Madras High Court

R.Praveena vs The Managing Director on 8 September, 2023

CMA No. 1587 / 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.09.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 1587 of 2023

R.Praveena ... Appellant
Versus

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

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree in
M.A.C.T.O.P. No. 5155 of 2019 dated 05.01.2023 on the file of the
Motor Accident Claims Tribunal, Principal Special Judge, Special Court,
E.C. And NDPS Act, Chennai, Small Causes Court, Chennai.

For Appellant : Ms. R.Reena

For Respondent : Mr. M.Murali Vinodh

JUDGMENT

The appeal has been filed challenging the award passed by the

https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

Tribunal in M.C.O.P. No. 5155 of 2019 dated 22.08.2022.

2.The appellant had filed a claim petition seeking compensation

before the Tribunal stating that on 30.05.2015, when the deceased was

riding the motorbike bearing Registration No. TN 03 Q 1866 at North

Kotta Road above the RBI subway travelling from East to West, a MTC

Bus bearing Registration No. TN 01 N 4476 driven by its driver in a rash

and negligent manner on the same road, hit the backside of the motorbike

of the deceased and at the time, back right side wheel of the bus ran over

his head and he died on the spot.

3.The respondent filed a counter stating that the accident occurred

due to the negligence of the deceased; that when the bus belonging to the

respondent was proceeding slowly, the deceased came at a hectic speed

and attempted to overtake the MTC bus in the gap between the bus and

the bridge wall and grazed on the right side middle body of the bus and

caught on the right rear wheel of the bus and thus resulted in the

accident; and that in any case, the compensation claimed by the appellant

is excessive and prayed for dismissal of the petition.

https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

4.The appellant examined two witnesses on her side as PW.1 and

PW.2 and marked Ex.P.1 to Ex.P.13. On the side of the respondent, one

witness was examined as RW.1 and Ex.R.1 was marked.

5.The Tribunal after considering the oral and documentary

evidence found that the accident occurred due to the rash and negligent

act of the driver of the bus and that of the deceased, fixed 50%

contributory negligence on the driver of the bus and 50% contributory

negligence on the deceased and awarded a compensation of Rs.

7,60,000/- to the appellant to be paid by the respondent. Aggrieved by

the said award, the appellant had preferred the instant appeal.

6.The learned counsel for the appellant submitted that the Tribunal

had erroneously fixed 50% contributory negligence on the deceased in

the absence of any evidence to show that the deceased had contributed to

the accident. The learned counsel further submitted that the monthly

income fixed by the Tribunal at Rs.9,000/- per month is meagre although

the appellant had established that the deceased was a B.Com., graduate https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

and hence, prayed for enhancement of compensation.

7.The learned counsel for the respondent, per contra, submitted

that as per the evidence on record, the deceased was the tort feasor; and

that the award of the Tribunal is just and reasonable and no interference

is called for. Further, the learned counsel submitted that the Tribunal

rightly fixed 50% contributory negligence on the deceased and in the

absence of any evidence to prove the income of the deceased, the

Tribunal had rightly fixed the notional income at Rs.9,000/- . Hence, he

prayed for dismissal of the appeal.

8.The questions that arise for consideration in the instant appeal are;

(i) Whether the Tribunal was right in fixing 50% contributory negligence

on the deceased?

(ii) Whether the compensation awarded by the Tribunal is just and

reasonable?

9.The appellant had examined PW2, an eye witness to prove the

manner of the accident. On the side of the respondent, the driver of the

offending vehicle was examined as RW1. It is his version that the

https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

deceased attempted to overtake the bus and since the gap between the

bus and the wall of the bridge was less, his vehicle hit the right side body

of the bus, thrown out of the bike and thereafter run over by the rear

wheel of the bus. The final report of the Police, after investigation also is

to the same effect. In the final report, the driver of the bus was charged

for the offence under Section 304 A of the Indian Penal Code. The

relevant portion of the final report reads as follows;

“In Ex.P.9/Copy of Charge Sheet, it is mentioned that “....ngUe;jpd; tyJ gf;f ghoahy; ,lj;Jj;

js;spajpy; nkhl;lh; irf;fps; Xl;Leh; jpndc;& j/bg/utp vd;gth; fPnH tpGe;jJk; mnj g!;!pd;

gpd; gyJ rf;fuk; mtuJ jiyapy; Vwp ,w';fpajpy; gyj;j uj;j fhak; jiyapy; Vw;gl;L rk;gt ,lj;jpnyna kuzk; milaf; fhuzkhd ,Ue;Js;shh;” PW1, the eye witness, on the other hand would state that the bus, hit the

vehicle from behind. He would admit in his cross examination that he

saw the accident after he heard the sound. Therefore, from the evidence

of PW1 it cannot be said that the accident took place entirely due to the

negligence of the driver of the bus. However, from the evidence of RW1

and Ex.P.9, final report, it can be seen that the deceased also contributed

to the accident. This Court is of the view that the finding of the Tribunal https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

fixing 50% contributory negligence on the deceased may not be

appropriate in the circumstances of the case. RW1 was admittedly

charged by the Police for the offence under Section 304 A of the Indian

Penal Code. Considering the evidence and over all facts and

circumstances of the case, this Court is of the view that it would be just

and reasonable to fix the contributory negligence of the deceased at 30%,

since the accident had predominantly taken place due to the negligent act

of the driver of the bus.

10.As regards the quantum of compensation, this Court is of the

view that the appellant had established the fact that the deceased was a

B.Com., graduate. The accident took place in the year 2015. Considering

the age, educational qualification of the deceased and year of the

accident, this Court is of the view that it would be just and reasonable to

fix the notional income as Rs. 13,000/-. Since the deceased was aged 21

years at the time of accident, the multiplier applicable is 18 and the

appellant is entitled to 40% enhancement towards future prospects. Since

the deceased died as bachelor, 50% has to be deducted towards personal

expenses. Hence, the compensation under the head loss of dependency

has to be Rs. 13,000/- + Rs. 5,200/- (40% of Rs. 13,000/-) = Rs. 18,200/- https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

x 12x 18x 50% = Rs. 19,65,600/-. The award under the other heads are

just and the same are confirmed. Thus, the award of 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 dependency            13,60,800       19,65,600      Enhanced
                             After deducting 50%          6,80,400              ---
                             contributory negligence
                        2. Loss of estate                   16,500          16,500      Confirmed
                        3. Loss of funeral expenses         16,500          16,500      Confirmed
                        4. Loss of consortium               44,000          44,000      Confirmed
                             Total                         7,57,400       20,42,600     Enhanced
                                                       rounded off
                                                       to 7,60,000
                             After deducting 30%                ---       14,29,820 Enhanced by
                             contributory negligence                  rounded off to Rs.6,70,000/-
                                                                          14,30,000

11. With the above modification, this Civil Miscellaneous

Appeal is partly allowed and the compensation awarded by the Tribunal

at Rs.7,60,000/- is hereby enhanced to Rs.14,30,000/- 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

https://www.mhc.tn.gov.in/judis

CMA No. 1587 / 2023

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 appellant is permitted to withdraw the

award amount along with proportionate interest and costs, less the