Madras High Court
The Managing Director vs Gopal on 1 March, 2021
C.M.A.No.617 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.617 of 2021
and
C.M.P.No.3780 of 2021
The Managing Director
Tamil Nadu State Transport Corporation
Limited
Regional Office, Tiruppur-641 604. .. Appellant
Vs.
1.Gopal
2.Ganeshwari
3.Sumitra Devi
4.Minor Nithya Sri
(minor represented by her natural guardian/
mother, the 3rd respondent)
5.Dinesh .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 27.02.2019
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
made in M.C.O.P.No.1847 of 2015 on the file of the Motor Accident Claims
Tribunal, I Additional District Court, Tiruppur.
For Appellant : Mr.K.J.Sivakumar
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Transport Corporation to set aside the award dated 27.02.2019
made in M.C.O.P.No.1847 of 2015 on the file of the Motor Accident Claims
Tribunal, I Additional District Court, Tiruppur.
2.The appellant/Transport Corporation is 2nd respondent in
M.C.O.P.No.1847 of 2015 on the file of the Motor Accident Claims Tribunal,
I Additional District Court, Tiruppur. The respondents 1 to 4 filed the said
claim petition claiming a sum of Rs.15,00,000/- as compensation for the
death of one G.Sivasubramaniyam, who died in the accident that took place
on 28.02.2014.
3. According to the respondents 1 to 4, on the date of accident
i.e., on 28.02.2014 at about 1.30 p.m., while the deceased Sivasubramaniyam
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
was riding in his Activa Scooty from Avinashi to Somanur to his house
towards East to West direction, in National Highways, near Thekkalur Pirivu,
the 5th respondent, the driver of the bus belonging to the appellant/Transport
Corporation drove the same in a rash and negligent manner from West to East
direction in the same road, dashed against the two wheeler driven by the
deceased Sivasubramaniyam and caused the accident. In the accident, the
said Sivasubramaniyam sustained fatal injuries and died on the spot.
Therefore, the respondents 1 to 4 filed the claim petition claiming
compensation against the 5th respondent and the appellant/Transport
Corporation.
4.The 5th respondent, the driver of the bus, remained exparte before the
Tribunal.
5.The appellant/Transport corporation filed counter statement denying
the averments made by the respondents 1 to 4 and contended that the
deceased Sivasubramaniyam was riding the two wheeler in a rash and
negligent manner using mobile phone. The 5th respondent, the driver of the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
bus on noticing this, stopped the bus on the extreme left side of the road in
order to avoid the accident, in spite of that, the deceased dashed against the
bus and invited the accident. The deceased, the rider of the two wheeler alone
was responsible for the accident and he did not possess valid driving license
to ride the two wheeler at the time of accident. The owner and insurer of the
two wheeler were not made as parties to the claim petition and hence, the
claim petition is bad for non-joinder of necessary parties. Therefore, the
appellant is not liable to pay any compensation to the respondents 1 to 4. The
appellant has also denied the age, avocation and income of the deceased. In
any event, the total compensation claimed by the respondents 1 to 4 is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent, father of the deceased
Sivasubramaniyam examined himself as P.W.1, one Krishnakumar was
examined as P.W.2 and eight documents were marked as Exs.P1 to P8. The
appellant/Transport Corporation examined the 5th respondent, the driver of
the bus as R.W.1 and did not file any document.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
7.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the 5th respondent, the driver of the bus belonging to the appellant/Transport
Corporation and directed the appellant/Transport Corporation to pay a sum of
Rs.19,94,400/- as compensation to the respondents 1 to 4.
8.To set aside the said award dated 27.02.2019 made in
M.C.O.P.No.1847 of 2015, the appellant/Transport Corporation has come out
with the present appeal.
9.The learned counsel appearing for the appellant/Transport
Corporation contended that the Tribunal ought not to have considered the
evidence of P.W.1, father of the deceased who has not seen the occurrence.
Mere registering of F.I.R. against the driver of the bus cannot be a ground for
fixing negligence on him. The learned counsel further contended that the
Tribunal failed to note that no valid document was filed by the respondents 1
to 4 to prove the age, avocation and income of the deceased. The Tribunal
erred in fixing a sum of Rs.9,000/- as monthly income of the deceased and
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
awarding a sum of Rs.1,60,000/- towards loss of consortium, which are
excessive. The amounts awarded by the Tribunal under different heads are
also excessive and prayed for setting aside the award of the Tribunal.
10.Heard the learned counsel appearing for the appellant/Transport
Corporation and perused the entire materials available on record.
11.From the materials on record, it is seen that it is the contention of
the respondents 1 to 4 that while the deceased Sivasubramaniyam was riding
in his two wheeler, the 5th respondent, the driver of the bus belonging to the
appellant/Transport Corporation drove the same in a rash and negligent
manner, hit against the two wheeler rode by the deceased and caused the
accident. To substantiate this contention, the 1st respondent, father of the
deceased Sivasubramaniyam, examined himself as P.W.1, deposed about the
manner of the accident and marked F.I.R. as Ex.P1, which was registered
against the driver of the bus. On the other hand, it is the case of the
appellant/Transport Corporation that the deceased Sivasubramaniyam alone
rode the two wheeler in a rash and negligent manner using mobile phone. The
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
5th respondent, the driver of the bus on noticing this, stopped the bus in order
to avoid the accident, but in spite of the efforts taken by the driver of the bus,
the deceased dashed against the bus and invited the accident. The deceased
alone was responsible for the accident. To prove their case, the appellant
examined the driver of the bus as R.W.1. The appellant has not examined any
independent witness to prove their contention. R.W.1, the driver of the bus is
an interested witness. The Tribunal considering the evidence of P.W.1,
contents of Ex.P1/F.I.R and failure on the part of the appellant to examine any
independent eye-witness, held that the accident has occurred only due to rash
and negligent driving by the driver of the bus belonging to the
appellant/Transport Corporation and directed the appellant to pay the
compensation to the respondents 1 to 4. There is no error in the said finding
of the Tribunal warranting interference by this Court.
12.As far as quantum of compensation is concerned, it is the case of the
respondents 1 to 4 that the deceased Sivasubramaniam was working as
Prokithar and was earning a sum of Rs.10,000/- per month at the time of
accident. The respondents 1 to 4 examined one Krishnakumar as P.W.2 to
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
prove the avocation of the deceased. In the absence of any material evidence
to prove the income of the deceased, the Tribunal fixed a sum of Rs.9,000/-
per month as notional income of the deceased. The accident is of the year
2014 and the monthly income fixed by the Tribunal is not excessive. The
Tribunal fixed the age of the deceased as 32 years as per Ex.P2/Post-mortem
certificate, applied multiplier '16', granted 40% enhancement towards future
prospects, deducted 1/4th towards personal expenses and awarded
compensation towards loss of dependency, which is not excessive. The
Tribunal has not awarded any compensation towards loss of love and
affection and loss of estate. In view of the above, a sum of Rs.1,60,000/-
awarded by the Tribunal towards loss of consortium is not interfered with.
The total compensation awarded by the Tribunal is also not excessive
warranting interference by this Court.
13. In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.18,14,400/- awarded by the Tribunal as compensation to the
respondents 1 to 4 along with interest and costs is confirmed. The
appellant/Transport Corporation is directed to deposit the entire award
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
amount along with interest and costs, less the amount already deposited, if
any, within a period of twelve weeks from the date of receipt of a copy of this
judgment. On such deposit, the respondents 1 to 3 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. The share amount of the minor/4th respondent is
directed to be deposited in any one of the Nationalised Banks till the minor
attains majority. The 3rd respondent being mother of the minor/4th respondent
is permitted to withdraw the accrued interest once in three months for the
welfare of the minor. Consequently, connected Miscellaneous Petition is
closed. No costs.
01.03.2021
Index : Yes / No
kj/gsa
https://www.mhc.tn.gov.in/judis/
C.M.A.No.617 of 2021
V.M.VELUMANI,J.
Kj/gsa
To
1.The I Additional District Judge
(Motor Accident Claims Tribunal)
Tiruppur.
2.The Section Officer,
VR Section,
High Court,
Chennai.
C.M.A.No.617 of 2021
and
C.M.P.No.3780 of 2021
01.03.2021
https://www.mhc.tn.gov.in/judis/
