Madras High Court
Managing Director vs Kulandaiammal on 29 January, 2021
C.M.A.No.2085 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A. No.2085 of 2010
Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Coimbatore Division I,
37, Mettupalayam Road,
Coimbatore. .. Appellant
Vs.
1.Kulandaiammal
2.Minor. Manimekalai
3.Nagaraj
4.M.Maideen Pitchai
5.M.Mohideen
6.National Insurance Company Ltd., ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
26.11.2009, made in M.C.O.P. No.117 of 2008, on the file of the Sub
Court, Dharapuram.
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C.M.A.No.2085 of 2010
For Appellant : M/s.S.Swaminathan
For Respondents : Mr.S.Kaithamlai Kumaran -R1&R2
Mr.J.Chandran - R6
JUDGMENT
The matter is heard through "Video Conferencing".
This Civil Miscellaneous Appeal has been filed by the appellant-
Transport Corporation Company against the judgment and decree dated
26.11.2009, made in M.C.O.P. No.117 of 2008, on the file of the Sub
Court, Dharapuram.
2.The appellant is the 2nd respondent in M.C.O.P. No.117 of 2008,
on the file of the Sub Court, Dharapuram. The respondents 1 & 2 have
filed the said claim petition, claiming a sum of Rs.10,00,000/- as
compensation for the death occurred in the road accident that took
place on 29.10.2006.
3.According to the respondents 1 & 2/claimants, on 29.10.2006,
the deceased was traveling as a passenger in the TNSTC bus bearing
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C.M.A.No.2085 of 2010
Reg.No. TN38 N 1165 from Dharapuram to Ootanchatram. At about
4.00 a.m while the said bus was proceeding near Koneripatti junction,
from west to east direction, the driver of the bus drove the bus in a rash
and negligent manner and dashed the bus on a lorry bearing
registration number TMR 1440 which was coming from the opposite
direction. As a result both the vehicles were badly damaged and many
passengers including the deceased Ramesh sustained injuries. The
deceased was taken to the hospital and treated as inpatient from
29.10.2006 to 26.11.2006 and he succumbed to the injuries on
26.11.2006. Being the legal heirs of the deceased Ramesh, the
claimants/respondents 1 & 2 herein have filed a claim petition before
the tribunal, claiming compensation for a sum of Rs.10,00,000/- .
4.The appellant-Transport Corporation Company, filed counter
statement before the tribunal and denied the mode of the accident as
narrated by the claimant and further denied the age, income and
avocation of the deceased and the total compensation claimed by the
claimants are excessive.
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C.M.A.No.2085 of 2010
5.Before the Tribunal, the 1st respondent examined herself as
P.W.1 and examined PW2 and marked documents ExP1 to P14. The
appellant has not examined any witnesses and no documents were
marked.
6.The Tribunal after considering the pleadings, oral and
documentary evidence, fixed liability on the driver of the Transport
Corporation Bus and awarded compensation of Rs.4,64,000/- under
various heads together with interest at 7.5% per annum payable by the
Transport Corporation.
7.Challenging the liability fastened on them by the award dated
26.11.2009, made in M.C.O.P. No.117 of 2008, the appellant –
Transport Corporation has come out with the present appeal.
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C.M.A.No.2085 of 2010
8. The learned counsel for the appellant/Transport Corporation
Company submitted that on 29.10.2006 at 4.00am, when the appellant
transport corporation bus nearing Koneripatti a big tamarind tree fell
down on the road, on seeing this the driver of the bus swerved the bus
to the right side of the road. At that time, a lorry bearing Reg.No.TMR
1440 which was coming from the opposite direction failed to dim the
head light and drove the same in a rash and negligent manner and
dashed against the bus with a great force and thus the accident had
occurred. Therefore, the appellant transport corporation is not liable to
pay compensation. It is further contended by the learned counsel for
the appellant that the tribunal without considering the above aspect,
fixed the liability on the part of the driver of appellant transport
corporation and awarded excessive compensation to the claimants,
hence the award of the tribunal is liable to be set aside.
9. The learned counsel appearing for the appellant-Transport
Corporation further contended the tribunal ought not to have held that
the driver of the appellant transport corporation bus was responsible for
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C.M.A.No.2085 of 2010
the accident only based on the FIR and pendency of the criminal case.
He would further submit that the bus and the lorry dashed against each
other and hence the owner, driver and the insurance company of the
lorry/ respondents 4 to 6 are equally responsible for the accident and
liable to pay compensation awarded by the tribunal. The tribunal
wrongly applied multiplier 17 for arriving loss of earning and sum
awarded under other heads are also excessive with any proof or
documents. Hence prayed to set aside the award passed by the tribunal.
10. On the other hand, the learned counsel appearing for the
respondents/claimants strongly denied the submissions made by the
learned counsel for the appellant and submitted that the tribunal after
considering all the oral and documentary evidence, has come to the
conclusion that the driver of the appellant transport Corporation alone
responsible for the said accident and awarded the reasonable
compensation under various heads, which does not require any
interference by this Court.
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C.M.A.No.2085 of 2010
11.Heard learned counsel appearing for the appellant-Transport
Corporation Company as well as the respondents/claimants and perused
the materials available on record.
12.From the materials available on record, one Chinnasamy/PW2
was examined as eyewitness, he deposed that only due to rash and
negligent driving by the driver of the appellant transport corporation bus
bearing Reg.No. TN38-N-1165 the accident had occurred. Further, a
criminal case was registered against the driver of the bus for causing
the said accident. The version in FIR/Ex.P1 is also against the driver of
the bus. As per Ex.P2/Rough Sketch the appellant transport corporation
bus was proceeding on the right side of the road and lorry was coming
towards Dharapuram i.e. left side of the road, therefore it is clear that
the appellant bus came in a wrong side of the road and hit against the
lorry and caused the accident. In view of the above, the main contention
raised by the appellant regarding fixing of contributory negligence
cannot be accepted and the same is rejected.
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C.M.A.No.2085 of 2010
13. Insofar as compensation awarded by the tribunal, un-
disputedly, the deceased had traveled in the appellant transport
corporation bus and met with an accident. He was given treatment in
Madurai Rajaji Hospital and declared died on 26.11.2006. As per
Ex.P4/Postmortem Certificate, the tribunal fixed the age of the deceased
as 31 years and fixed the monthly income as Rs.3000/- against the
claim of Rs.7000/- and awarded the loss of income by adopting
multiplier method at Rs.4,08,000/-. In addition to that, the sum of
Rs.56,000/- under various heads are also proper and reasonable in view
of documents marked Ex.P1 to P8. This Court finds no error in
determination of compensation by the tribunal and confirms the award.
14. In the result, this Civil Miscellaneous Appeal is dismissed and
the amount awarded by the Tribunal at Rs.4,64,000/- together with
interest at the rate of 7.5% per annum from the date of petition till the
date of deposit is confirmed. The appellant-Transport Corporation
Company shall deposit the award amount along with interest and costs,
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C.M.A.No.2085 of 2010
less the amount already deposited, 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.
No.117 of 2008. On such deposit, the respondents 1 &2 are permitted
to withdraw their share of the award amount 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. Consequently, connected Miscellaneous
Petition is closed. No costs.
29.01.2021
Index : Yes
Internet : Yes
ak
To
1.The Subordinate Judge,
Dharapuram.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.2085 of 2010
D.KRISHNAKUMAR, J.
ak
C.M.A. No.2085 of 2010
29.01.2021
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