Madras High Court

The General Manager vs Nalini Kumari on 14 August, 2024

                                                                                C.M.A(MD)No.804 of 2024


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            Reserved on         : 25.07.2024

                                            Pronounced on       : 14.08.2024

                                                     CORAM

                                  THE HONOURABLE MR.JUSTICE G.ILANGOVAN

                                           C.M.A(MD)No.804 of 2024
                                                       and
                                           C.M.P(MD)No.8837 of 2024


                    1.The General Manager,
                      Tamil Nadu State Transport Corporation Ltd.,
                      Ranithottam, Nesamony Nagar,
                      Nagercoil.

                    2.The Managing Director,
                      Tamil Nadu State Transport Corporation Ltd.,
                      Office at Number 2, Trivandrum Road,
                      Vannarpettai,
                      Tirunelveli District.            ... Appellants / Respondents 1 and 2

                                                        Vs.

                    1.Nalini Kumari

                    2.Pratheeba

                    3.Rajamani                            ... Respondents 1 to 3 / Petitioners

                    4.Praveena                            ... 4th Respondent / 3rd respondent


                    1/11

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                                                                                  C.M.A(MD)No.804 of 2024



                    PRAYER :-

                                  This Civil Miscellaneous Appeal is filed under Section 173 Motor
                    vehicles Act to set aside the order of the Motor Accident Claims Tribunal cum
                    Sub Court, Kuzhithurai made in M.C.O.P.No.1071/2022 dated 26.04.2023
                    and allow the appeal with costs.


                                      For Appellant    : Mr.S.Micheal Heldon Kumar

                                      For R1 to R3     : Mr.V.Sasi Kumar




                                                        JUDGMENT

This Civil Miscellaneous Appeal is filed to set aside the order of the

Motor Accident Claims Tribunal cum Sub Court, Kuzhithurai made in

M.C.O.P.No.1071/2022 dated 26.04.2023.

2. The case of the prosecution is that on 02.01.2021 at about 7.55 p.m.,

the deceased Pushparaj was riding an Auto bearing registration number TN 74

AL 5701 on the Thingal Nagar, Thottiyode main road from West to East

direction. When he was nearing the place of occurrence, a bus bearing

registration number TN 74 N 2086 which belongs to the first respondent came

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in the opposite direction in a rash and negligent manner and hit the auto. As a

result of which, he sustained grievous injuries. He was taken to Government

Hospital, Thuckalay, where he was found dead. A case in Crime No.7 of

2021 was registered against the deceased by the Inspector of Police,

Thuckalay Police Station, on the false information given by the first

respondent vehicle driver. The deceased was the owner cum driver of the

Auto and earning Rs.25,000/- per month and he was aged about 45 years at

the time of occurrence. Claiming compensation amount of Rs.40,00,000/- the

claim application was filed.

3. That was resisted by the appellant herein by filing counter stating

that, the accident took place because of the rash and negligent driving on the

part of the deceased himself. He drove the vehicle in a rash and negligent

manner and suddenly crossed the road. Finding a ditch in the road he turned

the auto and hit the front side of the bus. Therefore, the deceased was

responsible for the accident and not the driver. Other customary denials were

made.

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4. With respect to the first aspect of negligence, the Tribunal recorded a

finding that it occurred due to the rash and negligent driving on the part of the

appellant driver and not on the part of the deceased. Regarding the

compensation, he recorded a finding that the age of the deceased is 46 years

and notional income was fixed at Rs.12,000/- and by adding 25% of future

prospects, the monthly income of the deceased was fixed at Rs.15,000/-.

Thereby, loss of dependency was fixed at Rs.17,55,000/- by taking 13 as the

multiplier. To that other customary amounts were added and finally awarded

the following amounts as compensation:

                           Head of Compensation                       Award
                           Transportation                       Rs.     5,000/-
                           Funeral Expenses                     Rs.    15,000/-
                           Loss of Consortium to the 1st Rs.           40,000/-
                           petitioner
                           Loss of Love and Affection           Rs. 1,50,000/-
                           (3 x 50,000)
                           Loss of dependency                   Rs.17,55,000/-
                           Loss of Estate                       Rs.    15,000/-
                                            Total               Rs.19,80,000/-






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5. Challenging the same, this Civil Miscellaneous Appeal is preferred

by the Transport Corporation. Learned counsel for the appellant would

submit that the FIR was registered only against the deceased and not against

the appellant driver. He was also drew the attention of the Court to the sketch

preferred by the Investigation Officer wherein it shows that the accident took

place in the north portion of the road. So according to the learned counsel for

the appellant, only the deceased came in the wrong direction and hit the bus.

The learned counsel for the appellant relied upon a judgment reported in 2016

(1) TN MAC 527 in the case of Managing Director, Tamil Nadu State

Transport Corporation Ltd., and others Vs Pandi Devi and others.

6. Per contra, learned counsel for the respondent would submit that the

place of occurrence is on the southern side of the road. Only the appellant

driver came in the wrong direction and caused the accident. Regarding the

quantum, there is a dispute by the appellant.

7. It is true that the FIR was registered against the deceased. Whether

that alone will show that he was rash and negligent in causing the accident is

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to be seen. Now we will go to the evidence on record as to the manner of

accident, without being influenced by the FIR being registered by the

deceased. The complaint was given by the first respondent vehicle driver

naturally he would have supported by his own version. That could not be

given any importance. It is the case of the appellant that the deceased was

riding the three wheeler from West to East direction. Naturally, the northern

portion is the left hand for the deceased. The appellant vehicle was coming in

the opposite direction. That is from the East - West direction. For the

appellant driver, South is the left hand side.

8. As per the evidence of the eye witness namely P.W.2, the deceased

on noting a ditch turned to his right side. Since the appellant vehicle came in

an opposite direction, the deceased hit the appellant bus. The sketch drawn by

the police shows that the place of occurrence is on the south side of the road.

Tyre marks were also present in the place of occurrence which indicates that

the appellant driver trie to stop the vehicle on seeing the deceased in the

middle of the road. There is a heep of sand on the Northern portion of the

road. As stated by P.W.2, it is seen that the deceased was crossing that area.

On seeing the ditch he came on the middle of the road and at that time, the

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appellant vehicle came in the place. So the deceased was also, to some extend

contributed towards the negligence. The appellant driver who was a heavy

vehicle ought to have been careful in his driving on seeing the ditch on the

northern portion of the vehicle, while passing through the area. Had he

slowed down the bus, he would have avoided the accident. Naturally, he also

contributed to the occurrence. Even though the Tribunal finding that it solely

rests on the shoulders of the appellant driver, but as seen in the manner of the

accident, both of them have contributed to the accident. The appellant being

the heavy vehicle, must be fixed with 75% of contributory negligence and that

of the deceased at 25%. This point is decided accordingly.

9. Regarding the compensation amount, the Tribunal has taken the

income of the deceased at 12,000/- per month. In the absence of any direct

evidence to show the correct monthly income that amount cannot be

considered to be improper. That is maintained. The age was also fixed on the

basis of the entries made in the post mortem report. A proper multiplier was

adopted. 1/4 was deducted towards the personal and living expenses. 25%

was taken as future prospects. So I find absolutely no error in assessing the

compensation on those points. While the Tribunal has committed the error in

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awarding Rs.50,000/- towards love and affection for petitioners 2 and 3. The

second petitioner who is the daughter and the third petitioner who is the

mother entitled for Rs.40,000/- each towards loss of parental consortium for

the second petitioner and filial consortium for third claimant. So that amount

is reduced to Rs.80,000/-. Recalculation of the award is made as follows:

                                  Head of Compensation      Modified Award

                           Transportation                  Rs.     5,000/-
                           Funeral Expenses                Rs.    15,000/-
                           Loss of Consortium to the 1st Rs.      40,000/-
                           petitioner
                           Loss of Love and Affection for Rs.     80,000/-
                           Appellants 2 and 3
                           (2 x 40,000)
                           Loss of dependency              Rs.17,55,000/-
                           Loss of Estate                  Rs.    15,000/-
                                            Total          Rs.19,10,000/-

Out of the amount, the claimants are entitled only for 75%, since 25% of the

award is deducted towards contributory negligence upon the deceased.

Deducting 25%, the claimants are entitled for a total compensation of

Rs. 14,32,500/-.

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10. The Civil Miscellaneous Appeal is partly allowed and the award

passed by the Tribunal is modified as follows:

(i) The quantum of compensation awarded by the Tribunal is reduced to

Rs.14,32,500/- (Rupees Fourteen Lakhs Thirty Two Thousand and Five

Hundred only) with interest at the rate of 7.5% per annum.

(ii) The appellants are directed to deposit the award amount together

with interest at the rate of 7.5% per annum from the date of claim petition till

the date of deposit and with cost to the credit of M.C.O.P.No.1071/2022

Motor Accident Claims Tribunal cum Sub Court, Kuzhithurai, within a period

of two months from the date of receipt of a copy of this judgment, if not

already deposited.

(iii) On such deposit being made, the the 1st claimant / 1st respondent

is entitled for a share of Rs.10,00,000/- (Rupees Ten Lakhs only) , the 2nd

claimant / 2nd respondent is entitled for a share of Rs.3,50,000/- (Rupees

Three Lakhs and Fifty Thousand only) and the third claimant / 3rd

respondent is entitled for a sum of Rs.82,500/- (Rupees Eighty Two

Thousand and Five Hundred only) with interest at the rate of 7.5% per

annum. The claimants are at liberty to withdraw the compensation amount,

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after following the due process of law, less any amount already received by

them.