Madras High Court
The Managing Director vs Thulukkanam on 11 August, 2023
C.M.A.No.1849 of 2023
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.1849 of 2023
and
C.M.P.No.17891 of 2023
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Kancheepuram – 631 502. ...Appellant
Vs.
1.Thulukkanam
2.Padmini ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 20.12.2021
passed in MACTOP.No.3840 of 2018 on the file of the Motor Accident
Claims Tribunal, [IV Court of Small Causes, Chennai].
For Appellant : Mr.S.S.Santhosakumar
For Respondents : Mr.T.Tamilamudhu
********
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.1849 of 2023
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
Challenge in this appeal is to the award of the Motor Accident
Claims Tribunal granting a sum of Rs.20,26,620/- as compensation for the
death of one Nithyanandam in a motor accident that occurred on
16.12.2016.
2. According to the claimants, the deceased, who was about 25
years old was riding his motorcycle bearing Reg. No.TN-19-S-8902. When
he crossed the road from East to West direction at Thailavaram Junction,
GST Road, a Tamil Nadu State Transport Corporation bus bearing
Reg.No.TN-21-N-1342 driven by its driver in a rash and negligent manner
dashed against the two wheeler. As a result of the impact the deceased
suffered multiple injuries and died on the spot. Terming that the negligence
on the part of the driver of the bus as the cause for the accident and
consequent death of the deceased, the claimants sought for compensatiion of
Rs.75,00,000/-.
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C.M.A.No.1849 of 2023
3. It was contended that the deceased was drawing a monthly
income of Rs.30,000/- per month working as a floater in a clothing
Company. The Corporation resisted the claim contending that the accident
happened due to the rash and negligent driving of the rider of the two
wheelr. It was contended that he did not possess a valid driving license and
that there were three persons travelling in the two wheeler at the time of the
accident.
4. At trial before the Tribunal, the 2nd claimant was examined as
PW1 and one Sivaraman, eye witness was examined as PW2. Exs.P1 to P10
were marked. On the side of the appellant Corporation, one
K.Kamalakannan, Assistant Engineer was examined as RW1. No
documentary evidence was placed.
5. Relying upon the First Information Report and the oral
evidence of PW2, eye witness, the Tribunal concluded that the accident
occurred largely due to the rash and negligent driving of the driver of the
bus. It was also concluded that the fact that three persons travelling in the
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C.M.A.No.1849 of 2023
two wheeler also contributed to a certain extent to the accident and fixed the
quantum of such contribution at 10%. Even though a claim was made
before the Tribunal that the rider of the two wheeler did not have a valid
driving license, no effort was made to establish that statement and the driver
of the bus was also not examined.
6. Considering the evidence on record, the Tribunal fixed the
monthly income of the deceased at Rs.14,000/- and added 40% towards
future prospects and deducted 50% towards personal expenses, since the
deceased was a bachelor and had applied the multiplier of '18' and
quantified the loss of dependency at Rs.21,16,800/-. The Tribunal also
awarded a sum of Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses. The Tribunal awarded Rs.50,000/- each to the
parents towards loss of love and affection. Thus, the Tribunal arrived at the
total compensation at Rs.22,51,800/- and after deducting 10% towards
contributory negligence the compensation payable was fixed at
Rs.20,26,620/- and rounded off to Rs.20,27,000/-.
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C.M.A.No.1849 of 2023
7. We have heard Mr.S.S.Santhosakumar, learned counsel
appearing for the Corporation.
8. Though the learned counsel for the Corporation would submit
that the quantum of contributory negligence fixed at 10% is too low,
considering the fact that the deceased attempted to take an U-turn where
there was no U-turn provided. He would also point out that the Tribunal has
not adverted to the plea of the Corporation that the deceased was not having
a valid driving license.
9. We are unable to countenance the contentions of the learned
counsel for the appellant. Though the Corporation would contend that the
deceased attempted to take an U turn at a place where there was no
provision, it had not chosen to examine the driver of the bus who is the best
witness to depose as to the accident. An Assistant Engineer of the
Corporation has been examined. He was, admittedly, not present at the
scene of occurrence. Therefore, he is not competent to speak about the
accident. The most competent witness namely the driver, being the
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C.M.A.No.1849 of 2023
employee of Corporation ought to have been examined. In the absence of
examination of the driver, we are unable to accept the submissions of the
learned counsel for the Corporation regarding the nature of accident.
Though a plea that there was no license was taken, we do not find any
discussion on that plea before the Tribunal. We must therefore assume that
it was not pressed at the trial or arguments and also there is no plea in the
counter.
10. Adverting to the quantum, the Tribunal has fixed the income at
Rs.14,000/- the employee ID card of the deceased was produced, however,
the salary certificate was not produced. The Tribunal has fixed income at
Rs.14,000/- for the the accident that occurred in 2016. Even a last grade
servant working in Government service was earning more that Rs.17,000/-
at the relevant point of time. Therefore, fixation of Rs.14,000/- as notional
income is actually lesser than the normal income.
11. The learned counsel for the appellant would point out that the
Tribunal has awarded Rs.50,000/- each to the parents towards loss of love
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C.M.A.No.1849 of 2023
and affection. He would rely upon the judgment of the Hon'ble Supreme
Court in National Insurance Company Ltd. Vs. Pranay Sethi reported in
2017 (2) TNMAC 609 (SC) and contend that the Tribunal should have fixed
only Rs.40,000/- per head as loss of love and affection.
12. In view of the lesser fixation of monthly income, we do not
think we should interfere with the fixation of Rs.50,000/- each for the
parents towards loss of love and affection. We should also take note of the
fact that the deceased was their only son and in his loss they lost everything
they had for themselves.
13. We therefore do not see any ground to interfere with the
award. The appeal therefore fails and it is accordingly dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
(R.S.M.,J.) (R.K.M.,J.)
dsa 11.08.2023
Index :No
Internet :Yes
Neutral Citation :No
Speaking order
https://www.mhc.tn.gov.in/judis
C.M.A.No.1849 of 2023
To
The Motor Vehicle Accident Claims Tribunal,
IV Court of Small Causes, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1849 of 2023
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
dsa
C.M.A.No.1849 of 2023
11.08.2023
https://www.mhc.tn.gov.in/judis
