Madras High Court
The Managing Director vs Malarvizhi on 18 August, 2023
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
The Managing Director,
The Tamil Nadu State Transport Corporation,
Divisional Office II,
Periyamilaguparai,
Trichy -1. ... Appellant
Versus
1.Malarvizhi
2.Akash
3.Dhanush (Minor)
Represented by Malarvizhi
(mother and natural guardian)
4.Chinnaponnu ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the judgment and decree dated 29.03.2022
passed in M.C.O.P. No.108 of 2021, by the Motor Accident Claims
Tribunal, Special Court-2, Jayankondam.
For Appellant : Mr.C.Gauthamaraj
For R1 to R3 : Mr.P.Parthikannan
For R4 : Died
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
JUDGMENT
This appeal has been filed by the appellant/Transport Corporation
challenging the compensation awarded by the Tribunal in M.C.O.P.
No.108 of 2021, dated 29.03.2022
2.The claim petition was filed stating that on 05.01.2021, at about
01.30 p.m., when the deceased was standing near a shop at Kulathur bus
stop along with his motorcycle at the right side of the road, a bus bearing
Registration No.TN-45-N-4271, belonging to the appellant/Transport
Corporation came in a rash and negligent manner and while the driver of
the bus tried to over take the lorry which was proceeding in front of the
bus, hit against the deceased; that he was thrown out, sustained fatal
injuries, died on the spot and that thus, the respondents/claimants are
entitled for compensation.
3.The appellant/Transport Corporation filed a counter denying all
the averments made in the claim petition and stated that the driver of the
bus belonging to the appellant drove the bus by following the Motor
Vehicles Rules stringently; that the deceased came in a wrong direction
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
in his motorcycle bearing Registration No.TN-68-L-7803, without
wearing helmet, lost his control and dashed against the bus and thus the
accident took place; that the deceased did not posses valid driving license
and did not wear helmet; that hence, the appellant is not liable to pay
compensation to the respondents; that in any case, the compensation
claimed is excessive and prayed for dismissal of the claim petition.
4.Before the Tribunal, the respondents/claimants examined three
witnesses and marked Ex.P.1 to Ex.P.4 on their side. The
appellant/Transport Corporation examined one witness on their side and
did not mark any document.
5.The Tribunal after considering the oral and documentary
evidence held that the accident occurred due to the rash and negligent
driving by the driver of the bus belonging to the appellant and directed
the appellant to pay a sum of Rs.26,02,584/- as compensation to the
respondents.
6.Aggrieved over the award passed by the Tribunal, the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
appellant/Transport Corporation has filed the present appeal challenging
the finding on negligence as well as quantum of compensation awarded
by the tribunal.
7(a).The learned counsel for the appellant submitted that the
Tribunal ought to have fixed contributory negligence, since the deceased
was not wearing helmet, at the time of accident.
7(b).The learned counsel further submitted that as regards quantum
of compensation, the Tribunal had awarded compensation under the head
loss of love and affection to all the four respondents at Rs.40,000/- each.
However, another sum of Rs.40,000/- was awarded under the head filial
consortium, which amounts to duplication. Therefore, learned counsel
prayed for allowing the appeal.
8(a).The learned counsel for the respondents per contra submitted
that the Tribunal based on the evidence of P.W.2 had held that the
accident took place due to the rash and negligent driving by the driver of
the bus belonging to the appellants-Transport Corporation and rightly
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
rejected the evidence of R.W.1-bus driver. F.I.R was also lodged against
the driver of the bus. The learned counsel further submitted that there is
no evidence to show that the deceased died due to the head injuries.
Therefore, the fact that the deceased did not wear helmet cannot be
presumed. The compensation awarded by the Tribunal is just and
reasonable and prayed for dismissal of the appeal.
8(b).Learned counsel for the respondent submitted that pending
appeal the 4th respondent died and there is no legal representatives for the
4th respondent other than the respondents herein.
9.The questions involved in the instant appeal are as follows:
(i) Whether the Tribunal was right in fixing the entire negligence
on the driver of the bus belonging to the appellant/Transport
Corporation?
(ii) Whether the Tribunal was right in fixing the just and
reasonable compensation?
10.The respondents examined P.W.2-eye witness to the occurrence
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
and marked Ex.P1-F.I.R, to prove the manner in which the accident took
place. The Tribunal based on the evidence had found that the deceased
was standing near his bike and the driver of the offending vehicle, who
came in a same direction rammed into the motorcycle of the deceased.
The Tribunal also found that the accident took place entirely due to the
rash and negligent act of the driver of the bus belonging to the appellant-
Transport Corporation. Learned counsel for the appellant was unable to
find out any infirmity in the said findings. As regards contributory
negligence for not wearing helmet, the appellant had not let in any
evidence to show that the deceased died only due to the head injury and
hence not wearing of the helmet contributed to the death. In the absence
of any such evidence, this Court cannot presume that the deceased did
not wear helmet. Hence, the findings of the Tribunal fixing the entire
negligence on the appellant-Transport Corporation cannot be faulted and
hence the same is confirmed.
11.As regards the quantum of compensation, learned counsel for
the respondents/claimants is unable to point out any reason for the
compensation awarded under the head filial consortium as the
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
respondents were already awarded Rs.40,000/- each towards love and
affection. As rightly contented by the learned counsel for the appellant,
the Tribunal ought not to have awarded compensation twice under the
head love and affection as well as filial consortium. Hence, the award
under the head filial consortium is set aside. The amounts awarded by the
Tribunal under other heads is just and reasonable and hence the same are
confirmed. Thus, the compensation awarded by the Tribunal is modified
as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Income 23,62,584 23,62,584 Confirmed
2. Loss of Love and 1,60,000 1,60,000 Confirmed
Affection
3. Funeral Expenses 15,000 15,000 Confirmed
4. Loss of Estate 15,000 15,000 Confirmed
5. Filial Consortium 40,000 - Set aside
6. Transportation 10,000 10,000 Confirmed
Total 26,02,584 25,62,584 Reduced by
Rs.40,000/-
12.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
Rs.26,02,584/- is hereby reduced to Rs.25,62,584/- together with interest
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C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
at 6% per annum (excluding the default period, if any) from the date of
petition till the date of deposit. The appellant/Transport Corporation 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 eight (8) weeks from the date of a receipt of copy of this
Judgment. On such deposit the respondents 1 and 2/claimants 1 and 2 are
permitted to withdraw their share of the award amount, on the basis of
apportionment fixed by the Tribunal along with proportionate interest
and cost, less the amount already withdrawn, if any. The share of the
minor 3rd respondent/3rd claimant is directed to be deposited in any one of
the nationalised bank, till the minor attains majority. The mother of the
3rd respondent is permitted to withdraw the accrued interest once in three
months. The appellant/Transport Corporation is permitted to withdraw
the excess amount lying in the deposit to the credit of M.C.O.P. No.108
of 2021 if the entire amount has already been deposited by them. No
costs. Consequently, connected miscellaneous petition is closed
18.08.2023
rst
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
https://www.mhc.tn.gov.in/judis
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
To:
1.The Motor Accident Claims Tribunal,
Special Court-2, Jayankondam.
2.The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
SUNDER MOHAN, J.
rst
C.M.A.No.1721 of 2023
and C.M.P.No.16888 of 2023
18.08.2023
https://www.mhc.tn.gov.in/judis
