Madras High Court
The Managing Director vs M.Selvaraj on 27 January, 2021
C.M.A.No.135 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.135 of 2021
and
C.M.P.No.886 of 2021
The Managing Director,
TNSTC,
No.12, Ramakrishna Road,
Salem – 7. .. Appellant
Vs.
M.Selvaraj .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
05.08.2019 made in M.C.O.P.No.92 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court No.II, Salem.
For Appellant : Mr.D.Venkatachalam
For Respondent : Mr.S.P.Yuaraj
JUDGMENT
The matter is heard through “Video-Conferencing”.
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C.M.A.No.135 of 2021
2.This Civil Miscellaneous Appeal has been filed against the award
dated 05.08.2019 made in M.C.O.P.No.92 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court No.II, Salem.
3.The appellant is the respondent in M.C.O.P.No.92 of 2017 on the file
of the Motor Accidents Claims Tribunal, Special Sub Court No.II, Salem. The
respondent filed the said claim petition, claiming a sum of Rs.25,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 14.09.2016.
4.According to the respondent, on 14.09.2016 at about 14.05 hours,
while he was riding his motorcycle bearing Registration No.TN 30 T 4486 on
the left side of the Malliakarai – Attur main road, near Echamapatty burial
ground turning, the driver of the bus belonging to appellant-Transport
Corporation, who was driving the bus from the opposite direction, came in a
rash and negligent manner, without minding any traffic rules and regulations
at high speed, suddenly turned the bus to the right side without decreasing the
speed and not showing any signal and due to the same, the driver of the bus
lost the control and dashed against the motorcycle rode by the respondent and
caused the accident. In the accident, the respondent suffered fracture on right
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C.M.A.No.135 of 2021
leg both bone, right femur, crush injury on left and right foot and left ankle
joint and multiple injuries all over the body. Therefore, the respondent filed
the said claim petition claiming a sum of Rs.25,00,000/- as compensation for
the injuries sustained by him against the appellant-Transport Corporation.
5.The appellant-Transport Corporation filed counter statement and
denied all the averments made by the respondent. According to the appellant,
at the time of accident, the driver of the bus drove the same cautiously by
following the road traffic rules from Attur to Rasipuram. At about 14.05
hours while nearing Eachampatty, he saw the respondent riding the
motorcycle from the opposite direction in a rash and negligent manner. On
seeing the negligent riding by the respondent, the driver of the bus turned the
bus to the left side and stopped the bus. The respondent who was riding the
motorcycle at a high speed, could not control the motorcycle, dashed against
the bus, fell down and invited the accident. The case was registered only
against the respondent. Therefore, the accident has occurred only due to the
negligence on the part of the respondent and hence, the appellant is not liable
to pay any compensation to the respondent. The respondent has to prove his
age, avocation, income, nature of injuries, period of treatment taken and
disability by producing valid documents. In any event, the quantum of
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C.M.A.No.135 of 2021
compensation claimed by the respondent under different heads are highly
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the respondent examined himself as P.W.1 and 9
documents were marked as Exs.P1 to P9. The appellant-Transport
Corporation examined one Mohanasundaram, driver of the bus as R.W.1 but
did not mark any documentary evidence. The disability certificate issued by
the Medical Board was marked as Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to negligence on the part of
both the driver of the bus belonging to appellant-Transport Corporation as
well as on the part of the respondent, fixed 65% negligence on the part of the
driver of the bus belonging to appellant-Transport Corporation and 35%
negligence on the part of the respondent, awarded a sum of Rs.6,28,457/- as
compensation to the respondent and directed the appellant-Transport
Corporation to pay a sum of Rs.4,08,497/- towards 65% of the award amount
as compensation to the respondent.
8.Against the said award dated 05.08.2019 made in M.C.O.P.No.92 of
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C.M.A.No.135 of 2021
2017, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
Tribunal ought not to have considered the evidence of P.W.1, whose evidence
has not been corroborated by any other independent witness. The Tribunal
failed to note that criminal case was registered only against the respondent. In
the F.I.R. also it was mentioned that the respondent only rode the motorcycle
in a rash and negligent manner and dashed against the bus and caused the
accident. Therefore, the Tribunal ought to have fixed 100% negligence on the
part of the respondent instead of fixing 35%. The Tribunal erred in fixing
65% negligence on the part of the driver of the bus belonging to appellant-
Transport Corporation. The amounts awarded by the Tribunal towards pain
and sufferings and loss of amenities are highly excessive and prayed for
allowing the appeal.
10.Per contra, the learned counsel appearing for the respondent
contended that the accident has occurred only due to rash and negligent
driving by the driver of the bus belonging to the appellant. The respondent has
examined himself as P.W.1 and deposed to that effect. The Tribunal ought to
have fixed entire negligence on the part of the driver of the bus belonging to
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C.M.A.No.135 of 2021
appellant-Transport Corporation. The Tribunal erred in fixing 35% negligence
on the part of the respondent and the same is not correct. The Medical Board
examined the respondent and certified that respondent suffered 32% disability
and issued disability certificate Ex.C1 to that effect. The respondent has taken
treatment in Sundaram Multi Speciality Hospital, Attur from 14.09.2016 to
27.09.2016 and at Government Hospital, Attur from 23.01.2018 to
05.02.2018. The Tribunal considering the entire materials on record, has
awarded a sum of Rs.6,28,457/- as compensation, which is not excessive. The
Tribunal ought to have directed the appellant to pay the entire compensation
and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
12.It is the case of the respondent that while he was riding the
motorcycle, the driver of the bus belonging to appellant-Transport
Corporation coming in the opposite direction, dashed on the motorcycle and
caused the accident. In the accident, the respondent suffered injuries and filed
claim petition claiming compensation for the injuries sustained by him. To
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C.M.A.No.135 of 2021
substantiate his case, the respondent examined himself as P.W.1 and marked
F.I.R. as Ex.P1. On the other hand, it is the case of the appellant-Transport
Corporation that accident occurred only due to rash and negligent riding of
the motorcycle by the respondent. F.I.R. was registered only against the
respondent. The accident has not occurred due to the negligence of the driver
of the bus. To prove their case, the appellant examined the driver of the bus as
R.W.1. From the materials available on record, it is seen that F.I.R. was
registered based on the complaint given by R.W.1/driver of the bus, who is an
interested witness. Further in the F.I.R., R.W.1 has stated that respondent
rode the motorcycle in a rash and negligent manner and dashed against the
centre of the bus.
13.It is well settled that contents of F.I.R. and criminal proceedings are
not sole criteria for fixing negligence. The Tribunal has to independently
consider the materials placed before it to fix the negligence. In the present
case, the Tribunal considering the judgments relied on by the parties, fixed
negligence on the part of both the driver of the bus belonging to appellant-
Transport Corporation as well as on the part of the respondent. From the
materials on record it is seen that the driver of the bus has deposed that on
seeing the respondent who was riding the motorcycle in a rash and negligent
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C.M.A.No.135 of 2021
manner, he turned the bus to the left hand side and while stopping the bus,
the respondent lost the control and dashed on the front side of the bus. In the
cross examination, the driver of the bus admitted the contradiction. The
Tribunal considering the above materials, the Tribunal did not accept the
evidence of R.W.1 with regard to negligence on the part of the respondent. At
the same time, considering the entire materials, the Tribunal fixed 35%
negligence on the part of the respondent and 65% 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 with regard to fixing the
negligence.
14.As far as quantum of compensation is concerned, it is the case of the
respondent that he suffered fracture on right leg both bone, right femur, crush
injury on left and right foot and left ankle joint and multiple injuries all over
the body. The respondent has taken treatment in Sundaram Multi Speciality
Hospital, Attur from 14.09.2016 to 27.09.2016 and at Government Hospital,
Attur from 23.01.2018 to 05.02.2018. The Tribunal referred the respondent
to the Medical Board for assessing the percentage of disability. The Medical
Board examined the respondent and certified that respondent suffered 32%
disability. The disability certificate issued by the Medical Board was marked
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C.M.A.No.135 of 2021
as Ex.C1. From the award passed by the Tribunal, it is seen that the Tribunal
has awarded a sum of Rs.1,00,000/- each towards pain and sufferings and
loss of amenities, which is excessive and the same is reduced to Rs.50,000/-
each. The amounts awarded by the 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 awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 96,000/- 96,000/- Confirmed
2. Pain and sufferings 1,00,000/- 50,000/- Reduced
3. Loss of amenities 1,00,000/- 50,000/- Reduced
4. Medical bills 2,26,457/- 2,26,457/- Confirmed
5. Loss of income 60,000/- 60,000/- Confirmed
6. Extra nourishment 20,000/- 20,000/- Confirmed
7. Attendant charges 15,000/- 15,000/- Confirmed
8. Transportation 10,000/- 10,000/- Confirmed
9. Damages to clothes 1,000/- 1,000/- Confirmed
Total Rs.6,28,457/- Rs.5,28,457/- Reduced by
Rs.65,000/-
65% of the award (Rs.4,08,497/-
Rs.4,08,497/- Rs.3,43,497/- -
amount
Rs.3,43,497/-)
35% negligence fixed on the part of the respondent is hereby confirmed
and the appellant-Transport Corporation is liable to pay only Rs.3,43,497/-,
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C.M.A.No.135 of 2021
i.e., 65% of the total award amount of Rs.5,28,457/-.
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
65% compensation awarded by the Tribunal at Rs.4,08,497/- is hereby
reduced to Rs.3,43,497/- 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 modified award amount now determined
by this Court i.e., Rs.3,43,497/- along with interest and costs, less the amount
already deposited, if any, 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.92 of 2017 on
the file of the Motor Accidents Claims Tribunal, Special Sub Court No.II,
Salem. On such deposit, the respondent is permitted to withdraw the award
amount now determined by this Court, along with interest and costs, less the
amount if any, already withdrawn by making necessary applications before
the Tribunal. The appellant-Transport Corporation is permitted to withdraw
the excess amount lying in the deposit to the credit of M.C.O.P.No.92 of
2017, if the entire amount has already been deposited by them. Consequently,
connected Miscellaneous Petition is closed. No costs.
27.01.2021
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C.M.A.No.135 of 2021
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge No.II
Motor Accidents Claims Tribunal,
Salem.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.135 of 2021
V.M.VELUMANI, J.
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C.M.A.No.135 of 2021
27.01.2021
http://www.judis.nic.in
