Madras High Court
The Managing Director vs Mary Shakila on 29 October, 2024
C.M.A.(MD)No.1266 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.10.2024
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A(MD)No.1266 of 2022
and C.M.P(MD)No.9744 of 2022
and Cross Objection (MD)No.13 of 2023
In CMA(MD)No.1266 of 2022:
The Managing Director,
Taml Nadu State Transport Corporation,
Nagercoil Region,
Ranithottam, Nagercoil ...Appellant/3rd Respondent
Vs.
1.Mary Shakila
2.C.Angel Kibisha ..Respondents 1 & 2/Petitioners
3.Neelavarnan
4.The Branch Manager,
Tamil Nadu State Transport Corporation,
Thingal Nagar,
Kanyakumari District.
5.N.Joseph Rajan ...Respondents 3 to 5/Respondents 1,2 &4
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, against the judgment and award dated 18.02.2022
passed in M.C.O.P.No.10 of 2020 on the file of the Motor Accident
Claims Tribunal cum Sub Court, Eraniel.
For Appellant : Mr.S.Micheal Heldon Kumar
For R1,R2 & R4 : Mr.M.R.Srinivasan
For R5 : Mr.T.Wins
For R3 : No appearance
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Page No.1 of 9
C.M.A.(MD)No.1266 of 2022
In Cros.OBJ(MD)No.13 of 2023:
1.Mary Shakila
2.C.Angel Kibisha . ..Cross Objectors/Respondents 1 & 2
Vs.
1.The Managing Director,
Taml Nadu State Transport Corporation,
Nagercoil Region,
Ranithottam, Nagercoil ..1st Respondent/Appellant
2.Neelavarnan
3.The Branch Manager,
Tamil Nadu State Transport Corporation,
Thingal Nagar,
Kanyakumari District.
4.N.Joseph Rajan ..Respondents 2 to 4/Respondents 3 to 5
COMMON JUDGMENT
The instant appeal has been filed challenging the finding on
negligence and the quantum of compensation awarded by the Tribunal.
The claimants have also preferred cross-objection seeking enhancement
of compensation.
2. According to the claimants, while the deceased was travelling in
his bike from south to north on the Thingal Nagar to Mondaikadu Road,
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a bus belonging to the appellant came in a rash and negligent manner in
the opposite direction and dashed against the bike, as a result of which
the deceased sustained fatal injuries.
3. The owner of the two-wheeler, the bus driver, the Managing
Director, and the Branch Manager of the Transport Corporation were
impleaded as the respondents.
4. The appellant Transport Corporation filed a counter stating that
the accident took place only due to the negligence of the deceased; that
the deceased was under the influence of alcohol at the time of the
accident; that he did not possess a valid licence; that the first information
report was registered against the deceased; that the appellant is not liable
to pay compensation, and that in any case, the compensation claimed was
excessive.
5. Before the Tribunal, the claimants had examined P.W.1 and
P.W.2 and marked Ex.P.1 to Ex.P.15. The appellant examined R.W.1 and
marked Ex.R.1.
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6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the driver of the bus was guilty of rash
and negligent driving and directed the appellant to pay a total
compensation of Rs.12,50,000/-.
7. The learned counsel for the appellant submitted that the
deceased was in an inebriated condition at the time of the accident and
the said fact was established from the postmortem report; that the
accident took place in the centre of the road, thereby suggesting that the
deceased rode the bike in a rash and negligent manner and invited the
accident; that the evidence of R.W.1 and other evidence on record would
show that the bus driver cannot be held to be guilty of rash and negligent
driving; and hence prayed for setting aside the award.
8. The learned counsel for the respondents 1 and 2/claimants, per
contra, submitted that the appellant had originally taken a stand that on
seeing the two-wheeler, the bus driver parked the bus on the extreme left
side of the road; that it was only the deceased who had dashed against the
bus; that the said stand has been disbelieved by the Tribunal rightly; and
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that therefore, the award of the Tribunal as regards negligence has to be
confirmed.
9. As regards the quantum of compensation, the learned counsel
for the respondents 1 and 2/claimants submitted that the notional income
fixed by the Tribunal was meagre; that the Tribunal had not awarded
compensation to all the cross objectors/claimants towards loss of
consortium; and prayed for enhancement of compensation.
10. This Court gave its anxious consideration to the submissions
made on either side and carefully perused the materials available on
record.
11. The points for consideration in the instant appeal are as
follows:
a)Whether the finding on negligence by the
Tribunal is justified; and
b) Whether the quantum of compensation awarded
by the Tribunal is just and reasonable.
12. As regards the 1st point, it is seen that though R.W.1, the driver
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of the bus deposed that he had parked the bus on the extreme left side of
the road on seeing the vehicle of the deceased coming in a rash and
negligent manner, Ex.P.8, the rough sketch would show that the accident
took place almost in the middle of the road. Therefore, it cannot be stated
that the entire negligence is on the deceased. At the same time, in view of
the rough sketch and the location of the accident, the contributory
negligence on the rider of the two-wheeler cannot be ruled out. There
was no reason for the deceased to proceed in the centre of the road. That
apart, though the appellant had not established that the deceased was
under the influence of alcohol by examining the doctor, the postmortem
report would suggest that there was a fluid smell and there were traces of
ethyl alcohol. The doctor opined that the deceased had consumed ethyl
alcohol prior to his death. Considering the above facts, this Court is of
the view that contributory negligence of 25% can be fixed on the
deceased. The first point is answered accordingly.
13. As regards the second point, according to the claimants, the
deceased, who was aged 49 years, was a mason. The accident took place
in the year 2017. Though no documentary evidence has been produced
either to prove the income or avocation of the deceased, considering the
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year of the accident, the age of the deceased and the number of
dependents, this Court is of the view that it would be reasonable to fix
Rs.12,000/- as notional income of the deceased. 25% has to be added for
future prospects and multiplier applicable is '13'. Since there were 2
dependants, 1/3rd has to be deducted for personal expenses. Thus, the
compensation under the head loss of income has to be (Rs.12,000 + Rs.
3,000 X 12 X 13 X 2/3) Rs.15,60,000/- The claimants are entitled to
Rs.40,000/- each towards loss of consortium. Hence, Rs.80,000/- is
granted towards loss of consortium. The compensation under the other
heads is confirmed. Thus, the award of compensation is enhanced in the
following manner:
Sl Heads of Amount Amount Award
. Compensation awarded by awarded by this confirmed
N Tribunal Court (Rs.) or
o. (Rs.) enhanced
or granted
1. Loss of income 11,70,000.00 15,60,000.00 Enhanced
2. Loss of consortium 40,000.00 80,000.00 Enhanced
3. Loss of estate 15,000.00 15,000.00 Confirmed
3. Funeral expenses 15,000.00 15,000.00 Confirmed
4. Transport Charges 10,000.00 10,000.00 Confirmed
Total : 13,32,000.00 16,80,000.00 Enhanced
The contributory negligence on the deceased is fixed at 25%. Hence, the
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claimants are entitled to 75% of the compensation amount (Rs.16,80,000
X 75/100) Rs. 12,60,000/-.
14. The appellant shall deposit the compensation amount with
interest at the rate of 7.5% from the date of petition till the date of
deposit, after deducting the amount already deposited, within a period of
eight weeks from the date of receipt of a copy of this judgment. On such
deposit, the first claimant is permitted to withdraw 70% (Rs.12,60,000
X 70/100) Rs.8,82,000/- and the second claimant is permitted to
withdraw 30% (Rs.12,60,000 X 30/100) 3,78,000/-.
15. In fine, the appeal and the cross objection are partly allowed.
No costs. Consequently, the connected miscellaneous petition is closed.
29.10.2024
Index : Yes / No
Neutral Citation : Yes / No
CM
To
1. Motor Accident Claims Tribunal cum Sub Court, Eraniel.
2. The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
CM
Judgment made in
and Cross Objection (MD)No.13 of 2023
29.10.2024
https://www.mhc.tn.gov.in/judis
