Madras High Court
M/S State Express Transport ... vs S.Natarajan on 14 July, 2021
C.M.A.(MD).No.871 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.M.A.(MD).No.871 of 2013
and
M.P(MD)No.1 of 2013
M/s State Express Transport Corporation Limited,
Represented by its Managing Director,
Having Office at
Chennai – 600 002. ... Appellant
Vs.
1.S.Natarajan
2.Saraswathi
3.Mariyappan
4.K.Mahesh
4.M/s Bajaj Allianz General Insurance Company Limited,
Represented by its
Branch Manager,
Having Branch office at
No.25/26, Prince Towers
4th Floor, College Road,
Nungambakkam.
... Respondents
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.871 of 2013
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the Judgment and Decree dated 17.07.2012 passed
in MCOP No.959 of 2008 on the file of the Motor Accidents Claims Tribunal/III
Additional District Court, Tiruchirappalli.
For Appellant : Mr.P.Prabhakaran
For Respondents : Mr.N.Sudhagar Nagaraj (for R1 to R3)
Mr.G.Maruthiah (for R5)
No appearance for R4
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
This appeal is directed against the judgment and award passed by the
Motor Accident Claims Tribunal, III Additional District Court, Tiruchirappalli in
MCOP No.959 of 2008.
2.The parents and brother of the deceased, namely, Thanesh filed the claim
petition seeking compensation of Rs.27,00,000/-. According to them, on
11.01.2008, the deceased along with his friends travelled in a TAVERA car
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C.M.A.(MD).No.871 of 2013
bearing Reg.No.TN-21-J-7034 from Sriperumputhur to Tenkasi. When they were
near SRV School, Othakadai, which is situated at Trichy-Chennai National
Highways, a bus owned by the appellant bearing Reg.No.TN-01-N-6745, which
was coming from the opposite direction in a rash and negligent manner, rammed
the car. In the accident, the said Thanesh died on the spot. The further case of the
claimants is that the deceased was working as Technician in HWASHIN
Automotive India Private Limited at Sriperumputhur and his monthly pay was Rs.
20,000/-. It is also stated that the deceased died at the age of 27 years. The claim
petition was filed against the appellant as well as the owner and insurer of
TAVERA maxi cap.
3.In the counter, the appellant had denied the averments and allegations
made in the claim petition. It is stated that the driver of the bus drove it slowly,
carefully by observing traffic rules and when it was proceeding on the extreme
left side of the road, at about 1.30 a.m, on 11.01.2008, the TAVERA car which
came in a high speed and in a rash and negligent manner, dashed on the extreme
right side of the bus. Due to the accident, the bus has down out of the road, so,
the appellant is not responsible for the accident and the claim petition is liable to
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C.M.A.(MD).No.871 of 2013
be dismissed.
4.It is relevant to note that one another passenger of the car, who sustained
injuries, filed a claim petition in MCOP No.1619 of 2008. Both the claim
petitions were taken up for joint trial. In the course of trial, on behalf of the
claimants, 4 witnesses were examined and 15 documents were marked. On behalf
of the respondents, two witnesses were examined, but no document was marked.
On appreciation of the evidence oral and documentary, the Tribunal held that the
accident was caused by the negligence of the driver of the bus and awarded
compensation of Rs.26,50,000/- together with interest at the rate of 7.5% per
annum. Challenging the same, the present appeal has been filed.
5.Mr.P.Prabhakaran, learned counsel for the appellant would urge that the
accident had taken place solely due to the negligence of the driver of the car,
which was also spoken by the driver as R.W.1. The claimants failed to produce
Rough Sketch to prove the negligence on the part of the driver of the bus. Ex.X.1
shows that the deceased was paid Rs.16,285/- and he died at the age of 27 years,
but the Tribunal has not applied proper multiplier and taken the income as Rs.
18,000/- per month. According to the learned counsel, the award amount is
excessive and exorbitant.
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C.M.A.(MD).No.871 of 2013
6.Per contra, Mr.N.Sudhakar Nagaraj, learned counsel appearing for the
respondents 1 to 3/claimants and Mr.G.Maruthiah, learned counsel appearing for
the 5th respondent submitted that the appellant has not filed any appeal against the
award passed in MCOP No.1619 of 2008. Since both the claim petitions were
disposed of by a common Judgment, the appellant is estopped from raising the
plea on the negligence. It is the submission of the learned counsel for the
claimants that the Tribunal has rightly arrived at the compensation and it cannot
be said to be excessive.
7.This Court carefully considered the rival submissions and perused the
materials available on record.
8.It is the case of the claimants that when the deceased Thanesh was
travelling in a TAVERA maxi cap along with his friends from Sriperumputhur to
Tenkasi and they met with an accident at 01.30 p.m on 11.01.2008. The co-
passenger, who sustained injuries in the same accident, gave evidence as P.W.2.
He deposed that the driver of the TAVERA car was driving in normal speed on the
left side of the road, but the bus, which was coming from the opposite direction,
rammed the car and suddenly fell into the ditch on the right side of the road. P.W.
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C.M.A.(MD).No.871 of 2013
2 clearly deposed that the speedy bus came to the wrong side of the road and after
hitting the car, fell into the ditch on the right side of the road. On the basis of a
complaint, a criminal case was registered against the driver of the bus, which was
marked as Ex.P.1. The Tribunal having found that the bus went down to road side
ditch, has observed that if the accident had taken place as narrated by R.W.1, it
would not have been fallen into the ditch. So, while disbelieving the evidence of
R.W.1, the Tribunal held that the accident had taken place due to the negligence
of the driver of the bus. As rightly pointed out by the learned counsel for the fifth
respondent, against the order passed in MCOP No.1619/2008, no appeal was
filed. In view of the above, this Court finds no merits in the contention of the
learned counsel for the appellant with regard to the finding on negligence.
9.Insofar as the quantum is concerned, the claimants have categorically
stated that the deceased was a bachelor and he died at the age of 27 years. To
prove the age, the claimants have marked Ex.P.4-Transfer Certificate, which
shows that the deceased was born on 20.06.1981. Ex.X.1 is the Salary Certificate
and Ex.X.2 is the Extract of the Employees' Register. In the present case, P.W.2
to P.W.4 are the employees in the HWASHIN Automotive India Pvt. Ltd. They
have consistently stated that the deceased was an employee of the Company and
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C.M.A.(MD).No.871 of 2013
he had bright future in the Company. Ex.X.1 shows that the deceased was paid
Rs.16,285/- per month. P.W.4 has stated that the salary was revised and the
present salary is Rs.26,450/- per month. It is settled legal position that the salary
of the deceased has to be taken on the date of the accident. So, the income of the
deceased is fixed as Rs.16,000/- per month and by adding 40% towards future
prospects, it comes to Rs.22,400/-.
10.It is not disputed that the deceased was a bachelor and therefore, 50% of
the salary shall be deducted towards his personal and living expenses. Hence, the
contribution to the family would be Rs.11,200/-. As per the decision of the Sarla
Verma and others vs. Delhi Transport Corporation and another reported in
(2009)6 SCC 121, proper multiplier would be '17', but the Tribunal has applied
multiplier '18'. So, the loss of income is assessed as Rs.22,84,800/- (Rs.11,200 x
12 x 17). As per the ratio in the case of National Insurance Co., Ltd., vs.
Pranay Sethi reported in (2017)16 SCC 680, the claimants are entitled for Rs.
70,000/- for conventional damages. Thus, the claimants 1 and 2 would be entitled
to Rs.23,54,800/-, which is rounded off Rs.23,55,000/-. In fine, the amount
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C.M.A.(MD).No.871 of 2013
awarded by the Tribunal Rs.26,50,000/- is reduced to Rs.23,55,000/-. The rate of
interest is maintained. There is no material to prove that the 3rd claimant/third
respondent/Mariyappan was the dependent of the deceased. Hence, his claim is
rejected.
11.In that view, the Civil Miscellaneous Appeal is partly allowed. The
appellant is directed to deposit the modified award amount with accrued interest
and costs, less the amount already deposited, if any, within a period of eight
weeks from the date of receipt of a copy of this order. On such deposit, the
claimants 1 and 2 alone, who are the parents of the deceased, are permitted to
withdraw the award amount, equally, less the amount already withdrawn, if any,
together with proportionate interest and costs. No costs. Consequently, connected
miscellaneous petition is closed.
[M.K.K.S.,J.] [B.P.,J.]
14.07.2021
skn
Intex : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.871 of 2013
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.
To
1.The Motor Accident Claims Tribunal
III Additional District Court,
Tiruchirappalli.
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.871 of 2013
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
skn
C.M.A.(MD).No.871 of 2013
and
M.P(MD)No.1 of 2013
14.07.2021
https://www.mhc.tn.gov.in/judis/
