Madras High Court
The Managing Director vs Kousalya on 13 June, 2022
C.M.A.No.1343 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A. No.1343 of 2021
and C.M.P.No.6906 of 2021
The Managing Director,
Tamil Nadu Transport
Villupuram Ltd.,
Kancheepuram Region. .. Appellant
Vs.
1.Kousalya
2. Minor Manoj Kumar
3. Minor Priyadharshini
(R2 & R3 Minors are represented by
their mother R1)
4. Pachayammal .. Respondents
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C.M.A.No.1343 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 01.03.2019, made
in M.C.O.P. No.6062 of 2016, by the learned Principal Special 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 M/s.V.Velu
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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 judgment and decree dated 01.03.2019,
made in M.C.O.P. No.6062 of 2016, by the learned Principal Special Judge,
Special Court under E.C. & NDPS Act, (Motor Accident Claims Tribunal),
Chennai.
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C.M.A.No.1343 of 2021
2 The appellant is the respondent in M.C.O.P. No.6062 of 2016, on
the file of the Principal Special Judge, Special Court under E.C. & NDPS Act,
(Motor Accident Claims Tribunal), Chennai. The respondents filed the said
claim petition, claiming a sum of Rs.1,00,00,000/- as compensation for the
death of one Sampath Kumar, who died in the accident that took place on
17.05.2016.
3 According to the respondents, on the date of accident, when the
deceased was travelling as a pillion rider in the Motorcycle bearing
Registration No.TN-19-T-2624 from Cheyyur to G.D.Kuppam, at ECR Road,
Near Vilambur Palaiyar Madam, the driver of the Government Bus bearing
Registration No.TN-21-N-1282 belonging to the appellant drove the same in a
rash and negligent manner and dashed on the Motorcycle, in which the
deceased travelled as a pillion rider and caused the accident. In the accident,
the deceased succumbed to death on the same day. The accident occurred only
due to rash and negligent driving by the driver of the Bus belonging to the
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C.M.A.No.1343 of 2021
appellant. Hence, the respondents filed the claim petition claiming
compensation against the appellant as owner of the offending vehicle.
4 The appellant-Transport Corporation, filed counter statement and
denied all the averments made by the respondents in the claim petition.
According to the appellant, the Bus belonging to them was not involved in the
alleged accident and the Driver of the Bus, who was examined as R.W.1 has
completed his trip without any accident. R.W.1 has also filed Criminal
Original Petition to quash the FIR registered against him. In any event, the
claim petition is liable to be dismissed. The respondents have not proved the
age, avocation and income of the deceased to claim compensation and prayed
for dismissal of the claim petition.
5 Before the Tribunal, the 1st respondent examined herself as
P.W.1, examined one Balamurugan Rathinavel, eye witness to the accident, as
P.W.2 and marked 16 documents as Exs.P1 to P16. The appellant/Transport
Corporation examined the Driver of the Bus as R.W.1, the Branch Manager as
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C.M.A.No.1343 of 2021
R.W.2 and marked 12 documents as Exs.R1 to R12.
6 The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to rash and negligent driving
by the driver of the Bus belonging to the appellant and directed the appellant
to pay a sum of Rs.36,73,703/- as compensation to the respondents with
interest at the rate of 7.5% p.a.
7 Aggrieved against the award granted by the Tribunal in the
award dated 01.03.2019 made in M.C.O.P.No.6062 of 2016, the appellant –
Transport Corporation has come out with the present appeal.
8 The learned counsel appearing for the appellant-Transport
Corporation contended that the Bus belonging to the appellant was not
involved in the accident. R.W.1, the Driver of the Bus completed his trip
without any accident. The police falsely implicated R.W.1 and registered FIR
against him. The Tribunal erred in accepting the evidence of P.W.2 and
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C.M.A.No.1343 of 2021
erroneously rejected the evidence of R.W.1. Further, R.W.1 has filed a
Criminal Original Petition before this Court to quash the FIR registered
against him. The Tribunal, without properly appreciating the evidence of
R.W.1, erroneously fixed the negligence on R.W.1 Driver of the Bus belonging
to the appellant and fixed the liability on the appellant. The respondents have
not filed any documents to prove the age, avocation and income of the
deceased. The deceased was not in a permanent job and the Tribunal
erroneously granted 30% enhancement towards future prospects, instead of
25%. The respondents are entitled only to Rs.40,000/- each towards loss of
love and affection and the amount of Rs.75,000/- each awarded by the
Tribunal is excessive and prayed for setting aside the award of the Tribunal.
9 Per contra, Mrs.A.Subadra, learned counsel appearing for the
respondents contended that the accident has occurred only due to rash and
negligent driving by the Driver of the Bus belonging to the appellant, who hit
the two wheeler, in which the deceased was travelling as a pillion rider. The
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C.M.A.No.1343 of 2021
first respondent examined P.W.2, who is an eye witness to the accident and
proved that the accident occurred only due to rash and negligence driving by
the Driver of the Bus belonging to the appellant. The deceased was working
as a Material Manager in Ashok Leyland and was earning a sum of
Rs.30,000/- per month. The Tribunal considering Exs.P5, P6 and P9, rightly
fixed the notional income of the deceased as Rs.24,572/- p.m. and age of the
deceased as 47 years and granted 30% enhancement towards future prospects
and the same is proper. The respondents 2 and 3 are the minor children and
4th respondent is aged mother of the deceased and therefore the Tribunal
rightly awarded Rs.75,000/- to each of the respondents 2 to 4 towards loss of
love and affection. The total compensation awarded by the Tribunal under
different heads are not excessive and prayed for dismissal of the appeal.
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C.M.A.No.1343 of 2021
10 Heard the learned counsel appearing for the appellant-Transport
Corporation as well as the respondents and perused the materials available on
record.
11 The first respondent is wife, 2nd and 3rd respondents are minor
children and 4th respondent is aged mother of the deceased. It is the case of the
respondents that while the deceased was travelling in the two wheeler as a
pillion rider from Cheyyur to G.D.Kuppam, R.W.1, Driver of the Bus
belonging to the appellant drove the same in a rash and negligent manner and
dashed against the Motorcycle and caused accident. Due to the injuries
sustained in the accident, the deceased died on the same day. To substantiate
the case of the respondents, P.W.2, who is an eye witness to the accident was
examined and marked the FIR as Ex.P1, which was registered against R.W.1
Driver of the Bus.
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C.M.A.No.1343 of 2021
12 On the other hand, it is the case of the appellant that the Bus
belonging to the appellant was not involved in the accident and the FIR was
falsely registered against R.W.1, Driver of the Bus. R.W.2 the Manager of the
appellant examined the passengers, who traveled in the Bus at the time of
accident and they have also given statement that the Bus was not involved in
the accident. The Tribunal, without appreciating the evidence of R.W.1 and
R.W.2, fixed the negligence on R.W.1 Driver of the Bus and liability on the
appellant. To substantiate the above contention, the appellant except
examining the Driver of the Bus as R.W.1, who is an interested witness and
its Branch Manager as R.W.2, did not examine any eye witness, especially the
persons alleged to have traveled in the Bus at the time of accident and alleged
to have given statement before R.W.2 that the Bus was not involved in the
accident. There is no independent witness examined by the appellant to
controvert the evidence of P.W.2. Further, R.W.1 the Driver of the Bus has
admitted that disciplinary proceeding has been initiated by the appellant
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C.M.A.No.1343 of 2021
against him for causing accident. The Tribunal, considering all the above
facts, rightly held that the accident occurred only due to the negligence of the
Driver of the Bus belonging to the appellant and appellant is liable to pay
compensation. There is no error in the said finding of the Tribunal.
13 As far as quantum of compensation is concerned, the appellant
claimed that the deceased was not in a permanent job and hence the Tribunal
ought not to have granted 30% enhancement towards future prospects and the
amounts granted by the Tribunal on the other heads are excessive. The
respondents have filed Exs.P4 to P11 to prove the age, avocation and income
of the deceased. The Tribunal considering the evidence of P.W.1 and the
documents filed by the respondents, held that the respondents are entitled to
compensation. Taking into consideration Ex.P5 Salary Certificate, the
Tribunal fixed the monthly income of the deceased as Rs.24,572/- and Ex.P9
Provisional and Transfer Certificate of the deceased, wherein the date of birth
of the deceased is mentioned as 13.06.1969, fixed the age of the deceased as
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C.M.A.No.1343 of 2021
47 years. The Tribunal, following the judgment of the Hon'ble Apex Court
reported in 2009 (2) TNMAC 1 SC [Sarla Verma & others vs. Delhi
Transport Corporation & another] applied multiplier 13. The deceased was
in permanent job in Ahok Leyland, a reputed Company. The Tribunal
applying the principle laid down in the judgment of the Hon'ble Apex Court
reported 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs.
Pranay Sethi and others] granted 30% enhancement towards future
prospects and rightly awarded a sum of Rs.33,63,703/- as compensation
towards loss of pecuniary benefits.
14 The Tribunal apart from granting a sum of Rs.40,000/- towards
loss of consortium to the first respondent, also granted a sum of Rs.75,000/-
each to the respondents 2 to 4 towards loss of love and affection and the same
is excessive. Hence, the same is reduced to Rs.40,000/- each towards loss of
love and affection. The amount of Rs.5,000/- awarded by the Tribunal
towards damage to clothing and article is excessive and the same is reduced to
Rs.2,000/-. The amounts awarded by the Tribunal under the other heads are
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C.M.A.No.1343 of 2021
just and reasonable and hence, the same are confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Transport to Hospital 10,000/- 10,000/- Confirmed
2. Damage to clothing and 5,000/- 2,000/- Reduced
articles
3. Loss of Pecuniary 33,63,703/- 33,63,703/- Confirmed
benefits
4. Loss of love and 2,25,000/- 1,20,000/- Reduced
affection to respondents
2 to 4
5. Loss of Estate 15,000/- 15,000/- Confirmed
6. Funeral Expenses 15,000/- 15,000/- Confirmed
7. Loss of consortium 40,000/- 40,000/- Confirmed
Total 36,73,703/- 35,65,703/- Reduced by
Rs.1,08,000/-
15 In the result, the appeal is partly allowed and the amount
awarded by the Tribunal at Rs.36,73,703/- is modified to Rs.35,65,703/-
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
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C.M.A.No.1343 of 2021
and costs, within a period of six weeks from the date of receipt of a copy of
this judgment, to the credit of M.C.O.P. No.6062 of 2016. On such deposit,
the respondents 1 & 4 are permitted to withdraw their respective share of the
award amount, now determined by this Court, along with proportionate
interest and costs, as per the ratio of apportionment fixed by the Tribunal,
after adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. The shares of the minor respondents 2 and 3
are directed to be deposited in any one of the Nationalized Bank, till the
minors attain majority. The 1st respondent, mother of the minor respondents 2
and 3 is permitted to withdraw the accrued interest, once in three months for
the welfare of the minors. Consequently, connected Miscellaneous Petition is
closed. No costs.
(V.M.V., J) (S.S., J)
13.06.2022
Index : Yes/No
Speaking Order : Yes/No
cgi
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C.M.A.No.1343 of 2021
V.M.VELUMANI, J.,
and
S.SOUNTHAR, J.,
cgi
To
1. The Principal Special Judge,
Special Court under E.C. & NDPS Act,
(Motor Accident Claims Tribunal), Chennai.
2. The Section Officer, V.R Section,
High Court, Madras.
C.M.A.No.1343 of 2021
and C.M.P.No.6906 of 2021
13.06.2022
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