Madras High Court
M/S.Tamil Nadu State Transport ... vs M.Sivagami on 5 January, 2024
C.M.A.(MD).No.591 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 20.11.2023 : Pronounced on 05 .01.2024
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
CMA(MD) No.591 of 2019
and
CMP(MD) No.7141 of 2019
M/s.Tamil Nadu State Transport Corporation Limited,
Through its Managing Director,
Periyamilaguparai Street,
Trichirapalli. ... Appellant/ Respondent
Vs.
1.M.Sivagami
2.Minor M.Santhiya
3.Minor M.Saranya ... Respondents/Petitioners
[2nd and 3rd respondents represented by their mother/first respondent]
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the order passed in M.C.O.P.No.1141
of 2017 by the Motor Accident Claims Tribunal, (V Additional District
Judge (FTC), Madurai, dated 20.02.2019.
For Appellant : Mr.P.M.Vishnuvarthanan
For Respondents : Mr.K.Kumaravel
1/14
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C.M.A.(MD).No.591 of 2019
JUDGMENT
RMT.TEEKAA RAMAN, J.
The Transport Corporation is the appellant herein. Challenging
the award passed in M.C.O.P.No.1141 of 2017 dated 20.02.2019 by the
Motor Accident Claims Tribunal, V Additional District Judge (FTC),
Madurai, the transport corporation has filed this appeal on the ground of
negligence and quantum.
2.For the sake of convenience, the parties are referred to as per
their ranking before the Tribunal.
3.The first respondent herein, who is the wife of the deceased
along with her daughters of the deceased, filed M.C.O.P.No.1141 of 2017
before the V Additional District Judge (FTC), Madurai, seeking
compensation for the pecuniary loss sustained by the
claimants/petitioners in a road transport accident.
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4.Before the tribunal, the transport corporation filed counter
statement alleging that the accident has taken place due to the negligence
on the part of the deceased and not due to the negligence on the part of
the driver of the transport corporation bus and accordingly, resisted the
claim.
5.During trial, the claimant/petitioner No.1 examined herself as
P.W.1 and also examined P.W.2-Sundar (occurrence witness), P.W.3-the
staff attached to the office of the employer of the deceased and P.W.4-
Satheeskumar (witness in Crime No.87 of 2017 on the file of the Melur
Police Station) and marked Ex.P1 to Ex.P14. On the side of the
respondent, the driver of the bus was examined as R.W.1 and copy of the
referred charge sheet filed in Crime No.87 of 2017 on the file of the
learned Judicial Magistrate was marked as Ex.R.1.
6.On consideration of both oral and documentary evidence, the
Tribunal has come to the conclusion that the accident took place due to
the rash and negligent driving of the driver of the transport corporation
bus and based upon Ex.P.13-service register of the deceased, it has
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awarded a compensation of Rs.30,70,060/- with interest at 7.5% from the
date of petition till the date of realization. Aggrieved by the same, the
transport corporation is before this Court with this appeal.
7.The learned counsel for the appellant would contend that the
evidence of R.W.1 coupled with Ex.R.1 goes to show that there is
contributory negligence on the part of the deceased and that the
compensation awarded by the Tribunal is excessive.
8.Per contra, the learned counsel for the respondents also relied
on the decisions of this Court reported in 2011 (2) TN MAC 688
[Managing Director, Tamil Nadu State Transport Corporation,
(Villupuram Division III) Ltd., Kancheepuram Vs. L.Chandramani]
and 2014 (1) TN MAC 295 (DB) [Managing Director, Tamil Nadu State
Transport Corporation Limited, Madurai Division III, Rani Thottam,
Nagercoil, Kanyakumari District Vs. S.Yobu and another] and also
made a submission in support of the award passed by the Tribunal.
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9.On the point of quantum of contributory negligence, the
evidence of P.W.2, P.W.4 and Ex.R.1 is available for appreciation of the
manner of the accident alleged to have taken place was projected by both
sides. P.W.2, the occurrence witness has categorically stated that due to
the rash and negligent driving of the driver of the bus, the death was
caused to the deceased and relied upon Ex.P.1-FIR registered against the
driver of the bus. Per contra, R.W.1-driver of the bus, who entered the
witness box, stated that as the deceased all of a sudden crossed over the
road from north to south direction, the accident had taken place and he
also further deposed that in order to avoid from hitting the deceased,
R.W.1 stated that he has stopped his bus by hitting the center median of
the said road. Inspite of the same, the deceased could not control his
vehicle, invited the accident by hitting the very same center median.
Ex.R.1 was pressed into service by the transport corporation.
10.On perusal of Ex.R.1, it is a referred charge sheet filed by
the Melur Police Station before the Judicial Magistrate in the concerned
Crime No.87 of 2017. The contents reveal that though FIR was initially
registered against the driver of the transport corporation bus, after
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investigation, the investigation officer has chosen to close the file by
filing a referred charge sheet. The basis of the referred charge sheet is the
alleged statement recorded under Section 161 by one of the witnesses,
Satheeskumar.
11.The said Satheeskumar, who is the listed witness No.1 in
Ex.R.1-referred charge sheet filed by the Melur Police Station before the
concerned Jurisdiction Magistrate, was examined as P.W.4 on the behalf
of the claimants. On going through the evidence of P.W.4, he has
categorically stated that it was due to the rash and negligent driving of
the driver (R.W.1) of the bus, the accident had occurred and he has not
supported Ex.R.1-final report and the version of P.W.4 runs contrary to
the statement said to have been recorded under Section 161 of Cr.P.C. by
the investigation officer. He was subjected to cross examination by the
transport corporation bus. On a close perusal of the cross examination of
P.W.4, we do not find anything being resisted in support of the transport
corporation. After perusing the evidence of R.W.1, we find that there is
no possible explanation as to why, he has severed the vehicle to the right
hand side of the road.
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12.On perusal of Ex.R.1, we find that it is only an outcome of
the opinion of the investigation officer in the criminal case, which is said
to be based upon the statement of the listed witness No.1, namely,
Satheeskumar. However, the very same person by name Satheeskumar
was examined on behalf of the claimants, he had disowned the statement
and gave a statement against R.W.1 assumes significance and therefore,
this Court finds that merely because the police have closed the case as
'Mistake of Fact' that will not lead to the conclusion that the driver of the
transport corporation is not at fault. The standard of proof that is recorded
to be proved in a criminal case beyond reasonable doubt, whereas, in the
matters of claim petition filed before the Tribunal is to the level of
preponderance of probability. Here, in this case, except Ex.R.1, there is
no other document in support of the case of transport corporation. As
stated supra, the version of R.W.1 in the witness box appears to be self
serving statement in order to save his skin from the departmental
proceedings. While the evidence of P.W.2-independent witness is duly
corroborated by Ex.P.1-FIR, which came into force at the earliest points
of time, besides the criminal law settled into motion by a third party.
Furthermore, the basis of Ex.R.1 is the alleged statement said to have
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been given by one Satheeskumar to the police. However, the very same
Satheeskumar has been supported the case of the claimants and hence,
this Court finds that the oral evidence of P.W.2-independent witness is
duly corroborated by documentary evidence of Ex.P.1 and supported by
the evidence of P.W.4 and hence, we have no hesitation to come to the
conclusion that the version of P.W.1, does not worth consideration and
the driver of the transport corporation alone is liable to pay the
compensation similar finding arrived at by the Tribunal, for the different
reasoning is stated supra, is hereby confirmed. Consequently, the
contention of the learned counsel for the appellant stands negatived on
the point of quantum of contributory negligence.
13.On the point of quantum of compensation, based upon
Ex.P.12 and Ex.P.13, documentary evidence regarding the salary slip and
service register, which were marked through P.W.3, who is working as an
Assistant Accountant in the Tamil Nadu Agricultural College at Madurai,
goes to show that the deceased was drawing Rs.16,667/- as a monthly
salary and will be retiring from service on 30.06.2040 and accordingly,
the very same amount was taken as a income and on the date of the
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accident, the deceased was 36 years old and as per the Sarala Verma
case, multiplier 15 has to be adopted and as per the Pranay Sethi case,
50% has to be added as a future prospects, since the deceased was
working in the permanent job of the Government of Tamil Nadu and the
pecuniary loss to the family members was arrived at Rs.45,00,090/- (Rs.
16,667/- + Rs.8,337.50 (50%) x 12 x 15) and deduction of 1/3 rd is hereby
confirmed and the income of the deceased was ascertained as
Rs.30,00,060/- (Rs.45,00,090 x 1/3 = Rs.15,00,030 : Rs.45,00,090/- (-)
Rs.15,00,030/-) and Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses and Rs.15,000/- towards transport charges and
Rs.40,000/- towards consortium for the wife.
14.As far as the quantum of compensation is concerned, in
2018 (1) TN MAC 592 (DB), [Managing Director, State Express
Transport Corporation Limited, Vs. Radha and others], the Division
Bench has held that though the appeal has been preferred by the
Transport Corporation, considering the facts and circumstances of the
case, the Court could take suo motu decision for enhancing the
compensation amount awarded by the Tribunal, by re-appreciating the
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evidence on record and applying the correct position of law, as on date
and by invoking Order 41, Rule 33 C.P.C. and Section 151 CPC as well
as Article 227 of the Constitution of India.
15.By relying upon the aforesaid decision, though this Appeal has
been preferred by the Transport Corporation, on considering the facts and
circumstances of the case, we find that with regard to loss of love and
affection for the minor claimants 2 and 3, no award has been passed and
hence, by invoking the suo motu powers, if compensation is awarded
towards loss of love and affection, it would meet the ends of justice.
Accordingly, an amount of Rs.75,000/- each is fixed to the daughters of
the deceased. Accordingly, the amount of Rs.75,000/- each is awarded on
the head of loss of love and affection.
16.In view of the above discussion, the compensation is reworked
in the manner hereunder:
Head Awarded by the Awarded by Enhanced/
Tribunal this Court reduced/
confirmed
1. Loss of income Rs.30,00,060/- Rs.30,00,060/- confirmed
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2.Loss of consortium (1st Rs. 40,000/- Rs. 40,000/- confirmed
claimant)
3.Loss of Love and ................. Rs. 1,50,000/- awarded
affection (minor claimants each
2 and 3) Rs. 75,000/-
4.Loss of estate Rs.15,000/- Rs.15,000/- confirmed
5.Funeral expenses Rs.15,000/- Rs.15,000/- confirmed
6.Transportation ........... Rs.15,000/- awarded
Total Compensation Rs. 30,70,060/- Rs.32,35,060/- enhanced
17.In fine, the award of the tribunal is partly modified and
enhanced from Rs.30,70,060/- to Rs.32,35,060/- with interest at the rate
of 7.5% per annum along with proportionate interest and costs.
18.The appellant / Transport Corporation is directed to deposit the
modified award amount along with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit, and costs awarded
by the Tribunal, less the amount, if any already deposited, within a period
of eight (8) weeks from the date of receipt of a copy of this judgment.
Excess amount, already paid if any, shall be refunded to the appellant /
Transport Corporation.
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19.On such deposit being made, the first claimant is permitted to
withdraw their share amount as apportioned by the Tribunal, along with
interest and costs, less the amount if any already withdrawn by them,
after filing appropriate application before the Tribunal. In respect of the
share of minors - claimants 2 and 3, the Tribunal is directed to deposit
her share amount in any one of the Nationalised Banks till they attain the
age of majority. Till then, the first claimant herein - mother of the minors
shall be permitted to withdraw the interest accrued thereon, once in three
months in order to maintain the minors. The appellant Transport
Corporation and the respondents/claimants 1 to 3 are liable to pay
Court fee for the enhanced compensation awarded.
20.In the result, the civil miscellaneous appeal is partly-allowed
with the above modifications. No costs. Consequently connected
Miscellaneous Petition is closed.
(T.K.R.,J.) (P.B.B.,J.)
05.01.2024
NCC : Yes/No
Index : Yes/No
sji
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To
1.The Motor Accident Claims Tribunal,
V Additional District Judge (FTC), Madurai.
2.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN,J.
AND
P.B.BALAJI, J.
SJI
05.01.2024
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