Madras High Court
The Managing Director vs K. Amsavalli on 12 April, 2023
C.M.A.No.1962 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.04.2023
Coram:
THE HONOURABLE MRS.JUSTICE N.MALA
C.M.A.No. 1962 of 2020
and
C.M.P.No. 14501 of 2020
The Managing Director
Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.
Trichy
... Appellant
Vs.
1.K. Amsavalli
2. S. Kavitha
3. K. Kathiresan
4. K. Kalaiarasan ... Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 praying to set aside the Judgment and Decree dated
18.02.2020, passed in M.C.O.P.No. 445 of 2018, by the Motor Accidents
Claims Tribunal, Sessions Court, Perambalur.
For Appellant : Mr. D. Raghu
For Respondents : Mr.T. Gopinath
JUDGMENT
The Appeal has been filed by the Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd., Trichy, challenging the Judgment and
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Decree dated 18.02.2020, passed in M.C.O.P.No. 445 of 2018, by the Sessions
Judge, (Motor Accidents Claims Tribunal), Perambalur.
2. The appeal is filed challenging the finding on negligence alone.
3. The facts are that, on 17.06.2018, the deceased, while riding his two
wheeler from north to south direction in Trichy to Thuraiyur road, was hit by a
State Transport Corporation bus, which came in the opposite direction and due
to the impact of the accident, the deceased sustained grievous injuries and died
on the spot.
4. The wife and the children of the deceased filed a claim petition
claiming a sum of Rs.75,00,000/- as compensation before the Motor Accidents
claims Tribunal, Perambalur, stating that the deceased was aged about 51 years
at the time of the accident and, as a Senior Mechanic, was earning an income of
Rs.16,991/- per month.
5. The appellant/Transport Corporation contested the Claim Petition by
filing a counter. It was the case of the Transport Corporation that the accident
occurred only due to the negligence of the deceased and therefore, the
Corporation was not liable to pay any compensation to the claimants.
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6. Before the Tribunal, the first claimant examined herself and three other
witnesses and marked Ex.P.1 to Ex.P8. On the side of the appellant, the driver
of the transport corporation bus was examined as R.W.1 and one other witness
as R.W.2 and Ex.R1 to Ex.R5 were marked.
7. On the basis of the above pleadings and the evidence on record, the
Tribunal returned a finding of negligence against the driver of the Transport
Corporation bus and awarded a compensation of Rs.18,25,000/- with interest at
the rate of 7.5% per annum from the date of filing till the date of realisation to
the claimants.
8. The Transport Corporation has filed the present Appeal challenging
the judgment and decree of the Tribunal on the issue of negligence.
9. The learned counsel for the appellant submitted that the Tribunal
failed to note that the accident occurred on account of the deceased's own
negligence and therefore, the appellant is not liable to pay any compensation.
The counsel further submitted that the Tribunal did not analyse the evidence
on record in the right perspective and therefore, committed an error in finding
negligence against its driver. The learned counsel for the appellant, therefore,
prayed that the appeal be allowed and the Transport Corporation be exonerated
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from paying the compensation.
10. The learned counsel for the respondents, on the other hand, submitted
that the finding of the Tribunal on the issue of negligence is based on the
evidence of P.W.2, who was an eye witness to the accident and the Tribunal has
rightly rejected the evidence of R.W.1, the driver of the Transport Corporation
bus. The counsel, therefore submitted that there is no merit in the appeal and
the same is liable to be dismissed.
11. I have heard the counsels appearing on both sides and perused the
materials placed before me.
12. From the narration of facts in the claim petition it is seen that the
deceased was proceeding from north to south and the Transport Corporation
bus was proceeding from south to north. From Ex.R3 rough sketch, it is seen
that the location of the accident is on extreme western side of the road divider,
which is the wrong side of the deceased. The Tribunal relied on the evidence
of one Kannan (P.W.2), who is an eye witness to the accident. P.W.2 in his
cross examination denied the suggestion that the accident took place on the
western side of the road divider. The photographs, which were marked as
Ex.R1 series, would show that it was the deceased who went on the wrong side
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C.M.A.No.1962 of 2020
and hit the bus. The Tribunal has rejected the evidence of R.W.1, the bus
driver, and has preferred the evidence of P.W.2. In my view, the Tribunal
ought to have considered the entire evidence on record, particularly the
documentary evidence. From the documentary evidence it is very lucid that
the deceased has contributed to the accident by going to the extreme right side
of the road which was the wrong side of the deceased. The driver of the
Transport Corporation bus, who was on a higher plane than the deceased, could
have averted the accident had he driven the bus at reasonable speed and
therefore, it cannot be said that the accident occurred only due to the negligence
of the deceased. I am, therefore, of the view that the deceased contributed to
the accident and hence I apportion the negligence in the ratio of 25 : 75. The
finding of the Tribunal fixing the entire negligence on the part of the driver of
the Transport Corporation bus is therefore set aside and it is held that the
deceased contributed to the accident and the contribution of the deceased to the
accident is fixed at 25%. No other issue was raised before this Court and
therefore, the quantum of compensation awarded by the Tribunal is confirmed.
It is held that the claimants will not be entitled to the entire compensation as
the deceased contributed to the accident. Therefore 25% is deducted from the
total amount awarded by the Tribunal. Accordingly, the award of the Tribunal
is modified as follows:
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Total amount awarded by the Tribunal Rs.18,25,000/-
Less 25% now fixed towards the Rs. 4,56,250/-
contributory negligence of the deceased
----------------
Amount of compensation payable by the Rs.13,68,750/-
Transport Corporation
-------------------
It is held that the claimants are entitled to a sum of Rs.13,68,750/- along with
7.5% interest per annum.
13. It is submitted by the learned counsel for the appellant that 50% of
the compensation amount awarded by the Tribunal has already been deposited
to the credit of MCOP No.445 of 2018. In view of the same, the appellant is
directed to deposit the balance amount to the credit of M.C.O.P. No.445 of
2018, on the file of the Motor Accidents Claims Tribunal, Sessions Court,
Perambalur, along with 7.5% interest per annum from the date of claim petition
till the date of deposit, within a period of 6 weeks from the date of receipt of a
copy of this judgment and on such deposit being made, the claimants shall be
entitled to withdraw the same as per the ratio of apportionment fixed by the
Tribunal by filing proper application before the Tribunal.
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14. In the result, the Civil Miscellaneous Appeal is partly allowed. No
costs. Consequently connected miscellaneous petition is closed.
12.04.2023
bga
Speaking Order: Yes/No
Index: Yes/No
NCC:Yes/No
To
1.The Sessions Judge, (Motor Accidents Claims Tribunal), Perambalur.
2.The Section Officer,
V.R. Section,
High Court, Madras.
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C.M.A.No.1962 of 2020
N.MALA, J
bga
C.M.A.No. 1962 of 2020
and
C.M.P.No. 14501 of 2020
12.04.2023
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