Madras High Court
Malaichamy vs The Managing Director on 3 January, 2024
C.M.A.(MD).No.39 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.12.2023
PRONOUNCED ON : 03.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.39 of 2017
Malaichamy ... Appellant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation,
Byepass Road,
Madurai. ... Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree in
M.C.O.P.No.389 of 2009 on the file of the Motor Accident Claims
Tribunal/IV Additional Sub Judge, Madurai dated 07.02.2013.
For Appellant : Mr.A.Hajamohideen
For Respondent : Mr.P.Prabhakaran
JUDGMENT
This Civil Miscellaneous Appeal is filed as against the judgment
and decree of the Motor Accident Claims Tribunal at Madurai in
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M.C.O.P.No.389 of 2009 dated 07.02.2013 by the
appellant/petitioner/claimant seeking enhancement of compensation.
2.Aggrieved by the insufficiency of the compensation awarded by
the Tribunal, by its award dated 07.02.2013, the injured claimant has
preferred this Civil Miscellaneous Appeal.
3.The brief facts leading to filing of the Civil Miscellaneous
Appeal is as follows:-
On 16.11.2007 at about 21.45 hours, while the petitioner/claimant
was driving his vehicle bearing registration No.TN-59-G-0618 from west
to east along with one Police Inspector Ponram, a bus bearing
registration No.TN-58-N-0475 belonging to the respondent Corporation
came from the same direction and dashed behind the right back side of
the Jeep, driven of the petitioner/claimant. Due to the sudden impact, the
Jeep was capsized, in which the petitioner/claimant sustained multiple
injuries all over the body. Seeking a compensation of Rs.4,00,000/- for
the same, the petitioner/claimant filed a claim petition in M.C.O.P.No.
389 of 2009.
https://www.mhc.tn.gov.in/judis
4.The said claim was resisted by the respondent Corporation and a
counter was also filed categorically submitting that the allegation made
by the petitioner/claimant that the accident caused permanent disability
to the petitioner/claimant has to be put to strict proof. That apart it was
also pleaded that on 16.11.2007, at about 09.20 p.m., the respondent bus
driver took the bus bearing registration No.TN-58-N-0475 from Madurai
to Usilampatti trip from east to west direction after boarding and
alighting the passengers in V.N. College bus stop. The respondent bus
driver was driving the bus in a moderate speed and adhering all traffic
rules, the petitioner's Jeep was proceeding before the respondent's bus in
the same direction and when the bus was nearing the floor mill bus stop,
unexpectedly the petitioner/claimant turned the Jeep suddenly to the right
side of the road in order to reach the police Inspector's house, which is in
the opposite side of the floor mill bus stop without adhering the traffic
rules and regulations without giving any signal to the respondent bus
driver. Though in order to avoid the accident, the respondent bus driver
turned the bus to the right side of the road, the petitioner also turned the
Jeep to the right side of the road and as the result of which, the
https://www.mhc.tn.gov.in/judis
respondent bus dashed against the petitioner's Jeep in the backside of the
Jeep in the right side. Had the petitioner being careful and cautious and
had observed the traffic rules, the accident could have been averted. The
accident had happened only due to the negligence of the
appellant/petitioner/claimant. Hence, the respondent Corporation is not
liable to pay compensation and the amount claimed is also highly
exorbitant.
5.Five witnesses were examined and Ex.P1 to Ex.P4 were marked
on the side of the petitioner. One driver of TNSTC Ponnupandian was
examined as R.W.1 and Ex.R1 was marked through him. After recording
the evidence, the learned Tribunal heard the arguments advanced on both
the sides and framed necessary points for determination and scrutinizing
the evidence both the oral and documentary and upon appreciation of
evidence held that both the appellant/petitioner/claimant and the driver of
the respondent bus are equally responsible for the accident and thereby,
fixed contributory negligence on both the drivers involved in the
accident. On the basis of the evidence deposed by P.W.5,
Dr.P.S.Shanmugam, the one who treated the petitioner and has assessed
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40% partially permanent disability of the petitioner/claimant through the
Disability Certificate marked as Ex.P13. The learned Tribunal
considering the age of the petitioner/claimant who was aged 35 years at
the time of accident concluded that the appellant was entitled to
Rs.2,000/- per percentage of partial permanent disability aggregating to
the sum of Rs.80,000/- with regard to the compensation under the Head
of partial permanent disability. The learned Tribunal accordingly awarded
compensation is as follows:-
Head Compensation awarded
(i)Partial Permanent Disability: 40% [Rs.2,000 per percentage
(2000x40)] Rs.80,000/-
(ii)Transportation: Rs.2,000/-
(iii)Extra Nourishment: Rs.5,000/-
(iv)Pain and suffering: Rs.30,000/-
(v)Loss of Future Prospects: Rs.1,00,000/-
Total compensation awarded: Rs.3,32,789/- with interest @
7.5 % from the date of the claim
until the realization and costs.
6.Since the learned Tribunal decided that the petitioner/claimant is
equally responsible for the accident occurred thereby, fixing contributory
negligence on the part of the appellant/petitioner/claimant as well and
concluded that the petitioner is entitled to half of the compensation
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awarded by the Tribunal, which is tune to the Rs.1,66,395/- I.e., half of
Rs.3,32,789/-.
7.Challenging the same, the appeal came to be filed by the
appellant/petitioner/claimant on the ground that the learned Tribunal
ought not to fix contributory negligence 50% on the injured and the
learned Tribunal ought to have awarded Rs.3,000/- per percentage
towards the partial permanent disability, thereby, awarding a sum of Rs.
1,20,000/- for the disability and amount of Rs.10,000/- towards
transportation expenses and Rs.25,000/- towards extra nourishment and
Rs.50,000/- towards pain and suffering ought to have been awarded by
the learned Tribunal.
8.Heard the learned counsel appearing for the appellant
Mr.A.Hajamohideen and the learned Standing counsel appearing for the
respondent Corporation Mr.P.Prabhakaran and perusal the materials
available on records.
9.The claimant before the Tribunal is the appellant in the appeal.
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The claim was made by the appellant/petitioner/claimant before the
Tribunal against the respondent Corporation. The Tribunal after enquiry
and upon scrutinizing the evidence adduced, gave a definite finding that
the accident happened not only due to negligence of the bus belonging to
the respondent Corporation bearing Registration No.TN-58-N-0475 but
also due to negligence of the appellant/petitioner/claimant driver who
drove the Jeep bearing Registration No.TN-59-G-0618 in the right
direction by turning suddenly without giving any signal to the bus
belonging to the respondent Corporation for the purpose of reaching the
Inspector's house situated in the opposite direction.
10.I have no hesitation to observe that the Tribunal after careful
consideration of the evidence has concluded that both the claimant as
well the driver of the respondent Corporation are equally responsible for
the accident which occurred on 16.11.2007, thereby fixing the
contributory negligence equally as 50% on both the drivers. I do not find
any infirmity in the same. That apart the learned Tribunal has awarded a
sum of Rs.1,00,000/- under the Head of loss of future prospects
generously. Hence, the claim of the appellant by means of appeal to
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enhance the other heads namely partial permanent disability,
transportation expenses, pain and suffering, extra nourishment and loss
of amenities and medical assistance could not be awarded. Hence, this
Court is not inclined to interfere with the award passed by the learned
Tribunal.
11.Accordingly, the Civil Miscellaneous Appeal stands dismissed.
There shall be no order as to costs.
03.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Motor Accidents Claims Tribunal,
(Special District Judge), Madurai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
L.VICTORIA GOWRI, J.
Mrn
03.01.2024
https://www.mhc.tn.gov.in/judis
