Madras High Court

The General Manager vs Mohamed Iqbal on 8 August, 2024

                                                                              C.M.A.(MD)No.530 of 2024

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     Dated: 08.08.2024
                                                         CORAM:
                                   THE HON'BLE MR.JUSTICE SUNDER MOHAN
                                                 C.M.A.(MD)No.530 of 2024


                    The General Manager
                    Tamil Nadu State Transport Corporation
                    Kumbakonam
                    Thanjavur District                                     ..Appellant/ Respondent

                                                        Vs.

                    1.Mohamed Iqbal
                    2.Shajarath Nisha Begum                            ..Respondents/claimants

                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of
                    the Motor Vehicles Act, 1988 to set aside the order passed in MCOP
                    No.49 of 2020 dated 23.03.2023 on the file of the Motor Accident
                    Claims        Tribunal/III     Additional   District   Judge,    Thanjavur     at
                    Pattukottai and allow this Civil Miscellaneous Appeal.


                                    For Appellant       : Mr.A.V.B.Krishnakanth
                                    For Respondents : Mrs.S.Prabha
                                                      for Mr.D.Ramesh Kumar



                                                       JUDGMENT

The instant appeal has been preferred challenging the finding

on negligence and quantum of compensation payable to the

respondents.

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

2. The respondents herein are the legal heirs of the deceased.

The respondents filed a claim petition stating that on 02.02.2019 at

about 10.30 a.m., while the deceased was travelling in a bus

belonging to the appellant from Mannargudi to Pattukottai, she

tried to change the seat and all of a sudden she fell down from the

bus due to the rash and negligent driving of the driver and that she

sustained grievous injuries and succumbed to the same on

11.02.2019.

3. The appellant filed a counter stating that the deceased fell

down from the bus only due to her negligence; that she had not

taken her seat and without holding she attempted to shift to another

seat, as a result of which, she fell down from the bus; and that

therefore the appellant is not liable to pay any compensation.

4. Before the Tribunal, the first respondent examined himself

as P.W.1 and a co passenger of the deceased as P.W.2 and marked

exhibits Exs.P.1 to 12. The driver of the appellant/corporation was

examined as R.W.1.

5. The Tribunal, after taking into consideration the oral and

documentary evidence, held that the deceased fell down from the

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

bus due to the rash and negligent driving of R.W.1 who drove the bus

of the appellant and held that the respondents are entitled to a total

compensation of Rs. 9,26,796/- payable by the appellant.

6. The learned counsel for the appellant submitted that even

as per the claim petition and as per the First Information Report

lodged by P.W.1, the accident took place because the deceased

attempted to change her seat and therefore, the award of the

Tribunal fastening the entire liability on the driver is erroneous;

that though in the claim petition P.W.1 had stated that the deceased

attempted to change her seat, in his chief examination he had taken

a different stand making it appear that the deceased fell down from

the steps of the bus while getting into the bus and hence, prayed

for setting set aside the award of the Tribunal.

7. As regards the quantum, the learned counsel for the

appellant submitted that the notional income fixed by the Tribunal at

Rs.9000/- is on the higher side and that the total of medical bills

produced by the claimant adds up to Rs.86,000/- and not

Rs.1,23,996/- as held by the Tribunal and prayed for a reduction of

compensation.

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

8. The learned counsel for the respondents per contra

submitted that the manner in which the accident took place would

suggest that the driver of the appellant/Corporation was solely

responsible for the accident. The learned counsel further submitted

that the deceased was a tailor at the relevant point of time and she

was earning a sum of Rs.9,000/- per month. The medical bills which

were marked as Ex.P.11 on the side of the respondents show that the

total expenditure on treatment was Rs. 1,23,996/-, and the same

was rightly awarded by the Tribunal.

9.This Court has carefully considered the rival submissions.

10. The questions involved in the instant appeal are

i) Whether the Tribunal was right in holding that the

driver of the bus belonging to the appellant/Corporation was guilty

of rash and negligent driving?

ii)Whether the compensation awarded by the Tribunal is

just and reasonable?

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

11. On perusal of the claim petition and the evidence of P.W. 1,

it is seen that initially P.W.1 had stated that she came to know from

a co-passenger that while the deceased attempted to change her

seat, she lost her balance and fell off the bus. However, in his

deposition, which is corroborated by P.W.2, who was the co-

passenger in the bus, he stated that the deceased was attempting to

get into the bus and even before she could settle down, the bus was

driven in a rash and negligent manner, which resulted in her fall.

Admittedly, P.W.1 who had lodged the First Information Report and

claim petition was not an eye witness to the occurrence. Therefore,

his version, though contradictory in nature cannot be rejected to

hold that the driver of the bus was not guilty of rash and negligent

driving. P.W.2, who was the co-passenger had stated that the

deceased attempted to get into the bus, and even before she could

settle down, the driver of the bus moved it in a rash and negligent

manner. It is seen that the appellant had neither examined the

conductor of the bus nor any co- passenger in the bus to corroborate

the version of R.W.1, the driver of the bus. R.W.1 could not have

witnessed the manner in which the deceased fell off the bus.

Further, the very fact that the deceased fell off the bus would show

that the bus was driven in a rash and negligent manner. The

principle res ipsa loquitur would be applicable to facts of the case.

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

At the same time, considering the initial version that the deceased

attempted to change her seat and therefore, lost her balance, her

contributory negligence also cannot be ruled out. In such

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

reasonable to fix the contributory negligence on the deceased at

10%.

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

the view that the notional income of the deceased was fixed at

Rs.9,000/-, which is just and reasonable. The accident took place in

the year 2019 and the respondents have established the fact that the

deceased was working as a tailor and therefore, no interference is

called for in the compensation awarded under the said head. The

compensation under the other heads, namely loss of estate, funeral

expenses, is also just and reasonable and the same is confirmed.

13. As regards the compensation under the head loss of

consortium, it is seen that the Tribunal has awarded a sum of

Rs.40,000/- to the first respondent and Rs.20,000/- to the second

respondent, which has to be enhanced to Rs.40,000/-. The total

compensation under the head 'loss of consortium' has to be

Rs.80,000/-

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

14. As regards the submission made by the appellant that

medical bills did not add upto Rs.1,23,996/-, on verification, it is

seen that the calculation made by the Tribunal is correct and no

interference is called for.

15. In view of the above, this Civil Miscellaneous Appeal is

partly allowed and the award passed by the Tribunal is modified as

follows:

                            S.No        Description    Amount          Amount           Award
                                                       awarded      awarded by this   confirmed
                                                        by the          Court             or
                                                       Tribunal                       enhanced
                                                                         (Rs.)        or granted
                                                         (Rs.)
                                  1   Loss of          7,12,800/-     7,12,800/-      confirmed
                                      dependency
                                  2   Loss of Estate   15,000/-        15,000/-       confirmed
                                  3   Funeral          15,000/-        15,000/-       confirmed
                                      Expenses
                              4       Loss of          60,000/-        80,000/-        Enhanced
                                      consortium
                                  5   Medical Bills    1,23,996/-     1,23,996/-      Confirmed
                                      Total            9,26,796/-     9,46,796/-
                                  6   Since 10%                     (Rs.9,46,796/-     Reduced
                                      Contributory                     less Rs.
                                      negligence is        -         94,679.60p)
                                      fixed, the
                                      compensation                   Rs.8,52,116/-
                                      is reduced to                   (rounded to
                                                                    Rs.8,52,500/-)



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

16. The appellant/Transport Corporation shall deposit the

modified compensation of Rs.8,52,500/- with accrued interest within

a period of six weeks from the date of receipt of a copy of this order,

after deducting the amount already deposited. On such a deposit,

the respondents/claimants are permitted to withdraw the same as

per the apportionment fixed by the Tribunal.

08.08.2024

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