Madras High Court
The Managing Director vs M.Nagaraj on 20 September, 2022
C.M.A(MD)No.613 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 09.11.2022
PRONOUNCED ON:20.01.2023
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.M.A(MD)No.613 of 2021
and
C.M.P.(MD)No.5910 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation,
Bye Pass Road,
Dindigul. : Appellant/ Respondent
Vs.
1.M.Nagaraj
2.N.Sountharya
3.N.Saru
4.(Minor)N.Ranjith : Respondents / Petitioners
(Minor 4th respondent was declared
as major vide order dated 20.09.2022
made in C.M.P.(MD)No.8045 of 2022.
First respondent/father of the minor was
discharged from guardianship of R.4 vide
order dated 20.09.2022 made in
C.M.P.(MD)No.8046 of 2022)
1/11
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.613 of 2021
PRAYER:- Civil Miscellaneous Appeals filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgement and Decree dated
17.02.2020, passed in M.C.O.P.No.159 of 2019, on the file of the Motor
Accident Claims Tribunal (Additional District Judge(FTC), Theni.
For Appellant : Mr.K.Sudalayandi
For Respondents :Mr.K.Suresh Kumar
JUDGMENT
The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.159 of 2019, dated 17.02.2020, on the file of the Motor Accident Claims Tribunal/Additional District Judge, Theni.
2. The appellant/Transport Corporation, who was made liable to pay compensation of Rs.19,24,400/- with interest at 7.5% p.a., to the respondents/claimants for the death of one Maheswari, who died consequent to the accident occurred on 20.03.2010, challenged the liability and quantum of compensation awarded by the Tribunal and also the way in which the award was passed.
2/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021
3. Admittedly, the first claimant is the husband and the claimants 2 and 3 are the daughters and the fourth minor claimant is the son of the deceased Maheswari. The case of the claimants is that on 20.03.2010, when the husband of Maheswari was riding a two wheeler bearing Registration No.TN-60-U-6645 with the deceased Maheswari and their son Ranjith as pillion riders, after attending a betrothal at Milamalai near Kumuli and while returning towards Uthamapalayam and at the place near the bridge situated on the south of Anumanthanpatti Muneeswaran temple, a bus bearing Registration No.TN-57-N-1202, which came from North to South in a rash and negligent manner, had dashed against the two wheeler and as a result of which, the said Maheswari fell down on her back and sustained serious injuries, that the injured was immediately taken to Uthamapalayam Government Hospital and she was referred to Ka.Vilakku Government Hospital for further treatment, that the injured despite treatment, succumbed to the injuries and that the accident was occurred only due to the rash and negligent driving of the bus driver and hence, a case came to be registered in Cr.No.200 of 2010 under Sections 279, 337 and 304(A) I.P.C., on the file of Uthamapalayam Police Station. It is the further case of the claimants that the deceased Maheswari was a tailor and was earning Rs.12,000/-p.m., that the deceased was aged 33 3/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 years at the time of accident and that the claimants were depending on the income of the deceased.
4. The appellant has not filed any counter statement.
5. During enquiry, the claimants have examined the first claimant Nagaraj as P.W.1 and exhibited 8 documents as Exs.P.1 to P.8. The appellant has adduced neither oral nor documentary evidence. The Tribunal has exhibited 17 documents as Exs.C.1 to C.17. The learned trial Judge, upon considering the evidence, has passed the impugned award dated 17.02.2020, holding that the bus driver was responsible for the accident, directed the appellant to pay the compensation of Rs. 19,24,400/- with interest and costs. Aggrieved by the said award, the Transport Corporation has come forward with the present Civil Miscellaneous Appeal.
6. The learned Counsel for the appellant would submit that the Tribunal has afforded neither any opportunity to file a counter statement nor any opportunity to cross-examine the claimants' side witness, nor any opportunity to adduce their side evidence, that the Tribunal has failed to 4/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 conduct any fair trial and passed the impugned award mechanically, that though the Tribunal has recorded that the appellant has disputed the liability on the ground that the deceased alone was responsible for the accident, has not chosen to give any opportunity for the appellant to prove the same, that the trial Court has erred in fixing the entire negligence on the bus driver, that the Tribunal without any iota of evidence, has fixed the notional income of the deceased at Rs.9,000/-, and that the Tribunal has also failed to note that the first claimant – husband of the deceased has not worn the helmet at the time of accident. The learned Counsel would further submit that the Tribunal has passed the impugned award in favour of the claimants, which is very much against the principles of natural justice.
7. The points that arise for consideration are (1) Whether the Tribunal has passed the impugned award without affording any opportunity to the appellant to file their counter affidavit, to cross-examine the claimants' witnesses and to adduce their side evidence, in total violation of principles of natural justice?
(2) Whether the quantum of compensation awarded by the Tribunal is proper and in accordance with law?
5/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 (3) Whether the impugned award dated 17.02.2020 passed in M.C.O.P.No.159 of 2019 is liable to be interfered with? Points 1 to 3:
8. It is pertinent to note that the Tribunal has mainly relied on the judgment of the Hon'ble Supreme Court in Jai Prakash Vs. M/s National Insurance Co., and Others reported in 2010(2) SCC 607, wherein the Hon'ble Apex Court has issued various guidelines to the Motor Accident Claims Tribunal and to the Police Department and others. As rightly pointed out by the learned Counsel for the appellant, the Hon'ble Supreme Court has specifically observed in paragraph No.13 of the judgment that wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition. In the case on hand, the learned trial Judge, in the impugned award, has specifically observed that the appellant's contention was that the accident was occurred due to the negligence on the part of the deceased. Since the appellant has disputed 6/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 the liability, even according to the Tribunal, then the appellant should have been given an opportunity to contest the claim petition.
9. It is evident from the records that the above claim petition was taken on file by the Principal District Court, Theni and subsequently, made over to I Additional District Court, Theni and that since the appellant has not filed the counter statement, the Tribunal has recorded “counter not filed, stage closed, call for report under Section 158(6) of Motor Vehicles Act and enquiry by 22.1.2020”. It is further evident that on 27.01.2020, P.W.1 was examined and exhibits P.1 to P.8 were marked and the Tribunal has again directed to call for the records under Section 158(6) Cr.P.C., from the concerned Police and thereafter, the case stands posted for further P.Ws and on 17.02.2020, since the petitioners' side evidence was closed, the Tribunal, by recording that the documents received in terms of Section 158(6) of the Motor Vehicles Act were marked under Exs.C.1 to C.17, has proceeded to pronounce the order on that day itself. No doubt, the appellant was given some opportunities for filing the counter affidavit. But at the same time, though the counter statement was not filed, the appellant was not set exparte. But on the other hand, the Tribunal has recorded that the stage was closed. 7/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021
10. It is evident from the records that the first claimant was examined as P.W.1 and after recording his chief examination evidence, the case stands posted for cross-examination in the deposition, but not in the notes paper. But as rightly pointed out by the learned Counsel for the appellant, the appellant was not at all given any opportunity to cross- examine P.W.1. Moreover, as rightly contended by the learned Counsel for the appellant, the appellant, after closure of petitioners' side evidence, was not given any chance to adduce their side evidence.
11. As already pointed out, though the appellant was not set exparte, the Tribunal has taken the proceedings, as if the appellant has been participating in the enquiry, but on the other hand, the appellant was not given any opportunity either to cross-examine the claimants' side witnesses, nor any opportunity to adduce their side evidence. As already pointed out, the Tribunal in more than one place, has specifically observed that the appellant has taken a stand that the accident was occurred due to the negligence on the part of the deceased. In the absence of counter statement, cross-examination of claimants' side witnesses and in the absence of any evidence on the side of the appellant, 8/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 this Court is at loss to understand as to from where the Tribunal has come to know about the stand of the appellant. No doubt, the Tribunals are expected to dispose of the Motor Accident Claim Petitions as expeditiously as possible, but at the same time, not at the expense of other side's right to have a fair trial.
12. As rightly pointed out by the learned Counsel for the appellant, the Tribunal has to follow the summary procedure for disposing the claim petitions and not by giving a go by or violating the procedures established by law. Considering the above, this Court has no hesitation to hold that the impugned award passed by the Tribunal is not good in law and the same is liable to be set aside and the case is to be remitted back to the Tribunal for fresh disposal.
13. In the result, this Civil Miscellaneous Appeal is allowed and the matter is remitted back to the Tribunal and the appellant / Transport Corporation is directed to file their counter statement within a period of ten days from the date of receipt of a copy of this order and the Tribunal is directed to complete enquiry and dispose of the claim petition within three weeks from the date of filing of the counter statement by the 9/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 appellant/Transport Corporation. Consequently, the Miscellaneous Petition is closed. No costs.
20.01.2023 Index : Yes : No Internet : Yes : No SSL To
1.The Motor Accident Claims Tribunal (Additional District Judge(FTC), Theni.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
10/11 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.613 of 2021 K.MURALI SHANKAR,J.
SSL PRE-DELIVERY JUDGMENT MADE IN C.M.A(MD)No.613 of 2021 20.01.2023 11/11 https://www.mhc.tn.gov.in/judis