by the claimant/claimants in
their respective claim petitions. According to the 2nd respondent-Transport
Corporation, on the date of accident, when their Bus was nearing Palladam
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C.M.A.Nos.4373 & 4374 of 2019
Vadugapalaym Sarvodaya Sangam on Palladam-Pollachi main road, the 1st
respondent drove the Bus carefully and slowly on his left, so as to negotiate
the traffic barricade. At that time, the deceased Sabareeswaran, who rode the
Motorcycle with claimant in M.C.O.P.No.537 of 2011 as pillion rider, rode
the same in a rash and negligent manner, at a hectic speed at right side to his
direction. On seeing the barricade at a close range, he fluttered and suddenly
turned his Motorcycle at the extreme right without considering the Bus
coming from opposite direction. On seeing the said incident, the 1st
respondent applied sudden brake and halted the Bus. Inspite of that, rider of
the Motorcycle dashed at the front left side of the stationed Bus and caused
the accident. The accident occurred only due to rash and negligent riding by
the deceased Sabareeswaran and hence, the respondents 3 and 4, as owner
and insurer of the Motorcycle are liable to pay compensation to the
claimant/claimants. FIR is also registered against the rider of the Motorcycle.
The rider of the Motorcycle violated the policy conditions by not possessing
valid driving license to ply the vehicle and not wearing helmet at the time of
accident and hence, prayed for dismissal of both the claim petitions.
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C.M.A.Nos.4373 & 4374 of 2019
8.The 4th respondent-Insurance Company, insurer of the Motorcycle,
filed separate counter statements and denied all the averments made by the
claimant/claimants in their respective claim petitions. According to the 4th
respondent, the accident occurred only due to rash and negligent driving by
the 1st respondent, driver of the Bus belonging to the 2nd respondent-Transport
Corporation. The claimant/claimants have to prove that rider of the
Motorcycle and 1st respondent/driver of the Bus possessed valid driving
license to ply the vehicle at the time of accident. In any event, the claimant in
M.C.O.P.No.537 of 2011 has to prove the age, avocation and income, injuries
sustained and treatment taken to claim compensation and the claimants in
M.C.O.P.No.541 of 2011 have to prove the age, avocation and income of the
deceased to claim compensation and prayed for dismissal of both the appeals.
9.Before the Tribunal, the 1st claimant in M.C.O.P.No.541 of 2011
examined herself as P.W.1, claimant in M.C.O.P.No.537 of 2011 examined
himself as P.W.2, Dr.Senthilkumar was examined as P.W.3, 3rd respondent,
owner of the Motorcycle was examined as P.W.4, eyewitness viz., G.Prakash
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C.M.A.Nos.4373 & 4374 of 2019
was examined as P.W.5 and 14 documents were marked as Exs.P1 to P14. On
the side of the respondents, 1st respondent, driver of the Bus was examined as
R.W.1, one Thiyagarajan, eye-witness was examined as R.W.2, but no
document was marked.
10.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the 1st respondent, driver of the Bus belonging to the 2nd respondent-Transport
Corporation and directed the appellant as insurer of the said vehicle to pay a
sum of Rs.1,58,500/- and Rs.14,05,100/- as compensation to the
claimant/claimants in both the appeals respectively. The Tribunal exonerated
the 4th respondent / Insurance Company from its liability.
11.To set aside the said common award dated 10.04.2017, made in
M.C.O.P. Nos.537 & 541 of 2011, the 2nd respondent-Transport Corporation
has come out with the present appeals.
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C.M.A.Nos.4373 & 4374 of 2019
12.The learned counsel appearing for the 2nd respondent-Transport
Corporation contended that the Tribunal failed to consider Ex.P1 - FIR which
was registered against the deceased/rider of the Motorcycle and failed to fix
contributory negligence on the part of the rider of the Motorcycle. The
Tribunal ought to have considered the evidence of R.W.1 – 1st respondent,
driver of the Bus and held that the accident occurred due to negligence on the
part of the deceased/rider of the Motorcycle. In the absence of any document
filed by the claimant in M.C.O.P.No.537 of 2011 to prove his age, avocation
and income and disability suffered in the accident, the Tribunal erroneously
granted compensation. The Tribunal ought not to have taken the permanent
disability of claimant in M.C.O.P.No.537 of 2011 as 34%, which is on the
higher side. The Tribunal ought not to have fixed the monthly income of the
deceased Sabareeswaran at Rs.10,000/-, in the absence of any documentary
evidence to prove his income. The total compensation granted by the Tribunal
to the claimant/claimants in both the claim petitions are excessive and prayed
for setting aside the common award of the Tribunal.
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C.M.A.Nos.4373 & 4374 of 2019
13.The learned counsel appearing for the 4th respondent-Insurance
Company in both the claim petitions made averments in support of the award
of the Tribunal and prayed for dismissal of the appeals.
14.Heard the learned counsel appearing for the 2nd respondent-
Transport Corporation as well as the 4th respondent-Insurance Company in
both the claim petitions and perused the materials available on record.
15.It is the case of the claimant/claimants that when one Sabreeswaran
was riding the Motorcycle with claimant in M.C.O.P.No.537 of 2011 as
pillion rider, following the traffic rules and regulations, the 1st respondent,
driver of the Bus belonging to the 2nd respondent-Transport Corporation
drove the Bus in a rash and negligent manner, from South to North direction
without horn, dashed against the Motorcycle driven by the said
Sabareeswaran and caused the accident. Due to the injuries sustained in the
accident, the said Sabareeswaran died and his legal heirs filed claim petition
in M.C.O.P.No.541 of 2011, claiming compensation for the death of said
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C.M.A.Nos.4373 & 4374 of 2019
Sabareeswaran and claimant in M.C.O.P.No.537 of 2011 filed the said claim
petition claiming compensation for the injuries sustained by him in the
accident. To substantiate their case, they examined the 1st claimant in
M.C.O.P.No.541 of 2011 as P.W.1 and claimant in M.C.O.P.No.537 of 2011
who travelled as pillion rider along with deceased as P.W.2. They marked
FIR as Ex.P1. On the other hand, it is the case of the 2nd respondent that while
the 1st respondent was driving the Bus carefully at moderate speed, as a
barricade was put up on the right, the rider of the Motorcycle who was
coming in the opposite direction in a rash and negligent manner suddenly
seeing the barricade at close edge, turned the Motorcycle at the extreme right
without considering the Bus coming from the opposite side. On seeing this,
the 1st respondent/driver of the Bus applied sudden brake and stopped the
Bus. Inspite of that, the rider of the Motorcycle dashed at the front left side of
the stationed Bus and caused the accident. The accident was due to rash and
negligent riding of the Motorcycle and he alone is the wrong doer. In support
of their contention, the 2nd respondent-Transport Corporation examined the 1st
respondent, driver of the Bus as R.W.1. R.W.1 deposed as per the stand taken
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C.M.A.Nos.4373 & 4374 of 2019
by the 2nd respondent in the separate counter statements. The Tribunal
considered the contents of FIR, which was registered against the rider of the
Motorcycle based on the statement obtained from P.W.2, who was taking
treatment in the Hospital, by Head Constable of Avinasipalayam Police
Station. The Tribunal took note of the fact that no written complaint was
given by P.W.2, Head Constable who recorded the statement of P.W.2 was not
examined and contradiction in the evidence of R.W.1 and considering
contents of FIR and evidence of P.W.2, accepted the evidence of P.W.2 by
giving more weightage to the evidence let in by P.W.2 before the Tribunal on
oath and held that accident occurred only due to rash and negligent driving by
the 1st respondent, driver of the Bus belonging to the 2nd respondent-Transport
Corporation. There is no error in the award of the Tribunal fixing negligence
on the 1st respondent, driver of the Bus, warranting interference by this Court.
16.As far as the quantum of compensation in M.C.O.P.No.537 of 2011
is concerned, the Tribunal considering the nature of injuries sustained, period
of treatment taken, disability suffered by the claimant and the disability
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C.M.A.Nos.4373 & 4374 of 2019
certificate issued by P.W.3 Doctor, awarded compensation under different
heads, which are not excessive warranting interference by this Court.
17.As far as the quantum of compensation in M.C.O.P.No.541 of 2011
is concerned, the Tribunal considering the pleadings, oral and documentary
evidence, fixing age of the deceased as 34 years, applied multiplier '16', fixed
Rs.10,000/- per month as notional income and after deducting 1/3rd towards
personal expenses of the deceased, awarded compensation, which is in order.
The total compensation granted by the Tribunal is not excessive, warranting
interference by this Court.
18.In the result, both the appeals are dismissed and the amounts
awarded by the Tribunal at Rs.1,58,500/- and Rs.14,05,100/- respectively
along with interest and costs are confirmed. The 2nd respondent-Transport
Corporation is directed to deposit the award amount, along with interest and
costs, within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. Nos.537 & 541 of 2011.
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C.M.A.Nos.4373 & 4374 of 2019
(i) On such deposit, the claimant in M.C.O.P.No.537 of 2011 is
permitted to withdraw the award amount, along with interest and costs, after
adjusting the amount, if any already withdrawn, by filing necessary
applications before the Tribunal.
(ii) On such deposit, the 1st claimant in M.C.O.P.No.541 of 2011 is
permitted to withdraw her share of the award amount, determined by the
Tribunal, 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 claimants 2 and 3 are directed to be deposited in any one
of the Nationalized Bank, till the minors attain majority. The 1st claimant,
mother of the minor claimants 2 and 3 is permitted to withdraw the accrued
interest, once in three months for the welfare of the minor claimants 2 and 3.
Consequently, connected Miscellaneous Petitions are closed. No costs.
25.01.2021
Index : Yes/No
gsa
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C.M.A.Nos.4373 & 4374 of 2019
To
1.The Chief Judicial Magistrate,
(Motor Accident Claims Tribunal),
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.Nos.4373 & 4374 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A. Nos.4373 & 4374 of 2019
25.01.2021
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