The Managing Director vs C.Gopi
2022 Latest Caselaw 17285 Mad

                                                                        C.M.A.No.1133 of 2017
                                                                    and Cross.Obj.No.47 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 04.11.2022

                                                    CORAM

                                     THE HONOURABLE Ms.JUSTICE P.T.ASHA

                                              C.M.A.No.1133 of 2017
                                            and C.M.P.No.5626 of 2017
                                            and Cross.Obj.No.47 of 2019


                  The Managing Director,
                  Tamil Nadu State Transport
                  Corporation, Kumbakonam,
                  Trichy - 620 001.                   ...Appellant in C.M.A.No.1133 of 2017


                  C.Gopi                              ...Appellant in Cross.Obj.No.47 of 2019

                                                        Vs.

                  C.Gopi                            ... Respondent in C.M.A.No.1133 of 2017

The Managing Director, Tamil Nadu State Transport Corporation, Kumbakonam, Trichy - 620 001 ....Respondent in Cross.Obj.No.47 of 2019

PRAYER in C.M.A.No.1133 of 2017: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 18.01.2016 in M.C.O.P.No. 55 of 2012, on the file of the Motor

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

Accidents Claims Tribunal, I Additional District Judge and Sessions Judge, Vellore.

Prayer in Cross.Obj.No.45 of 2019:- Cross Objection filed under Order 41 Rule 22 of C.P.C to enhance the Award with interest at the rate of 18% per annum.

                  C.M.A.No.1133 of 2017
                                           For Appellant       : Mr.L.Ramanathan
                                           For Respondent     : Mr.R.Nalliyappan
                  Cross.Obj.No.45 of 2019
                                           For Appellant       :Mr.R.Nalliyappan
                                           For Respondent      :Mr.L.Ramanathan


                                               COMMON JUDGMENT

The Transport Corporation has filed the above appeal challenging

the Award passed by the Motor Accident Claims Tribunal, I Additional

District and Sessions Court, Vellore in M.C.O.P.No.55 of 2012.

2. The facts which have given rise to the above appeal are as

follows and the parties are referred to in the same ranking as before the

Tribunal.

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

The petitioner had filed the above claim petition seeking

compensation for the injuries sustained by him in a road accident. It is the

case of the petitioner that on 05.05.2010 at about 10.30 a.m., when he was

walking on the road to catch the bus, the bus bearing Registration No.TN-45-

N-2493 coming from the Arani side towards Gingee was driven by its driver

in a rash and negligent manner, as a result it had dashed against his left hand.

On account of the accident, the petitioner's left hand and shoulder sustained

grievous injuries. Therefore, he had claimed a sum of Rs.5,00,000/- as

compensation.

3. The respondent originally filed a counter inter-alia denying the

allegations contained in the claim statement and contending that the

petitioner had attempted to cross the four-way junction without observing on-

coming bus and had caused the accident upon himself. The Transport

Corporation had further contended that the accident had occurred only on

account of the negligence on the part of the petitioner. They had contended

that the compensation claimed is on the higher side. Thereafter, an additional

counter was filed by the respondent-Corporation, in which, they had

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

contended that the bus bearing Registration No.TN-45-N-2493 did not hit the

petitioner and he had not come into contact of the said bus and further, the

F.I.R had been lodged only on 18.05.2010, nearly 13 days after the accident.

Therefore, the Transport Corporation had sought for dismissal of the claim

petition.

4. The Tribunal below, on considering the evidence on record,

held that the driver of the respondent-Corporation was responsible for the

accident on account of his negligence. The Tribunal had also observed that

the respondent-Corporation had taken one stand in the original counter and

thereafter, they have changed their stand in the additional counter.

Ultimately, the compensation was awarded under various heads. The

respondent-Corporation had challenged the said Award and the petitioner has

filed a cross objection seeking enhancement.

5. The learned counsel appearing for the appellant-Transport

Corporation would submit that a perusal of Ex.R4 would clearly demonstrate

that the accident had taken place right in the middle of four way junction and

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

further on all the 4 roads a speed-breaker was fixed right before the junction.

Therefore, by no stretch of imagination, can a vehicle be driven in a rash and

negligent manner at this junction where every vehicle has to definitely slow

down to navigate the speed breaker. A perusal of the sketch which has been

prepared on the statement of the claimant would clearly show that petitioner

was right in the middle of the road and thereby contributed to the accident.

Had the petitioner followed basic road Rules by keeping to extreme left, the

accident would not have happened or if he had crossed the road where there

was a zebra crossing on a place designated for pedestrian crossing. The

learned counsel would further submit that though the sketch prepared by the

Police authority shows the existence of a speed-breaker on each of the

roads, PW1 in his cross examination would contend that there was no speed-

breaker on the road which is contrary to the sketch prepared by the police,

which appears to be an attempt to substantiate the contention of the petitioner

that the accident had occurred only an account of the rash and negligent

driving by the driver of the respondent bus.

6. Mr.Nalliappan, learned counsel appearing on behalf of the cross

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

objector submitted that the appellant-Transport Corporation has taken two

different stands in their counter and in their additional counter. Nowhere in

the counter have they stated that the bus was not involved in the accident. It

is only in the additional counter, which was filed nearly 3 years later that the

appellant has come forward with the above statement. He would submit that

the accident had occurred in a busy road which would clearly show that there

is no chance of the petitioner manipulating the accident. The lodging of

delayed F.I.R was only on account of the fact that the petitioner was

recuperating from his injuries and as soon as he had recovered he had lodged

the F.I.R. In the original counter statement, the respondent has not taken the

stand that the vehicle was not involved in the accident. It was only in the

additional counter, as an after-thought, the same has been raised. He would

also submit that the Tribunal below has not considered the disability suffered

by the claimant and has awarded a very meagre amount as compensation.

7. Heard the learned counsel on either side and perused the

materials available on record.

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

8. The appellant/Transport Corporation, at the first instance, has

not denied the accident or the involvement of their vehicle in the accident. It

is only 3 years later in the additional counter that such a stand has been

taken. The impact of the accident, namely, the injuries on the left hand and

shoulder of the claimant, would clearly show that the driver has not driven

the bus in a rash manner as alleged and this factor was further confirmed by

the fact that in each direction of the junction, there are speed-breakers.

Therefore, it is impossible for a vehicle to over-speed or drive in a rash and

negligent manner. Ex.R1 -Sketch, which is prepared on instructions of the

petitioner would clearly show that the accident had occurred in the centre of

the road. Admittedly, the respondent was proceeding from Arani to Chenji

and he appears to have attempted to cross the road on a junction without

waiting for the vehicles to pass. Therefore, the respondent has also

contributed equally to the accident. Had he maintained basic road rules

without Jay-walking, the accident could have been averted. Therefore, the

equal liability has to be fastened on the respondent/petitioner. Hence, the

driver of the first respondent's bus as well as the petitioner, are equally

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

fastened with contributory negligence. The Award granted by the Tribunal

appears to be very reasonable and I see no reason to enhance the same.

Therefore, the cross objection is dismissed.

9. C.M.A.No.1133 of 2017 is partly allowed. 50% contributory

negligence is fastened on the petitioner as well. Therefore, the appellant-

Transport Corporation is liable to pay 50% (i.e) Rs.65,000/- of the

compensation awarded by the Tribunal. The appellant-Transport Corporation

is directed to deposit the said amount to the credit of M.C.O.P.No. 55 of

2012 along with interest at the rate of 7.5% per annum from the date of claim

petition till the date of deposit and costs as awarded by the Tribunal, less, the

amount, if any already deposited, within a period of six weeks from the date

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

claimant is permitted to withdraw the amount now determined by this Court,

along with accrued interest and costs as awarded by the Tribunal, less, the

amount, if any already withdrawn, by filing necessary application before the

Tribunal. In other respects, the Award of the Tribunal is hereby confirmed.

There shall be no order as to costs in the present appeal. Consequently

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

connected miscellaneous petition is closed.

04.11.2022

srn

To

1. The Motor Accidents Claims Tribunal, I Additional District Judge and Sessions Judge, Vellore.

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

https://www.mhc.tn.gov.in/judis C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

P.T.ASHA, J.,

srn

C.M.A.No.1133 of 2017 and Cross.Obj.No.47 of 2019

04.11.2022

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