Madras High Court
Tamil Nadu State Transport ... vs Robi @Robin ...1St on 8 January, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A(MD).No.5 of 2021
and
C.M.P.(MD).No.55 of 2021
Tamil Nadu State Transport Corporation
Represented by its General Manager
Division-II
Ranithottam
Nagercoil
Agastheeswaram Taluk
Kanyakumari District ... Appellant/2nd Respondent
Vs.
1.Robi @Robin ...1st Respondent/Petitioner
2.Simson
(the 2nd respondent is the driver of the appellant
and that given up)
3.The Branch Manager
Universal Sompo General Insurance Co.,Ltd.,
Chennai Branch at Capital Towers
5th Floor, 554 and 555,
Anna Salai, Teynampet
Chennai 600 018 ...Respondents 2 &3/
Respondents 1 & 3
PRAYER:- This Civil Miscellaneous Appeal is filed under Section 173 of
the Motor Vehicles Act, 1988, against the judgement and decree made
in M.C.O.P.No.46 of 2013 dated 22.04.2019 on the file of the Motor
Accident Claims Tribunal/Sub Court, Kuzhithurai.
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2
For appellant : Mr.P.Prabhakaran
For R3 : Mr.S.Srinivasa Raghavan
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the
judgement and decree made in M.C.O.P.No.46 of 2013 dated
22.04.2019 on the file of the Motor Accident Claims Tribunal/Sub Court,
Kuzhithurai.
2.It is the case of the first respondent herein/ claimant that on
11.05.2012 at about 3.45 p.m, the claimant was travelling as pillion
rider in the Pulsar Motor Cycle bearing Registration No.TN-75-H-4574
which was riding by one Anto Prabhu by following the road rules towards
Alencholai in Kadayalumoodu Alancholai road and when they came near
curve in the road at Kaithaikal, the second respondent herein drove the
TNSTC Bus bearing Registration No.TN-74-N-0735 in the opposite
direction in a very rash and negligent manner, at a very high speed and
without sounding the horn, came in his wrong side, crossed the curve
and dashed against the motor cycle. Due to that, the claimant sustained
as many as four grievous injuries. Hence, the claimant/first respondent
herein filed the claim petition in MCOP.No.46 of 2013 on the file of the
Motor Accident Claims Tribunal, Special Subordinate Judge, Kuzhithurai,
claiming compensation of Rs.20,00,000/-.
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3.Considering the oral and documentary evidence, the Tribunal
has directed the appellant and the second respondent herein to pay a
sum of Rs.2,62,150/-along with interest at 7.5% per annum as jointly
and severally to the first respondent/claimant. The Tribunal further
directed that the appellant and the second respondent herein are at
liberty to initiate separate proceedings against the said Anto Prabhu and
the third respondent and recover the portion of compensation which is
attributable to the negligence of Anto Prabhu. Against the said award,
the Transport Corporation filed this appeal.
4.The learned counsel for the appellant would state that the entire
negligence is only on the side of rider of the motor cycle and after
consuming alcohol, he has driven the motor cycle in a rash and
negligent manner along with pillion rider, came in a opposite direction
and dashed on the front side of the appellant's bus and invited the
accident. Therefore, the rider of the two wheeler was solely responsible
for the accident. He further submitted that F.I.R has been registered
against the rider of the motor cycle on the basis of the statement given
by the injured himself and the driver of the Transport Corporation was
not at all liable to pay the compensation amount. Hence, the learned
counsel for the appellant prays to dismiss the compensation awarded by
the Tribunal and allow this Civil Miscellaneous Appeal.
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5. Heard the learned counsel appearing for the appellant as well
the third respondent and perused the materials available on record.
6.After perusing the oral and documentary evidence, the learned
Judge relying on the Judgment reported in Khenyei-Vs- New India
Assurance Company Limited, concluded as follows.
“As this tribunal has held that accident happened due
to the composite negligence of Anto Prabhu and the first
respondent, in fact the respondents 1 and 2 and Anto Prabhu
and the third respondent are all jointly and severally liable to
pay compensation to the petitioner. But, this Anto Prabhu
has not been added as a party. Anynow as per the Law laid
down in Khenyei-Vs- New India Assurance Company Limited
and others, it is the discretion of the petitioner to claim
compensation from any one of the joint tort-feasors and if all
joint tort-feasors are in the party array then the Tribunal can
ascertain the proportion of negligence contributed by them
towards the accident. Here as observed earlier Anto Prabhu
is not in the party array and hence, this Tribunal without
recording the evidence of Anto Prabhu could not ascertain his
proportion of negligence and the proportion of the first
respondent's negligence. So this Tribunal at this juncture
holds that the petitioner is entitled to claim the entire
compensation from the respondents 1 and 2 and this
respondents 1 and 2 can initiate separate proceedings
against Anto Prabhu and get that proportion of negligence of
Anto Prabhu ascertained and recover the proportion of
compensation from Anto Prabhu. Further from the M.V.I.
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Report of the Motor Cycle driven by Anto Prabhu, it is
evidence that he himself is the owner of the said motor cycle,
so the aforesaid findings are given. This point is answered
accordingly”.
7. As rightly found by the learned Judge as per the Judgment in
Khenyei-Vs- New India Assurance Company Limited, it is the discretion
of the petitioner to claim compensation from any one of the joint
tort-feasors. Since one of the joint tort-feasors namely Anto Prabhu was
not made as a party, the learned Judge held that the petitioner is
entitled to claim entire compensation from R1 and R2 and thereafter, R1
and R2 can initiate separate proceedings against Anto Prabhu and
recover the proportion of compensation from Anto Prabhu, where I do
not find any infirmity.
8.Accordingly, this Civil Miscellaneous Appeal is dismissed. No
Costs. Consequently, connected miscellaneous petition is closed.
08.01.2021
Index :Yes/No
Internet :Yes/No
msa
NOTE: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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To
1.The Motor Accident Claims Tribunal,
Subordinate Judge,
Kuzhithurai.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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J.NISHA BANU,J.
msa
C.M.A(MD).No.5 of 2021
and
C.M.P.(MD).No.55 of 2021
08.01.2021
http://www.judis.nic.in
