Madras High Court

Sabita Jana vs Metropolitan Transport ... on 18 January, 2021

                                                                              CMA No.3504 of 2008

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated 18.01.2021

                                                       CORAM:

                              THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                                 CMA.No.3504 of 2008


                       1. Sabita Jana
                       2. Dulal Chandra Jana                       ... Appellants

                                                       Vs.

                       Metropolitan Transport Corporation
                       (Chennai Division) Ltd. rep by its
                       Managing Director, Pallavan Salai,
                       Chennai 600 002.                            .... Respondent


                                      This Civil Miscellaneous Appeal has been filed under

                       Section 173 of the Motor Vehicles Act, 1988, against the decree and

                       judgment dated 30.05.2008 passed in MACT.O.P.no.3358 of 2005 by

                       the Additional District Cum Sessions Court (Fast Track Court No.III),

                       Motor Accidents Claims Tribunal, Chennai.

                                      For Appellants         : Mr.R.Kalai Arasan

                                      For Respondent         : Dr.SS.Swaminathan



                       Page 1 of 10
https://www.mhc.tn.gov.in/judis/
                                                                                 CMA No.3504 of 2008

                                                      JUDGMENT

Challenging the judgment and decree passed by the

Tribunal awarding a compensation of Rs.1,97,000/-, the

claimants/appellants are before this court to enhance the compensation.

2. The claimants/appellants filed a claim petition before the

Tribunal seeking compensation of Rs.6,00,000/- for the death of their

son namely Gopal Jana in a road accident that took place on

19.04.2005.

3. The brief case of the claimants is as follows. On

19.04.2005, at about 7.45 hours, the deceased was travelling as a pillion

rider in a motorcycle bearing registration No.TN-01-P-8892, driven by

one Subeth Kumar Midya @ Rajkumar from Nungambakkam to

Kilpauk and while they proceeding along Chetpet Gurusamy Over

Bridge, a bus bearing registration No.TN-01-N-2823 hit the motorcycle,

thereby both of them sustained grievous injuries and the deceased was

admitted to Kilpauk Medical College Hospital, from there, referred to

Government General Hospital, Chennai and treated as inpatient and

https://www.mhc.tn.gov.in/judis/ CMA No.3504 of 2008

subsequently, he died on 21.04.2005. The rash and negligent driving of

the driver of the bus was the cause of accident and since the

respondent/Metropolitan Transport Corporation is the owner of the

vehicle, they are liable to pay compensation to the claimants.

4. The respondent resisted the claim petition.

5. Before Tribunal, on the side of the claimants/appellants, the

first claimant and one another witness have examined as PW1 and PW2

and marked Ex.P1 to Ex.P8. On the side of the respondent, one witness

was examined as RW1 and no document was marked.

6. After analysing the evidence on record, the Tribunal has

awarded a compensation of Rs.1,97,000/- under the following heads.

                                                        Heads                Amount in Rs.
                                     Loss of income (2000x16x12)              3,84,000
                                     Funeral Expenses                           2,000
                                     Loss of love and affection                 5,000
                                     conveyance expenditure                     3,000
                                     Total                                    3,94,000

After deducting 50% towards contributory 1,97,000 negligence

https://www.mhc.tn.gov.in/judis/ CMA No.3504 of 2008

7. Heard the learned counsels for the parties and also I

have perused the material on record.

8. The learned counsel appearing for the

claimants/appellants submitted that the deceased was only a pillion

rider in the motorcycle and he has not contributed any negligence to the

accident and therefore, the trial court has committed an error in

deducting 50% of the compensation arrived for contributory negligence

on the part of the deceased. He further submitted that the Tribunal has

awarded a meagre amount of Rs.5,000/- towards "love and affection"

and the compensation awarded under the other heads also very meagre

and hence, he prayed for enhancement of the compensation.

9. The learned counsel appearing for the respondent

submitted that the Ex.P2, rough sketch prepared by the investigation

officer clearly shows that the motorcycle was driven close to the

meridian line, which causes contributory negligence on the part of the

driver of the motorcycle and no material was placed before the Tribunal

to establish that the cause of the accident was only due of the rash and

https://www.mhc.tn.gov.in/judis/ CMA No.3504 of 2008

negligent driving of the driver of the bus. Therefore, the Tribunal has

not considered the above facts and awarded an excess amount and

directed the respondent to pay the compensation.

10. Now, the point for determination before this court is

(i) Whether there is contributory negligence on the part of the driver of the motorcycle as well as the driver of the Transport Corporation?

(ii) Whether the compensation awarded by the Tribunal has to be enhanced?

13. Point No.1

A perusal of the sketch Ex.P2 shows that the driver of the

motorcycle has just crossed the meridian which caused to the accident,

as a result of which the deceased who travelled as pillion rider

sustained fatal injuries. Further, the Ex.P2 clearly shows that the driver

of the bus has driven the bus proceeding over the Chetpet Overbridge

from north to south and he had also crossed the line of the meridian.

Therefore, the Tribunal has rightly fixed 50% of the contributory

negligence on the part of the rider of the motorcycle and 50% on the

part of the driver of the bus. The point is answered accordingly.

https://www.mhc.tn.gov.in/judis/ CMA No.3504 of 2008

14. Point No.2

In the claim petition, the claimants stated that the

occupation of the deceased was self employment and earned a sum of

Rs.40,000/- per month as income. However, no proof of income was

filed by the claimants. Therefore, considering the fact that no proof of

income filed and also taking into account the year of the accident, the

Tribunal has correctly fixed the income of the deceased as Rs.3,000/-

per month and after deducting 1/3 amount towards 'personal

expenditure' and by adopting proper multiplier '16', the Tribunal has

correctly arrived (2,000 x 16 x 12) at Rs.3,84,000 towards " Loss of

Income".

15. As far as the compensation awarded under the other

heads are concerned, the learned counsel appearing for the appellant

submitted that the Tribunal without following the decisions of the

Honourable Supreme Court, has awarded a very meagre amounts

towards "Funeral Expenses, Love and Affection and Conveyance

Expenses " and hence the same shall be enhanced.

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16. Considering the above submissions and also taking into

account the facts and circumstances of the case and fatal injuries

sustained by the deceased, this court is of the view that it is just and

reasonable to enhance the compensation of Rs.40,000/- (Rs.20,000/-

each) towards "love and affection" , Rs.15,000/- towards " Loss of

Estate " and Rs.15,000/- towards "Funeral and Conveyance Expenses".

Accordingly the revised compensation awarded under various heads is

extracted hereunder.

                                             Heads               Compensation    Compensation
                                                                awarded by the    modified by
                                                                   Tribunal        this court
                                   Loss     of        income 3,84,000             3,84,000
                                   (2000x16x12)
                                   Funeral Expenses               2,000            15,000
                                   Loss of love and affection     5,000            40,000
                                   conveyance expenditure         3,000            15,000
                                   Total                        3,94,000          4,54,000
                                   After deducting 50% 1,97,000                   2,27,000
                                   towards    contributory
                                   negligence

As far as the interest portion is concerned, only a sum of Rs.1,97,000/-

awarded by the Tribunal will carry interest at the rate of 9% p.a. and the

difference amount of Rs.30,000/- which is enhanced by this court will

https://www.mhc.tn.gov.in/judis/ CMA No.3504 of 2008

carry interest only at the rate of 7.5% p.a. from the date of claim

petition till the date of realisation. Accordingly the point is answered.

17. In the result,

(i) The appeal is partly allowed and the compensation

awarded by the Tribunal is enhanced from 1,97,000/- to Rs.2,27,000/-

with interest at the rate of 9% p.a. on Rs.1,97,000/- and 7.5% p.a. on

Rs.30,000/- from the date of claim petition till the date of realisation.

No costs.