Madras High Court
The Managing Director vs Ganapathy on 10 March, 2021
C.M.A.No.715 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.715 of 2021
and C.M.P.No.4286 of 2021
The Managing Director,
Tamilnadu State Transport Corporation Limited,
37, Mettupalayam Road,
Coimbatore 641 043. .. Appellant
Vs.
1.Ganapathy
2.Muthusamy .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 05.01.2019, made
in M.C.O.P. No.197 of 2012, on the file of the Sub Court, (Motor Accident
Claims Tribunal), Sankari.
For Appellant : Mr.K.J.Sivakumar
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C.M.A.No.715 of 2021
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”)
This Civil Miscellaneous Appeal has been filed by the appellant-
Transport Corporation to set aside the award of the Tribunal dated
05.01.2019, made in M.C.O.P. No.197 of 2012, on the file of the Sub Court,
(Motor Accident Claims Tribunal), Sankari.
2.The appellant is the respondent in M.C.O.P. No.197 of 2012, on the
file of the Sub Court, (Motor Accident Claims Tribunal), Sankari. The 1st
respondent/claimant filed the said claim petition, claiming a sum of
Rs.5,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 24.02.2012.
3.According to the 1st respondent, on the date of accident, when he was
riding his Motorcycle bearing Registration No.TN-52-A-0173 along with his
grandmother Sellammal as pillion rider, following all the traffic rules and
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C.M.A.No.715 of 2021
regulations, on the extreme left side of the Erode to Sankari Main road, near
Sanniyasipatty bus stop, towards Sankari, the 2nd respondent, driver of a Bus
bearing Registration No.TN-33-N-2383 belonging to the appellant-Transport
Corporation coming from Salem to Erode, drove the same in a rash and
negligent manner, without following the traffic rules, in great speed, all of a
sudden came to his right side, hit against the Motorcycle driven by the 1st
respondent and caused the accident. In the accident, the 1st respondent and his
grandmother were thrown out and sustained serious fractures all over the
body. The accident occurred only due to rash and negligent driving by driver
of the Bus. Hence, the 1st respondent filed the claim petition claiming
compensation against the 2nd respondent as driver and appellant as owner of
the Bus involved in the accident.
4.The 2nd respondent, driver of the Bus, remained exparte before the
Tribunal.
5.The appellant-Transport Corporation filed counter statement and
denied all the averments made by the 1st respondent in the claim petition.
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C.M.A.No.715 of 2021
According to the appellant, on the date of accident, when the 2nd respondent,
driver of the Bus involved in the accident drove the Bus from
Thiruvannamalai to Tiruppur at a moderate speed and in a very cautious
manner, adhering traffic rules, near Sanniyasipatti, the 1st respondent/rider of
the Motorcycle coming in the opposite side of the road with uncontrollable
speed, tried to overtake another vehicle and came to the middle of the road
and dashed his vehicle on the front right side of the Bus and fell down on the
road. The accident occurred only due to rash and negligent riding of
Motorcycle by the 1st respondent without wearing helmet. Hence, the
appellant is not liable to pay any compensation to the 1st respondent. In any
event, the 1st respondent has to prove his age, avocation and income, injuries
sustained and treatment taken, to claim compensation. The total
compensation claimed by the 1st respondent is excessive and prayed for
dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
examined his father as P.W.2, Dr.Seenivasan as P.W.3 and marked 13
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C.M.A.No.715 of 2021
documents as Exs.P1 to P13. The appellant did not let in any oral and
documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by 2nd respondent, driver of the Bus belonging to the appellant-
Transport Corporation and directed the appellant to pay a sum of
Rs.4,90,000/- as compensation to the 1st respondent.
8.To set aside the award of the Tribunal dated 05.01.2019, made in
M.C.O.P. No.197 of 2012, 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 failed to note that the accident has
occurred only due to rash and negligent riding of Motorcycle by the 1st
respondent. The Tribunal erred in holding that mere registration of FIR
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C.M.A.No.715 of 2021
against the driver of the Bus is enough for holding negligence on the 2nd
respondent, driver of the Bus. The Tribunal failed to note that the 1st
respondent did not file any document to prove his age, avocation and income.
The Tribunal ought not to have taken the permanent disability of the 1 st
respondent as 20%, which is on the higher side. The amount of Rs.75,000/-
each awarded by the Tribunal towards pain and suffering and simple injuries
are 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 materials available on record.
11.It is the case of the 1st respondent that when he was riding his
Motorcycle on the extreme left side of the road, the 2nd respondent, driver of
the Bus belonging to the appellant/Transport Corporation suddenly came to
his right side, hit against the Motorcycle driven by the 1st respondent and
caused the accident. To substantiate this contention, the 1st respondent,
examined himself as P.W.1 and marked the FIR registered against the 2nd
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C.M.A.No.715 of 2021
respondent/driver of the Bus as Ex.P1. On the other hand, it is the contention
of the appellant/Transport Corporation that while the Bus belonging to them
was driven carefully by the 2nd respondent, the 1st respondent/rider of the
Motorcycle who was coming in the opposite side of the road in an
uncontrollable speed, while trying to overtake another vehicle, came to
middle of the road, dashed on the front right side of the Bus and fell down on
the road. The appellant did not examine the driver of the Bus or any
independent eye-witness to prove their contention. The Tribunal considering
the evidence of P.W.1, FIR which was registered against the driver of the Bus,
failure on the part of the appellant to examine neither the driver of the Bus
nor any independent eye-witness and in the absence of any objection given to
the complaint lodged against the driver of the Bus, held that the accident has
occurred only due to rash and negligent driving by the 2nd respondent, driver
of the Bus belonging to the appellant/Transport Corporation and directed the
appellant to pay the compensation to the 1st respondent. There is no error in
the said finding of the Tribunal warranting interference by this Court.
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C.M.A.No.715 of 2021
12.As far as the quantum of compensation is concerned, from the
materials on record, it is seen that in the accident, the 1st respondent has
suffered serious fractures in his right clavicle, serious blood injuries over
right side forehead, right knee, left leg and all over the body. P.W.3 Doctor
examined the 1st respondent and certified that the 1st respondent suffered
19.85% permanent disability and issued disability certificate to that effect.
P.W.2 deposed that the 1st respondent suffered functional disability. Nothing
elucidated by the appellant from the evidence of P.W.3 Doctor in their favour.
In view of the same, the Tribunal accepting the disability assessed by P.W.3
Doctor, fixed 20% as functional disability and awarded compensation
towards loss of earning capacity by adopting multiplier method and the same
is in order. The 1st respondent has taken treatment as in-patient in LKM
Hospital, Erode, from 24.02.2012 to 05.03.2012. The Tribunal has awarded
meagre amount towards attendant charges and transportation charges. At the
time of accident, the 1st respondent was aged 18 years and studying B.Sc at
Sri Vidya Arts and College. Considering the age and nature of injuries
sustained by him in the accident, the Tribunal has awarded a sum of
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C.M.A.No.715 of 2021
Rs.75,000/- each towards simple injuries and pain and suffering, which is not
excessive. The total compensation awarded by the Tribunal under different
heads are not excessive, warranting interference by this Court.
13.In the result, this Civil Miscellaneous Appeal is dismissed and the
amount awarded by the Tribunal at Rs.4,80,000/- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The appellant-Transport Corporation is directed to deposit the
award amount along with interest and costs, less the amount already
deposited, within a period of twelve weeks from the date of receipt of a copy
of this judgment, to the credit of M.C.O.P. No.197 of 2012. On such deposit,
the 1st respondent is permitted to withdraw the award amount, along with
interest and costs, after adjusting the amount, if any, already withdrawn, by
filing necessary applications before the Tribunal. Consequently, connected
Miscellaneous Petition is closed. No costs.
10.03.2021
gsa
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C.M.A.No.715 of 2021
V.M.VELUMANI, J.,
gsa
To
1.The Subordinate Judge,
(Motor Accident Claims Tribunal),
Sankari.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. No.715 of 2021
10.03.2021
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