Madras High Court
The Managing Director vs Marimuthu on 5 June, 2023
C.M.A.No.1121 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.06.2023
CORAM
THE HON'BLE MRS.JUSTICE N.MALA
C.M.A.No.1121 of 2023
and
CMP.No.10904 of 2023
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
Railway Station Road,
Kumbakonam Taluk,
Thanjavur District. ... Appellant
vs.
Marimuthu ... Respondent
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the Judgment and Decree dated 09.03.2022
made in M.C.O.P.No.4942 of 2017 on the file of the IV Court of Small
Causes, Chennai, and be pleased to dismiss the above claim as against the
appellant.
For Appellant : Mr.M.Murali Vinodh
For Respondent : Mr.R.Mohanbabu
*****
JUDGMENT
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C.M.A.No.1121 of 2023
This Civil Miscellaneous Appeal is filed to set aside the Judgment
and Decree dated 09.03.2022 made in M.C.O.P.No.4942 of 2017 on the file
of the IV Court of Small Causes, Chennai, and be pleased to dismiss the
above claim as against the appellant.
2.The Transport Corporation has filed the above appeal challenging
the finding of the Tribunal on negligence, quantum and liability.
3.The summary of the facts leading to the appeal are as follows:
On 13.05.2017, while the claimant was driving his two wheeler at
Udayarpalayam to Senthurai Main Road, near Udayarpalayam Saamiyar
Koil bend, from East to West direction, the Transport Corporation bus
which was proceeding in the opposite direction and which was driven by it's
driver in a rash and negligent manner hit the claimant's two wheeler. The
claimant sustained grievous bony injuries and his vehicle was also damaged
due to the impact of the collision. The claimant therefore filed the claim
petition claiming a sum of Rs.10,00,000/- for the injuries sustained by him
in the accident.
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C.M.A.No.1121 of 2023
4.The appellant/Transport corporation contested the claim petition, by
filing a detailed counter disputing the liability, negligence and quantum.
5.Before the Claims Tribunal, the claimant examined himself as PW1
and marked Ex.P1 to Ex.P12 in support of the claim petition. The
appellant/Corporation neither marked any document nor let in oral evidence.
The Disability certificate issued by the Medical Board was marked as
Ex.C1.
6.The Claims Tribunal on an assessment of entire evidence on record
returned a finding of negligence against the driver of both the vehicles and
apportioned the negligence at 20% for the claimant and 80% for the driver
of the Transport Corporation. The Tribunal assessed the compensation at
Rs.11,73,934/- and after deducting Rs.2,34,786/- towards 20% negligence
of the claimant awarded Rs.9,36,500/- along with 7.5% interest. Aggrieved
by the Judgment and Decree of the Tribunal the Transport Corporation has
filed the above appeal.
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C.M.A.No.1121 of 2023
7.The learned counsel appearing for the appellant/Transport
Corporation submitted that the finding of the Tribunal on negligence and
the assessment of compensation was erroneous. According to the learned
counsel for the appellant, the Tribunal having found that the claimant
contributed to the accident erred in deducting only 20% towards the
claimant's negligence. He further submitted that the Tribunal erred in
adopting the multiplier method for assessing the loss towards disability.
8.The learned counsel for the respondent on the other hand submitted
that though the respondent had not filed an appeal before this Court, this
Hon'ble Court can invoke the provisions under Order 41 Rule 33 for setting
aside the finding of the Tribunal on contributory negligence. According to
the learned counsel it is well settled that mere non-possession of driving
license, in the absence of proof of negligence would not lead to an inference
of contributory negligence. The learned counsel for the respondent further
submitted that the compensation assessed at Rs.11,73,934/- was just and
reasonable on the facts of the case.
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C.M.A.No.1121 of 2023
9.I have heard both the learned counsel and have perused the
materials on record.
10.The Tribunal on the basis of the oral and documentary evidence
filed on the side of the claimant held that the negligence of the bus driver
resulted in the accident. The only reason assigned by the Tribunal for it's
finding that the claimant contributed to the accident was non-possession of
driving license by the claimant. In my view absence of driving license
cannot ipso fact lead to an inference of negligence. The Tribunal having
found on the basis of the evidence filed by the claimant that it was the bus
driver's negligence which caused the accident, in my considered view erred
in deducting 20% towards contributory negligence of the claimant only on
the ground of non-possession of driving licence. Therefore, the finding of
the Tribunal on contributory negligence cannot be sustained. In this regard
useful reference can be made to the judgment of the Hon'ble Supreme Court
in the case of Sudhir Kumar Rana Vs. Surindher Singh and Others
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C.M.A.No.1121 of 2023
reported in (2008) 12 SCC 436. The relevant portion is extracted as under:
9.If a person drives as vehicle without a licence,
he commits an offence. The same, by itself in our
opinion, may not lead to a finding of negligence as
regards the accident. It has been held by the Courts
below that it was the driver of the mini truck who was
driving rashly and negligently. It is one thing to say
that the appellant was not possessing any licence but no
finding of fact has been arrived at that he was driving
the two-wheeler rashly and negligently. If he was not
driving rashly and negligently which contributed to the
accident, we fail to see as to how, only because he was
not having a licence, he would be held to be guilty of
contributory negligence...
10.The matter might have been different if by
reason of his rash and negligent driving, the accident
had taken place.”
Hence, the finding of the Tribunal on negligence is setaside.
11.The Tribunal relying on Ex.C1, the disability certificate issued by
the Medical Board assessed the disability at 35% for the fracture of the left
upper limb and right lower limb. The Tribunal after considering the nature
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C.M.A.No.1121 of 2023
of the injuries sustained by the respondent and Ex.C1 disability certificate
issued by the Medical Board found that there was functional disability and
hence adopted the multiplier method.
12.I find that the finding of the Tribunal on functional disability and
the adoption of multiplier method is justified. In the claim petition, the
income of the respondent was claimed at Rs.30,000/- per month. Even
though the respondent had produced Ex.P9 and Ex.P10 in support of his
claim, the Tribunal rejected the same on the premise that they were not
marked through proper person. The Tribunal therefore fixed the income
notionally at Rs.9,000/- per month on the basis of the age of the deceased.
In the absence of any legally permissible evidence to prove the income the
Tribunal was justified in fixing the income at Rs.9,000/- per month. I find
no infirmity in the assessment of the income by the Tribunal and therefore
the same is confirmed.
13.In the light of the above discussion, the assessment of
compensation by the Tribunal is confirmed with a modification that there
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C.M.A.No.1121 of 2023
shall be no deduction of 20% towards the contributory negligence of the
claimant. The claimant shall be entitled for a sum of Rs.11,73,934/- along
with interest at the rate of 7.5%, from the date of the claim petition till the
date of realisation. It is submitted by the learned counsel for the claimant
that the appellant/Transport Corporation has not deposited the award
amount. In view of the same, the appellant/Transport Corporation is
directed to deposit the award amount without deducting 20% towards
contributory negligence, within a period of eight weeks from the date of
receipt of a copy of this order. On such deposit, the claimant shall be
entitled to withdraw the said amount by making proper application before
the Tribunal. The claimant is further directed to pay the Court fee, if any,
for the enhanced compensation amount if not already paid. Registry is
directed to draft the decree only after payment of the deficit Court fee, if
any.
14.Accordingly, this Civil Miscellaneous Appeal is dismissed. There
shall be no order as to costs. Consequently, the connected miscellaneous
petition is closed.
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C.M.A.No.1121 of 2023
05.06.2023
Index : yes/no
Internet : yes/no
ah
To
1.The Motor Accident Claims Tribunal,
IV Court of Small Causes,
Chennai.
2.The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1121 of 2023
N.MALA, J.
ah
C.M.A.No.1121 of 2023
https://www.mhc.tn.gov.in/judis
C.M.A.No.1121 of 2023
05.06.2023
https://www.mhc.tn.gov.in/judis
