Madras High Court
The Managing Director vs R.Santhosh on 21 June, 2022
C.M.A.No.117 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.117 of 2022
and C.M.P.No.802 of 2022
The Managing Director
Metropolitan Transport Corporation Ltd.
Pallavan House, Anna salai
Chennai-600 002. .. Appellant
Vs.
1.R.Santhosh
2.S.Priya (Minor)
3.S.Hemalatha (Minor)
4.S.Nithish (Minor) .. Respondents
(Respondents 2 to 4 being minors rep.
by their father 1st respondent, natural
guardian and next friend)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 07.11.2019 made
in M.C.O.P.No.2920 of 2017 on the file of Motor Accident Claims Tribunal,
IV Small Causes Court, Chennai.
1/14
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C.M.A.No.117 of 2022
For Appellant : Mr.Suresh
for Mr.K.Moorthy
For Respondents : No appearance
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the
appellant/Transport Corporation against the award dated 07.11.2019 made in
M.C.O.P.No.2920 of 2017 on the file of Motor Accident Claims Tribunal, IV
Small Causes Court, Chennai.
2.The appellant/Transport Corporation is respondent in
M.C.O.P.No.2920 of 2017 on the file of Motor Accident Claims Tribunal, IV
Small Causes Court, Chennai. The respondents filed the said claim petition
claiming a sum of Rs.90,00,000/- as compensation for the death of one
Mageshwari, who died in the accident that took place on 11/12.03.2017.
3.According to the respondents, on the date of accident, i.e., on
11/12.03.2017 at about 12.00 A.M., while the deceased Mageshwari was
travelling in the bus belonging to the appellant/Transport Corporation bearing
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C.M.A.No.117 of 2022
Registration No.TN-01-AN-1576, from Tambaram to K.K.Nagar –
Jafferkhanpet and when she was alighting from the said bus at BSNL bus
stop, J.N. 100 feet Road, K.K.Nagar, Chennai, the driver of the bus moved
the bus at high speed in a rash and negligent manner, due to which, the said
Mageshwari fell down at the said bus stop and caused the accident. In the
accident, the said Mageshwari sustained injuries and died in the hospital.
Therefore, the respondents filed the above claim petition claiming
compensation as against the appellant/Transport Corporation.
4.The appellant/Transport Corporation filed counter statement denying
the averments made in the claim petition and stated that the driver of the bus
drove the bus at moderate speed. When the bus was about to stop at Kasi
Theatre bus stop at 24.00 hours on 11/12.03.2017 and the automatic doors of
the bus were opened, the deceased Mageshwari, who was rushing at the foot
steps in a sleepy condition to get down, alighted in a haste manner before the
bus could completely stop at the bus stop, fell down, sustained injuries and
invited the accident. Thereafter, the driver of the bus informed about the
accident to the Accident Investigation Wing of the appellant/Transport
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C.M.A.No.117 of 2022
Corporation and also to the Police authorities. Based on the hearsay
complaint by the 1st respondent, husband of the deceased, Traffic
Investigation Wing, Guindy, registered an F.I.R. against the driver of the bus,
without any proper enquiry. Rough sketch prepared by the Investigator of the
Accident Investigation Wing of the appellant/Transport Corporation would
clearly establish the manner of accident, place of occurrence and negligence
on the part of the deceased Mageshwari. The driver of the bus was not
responsible for the accident. Therefore, the appellant is not liable to pay any
compensation to the respondents. In any event, the compensation claimed by
the respondents is excessive and prayed for dismissal of the claim petition.
5.Before the Tribunal, the 1st respondent, husband of the deceased,
examined himself as P.W.1, one G.Boopalan, eye-witness to the accident was
examined as P.W.2 and 23 documents were marked as Exs.P1 to P23. The
appellant/Transport Corporation examined one Ramalingam, the driver of the
bus as R.W.1 and marked copy of the rough sketch as Ex.R1.
6.The Tribunal considering the pleadings, oral and documentary
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C.M.A.No.117 of 2022
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the bus belonging to the appellant/Transport Corporation and
directed the appellant to pay a sum of Rs.50,00,000/- as compensation to the
respondents.
7.Against the said award dated 07.11.2019 made in M.C.O.P.No.2920
of 2017 on the file of Motor Accident Claims Tribunal, IV Small Causes
Court, Chennai, the appellant/Transport Corporation has come out with the
present appeal.
8.The learned counsel appearing for the appellant/Transport
Corporation contended that the accident has occurred only due to negligence
on the part of the deceased Mageshwari, who was getting down from the bus
in a sleepy condition and invited the accident. The appellant examined the
driver of the bus as R.W.1 and proved that the driver of the bus is not
responsible for the accident. The Tribunal without appreciating the evidence
of the driver of the bus as R.W.1, erroneously relying on the contents of
F.I.R., fixed entire negligence on the driver of the bus. Mere filing of F.I.R.
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C.M.A.No.117 of 2022
against the driver of the bus is not substantial piece of evidence to come to
the conclusion that the accident occurred due to negligence of the driver of
the bus. The learned counsel further contended that according to the
respondents, the deceased was doing transport business and tailoring work
and was earning a sum of Rs.40,000/- to Rs.45,000/- per month at the time of
accident. The respondents did not file any documents to prove the avocation
and income of the deceased. In the absence of any material evidence, the
Tribunal erroneously fixed monthly income of the deceased at Rs.27,500/-
(Rs.22,500/- in transport business + Rs.5,000/- in tailoring business) and
granted excessive amount as compensation. The amounts awarded by the
Tribunal under different heads are also excessive and prayed for setting aside
the award of the Tribunal.
9.Though notice has been served on the respondents and their names
are printed in the cause list, there is no representation for them either in
person or through counsel.
10.Heard the learned counsel appearing for the appellant and perused
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C.M.A.No.117 of 2022
the entire materials on record.
11.According to the respondents, the deceased Mageshwari was
travelling in the bus belonging to the appellant/Transport Corporation and
while she was getting down at BSNL bus stop, J.N. 100 feet road, K.K.Nagar,
Chennai, the driver of the bus took the bus at high speed before the said
Mageshwari could get down, due to which, she fell down and sustained
injuries. In spite of treatment given, she died in the hospital. In support of
their contention, they examined the eye-witness to the accident as P.W.2 and
marked F.I.R., which was registered against the driver of the bus as Ex.P1. On
the other hand, it is the case of the appellant that the accident has occurred
only due to negligence of the deceased. Before the bus could stop in the bus
stop, the deceased, who was in sleeping condition, rushed to get down from
the bus, fell down on her own negligence and sustained injuries. In support
of their contention, they examined the driver of the bus as R.W.1. R.W.1
deposed as that of the averments made in the counter statement. The Tribunal
did not consider the evidence of R.W.1 and has not given any reason for
rejecting the evidence of R.W.1. F.I.R. has been registered against the driver
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C.M.A.No.117 of 2022
of the bus. P.W.2, eye-witness deposed that due to negligence of the driver of
the bus, accident has occurred. The appellant has not examined any
independent witness to disprove the evidence of P.W.2. In view of the same,
finding of the Tribunal that the accident has occurred due to negligence of the
driver of the bus is not interfered with.
12.As far as quantum of compensation is concerned, it is the claim of
the respondents that the deceased Mageshwari was owning five goods vehicle
bearing Registration Nos.TN-04-M-6667, TN-07-V-8830, TN-20-BZ-5356,
TN-05-U-4203 and TN-07-S-5756, she was carrying on transport business
and also doing tailoring business and was earning Rs.40,000/- to Rs.45,000/-
per month. The respondents have produced copy of the Registration Book of
five vehicles and marked the same as Exs.P9 to P13. They also produced
bank statement of the deceased and marked the same as Ex.P14 series. The
Tribunal considering the pass book Ex.P14 series, came to the conclusion that
entries were made from 01.01.2014 to 23.01.2019 and there was no
particulars of amount of profit made by the partnership firm for certain
periods from 01.01.2014 to 23.01.2019, fixed notional income of the
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C.M.A.No.117 of 2022
deceased in transport business as Rs.22,500/- (Rs.4,500/- X 5) per month
taking into consideration that she would have earned Rs.4,500/- per day from
one vehicle. The Tribunal also considering the claim of the respondents that
the deceased was doing tailoring business, fixed Rs.5,000/- per month. Thus,
the Tribunal fixed a sum of Rs.27,500/- (Rs.22,500/- + Rs.5,000/-) per month
as notional income of the deceased. The said reasoning of the Tribunal for
fixing Rs.27,500/- as notional income of the deceased is not correct. The
respondents have not produced any document to show that 1st respondent has
not continued the said business and lost entire income after the death of his
wife. In view of the same, notional income fixed by the Tribunal at
Rs.27,500/- is excessive. Considering the entire materials that the deceased
was owner of five vehicles, this Court feels that it would be just and
reasonable to fix a sum of Rs.15,000/- per month as notional income of the
deceased. The deceased was aged 38 years at the time of accident as per
Ex.P7/copy of school certificate of the deceased. The Tribunal, following the
judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609
(SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009
(2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport
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C.M.A.No.117 of 2022
Corporation and another), has rightly granted 40% enhancement towards
future prospects and applied multiplier '15'. There are four dependants of the
deceased and the Tribunal erred in deducting 1/3rd instead of 1/4th towards
personal expenses. By fixing a sum of Rs.15,000/- per month as notional
income of the deceased and deducting 1/4th towards personal expenses, the
compensation awarded by the Tribunal towards loss of dependency is
modified to Rs.28,35,000/- (Rs.15,000/- + 6000 (Rs.15,000/- X 40%) X 12
X 15 X 3/4). In addition to above, the Tribunal has awarded compensation
towards funeral expenses, loss of consortium to the 1st respondent, loss of
estate and transportation, which are just and reasonable and hence, the same
are hereby confirmed. The Tribunal has awarded a sum of Rs.3,00,000/-
towards loss of love and affection to the respondents 2 to 4, who are minor
children of the deceased, which is excessive and hence, the same is hereby
reduced to Rs.40,000/- each. Thus, the compensation awarded by the Tribunal
is modified as follows:
S.No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
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C.M.A.No.117 of 2022
(Rs) (Rs) granted or
reduced
1. Loss of 46,20,000 28,35,000 Reduced
dependency
2. Loss of estate 15,000 15,000 Confirmed
3. Loss of 40,000 40,000 Confirmed
consortium to
the 1st
respondent
4. Funeral 15,000 15,000 Confirmed
expenses
5. Loss of love 3,00,000 1,20,000 Reduced
and affection to
the respondents
2 to 4
6. Transportation 10,000 10,000 Confirmed
Total 50,00,000 30,35,000 Reduced by
Rs.19,65,000/-
13.With the above modification, the Civil Miscellaneous Appeal is
partly allowed. The compensation of Rs.50,00,000/- awarded by the Tribunal
is hereby reduced to Rs.30,35,000/- together with interest at the rate of 7.5%
per annum from the date of petition till the date of deposit. The
appellant/Transport Corporation is directed to deposit the award amount now
determined by this Court along with interest and costs, less the amount
already deposited if any, within a period of twelve weeks from the date of
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C.M.A.No.117 of 2022
receipt of a copy of this judgment. On such deposit, the 1st respondent is
permitted to withdraw his 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 shares of the minor
respondents 2 to 4 are directed to be deposited in any one of the Nationalized
Banks, till the minors attain majority. The 1st respondent being father of the
minor respondents 2 to 4 is permitted to withdraw the accrued interest, once
in three months for the welfare of the minor respondents 2 to 4. The
appellant/Transport Corporation is permitted to withdraw the excess amount
lying in the deposit to the credit of M.C.O.P.No.2920 of 2017 on the file of
Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, if the
entire award amount has already been deposited by them. Consequently,
connected Miscellaneous Petition is closed. No costs.
(V.M.V.,J) (S.S.,J)
21.06.2022
Index : Yes / No
kj
To
1.The IV Judge
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C.M.A.No.117 of 2022
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer
VR Section
High Court
Madras.
V.M.VELUMANI, J.,
and
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C.M.A.No.117 of 2022
S.SOUNTHAR,J.
kj
C.M.A.No.117 of 2022
and C.M.P.No.802 of 2022
21.06.2022
https://www.mhc.tn.gov.in/judis
