Madras High Court
Pallavan Transport Corporation Ltd., ... vs T. Mallika, Jaya And K. Raju on 30 December, 2004
Equivalent citations: II(2005)ACC359, 2006ACJ810, 2005(1)CTC161
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Aggrieved by the award of the Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes) Chennai dated 30.01.1997 made in MACTOP. No. 1632 of 1995, the erstwhile Pallavan Transport Corporation through its Managing Director, has filed this appeal.
2. In respect of death of one Tamilarasan in a motor vehicle accident that took place on 17.04.1995, his wife and parents have prayed for a compensation of Rs. 5 lakhs. In support of their case, the first claimant widow of the deceased was examined as PW.1 and one Rajanbabu as PW.2 and Exs.P.1 to P.3 were also marked. On the side of the Transport Corporation, the driver of the bus involved in the accident was examined as RW.1 and the sketch (Ex.R.1) and F.I.R. (Ex.R.2) were also marked. The Tribunal, on consideration of all the materials placed, after holding that the driver drove the bus in rash and negligent and he was responsible for the accident, passed an award for Rs. 2,80,000/- with interest at the rate of 12% per annum from the date of petition till the date of deposit. Questioning the same, present appeal has been filed.
3. Heard the learned counsel for the appellant Transport Corporation and the respondent/claimants.
4. Mr. M. Krishnamurthy, learned counsel appearing for the appellant after taking us through the materials placed, particularly the stand taken by them in their counter and the evidence of RW.1 as well as Exs.R.1 and R.2, would contend that the deceased travelled on the footboard protruding himself outside the bus and thereby invited the accident. Hence, the contrary finding of the Tribunal holding that the driver alone was responsible for the accident cannot be sustained. On the other hand, the learned counsel for the respondents/claimants submitted that inasmuch as the driver had not allowed sufficient space between the vehicles while overtaking a stationary bus in the bus stop, he alone was negligent and responsible for the accident and the same was rightly accepted by the Tribunal and prayed for the dismissal of the appeal.
5. The only point for consideration in this appeal is whether the theory of contributory negligence on the part of the deceased-passenger advanced on behalf of the appellant-Transport Corporation is acceptable or not. No argument was advanced by the learned counsel for the appellant regarding the quantum of compensation.
6. In so far as the finding relating to negligence is concerned, on the side of the claimants one Rajan Babu was examined as PW.2, who was also travelling in the same bus, as eye witness to the occurrence. The Corporation examined the driver of the bus as RW.1. The bus in question, namely, Route No. 18J was plying in between High Court and Vandalur. The accident took place just after the bus stop at Saidapet in Anna Salai. It is also not in dispute that the bus stopped at Saidapet bus stop. Admittedly, the bus which was stationed in the same bus stop and also belonged to the appellant Transport Corporation, which was plying in the route No. 54-B. The driver of the bus 18J after starting the bus wanted to overtake the stationary bus and therefore took the bus 18J on the right side and then proceeded further towards south. Even according to the claimants, the deceased was a footboard traveller. It is the stand of RW.1 that the deceased was travelling by protruding himself outside the rear entrance of the bus. It is the claim of eye witness PW.2 that though the deceased was standing on the footboard of the bus, when the bus in which he was travelling, namely, route No. 18J crossed the stationary bus (route No. 54-B), it hit the stationary bus as a result of which the deceased sustained fatal injuries. Mr. M. Krishnamurthy, learned counsel by drawing our attention to the fact that PW.2 has not made a complaint to the police and the complaint was given only by RW.1, would contend that the deceased ought to have been held liable for contributory negligence to some extent. The documents, namely, FIR and sketch were summoned and marked at the instance of the Transport Corporation. The complaint was made by RW.1 and no action was taken by the police against the driver. Though it is stated by Rw.1 that he drove the bus leaving two feet gap between the vehicles while overtaking the stationary bus (route No. 54-B), the fact remains that the left rear side body of the bus in route No. 18J hit the right side body of the stationary bus i.e., route No. 54B. Though the learned counsel for the appellant and RW.1 claimed that the deceased was hanging outside the bus, a perusal of evidence shows that there is no such evidence for the same. It is true that PW.2 has admitted that the deceased was travelling on the footboard, but, in his cross-examination, he has stoutly denied the suggestion that the deceased was travelling by protruding himself outside the bus. In such a circumstance, in the absence of the evidence of the Conductor, who is the best person to speak about the footboard travelling, we are unable to accept the stand of the appellant - Transport Corporation. Further, inasmuch as the driver was aware of the stationary bus to be overtaken and of the fact that some of the passengers were on the footboard, he should have left sufficient gap between the vehicles while overtaking the stationary bus keeping in mind that it was peak hour, namely, 5.40 p.m., though he claimed that he left two feet space at the beginning while overtaking the stationary bus. A perusal of the sketch Ex.R.1 shows that the left rear side of the bus (18J) hit the right side body of the stationary bus, which shows that there was no sufficient space left by the driver while overtaking the stationary bus as a result of which the accident occurred. The Tribunal considered these aspects and rejected the case of the Transport Corporation. On going through the evidence of PW.2, RW.1, Exs.R.1 and R.2 and the discussion of the Tribunal, we are in agreement with the conclusion arrived at by the Tribunal and reject the only argument made by the learned counsel for the appellant.
In the light of what is stated above, we do not find any merit in the appeal, consequently, the same is dismissed. No costs.