Madras High Court

Metropolitan Transport ... vs Kumari on 23 August, 2023

                                                                              C.M.A.No.1429 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 23.08.2023

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                 C.M.A.No.1429 of 2022
                                              and C.M.P.No.10509 of 2022


                    Metropolitan Transport Corporation
                       (Chennai) Ltd.,
                    Represented by its Managing Director,
                    Chennai 600 002.                                             ... Appellant
                                                           Vs.
                    1.Kumari
                    2.Karthik
                    3.Yukanth                                                    ... Respondents

                    PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
                    Motor Vehicles Act, 1988, against the judgment and decree dated
                    29.06.2018 in MCOP.No.2233 of 2014 on the file of the Motor Accident
                    Claims Tribunal, III - Small Causes Court, Chennai.


                                     For Appellant     : Mr.S.S.Swaminathan
                                     For Respondents : Mr.K.Varadhakamaraj


                                                       JUDGMENT

The Civil Miscellaneous Appeal is filed by the appellant challenging

the quantum of compensation awarded by the Tribunal in MCOP.No.2233 of https://www.mhc.tn.gov.in/judis

C.M.A.No.1429 of 2022

2014, dated 29.06.2018, on the file of the Motor Accident Claims Tribunal,

III - Small Causes Court, Chennai.

2. The respondents are the claimants in MCOP.No.2233 of 2014 on

the file of the Motor Accident Claims Tribunal, III - Small Causes Court,

Chennai. They filed the said claim petition claiming a sum of Rs.30,00,000/-

as compensation for the death of Muralikrishnan, who died in the accident

that took place on 18.11.2013.

3. According to the respondents, on 18.11.2013 at about 09.30

a.m. while the deceased was boarding into the MTC bus bearing

Registration No.TN-01-N-5814, the driver of the bus belonging to the

appellant/Transport Corporation, before the deceased entered into the bus, in

a rash and negligent manner moved the bus. Due to the impact, the deceased

sustained grevious injuries and died in the hospital.

4. The appellant/Transport Corporation filed counter statement

denying all the averments made in the claim petition and stated that the

accident did not happen due to the rash and negligent driving by the driver of

the bus bearing registration No.TN-01-N-5814; they denied the age, income

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C.M.A.No.1429 of 2022

and stated that in any event, the compensation claimed by the appellant is

excessive and prayed for dismissal of the claim petition.

5. Before the Tribunal, the respondents examined P.W.1 to P.W.3

and marked ten documents as Exs.P1 to P10. On the side of the appellant/

Insurance Company, the driver of the bus was examined as R.W.1 and marked

Ex.R1 to R2.

6. The Tribunal considering the pleadings, oral and documentary

evidence held that the accident occured due to the rash and negligent the act of

driver of the bus belonging to the appellant/Transport Corporation and directed

to pay a sum of Rs.9,32,000/- as compensation to the respondents. Aggrieved

over the said award, the appellant has preferred the instant appeal.

7. The learned counsel for the appellant/Transport Corporation

submitted that the award of the Tribunal fixing the liability on the

appellant/Corporation is liable to be set aside; since, the respondent have

not established that the bus belonging to the appellant/Transport

Corporation was involved in the accident; that the time at which the

accident took place and the time when the bus reached its destination would

indicate that the respondent's version as improbable. The learned further https://www.mhc.tn.gov.in/judis

C.M.A.No.1429 of 2022

submitted that in any event, the Accident Register, Ex.R1, which is the

earliest version shows that the deceased had travelled foot-board and invited

the accident and therefore, contributory negligence has to be fixed on the

deceased.

8. Per contra, the learned counsel for the respondent submitted

that there is over-whelming evidence to show that the bus belonging to the

appellant/Corporation was involved in the accident. The Final Report

marked as Ex.P.1 confirms the said fact. P.W.3, S.I. who had assisted the

Investigation Officer has deposed about the involvement of the bus

belonging to the appellant/Transport Corporation. Therefore, the Tribunal

was right in holding that the appellant/Transport Corporation was liable to

pay the compensation.

9. Heard the learned counsel appearing for the appellant/Transport

Corporation as well as the learned counsel appearing for the respondents

and perused all the materials available on record before this Court.

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C.M.A.No.1429 of 2022

10. The only question involved in this case is whether the Tribunal

was right in fixing the liability on the appellant/Corporation to pay the

compensation.

11. The respondents examined P.W.1 to 3 and marked exhibits

Ex.P.1 to P.10 in support of their case. P.W.2 was an eye witness of the

occurrence. P.W.3 is the Sub-Inspector of Police, who had assisted the

Investigation Officer. The F.I.R. Ex.P1 was registered against the driver of

the bus belonging to the Transport Corporation. Ex.P.W.10 Final Report

after investigation, confirms the allegations in the F.I.R. It is trite that the

Tribunal has to assess the evidence adduced before it and not rely merely on

the criminal case records. In the instant case, the Tribunal has considered

independently the evidence brought before it. R.W.1 is the driver of the bus

belonging to the appellant/Corporation and stated that the bus driven by him

was not involved in the accident. His evidence cannot be accepted in the

light of the other evidence as record as stated earlier. Considering the

evidence of P.W.2, along with the other documentary evidences produced on

either side, this Court is of the view that the finding of the Tribunal holding

that the bus belonging to the appellant/Corporation was involved in the

accident cannot be faulted. It is also pertinent to point out here that Ex.R.1,

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C.M.A.No.1429 of 2022

the Accident Register, which is the earliest version also states that the

deceased sustained grevious injuries due to the fall from the running bus.

Therefore, it could not be stated that the bus was not involved in the

accident.

12. However, it is seen from Ex.R1 that the deceased was travelling

in the foot-board in a crowded bus. Considering this evidence, this Court is

of the view that the deceased has also contributed to the accident and the

contributory negligence on the deceased can be fixed at 10% for travelling

in foot-board. The quantum of compensation has not been challenged by

either side. Therefore, the respondents are entitled to the compensation

awarded by the Tribunal, less 10% fixed towards contributory negligence.

Thus the award of compensation is reduced by 10%.

13. Accordingly, the compensation awarded by the Tribunal is

modified as follows:-

                      Sl.             Description        Amount         Amount          Award
                      No                                awarded by    awarded by     confirmed or
                       .                                 Tribunal      this Court    enhanced or
                                                           (Rs)           (Rs)        granted or
                                                                                       reduced
                        1         Loss of Dependency       7,92,000       7,92,000    confirmed
                       2.         Loss of consortium         40,000         40,000    confirmed
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                                                                               C.M.A.No.1429 of 2022



                       3. Loss of love and                   75,000         75,000    confirmed
                          affection
                       4. Medical expenses                   10,000         10,000    confirmed
                       5. Funeral expenses                   15,000         15,000    confirmed
                                        Total              9,32,000       9,32,000
                             contributory
                                                            ---             93,200
                             negligence at 10%
                                                                                      Reduced by
                                  Net compensation      Rs.9,32,000    Rs.8,38,800
                                                                                      Rs.93,200

14. With the above modification, the Civil Miscellaneous Appeal is

partly allowed. The compensation of Rs.9,32,000/- awarded by the Tribunal

is hereby reduced to Rs.8,38,800/- together with interest at the rate of 7.5%

per annum from the date of petition till the date of deposit. The

appellant/Insurance Company is directed to deposit the modified award

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

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

of receipt of a copy of this judgment. On such deposit, the respondents are

permitted to withdraw the modified award amount now determined by this

Court, along with interest and costs, after adjusting the amount if any,

already withdrawn. The 1st respondent is entitled to a sum of

Rs.6,00,000/-. The 2nd and 3rd respondents are entitled to a sum of