The Managing Director vs Ilavarasi
2022 Latest Caselaw 782 Mad

                                                                        C.M.A.No.3089 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 19.01.2022

                                                    CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                             C.M.A.No.3089 of 2014
                                              and M.P.No.1 of 2014

                  The Managing Director
                  Tamil Nadu State Transport
                   Corporation Limited
                  Coimbatore Division Office
                  No.37, Mettupalayam road
                  Coimbatore.                                                 .. Appellant

                                                       Vs.

                  1.Ilavarasi
                  2.Ramkumar
                  3.Anandhakumar

                  4.Selvaraj                                                .. Respondents


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

                  Motor Vehicles Act, 1988, against the judgment and decree dated 30.04.2013

                  made in M.C.O.P.No.725 of 2011 on the file of the Motor Accident Claims

                  Tribunal, II Additional District Court, Erode.



                  1/11


https://www.mhc.tn.gov.in/judis
                                                                               C.M.A.No.3089 of 2014

                                         For Appellant       : Mr.Arun
                                                             for Mr.A.Sundaravathanan
                                         For R1 and R3       : Mr.C.Ramaraj

                                                             for Mr.M.Guruprasad

                                                    JUDGMENT

(This matter is heard through “Video-Conferencing”)

The Civil Miscellaneous Appeal is filed against the award dated

30.04.2013 made in M.C.O.P.No.725 of 2011 on the file of the Motor

Accident Claims Tribunal, II Additional District Court, Erode.

2.The appellant is 2nd respondent in M.C.O.P.No.725 of 2011 on the file

of the Motor Accident Claims Tribunal, II Additional District Court, Erode.

The respondents 1 to 3 filed the said claim petition claiming a sum of

Rs.10,00,000/- as compensation for the death of one Jayapaul, husband of the

1st respondent and father of the respondents 2 and 3, who died in the accident

that took place on 13.11.2009.

3.According to the respondents 1 to 3, on the date of accident, i.e., on

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

13.11.2009 at about 8.45 p.m., while the said Jayapaul was riding his

motorcycle along with one Subramani in the pillion from Palayapalayam,

Thanneerpandalpalayam, on Erode-Perundurai main road, near Nandhini

Punjabi hotel, the 4th respondent, driver of the bus belonging to the

appellant/Transport Corporation drove the same in a rash and negligent

manner, dashed on the back side of the motorcycle and caused the accident.

In the accident, the said Jayapaul sustained fatal injuries and died in the

hospital on 14.11.2009. Therefore, the respondents 1 to 3 filed the above

claim petition claiming compensation as against the 4th respondent, the driver

of the bus and the appellant/Transport Corporation.

4.The 4th respondent, the driver of the bus, remained exparte before

the Tribunal.

5.The appellant/Transport Corporation filed counter statement denying

the averments made in the claim petition and stated that while the driver of

the bus was driving the same on the left side of the road in a careful manner,

the deceased alone rode the motorcycle on the right side of the road in front

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

of the bus, in a rash and negligent manner and suddenly crossed the main

road from right side to left side, without giving any signal. On seeing this, the

4th respondent, the driver of the bus has blown the horn, slow down the bus,

applied brake, turned the bus on the left side of the road and suddenly

stopped the bus. Even though the deceased Jayapaul turned the motorcycle to

the right side of the road, he lost his balance, hit on the front right side of the

bus, fell down and invited the accident. The driver of the bus was not

responsible for the accident. The accident has occurred solely due to rash and

negligent riding of the motorcycle by the deceased. The respondents 1 to 3

failed to implead the insurer of the motorcycle as party to the claim petition.

Hence, the claim petition is hit by non-joinder of necessary party. At the time

of accident, the deceased did not wear helmet and therefore, he has also

contributed to the accident. Hence, the appellant/Transport Corporation is not

liable to pay any compensation to the respondents 1 to 3. The appellant has

also denied the age, avocation and income of the deceased. In any event, the

compensation claimed by the respondents 1 to 3 is excessive and prayed for

dismissal of the claim petition.

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

6.Before the Tribunal, the 1st respondent, wife of the deceased,

examined herself as P.W.1, one Subramani, an eye-witness and pillion rider of

the motorcycle at the time of accident, was examined as P.W.2 and ten

documents were marked as Exs.P1 to P10. The appellant/Transport

Corporation examined the driver of the bus, the 4th respondent herein as

R.W.1 and did not file any documentary evidence.

7.The Tribunal considering the pleadings, oral and documentary

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

the 4th respondent, the driver of the bus belonging to the appellant/Transport

Corporation and directed the appellant to pay a sum of Rs.5,23,000/- as

compensation to the respondents 1 to 3.

8.Against the said award dated 30.04.2013 made in M.C.O.P.No.725 of

2011, the appellant/Transport Corporation has come out with the present

appeal.

9.The learned counsel appearing for the appellant/Transport

Corporation contended that while the driver of the bus was proceeding in a

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

moderate speed, the deceased Jayapaul, who was riding the motorcycle along

with pillion rider, suddenly crossed the road without noticing oncoming

vehicle, hit against the front side of the bus, fell down and sustained fatal

injuries. The deceased alone is responsible for the accident. To substantiate

their case, the appellant examined the driver of the bus as R.W.1. The

Tribunal without considering the same, erred in holding that the accident has

occurred only due to rash and negligent driving by the driver of the bus. The

deceased was aged 54 years at the time of accident. The Tribunal erred in

applying multiplier '12' instead of multiplier '11'. The amounts awarded by the

Tribunal under different heads are excessive and prayed for setting aside the

award of the Tribunal.

10.The learned counsel appearing for the respondents 1 and 3 made his

submissions in support of the award passed by the Tribunal and prayed for

dismissal of the appeal.

11.The 4th respondent remained exparte before the Tribunal and hence,

notice to the 4th respondent is dispensed with.

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

12.Heard the learned counsel appearing for the appellant/Transport

Corporation as well as the learned counsel appearing for the respondents 1

and 3 and perused the entire materials on record.

13.From the materials on record, it is seen that the respondents 1 to 3

have contended that while the said Jayapaul was riding the motorcycle along

with one Subramani, as a pillion rider, the 4th respondent, driver of the bus

belonging to the appellant/Transport Corporation drove the same in a rash

and negligent manner and caused the accident. In the said accident, the said

Jayapaul sustained fatal injuries. The accident has occurred only due to rash

and negligent driving by the driver of the bus. On the other hand, it is the case

of the appellant/Transport Corporation that the accident has occurred only

due to rash and negligent riding of the motorcycle by the said Jayapaul, who

rode the motorcycle without noticing on coming vehicle, suddenly turned the

motorcycle from right side to left side without any signal and hit against the

front side of the bus. On seeing Jayapaul turning from right to left side, the 4 th

respondent slow down the bus, blew horn and stopped the bus. In spite of the

same, the said Jayapaul lost balance, dashed on the bus, fell down and invited

the accident. To substantiate their case, the 1st respondent has examined

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

herself as P.W.1. She is not an eye-witness to the accident. She deposed as

that of the averments made in the claim petition. The respondents 1 to 3

examined pillion rider of the motorcycle viz., Subramani as P.W.2, who

deposed that while the deceased and P.W.2 were coming in the motorcycle

slowly, the 4th respondent drove the bus in a rash and negligent manner,

dashed on the back side of the motorcycle and caused the accident. The

respondents 1 to 3 filed and marked F.I.R., which was registered against the

4th respondent, driver of the bus as Ex.P1. The appellant examined 4th

respondent, driver of the bus as R.W.1, who deposed as stated in the counter

statement. The 4th respondent further deposed that F.I.R. was registered after

one day of the accident and he was acquitted in the criminal case. The 4th

respondent did not produce the judgment of the criminal Court acquitting

him. Further he has not given any complaint against the deceased Jayapaul,

the rider of the motorcycle. The appellant did not examine any independent

witness. In the absence of any other eye witness, the Tribunal considering the

evidence of P.W.2 and F.I.R., held that the accident has occurred only due to

rash and negligent driving by the 4th respondent, driver of the bus. There is no

error in the said finding of the Tribunal warranting interference by this Court.

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

14.As far as quantum of compensation awarded by the Tribunal is

concerned, the respondents 1 to 3 contended that at the time of accident, the

deceased was a bleaching contractor and was earning a sum of Rs.25,000/-

per month. They did not file any document to prove the same. In the absence

of evidence with regard to income of the deceased, the Tribunal fixed a sum

of Rs.4,500/- per month as notional income of the deceased. The accident has

occurred on 13.11.2009. The monthly income fixed by the Tribunal is meagre.

There are three claimants and the Tribunal deducted 1/3rd towards personal

expenses of the deceased. As per Ex.P8/Transfer Certificate, the Tribunal

fixed age of the deceased as 54 years and applied multiplier '12'. As per the

judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC

Supreme Court (Sarla Verma vs. Delhi Transport Corporation), the

correct multiplier applicable is '11'. The Tribunal has not granted any

enhancement towards future prospects. The amounts granted under

conventional heads are meagre. In view of the meagre sum fixed as monthly

income, failure to grant enhancement towards future prospects and meagre

amounts granted by the Tribunal under conventional heads, the multiplier '12'

applied by the Tribunal instead of multiplier '11' is not interfered with. The

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

total compensation awarded by the Tribunal is not excessive warranting

interference by this Court.

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

sum of Rs.5,23,000/- awarded by the Tribunal as compensation to the

respondents 1 to 3 along with interest and costs is confirmed. The

appellant/Transport Corporation is directed to deposit the entire amount

awarded by the Tribunal 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, on the

basis of apportionment fixed by the Tribunal, along with proportionate

interest and costs, less the amount if any, already withdrawn. Consequently,

connected Miscellaneous Petition is closed. No costs.

19.01.2022 Index : Yes / No Internet : Yes/ No kj

https://www.mhc.tn.gov.in/judis C.M.A.No.3089 of 2014

V.M.VELUMANI, J.,

kj

To

1.II Additional District Judge Motor Accident Claims Tribunal Erode.

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

C.M.A.No.3089 of 2014 and M.P.No.1 of 2014

19.01.2022

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