Radhamani vs S.Ganeshamoorthi
2021 Latest Caselaw 851 Mad

                                                                         C.M.A.No.3348 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 11.01.2021

                                                    CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.3348 of 2019

                   1.Radhamani

                   2.Nataraj

                   3.Kokila

                   4.Poonkothai @ Poonkodi

                   5.Hariharan                                                 .. Appellants


                                                      Vs.

                   1.S.Ganeshamoorthi

                   2.The Managing Director
                   Tamil Nadu State Transport Corporation Limited
                   No.37, Mettupalayam Road
                   Coimbatore.                                              .. Respondents


                   Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor

                   Vehicles Act, 1988, against the judgment and decree dated 16.08.2018 made



                   1/11


https://www.mhc.tn.gov.in/judis/
                                                                               C.M.A.No.3348 of 2019

                   in M.C.O.P.No.338 of 2017 on the file of Motor Accident Claims Tribunal, IV

                   Additional District Court, Erode District at Bhavani.



                                   For Appellants     : Ms.T.Gayathri
                                                      for Mr.C.Kulanthaivel

                                   For R2             : Mr.K.J.Sivakumar


                                                    JUDGMENT

This matter is heard through 'Video-conferencing'.

The Civil Miscellaneous Appeal is filed challenging the portion of the

award fixing 10% contributory negligence on the part of the deceased as well

as for enhancement of compensation granted by the Tribunal in the award

dated 16.08.2018 made in M.C.O.P.No.338 of 2017 on the file of Motor

Accident Claims Tribunal, IV Additional District Court, Erode District at

Bhavani.

2.The appellants are claimants in M.C.O.P.No.338 of 2017 on the file

of Motor Accident Claims Tribunal, IV Additional District Court, Erode

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District at Bhavani. They filed the said claim petition claiming a sum of

Rs.20,00,000/- as compensation for the death of one Manjunathan, who died

in the accident that took place on 24.06.2014.

3.According to the appellants, on the date of accident, i.e., on

24.06.2014 at about 11.30 a.m., while the deceased Manjunathan was driving

a Eicher van from Somanur to Annur Road, near Kittampalayam Nall Road

towards North to South direction on the extreme left side of the Road, the 1 st

respondent, the driver of the bus belonging to the 2nd respondent/Transport

Corporation drove the same in a rash and negligent manner, dashed against

the Eicher van and caused the accident. In the accident, the deceased

sustained fatal injuries and died in the hospital. Therefore, the appellants have

filed the above claim petition claiming compensation as against the

respondents.

4.The 2nd respondent/Transport Corporation filed counter statement

denying the averments made by the appellants and stated that on the date of

accident, while the 1st respondent, driver of the bus was proceeding towards

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

Kittampalayam branch road to Somanur - Annur Main Road at 11.45 a.m., the

deceased drove the Eicher van without noticing the bus and dashed at the

middle of the left side of the bus belonging to the 2nd respondent/Transport

Corporation. The accident has occurred only due to negligence on the part of

the deceased. Hence, the respondents are not liable to pay any compensation

to the appellants even under no fault liability. Mere filing of F.I.R. against the

driver of the bus is not a substantial piece of evidence to come to a

conclusion that the accident was caused due to negligence on the part of the

1st respondent, the driver of the bus. The 2nd respondent/Transport

Corporation has also denied the age, avocation and income of the deceased.

In any event, the compensation claimed by the appellants is excessive and

prayed for dismissal of the claim petition as against the respondents.

5.Before the Tribunal, the 1st respondent, mother of the deceased,

examined herself as P.W.1, one Velmurugan, eye-witness to the accident was

examined as P.W.2 and one V.Karnan, Assistant, Labour Office, Bhavani, was

examined as P.W.3 and nine documents were marked as Exs.P1 to P9. The

respondents examined the 1st respondent, the driver of the bus as R.W.1 and

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

did not let in any documentary evidence. Salary Certificate of the deceased

was marked as Ex.X1.

6.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

both the deceased as well as the 1st respondent, the driver of the bus

belonging to the 2nd respondent/Transport Corporation, fixed 10 : 90

contributory negligence on the part of the deceased as well as the 1st

respondent respectively, awarded Rs.15,68,000/- as compensation to the

appellants and directed the 2nd respondent/Transport Corporation to pay a sum

of Rs.14,11,200/- being 90% of the award amount as compensation to the

appellants.

7.The appellants have come out with the present appeal challenging the

portion of the award fixing 10% contributory negligence on the part of the

deceased as well as for enhancement of compensation.

8.The learned counsel appearing for the appellants contended that the

Tribunal misconstrued and misunderstood the evidence of P.W.2, eye-witness

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

and erroneously fixed 10% contributory negligence on the part of the

deceased when there is no material to prove the same. The Tribunal failed to

consider the evidence of P.W.2, eye-witness and the documents marked by the

appellants, which clearly proved that the entire negligence is only on the part

of the 1st respondent. The contributory negligence fixed by the Tribunal is

only based on assumption and presumption. The 1st respondent who crossed

the main road did not stop the vehicle and watched all the sides before

crossing the main road. In view of the above, 10% contributory negligence

fixed by the Tribunal on the part of the deceased is liable to be set aside. The

learned counsel further contended that the deceased was a skilled person. The

Tribunal ought to have considered the evidence of P.W.3 and fixed monthly

income of the deceased. The deceased was working as a commercial vehicle

driver. The appellants examined P.W.3, Assistant, Labour office, Bhavani, as

P.W.3 and proved that the salary of a commercial vehicle driver is fixed as

Rs.11,619/- per month. There are five dependents of the deceased and the

Tribunal ought to have deducted 1/3rd instead of 50% towards personal

expenses. The Tribunal ought to have granted filial consortium to the

appellants and prayed for setting aside 10% contributory negligence fixed on

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

the part of the deceased and for enhancement of compensation granted by the

Tribunal.

9.The learned counsel appearing for the 2nd respondent/Transport

Corporation contended that the driver of the bus, who was coming from side

road to main road watched both sides and crossed the road half way. The

deceased who was driving Eicher van in a rash and negligent manner, came

in a hectic speed, dashed on the left hand side of the middle of the bus and

caused the accident. The accident has occurred only due to negligence on the

part of the deceased. The Tribunal erroneously fixed only 10% contributory

negligence instead of fixing entire negligence on the part of the deceased.

The appellants claimed that the deceased was working as a driver and was

earning a sum of Rs.10,000/- per month. They failed to substantiate the same.

However, the Tribunal accepting the contention of the appellants fixed a sum

of Rs.10,000/- as monthly income of the deceased, granted 40% enhancement

towards future prospects as per the judgment of the Hon'ble Apex Court

reported in 2017 (2) TNMAC 609 (SC) [National Insurance Co. Ltd. v.

Pranay Sethi and others] and granted compensation towards loss of

dependency by applying multiplier '17'. In view of the same, the appellants

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are not entitled to any enhancement of compensation in fixing monthly

income of the deceased. The Tribunal granted a sum of Rs.1,00,000/-

excessively for loss of love and affection to the appellants 2 to 5. The

appellants have not made out any case for enhancement of compensation and

prayed for dismissal of the appeal.

10.Heard the learned counsel appearing for the appellants as well as the

learned counsel appearing for the 2nd respondent/Insurance Company and

perused the entire materials on record.

11.From the materials on record, it is seen that the accident has

occurred in the middle of the road, while the bus was joining the main road

from the side road. The van dashed on the left hand side of the middle of the

bus. R.W.1, the driver of the bus deposed that only on seeing both sides of the

main road, he entered into the main road. The Tribunal having held that

P.W.2, the alleged eye-witness admitted that the deceased, driver of the van

dashed on the bus, he changed his version and deposed that the bus dashed on

the van erroneously fixed only 10% contributory negligence on the part of the

deceased. Considering the materials in its entirety, there is no error in fixing

10% contributory negligence on the part of the deceased by the Tribunal

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warranting interference by this Court.

12.As far as quantum of compensation is concerned, the appellants

have claimed that the deceased was working as a driver and was earning a

sum of Rs.10,000/- per month. They failed to prove the same. In the absence

of any material evidence, the Tribunal fixed a sum of Rs.10,000/- per month

as claimed by the appellants. Now the contention of the learned counsel

appearing for the appellants that the deceased was working as a commercial

driver and the Tribunal ought to have fixed more than the amount claimed by

the appellants as monthly income of the deceased is not acceptable. The

deceased was aged 27 years at the time of accident and the Tribunal granted

40% enhancement towards future prospects following the judgment of the

Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC) [National

Insurance Co. Ltd. v. Pranay Sethi and others] and applied multiplier '17'.

The deceased was a bachelor at the time of accident and hence the Tribunal

rightly deducted 50% towards personal expenses. The Tribunal has granted a

sum of Rs.1,00,000/- towards loss of love and affection to the appellants 2 to

5 which is not meagre. The total compensation granted by the Tribunal is not

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

meagre. In view of the above, the appellants have not made out any case for

enhancement of compensation.

13.In the result, this Civil Miscellaneous Appeal is dismissed and the

sum of Rs.15,68,000/- awarded by the Tribunal as compensation to the

appellants along with interest and costs is confirmed. The 2nd

respondent/Transport Corporation is directed to deposit a sum of

Rs.14,11,200/- being 90% of the compensation awarded by the Tribunal

along with interest and costs, within a period of twelve weeks from the date

of receipt of a copy of this judgment. On such deposit, the appellants are

permitted to withdraw their respective share of the award amount as per the

apportionment fixed by the Tribunal along with proportionate interest and

costs, less the amount if any, already withdrawn. No costs.

11.01.2021 Index : Yes / No kj

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3348 of 2019

V.M.VELUMANI, J.,

kj

To

1.IV Additional District Judge (Motor Accident Claims Tribunal Erode District at Bhavani.

2.The Section Officer V.R.Section High Court, Chennai.

C.M.A.No.3348 of 2019

11.01.2021

https://www.mhc.tn.gov.in/judis/