Madras High Court

S.Lakshmi vs The Managing Director on 16 August, 2023

                                                                          C.M.A. No.1797 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 16.08.2023

                                                     CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               C.M.A.No.1797 of 2023

                  1.S.Lakshmi
                  2.Selvaraj                             ...                         Appellants

                                                         Vs.

                  The Managing Director,
                  Metropolitan Transport Corporation Ltd.,
                  Pallavan Illam, Anna Salai,
                  Chennai – 600 002                   ...                          Respondent


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the order made in M.C.O.P. No.9123 of 2015 on
                  the file of the Motor Accident Claims Tribunal, (In the Court of the Principal
                  Special Judge, Special Court under E.C. and NDPS Act at Chennai).


                                        For Appellants   : Mr.Amar Dineshbhai Pandiya

                                        For Respondent   : Mr.M.Murali Vinodh




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                                                                              C.M.A. No.1797 of 2023



                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the contributory negligence fixed on the deceased by the Tribunal

in the order made in M.C.O.P. No.9123 of 2015 on the file of the Motor

Accident Claims Tribunal, (In the Court of the Principal Special Judge,

Special Court under E.C and NDPS Act at Chennai).

2. The appellants filed the above said claim petition claiming a sum of

Rs.75,00,000/- as compensation for the death of Karthick who died in the

accident that took place on 23.10.2015.

3. According to the appellants, on the date of accident, when the

deceased was riding his motorcycle bearing Regn.No.TN02 BA 1877 on

R.K.Mutt Road towards North to South, near Thinathoothu daily edition

office, a bus bearing Regn.No.TN01 N 5252 belonging to the respondent,

driven in a rash and negligent manner, hit the motorcycle of the deceased

from behind. The deceased sustained multiple fatal injuries and died on the

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way to hospital. Hence, the appellants filed the above said claim petition

claiming compensation against the respondent.

4. The respondent filed counter denying the averments mentioned in

the claim petition and stated that the accident occurred only due to the rash

and negligent riding by the deceased who overtook on the left side of the

road, lost balance and came in contact with the left front side body of the bus

and sustained injuries; hence the respondent is not liable to pay compensation

to the appellants. The respondent also denied the age, occupation and

monthly income of the deceased and stated that in any event the total

compensation claimed by the appellants is excessive and prayed for dismissal

of the claim petition.

5. Before the Tribunal, the 2nd appellant examined himself as PW1 and

eye-witness as PW2. Seventeen documents were marked as Exs.P.1 to P.17.

On the side of the respondent, driver of the bus was examined as RW1 and

copy of rough sketch was marked as Ex.R1.

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6. The Tribunal, considering the oral and documentary evidence held

that the accident occurred due to the rash and negligent driving by driver of

the bus belonging to the respondent and directed the respondent to pay a sum

of Rs.17,40,000/- as compensation to the appellants. Aggrieved by the said

order, the appellants have preferred the present appeal.

7. The learned counsel appearing for the appellants submitted that the

finding of the Tribunal in fixing 50% contributory negligence on the deceased

is erroneous in the absence of any definite evidence. The learned counsel

submitted that the Tribunal had proceeded on the basis of the evidence of

RW1, driver of the bus belonging to the respondent which is contrary to the

FIR registered against RW1; that on investigation, the final report confirmed

the allegations in the FIR; that in final report, it is stated that RW1 had

overtaken the two wheeler ridden by the deceased and caused the accident;

that the version of RW1 has been disbelieved by the police; that the

appellants had examined PW2, brother of the deceased who was the eye-

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witness to the accident; that his evidence also corroborates the FIR and the

final report filed by the police; and that in such circumstances, the Tribunal

erred in fixing 50% negligence on the deceased and prayed for allowing the

appeal.

8. The learned counsel appearing for the respondent, per contra

submitted that the Tribunal had rightly fixed 50% contributory negligence on

the deceased since RW1 has categorically stated that the deceased attempted

to overtake the bus from the left side in a narrow road; that RW1 had taken

sufficient care and caution and it was the deceased who was negligent, lost

his balance, fell on the left side of the bus and invited the accident; thus he

prayed for dismissal of the appeal.

9. Heard the learned counsel appearing for the appellants as well as the

respondent and perused the materials available on record.

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10. The only question involved in the instant appeal is whether the

Tribunal was right in fixing 50% contributory negligence on the deceased.

11. On a perusal of the records, this court finds that Ex.P1 - FIR was

registered against the driver of the bus. The final report, after investigation

also reveals that the driver of the bus was responsible for the accident in as

much as it states that RW1 had rammed into the two wheeler of the deceased.

The evidence of PW2 – eye witness to the accident also corroborates the said

version. This Court is conscious of the fact that the records in the criminal

case has to be appreciated in the light of the evidence adduced before the

Tribunal. Though the respondent has examined RW1, no other independent

witness was examined on their side. The evidence of RW1 is to the effect

that the deceased had overtaken from the left side. The evidence of PW2 who

is said to have followed the deceased in another two wheeler also cannot be

completely accepted as according to him, he was proceeding behind the bus

and could not have witnessed the occurrence fully. Considering the over all

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circumstance of the case, the fact that the accident took place in a narrow

road; that there was a damage to the left side of the bus, it is probable that the

deceased had cut across the road. But there is no evidence to suggest that the

deceased had contributed to the extent of 50%. In the facts of the present

case, considering the evidence on record, it would be just and reasonable to

fix 20% contributory negligence on the deceased and 80% negligence on the

driver of the bus belonging to the respondent instead of 50 : 50 fixed by the

Tribunal. The award in other aspects are confirmed. Thus, the compensation

towards loss of dependency is arrived as follows -

23662 + 9464.80 (23662 x 40%) x 12 x 17 x 50% = 33,78,933.60

After deducting 20% towards contributory negligence on the deceased, the

appellants are entitled to Rs.27,03,146/- [33,78,933.60 – 6,75,786.72]

towards loss of dependency.





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                                                                                   C.M.A. No.1797 of 2023




                         S. No    Description           Amount              Amount           Award
                                                       awarded by         awarded by      confirmed or
                                                        Tribunal        this Court (Rs)   enhanced or
                                                          (Rs)                              granted
                         1.       Loss of                 16,18,066/-      27,03,146/-     Enhanced
                                  dependency
                         2.       Loss of Estate             16,500/-          16,500/-    Confirmed
                         3.       Loss of consortium         88,000/-          88,000/-    Confirmed
                         4.       Funeral expenses           16,500/-          16,500/-    Confirmed
                                  Total                  17,39,066.80      28,24,146/- Enhanced by

rounded off to rounded off to Rs.10,85,000/- Rs.17,40,000/- Rs.28,25,000/-

12. With the above modification, this Civil Miscellaneous Appeal is

partly allowed and the compensation awarded by the Tribunal at

Rs.17,40,000/- is hereby enhanced to Rs.28,25,000/- together with interest at

7.5% per annum (excluding the default period, if any) from the date of

petition till the date of deposit. The respondent is directed to deposit the

award amount, now determined by this Court along with interest and costs,

less the amount already deposited, if any, within a period of six (6) weeks

from the date of a receipt of copy of this Judgment. On such deposit, the

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appellants are permitted to withdraw the award amount equally, along with