Gunasekar vs The Managingdirector
2022 Latest Caselaw 4209 Mad

                                                                               C.M.A.No.3857 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 04.03.2022

                                                       CORAM:

                                     THE HONOURABLE Ms. JUSTICE P.T.ASHA

                                                C.M.A.No.3857 of 2019

                  Gunasekar                                             ... Appellant

                                                        vs.

                  The ManagingDirector,
                  Metro Transport Corporation,
                  Pallavan Salai, Chennai-2.                            ... Respondent

                  PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                  Motor Vehicles Act, against the Judgment and Decree dated 08.08.2012
                  made in M.C.O.P.No.380 of 2009, on the file of the Motor Accident Claims
                  Tribunal (Subordinate Judge Court, Thiruvallur).
                                  For Appellant               : Mr.D.Baskar
                                  For Respondent              : Mr.K.Moorthy

                                                    JUDGMENT

The claimant before the Motor Accident Claims Tribunal

(Subordinate Judge Court, Thiruvallur) has challenged the award in

M.C.O.P.No.380 of 2009, he is aggrieved by the apportionment of liability

by the learned Judge.

2. The appeal was argued only on the above ground. In order to

https://www.mhc.tn.gov.in/judis C.M.A.No.3857 of 2019

appreciate the above argument, it is necessary to consider the manner in

which the accident had occurred. In the claim statement, the claimant would

submit that on 23.02.2009 while he was standing in the Bus Terminus at

around 8.20 p.m., in the evening, the bus bearing Reg.No.TN-01-N-4206

belonging to the respondent was driven by its driver in a rash and negligent

manner, as a result of which, the bus had hit the claimant who had sustained

grievous injuries.

3. The respondent had filed a counter in which they would submit

that on 23.02.2009, at around 20.40 hours, when the bus entering into the

terminus in to the bus bay allotted to them. Besides them other buses were

also parked. The Claimant suddenly crossed the bus in a hasty manner and

therefore, he sustained injuries as he got struck between the two buses. The

accident had occurred only on account of the negligent act of the claimant.

Therefore, the respondent was not liable for the above accident nor liable to

pay compensation.

https://www.mhc.tn.gov.in/judis C.M.A.No.3857 of 2019

4. The Tribunal below has taken into account the First

Information Report and the evidence of RW1, the driver concluded that

both the claimant as well as bus driver are the cause for the accident and

therefore apportioned 60% on the claimant and 40% on the driver of the

bus. Aggrieved by the same, the claimant is before the Court.

5. Heard the learned counsel for the petitioner and the learned

counsel for the respondent.

6. The sequence of the accident narrated in the counter would

clearly show that the driver of the respondent bus while entering the bus

terminus had not noticed the claimant. If the driver of the bus had entered in

the bus bay allotted for the respondent bus, he should have entered the

same slowly and cautiously. He would definitely have noticed the claimant

and he could have immediately stopped the bus. The fact that he hit the

claimant clearly indicates that the bus entered the bus bay in a rash and

negligent manner. As a result of which, the driver has not noticed the

claimant/appellant. However, the negligence is also on the claimant

inasmuch as he should not have run in front of the bus and ought to have

https://www.mhc.tn.gov.in/judis C.M.A.No.3857 of 2019

waited for the bus to stop before attempting to dash across. Therefore, he is

also equally responsible for the accident. Further, the negligence is more on

the bus driver than the pedestrian since the bus driver while entering the

bus terminus ought to have reduced the speed and exercised more caution

as he is entering a place where there is a lot of footfall. Therefore, the

contributory negligence on the driver of the respondent Corporation has

necessarily be increased at 75% and that on the pedestrian at 25%.

7. Therefore, this Civil Miscellaneous Appeal is partly allowed

and the award has to be modified. The Tribunal has arrived at a total

compensation of Rs.65,000/-. Considering the fact that the contributory

negligence of the claimant is fixed at 25% of the award of the Tribunal of

Rs.65,000/- is a sum of Rs.16,250/- shall be borne by the claimant and a

sum of Rs.48,750/- (less the amount already deposited) shall be paid by the

respondent/Transport Corporation to the credit of M.C.O.P.No.380 of 2009,

on the file of the Motor Accident Claims Tribunal (Subordinate Judge

Court, Thiruvallur) with an interest at the rate of 7.5% per annum from the

date of petition till the date of payment, within a period of four weeks from

the date of receipt of a copy of this order. On such deposit being made, the

https://www.mhc.tn.gov.in/judis C.M.A.No.3857 of 2019

claimant is entitled to withdraw the same forthwith. No costs.

04.03.2022 Index : Yes/No Speaking / Non-speaking order ssn

To

1. The Motor Accident Claims Tribunal, Subordinate Judge Court, Thiruvallur.

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

https://www.mhc.tn.gov.in/judis C.M.A.No.3857 of 2019

P.T.ASHA, J.,

ssn

C.M.A.No.3857 of 2019

04.03.2022

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