Madras High Court
Metropolitan Transport Corporation ... vs M.Gopikannan on 8 August, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
CMA(MD).Nos.259 and 914 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.07.2024
PRONOUNCED ON : 08.08.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)Nos.259 & 914 of 2017
and CMP(MD).No.2966 of 2017
CMA(MD).No. 259 of 2017:
Metropolitan Transport Corporation Chennai
Through its Managing Director ...Appellant/Respondent
Vs.
M.Gopikannan ....Respondent/Petitioner
CMA(MD).No. 914 of 2017
M.Gopikannan ...Appellant/Petitioner
vs.
The Managing Director
Metropolitan Transport Corporation
Chennai Limited
Anna Salai, Chennai ....Respondent/Respondent
1/12
https://www.mhc.tn.gov.in/judis
CMA(MD).Nos.259 and 914 of 2017
PRAYER in CMA(MD).No.259 of 2017 :- Civil Miscellaneous Appeals
filed under Section 173 of Motor Vehicles Act, 1988, to allow the appeal,
set aside the award and decree made in MCOP.No.892 of 2012 dated
10.09.2015 on the file of the Motor Accident Claims Tribunal IV
Additional Subordinate Court, Madurai.
PRAYER in CMA(MD).No.914 of 2017 :- Civil Miscellaneous Appeals
filed under Section 173 of Motor Vehicles Act, 1988, to allow this appeal
with cost and to set aside the order dated 10.09.2015 in MCOP.No.892 of
2012 on the file of the Motor Accident Claims Tribunal IV Additional
Subordinate Court, Madurai.
CMA.No.259 of 2017
For Appellant : Mr.P.Prabhakaran
For Respondent :Mr.PT.S.Narendravasan
CMA.No.914 of 2017:
For Appellant : Mr.PT.S.Narendravasan
For Respondent :Mr.P.Prabhakaran
COMMON JUDGMENT
Both the appeals arise out of an award passed in MCOP.No.892 of
2012 on the file of the IV Additional Subordinate Court, Madurai.
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CMA(MD).Nos.259 and 914 of 2017
C.M.A(MD).No.259 of 2017 has been filed by the Transport Corporation
challenging the non-consideration of contributory negligence and the
quantum of award. C.M.A(MD).No.914 of 2017 has been filed by the
claimant seeking enhancement of compensation.
2.The injured claimant had contended that while he was driving a
two wheeler on 18.02.2012 at about 10.15 p.m, a bus belonging to the
transport corporation was driven in a rash and negligent manner and it
dashed on the rear side of the two wheeler. Due to the said impact, he
had fallen down from his two wheeler and was crushed by the rear right
wheel of the bus.
3.The claimant had further contended that he was initially admitted
to the Royapettah Government Hospital and later, he was shifted to
Government Hospital, Chennai. Thereafter, he had left the Government
Hospital, Chennnai voluntarily and got himself admitted at Apollo
Hospital for his treatment. He had further contended that he is aged about
24 years and he is a M.B.A Graduate working as a medical representative
and thereby earning a sum of Rs.13,500/- per month. He had further
contended that even after continuous treatment, he has not recovered
fully and he is suffering loss of sensation and control of his left arm.
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CMA(MD).Nos.259 and 914 of 2017
Hence, he prayed for a compensation of Rs.40/- lakhs.
4.The Transport Corporation had filed a counter contending that
the claimant had made an attempt to overtake the bus in a rash and
negligent manner and in the said attempt, he had dashed against the
protective barricade placed on the centre median of the road and fell
down under the rear wheel of the bus. Therefore, the claimant is solely
responsible for the accident. The Transport Corporation had further
contended that the injured claimant was not having any valid driving
license on the date of the accident. They have also questioned the
quantum of compensation as prayed for by the claimant.
5.The Tribunal after considering the oral and documentary
evidence let in on either side, relied upon the evidence of PW1 and
arrived at a finding that the accident has taken place only due to the rash
and negligent driving on the part of the driver of the transport
corporation bus. The Tribunal had relied upon Exhibit P17- disability
certificate issued by the medical board to arrive at a conclusion that the
claimant had suffered 80% of partial permanent disability. The Tribunal
had fixed the notional monthly income at Rs.7500/- per month and
applied multiplier of 18 and arrived at a sum of Rs.12,96,000/- under the
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CMA(MD).Nos.259 and 914 of 2017
head of loss of income. The Tribunal awarded a sum of Rs.50,000/-
towards pain and suffering, Rs.5,000/- towards transportation,
Rs.20,000/- towards extra nourishment, Rs.20,000/- towards medical
attendance charges, Rs.50,000/- towards loss of mental agony, Rs.
50,000/- towards loss of amenities and s.6,10,942/- towards medical
expenses. In total, a sum of Rs.21,01,942/- has been awarded.
Challenging the said award, the Transport Corporation had filed an
appeal and the claimant had also filed another appeal seeking
enhancement.
6.The learned counsel for the appellant in C.M.A(MD).No.259 of
2017 had contended that the Tribunal has not properly appreciated the
documents filed on the side of the claimant. In fact, those documents
would reflect that the claimant had attempted to overtake the bus and he
had lost his control and thereafter,he had fallen under the rear wheel of
the bus. The Tribunal had erred in fixing the entire negligence upon the
driver of the Transport Corporation bus. He had further contended that
the Tribunal had erroneously applied the multiplier method and had
awarded compensation on the higher side. Hence, he prayed for allowing
the appeal. He had further contended that there is no scope for awarding
https://www.mhc.tn.gov.in/judis
CMA(MD).Nos.259 and 914 of 2017
of any further compensation and hence, he had prayed for dismissing the
appeal filed in CMA(MD).No.914 of 2017 by the claimant seeking
enhancement.
7.Per contra, the learned counsel appearing for the claimant had
contended that the evidence of PW1 will clearly establish the fact that the
bus had dashed against the rear side of the two wheeler which had
resulted in the accident. Therefore, the Tribunal was right in mulcting the
liability upon the driver of the transport corporation bus. He had further
contended that Exhibit P8 is the salary certificate issued by the employer.
The Tribunal had erroneously excluded the provident fund deduction
from the monthly income of the injured claimant.
8.The learned counsel had further contended that the Tribunal after
having applied the multiplier method ought to have added 40% towards
future prospects. He had further contended that under the head of pain
and suffering and transportation, the compensation amount should have
been enhanced. Hence, he prayed for awarding of compensation under
the head of loss of marital prospects considering the age of the injured
claimant at the time of accident. Hence, he prayed for dismissing the
appeal filed by the transport corporation and to allow the appeal filed by
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CMA(MD).Nos.259 and 914 of 2017
the claimant.
9.I have considered the submissions made on either side and
perused the material records.
10.The petitioner had contended that he met with an accident on
18.02.2012 at about 10.15 p.m. Immediately he was admitted at
Government Royapettah Hospital and thereafter, admitted in the
Government Hospital in Chennai. However, those medical records have
not been placed before the Court. The petitioner had left the Government
Hospital Chennai and got himself admitted to the Apollo Hospital.
Exhibit P13 is the medical records of Apollo Hospital Chennai. A perusal
of the said medical records would reveal that at the time of his admission,
the petitioner has stated that when he attempted to overtake the bus, he
had lost his balance and fallen under the rear wheel of the bus. During
cross examination, the claimant had admitted, that this fact was recorded
by the Hospital on his instruction.
11.It is alleged by the petitioner that the Transport Corporation
Bus has dashed against the rear side of his two wheeler. However, the
Motor Vehicle Inspector's report to indicate the damages caused to the
two wheeler on the rear side has not been marked. Considering the
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CMA(MD).Nos.259 and 914 of 2017
admitted fact of the petitioner that he had fallen under the rear right
wheel of the bus and the statement of the claimant before the Apollo
Hospital, it is clear that the petitioner in his attempt to overtake the bus,
has lost his control and fallen under the rear wheel of the bus. In such
view of the matter, the entire negligence cannot be mulcted upon the
driver of the Transport Corporation. The petitioner is equally responsible
for the said accident. Therefore, this Court is inclined to fix the liability
upon the Transport Corporation Bus at 60% and the contributory
negligence on the part of the claimant at 40%.
12.The Tribunal had fixed the monthly income of the injured
claimant at Rs.7500/- based upon Exhibit P15 salary slip. A perusal of
the said salary slip indicate that the gross salary of the claimant was
Rs.8025/- and after provident fund deduction of Rs.427/-, a net salary
was fixed at Rs.7598/-. The Tribunal was not right in excluding the
provident fund contribution while calculating the monthly income.
Therefore, this Court is inclined to fix the monthly income of the injured
claimant at Rs.8000/-. The claimant had appeared before the medical
board and a certificate has been issued by the medical board to the effect
that the claimant had suffered 80% partial permanent disability.
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CMA(MD).Nos.259 and 914 of 2017
Therefore, the Tribunal was right in adopting multiplier method
considering the fact that the claimant is a medical representative. In such
circumstances, the Tribunal ought to have added 40% towards future
prospects. After adding 40% towards future prospects, the monthly
income could be fixed at (Rs.8000/- + 40% towards future prospects)
Rs.11,200/-. Therefore, the compensation under the head of loss of
income is (Rs.11,200/-x12x18x80% towards partial permanent disability)
Rs.19,35,360/-
13.In view of the above said deliberations, the award of the
Tribunal is re-assessed as follows:
(a).Loss of income Rs.19,35,360.00
(b).Pain and suffering Rs. 1,00,000.00
(c).Transport expenses Rs. 20,000.00
(d)Extra nourishment Rs. 20,000.00
(d).Attender charges Rs. 20,000.00
(d).Medical expenses Rs. 6,10,942.00
(e).Loss of amenities Rs. 50,000.00
-----------------
Rs.27,56,302.00
(f) Less: 40% towards contributory negligence Rs.11,02,520.00
-------------------
Total Rs.16,53,782.00
10.In view of the above said deliberations, the total compensation
of Rs.21,01,942/- is hereby modified and reduced to Rs.16,53,782 /-. The
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CMA(MD).Nos.259 and 914 of 2017
said amount shall carry interest at the rate of 7.5% per annum from the
date of claim petition excluding the period of default, if any. The
Transport Corporation is directed to deposit the award amount within a
period of 12 weeks from the date of receipt of a copy of this order, if not
already deposited. On such deposit, the claimant shall be entitled to
withdraw the entire award amount along with accrued interest and
proportionate cost.
11.In fine, C.M.A.(MD).No.259 of 2017 is partly allowed and
C.M.A(MD).No.914 of 2017 is dismissed. No costs. Consequently,
connected miscellaneous petition is clsoed.
08.08.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
mas
https://www.mhc.tn.gov.in/judis
CMA(MD).Nos.259 and 914 of 2017
To
1.The Motor Accident Claims Tribunal
/IV Additional Subordinate Court, Madurai
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA(MD).Nos.259 and 914 of 2017
R.VIJAYAKUMAR,J.
msa
Pre-delivery Common Judgement made in
C.M.A(MD)Nos.259 & 914 of 2017
08.08.2024
https://www.mhc.tn.gov.in/judis
