Madras High Court
P.Suganthi vs The Managing Director on 17 June, 2022
C.M.A. Nos.1656 of 2020 & 443 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.Nos.1656 of 2020 & 443 of 2021
and C.M.P.Nos.5818 of 2020 & 2805 of 2021
C.M.A.No.1656 of 2020
1.P.Suganthi
2.P.Sathyasri
3.Arputham .. Appellants
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
CMBT, Koyambedu,
Chennai 600 107. .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 27.09.2019, made
in M.C.O.P. No.8 of 2017, on the file of the Principal Special Sub Judge,
Special Court under E.C. & NDPS Act, (Motor Accident Claims Tribunal)
Chennai.
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C.M.A. Nos.1656 of 2020 & 443 of 2021
For Appellants : Mrs.A.Subadra
for Ms.M.Malar
For Respondent : Mr.K.J.Sivakumar
C.M.A.No.443 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
CMBT, Koyambedu,
Chennai 600 107. .. Appellant
Vs.
1.P.Suganthi
2.P.Sathyasri
3.Arputham .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 27.09.2019, made
in M.C.O.P. No.8 of 2017, on the file of the Principal Special Sub Judge,
Special Court under E.C. & NDPS Act, (Motor Accident Claims Tribunal)
Chennai.
For Appellant : Mr.K.J.Sivakumar
For Respondents : Mrs.A.Subadra
for Ms.M.Malar
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C.M.A. Nos.1656 of 2020 & 443 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
These Civil Miscellaneous Appeals have been filed against the
judgment and decree dated 27.09.2019, made in M.C.O.P. No.8 of 2017, on
the file of the Principal Special Sub Judge, Special Court under E.C. & NDPS
Act, (Motor Accident Claims Tribunal) Chennai.
2.Both the appeals arise out of same accident and same award and
hence, disposed of by this common judgment.
3.The parties are referred to as per their ranks in the claim petition, for
the sake of convenience.
4.The claimants filed M.C.O.P. No.8 of 2017, on the file of the
Principal Special Sub Judge, Special Court under E.C. & NDPS Act, (Motor
Accident Claims Tribunal) Chennai, claiming a sum of Rs.1,25,00,000/- as
compensation for the death of one V.Prakasam who died in the accident that
took place on 07.09.2016.
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5.According to the claimants, on the date of accident, at about
13.50 hrs., when the said Prakasam was travelling in a Motorcycle bearing
Registration No.TN-07-BH-6096 as a pillion rider, from South towards North
direction at ECR Road, in front of Mayajal Theatre, Kanathur, the driver of
the Bus, bearing Registration No.TN-21-N-1432 owned by the respondent-
Transport Corporation, drove the same in a rash and negligent manner
endangering to the public safety and hit behind the Motorcycle in which the
deceased travelled and caused the accident. In the accident, the said
V.Prakasam sustained fatal injuries and died on the spot. The accident
occurred only due to rash and negligent driving by the driver of the Bus
owned by the respondent-Transport Corporation and hence, the claimants
filed the said claim petition claiming compensation for the death of
V.Prakasam, against the respondent, owner of the said Bus.
6.The respondent-Transport Corporation filed counter statement and
denied all the averments made by the claimants. According to the respondent,
the driver of their Bus drove the vehicle with due care and caution, observing
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C.M.A. Nos.1656 of 2020 & 443 of 2021
all the traffic rules and he was not rash and negligent at the time of accident.
On the other hand, the accident occurred only due to the negligent riding by
the rider of the Motorcycle in which deceased V.Prakasam travelled as a
pillion rider. Hence, the respondent is not liable to pay any compensation to
the claimants. The claim petition is bad for non-joinder of owner and insurer
of the Motorcycle in which the deceased V.Prakasam travelled. In any event,
the claimants also have to prove the age, avocation and income of the
deceased to claim compensation and prayed for dismissal of the claim
petition.
7.Before the Tribunal, the claimants examined 4 witnesses as P.W.1 to
P.W.4 and marked 30 documents as Exs.P1 to P30. The respondent-Transport
Corporation examined two witnesses as R.W.1 and R.W.2, but did not mark
any document.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to the negligence of both the
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C.M.A. Nos.1656 of 2020 & 443 of 2021
rider of the Motorcycle in which the deceased traveled as a pillion rider as
well as the driver of the Bus owned by the respondent-Transport Corporation
and fixed 50% negligence on both the drivers. The Tribunal awarded a sum of
Rs.19,25,000/- as compensation to the claimants and directed the respondent-
Transport Corporation to pay a sum of Rs.9,62,500/-, being 50% of the
compensation to the claimants.
9.Questioning the contributory negligence fixed on the part of the rider
of the Motorcycle and also seeking enhancement of compensation, the
claimants have filed C.M.A.No.1656 of 2020. Questioning the quantum of
compensation awarded by the Tribunal, the respondent-Transport Corporation
has filed C.M.A.No.443 of 2021.
10.The learned counsel appearing for the claimants contended that the
accident has occurred only due to rash and negligent driving by driver of the
Bus owned by the respondent-Transport Corporation. When the deceased
V.Prakasam was travelling as a pillion rider in a Motorcycle driven by one
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C.M.A. Nos.1656 of 2020 & 443 of 2021
Thirumoorthy, the driver of the Bus, drove the same in a rash and negligent
manner and dashed on the Motorcycle and caused the accident. Due to the
injuries sustained in the accident, the said V.Prakasam died on the spot. The
Tribunal, without properly appreciating the oral and documentary evidence
let in by the claimants, solely relying on evidence of R.W.1, Conductor of the
Bus, erroneously fixed 50% negligence on the part of the rider of the
Motorcycle. The claimants have let in evidence and proved that the accident
occurred due to rash and negligent driving by driver of the Bus who dashed
on the backside of the Motorcycle which was going in front of the Bus in the
same direction. The Tribunal failed to see that FIR was registered against the
driver of the Bus and charge sheet was also laid against the driver of the Bus.
The learned counsel appearing for the claimants further submitted that the
deceased was a Partner in two firms viz., Om Sakthi Brothers business and
Thirumala Enterprises business along with one Ramesh, holding 50% share in
each and was earning a sum of Rs.6,51,251/- per year. The claimants
examined Ramesh, Partner of the deceased V.Prakasam as P.W.4 and marked
the Partnership deeds and Income Tax Returns filed by the deceased
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V.Prakasam. The Tribunal, without properly appreciating the documents and
without any valid reason, rejected the same. The notional income of
Rs.15,000/- per month fixed by the Tribunal is meagre. The Tribunal failed to
award any amount towards loss of estate and transport expenses and prayed
for setting aside the 50% negligence fixed on the rider of the Motorcycle and
for enhancement of the compensation.
11.Mr.K.J.Sivakumar, learned counsel appearing for the respondent-
Transport Corporation submitted that the rider of the Motorcycle who came in
the opposite direction talking with the pillion rider, without deciding whether
to take right turn or U turn, came to his right hand side where there was no
centre median. On seeing this, the driver of the Bus, to avoid the accident,
turned to right and tried to stop the Bus. Inspite of the same, the left side of
the Bus dashed on the Motorcycle. The accident occurred only due to rash
and negligent riding by rider of the Motorcycle. The Tribunal erroneously
fixed only 50% negligence on the rider of the Motorcycle, instead of fixing
the entire negligence on the rider of the Motorcycle. As far as the quantum of
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compensation is concerned, the claimants failed to prove the business and
income of the deceased. The claimants filed only xerox copies of the
documents to prove the business and income. The Tribunal rightly rejected
the same and fixed the notional income of the deceased at Rs.15,000/- per
month and granted compensation. The Tribunal, in addition to the amount
granted for loss of dependency, excessively granted a sum of Rs.50,000/-
each towards loss of consortium to the 1st claimant and loss of love and
affection to the claimants 2 and 3 and prayed for setting aside the award of
the Tribunal and dismissal of C.M.A.No.1656 of 2020, filed by the claimants.
12.Heard the learned counsel appearing for the claimants as well as the
respondent-Transport Corporation and perused the materials available on
record.
13.It is the case of the claimants that on 07.09.2016, while the deceased
V.Prakasam was travelling as a pillion rider in the Motorcycle, the driver of
the Bus owned by the respondent-Transport Corporation who was coming in
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C.M.A. Nos.1656 of 2020 & 443 of 2021
the same direction, drove the Bus in a rash and negligent manner and dashed
on the Motorcycle and caused the accident. In the accident, the said
V.Prakasam sustained severe head injuries and died on the spot. To
substantiate their contention, they examined P.W.1-wife of the deceased,
P.W.2 - eye-witness to the accident and marked FIR which was registered
against the driver of the Bus as Ex.P1. P.W.2 deposed that he was standing in
the signal, at that time, the driver of the Bus drove the Bus in a negligent
manner and dashed on the Motorcycle and caused the accident. In the FIR
which was registered based on the complaint given by rider of the Motorcycle
viz., Thirumoorthy, it has been stated that driver of the Bus who was coming
in the opposite direction dashed on the Motorcycle. The claimants did not
examine Thirumoorthy, rider of the Motorcycle, who is the best witness to
prove the manner of the accident. The contents of FIR is not a sole criteria for
fixing negligence, but it can be taken into consideration along with the
materials placed before the Tribunal. In the present case, R.W.1, Conductor of
the Bus who was sitting in the front of the Bus deposed that rider of the
Motorcycle was coming in the opposite direction, talking to the deceased,
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C.M.A. Nos.1656 of 2020 & 443 of 2021
unable to decide whether to take right turn or U turn, tried to cross the road
where there was no centre median and thus, invited accident. This evidence of
R.W.1 that the Motorcycle was coming in opposite direction is in consonance
to the complaints given by rider of the Motorcycle and contents in the FIR.
The Tribunal, considering all the materials placed before it, has rightly fixed
50% negligence on the rider of the Motorcycle & deceased and 50% on the
part of the driver of the Bus. There is no error in the said finding of the
Tribunal, warranting interference by this Court.
14.As far as the quantum of compensation is concerned, the claimants
claimed that the deceased was a Partner in Om Sakthi Brothers business and
Thirumala Enterprises business along with one Ramesh, holding 50% share
and was earning a sum of Rs.6,51,251/- per year. To prove the said
contention, the claimants filed Exs.P6, P8, P9, P10 and examined P.W.4 –
Ramesh, partner of the deceased. The Tribunal rejected the evidence of P.W.4
and Exs.P6, P8, P9, P10, on the ground that they have filed only xerox copies
of the said documents. A perusal of Ex.P6 reveals the income of the deceased
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C.M.A. Nos.1656 of 2020 & 443 of 2021
for the years 2013-2014, 2014-2015 & 2015-2017. The average income for
the said 3 years comes to Rs.3,20,600/-. The Tribunal, without considering
the documents, which were filed by the deceased, erroneously rejected the
same and fixed the notional income of the deceased at Rs.15,000/- per month.
In view of the same, we are fixing the annual income of the deceased at
Rs.3,20,600/-. The deceased was aged 50 years at the time of accident. The
claimants are entitled to 15% enhancement towards future prospects. There
are only three claimants/dependants of the deceased. Instead of deducting
1/3rd towards personal expenses of the deceased, the Tribunal has erroneously
deducted 1/4th towards personal expenses. Hence, by fixing Rs.3,20,600/- as
annual income of the deceased, granting 15% enhancement towards future
prospects, deducting 1/3rd towards personal expenses of the deceased and
applying multiplier '13', the amounts granted by the Tribunal towards loss of
dependency is modified as Rs.31,95,313.3/- {[Rs.3,20,600/- + Rs.48,090/-
(15% of Rs.3,20,600/-)] x 13 x 2/3}, which is rounded off to Rs.31,95,310/-.
The amount of Rs.50,000/- each granted by the Tribunal towards loss of love
and affection to the claimants 2 and 3 who are the son and mother of the
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C.M.A. Nos.1656 of 2020 & 443 of 2021
deceased are reduced to Rs.40,000/- each. The Tribunal has excessively
awarded a sum of Rs.50,000/- towards loss of consortium to the 1st
claimant/wife of the deceased and Rs.20,000/- towards funeral expenses to
the claimants, but failed to award any amount towards loss of estate. As per
the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609
(SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others], the 1st
claimant/wife of the deceased is entitled to a sum of Rs.40,000/- towards loss
of consortium and the claimants are entitled to a sum of Rs.15,000/- each
towards loss of estate and funeral expenses. Hence, the amount awarded by
the Tribunal towards loss of consortium and funeral expenses are reduced to
Rs.40,000/- and Rs.15,000/- respectively. A sum of Rs.15,000/- is awarded
towards loss of estate to the claimants. Thus, the compensation awarded by
the Tribunal is modified as follows:
S. No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court (Rs) enhanced or
(Rs) granted
1. Loss of dependency 17,55,000/- 31,95,310/- Enhanced
2. Loss of consortium to 1st 50,000/- 40,000/- Reduced
claimant
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3. Loss of love and affection 1,00,000/- 80,000/- Reduced
to claimants 2 and 3
4. Funeral expenses 20,000/- 15,000/- Reduced
5. Loss of estate - 15,000/- Granted
Total 19,24,998/- 33,45,310/-
rounded off to
19,25,000/-
50% of compensation 9,62,500/- 16,72,655/- Enhanced by
Rs.7,10,155/-
(In view of contributory
negligence)
15.In the result, C.M.A.No.443 of 2021 is partly allowed in respect of
the heads loss of love and affection to claimants 2 & 3 and C.M.A.No.1656 of
2020 is partly allowed. The amounts awarded by the Tribunal at Rs.9,62,500/-
is enhanced to Rs.16,72,655/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The respondent-
Transport Corporation is directed to deposit the award amount, now
determined by this Court, along with interest and costs, 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.8 of 2017. On such deposit, the claimants are permitted to
withdraw their share of the award amount, now determined by this Court,
along with proportionate interest and costs, as per the ratio of apportionment
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C.M.A. Nos.1656 of 2020 & 443 of 2021
fixed by the Tribunal, after adjusting the amount, if any, already withdrawn,
by filing necessary applications before the Tribunal. The claimants are
directed to pay the necessary court fee on the enhanced award amount, as per
the direction of this Court dated 15.09.2020, made in C.M.P.No.5818 of 2020
in C.M.A.SR.30703 of 2020. Consequently, connected Miscellaneous
Petitions are closed. No costs.
(V.M.V., J) (S.S., J)
17.06.2022
gsa
To
1.The Principal Special Sub Judge,
Special Court under E.C. & NDPS Act,
(Motor Accident Claims Tribunal),
Chennai.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. Nos.1656 of 2020 & 443 of 2021
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
(gsa)
C.M.A.Nos.1656 of 2020 & 443 of 2021
17.06.2022
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