Madras High Court
The Managing Director vs Chinnasamy on 19 March, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.955 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.955 of 2021
and
C.M.P.No.5347 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
37, Mettupalayam Road,
Coimbatore. .. Appellant
Vs.
1.Chinnasamy
2.Karthikeyan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
14.06.2017 made in M.C.O.P.No.777 of 2012 on the file of the Motor
Accidents Claims Tribunal, Additional Sub Court, Tiruppur.
For Appellant : Mr.K.J.Sivakumar
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid mode”. 1/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021
2.This Civil Miscellaneous Appeal has been filed to set aside the award dated 14.06.2017 made in M.C.O.P.No.777 of 2012 on the file of the Motor Accidents Claims Tribunal, Additional Sub Court, Tiruppur.
3.The appellant is the 2nd respondent in M.C.O.P.No.777 of 2012 on the file of the Motor Accidents Claims Tribunal, Additional Sub Court, Tiruppur. The 1st respondent filed the above said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in the accident that took place on 30.04.2010.
4.According to 1st respondent, on 30.04.2010 at about 09.45 A.M., while he was travelling as pillion rider in the motorcycle bearing Registration No.TN 41 J 4280 from North to South on the Kovai – Sathy NH Main Road near Anna Nagar, the driver of the bus bearing Registration No.TN 38 N 1827 belonging to appellant-Transport Corporation, who was driving the bus behind the motorcycle in which the 1st respondent was traveling as pillion rider, came in a rash and negligent manner and dashed against the motorcycle and caused the accident. Immediately after the accident, the 1 st respondent was taken to Government Hospital, Annur and thereafter, he was admitted at Kovai Medical Centre Hospital, Coimbatore, where the 1st respondent has 2/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 taken treatment as inpatient and he continued his treatment till filing of the claim petition. Therefore, the respondent filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by him against the 2nd respondent-driver of the bus and appellant-Transport Corporation.
5.The 2nd respondent-driver of the bus remained exparte before the Tribunal.
6.The appellant-Transport Corporation filed counter statement and denied all the averments made by the 1st respondent. According to the appellant, on 30.04.2010, while the driver of the bus was driving the same slowly near Balaji Nagar on the Coimbatore – Sathy road, he sounded horn and overtook the motorcycle in which the 1st respondent was traveling as pillion rider. At that time, the rider of the motorcycle drove the same to the left edge of the tar road, fell down on the mud road along with the 1 st respondent as there was uneven surface between the mud road and tar road and invited the accident. Therefore, the accident has occurred only due to the negligence on the part of the rider of the motorcycle in which the 1st respondent was traveling as pillion rider and there was no negligence on the part of the 2nd respondent-driver of the bus belonging to appellant-Transport 3/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 Corporation. The Police case registered against the driver of the bus is without proper investigation and is based on the false complaint given by the close relative of the 1st respondent only with a view to grab money from the appellant. The 1st respondent has to prove that the accident has occurred only due to the negligence on the part of the driver of the bus by producing valid documents. The 1st respondent was not wearing helmet at the time of accident and also he has not impleaded the owner and insurer of the motorcycle as necessary parties in the claim petition. The 1st respondent has to prove that the rider of the motorcycle was having valid Registration Certificate, motorcycle was having valid Fitness Certificate and Motor Vehicles Tax and valid insurance at the time of accident. The appellant-Transport Corporation denied the age, avocation, income, nature of injuries, disability and period of treatment taken by the 1st respondent and stated that the quantum of compensation claimed by the 1st respondent is highly excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st respondent examined himself as P.W.1 and Dr.P.Senthilkumar was examined as P.W.2 and 13 documents were marked as Exs.P1 to P13. The appellant-Transport Corporation examined the 2nd respondent as R.W.1 and no document was marked.
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8.The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the driver of the bus belonging to appellant-Transport Corporation and directed the 2nd respondent and appellant to jointly or severally pay a sum of Rs.2,33,835/- as compensation to the 1st respondent.
9.To set aside the award dated 14.06.2017 made in M.C.O.P.No.777 of 2012, the appellant-Transport Corporation has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the Tribunal ought not to have accepted the evidence of P.W.1, whose evidence was not corroborated by any other independent witness and ought not to have held that mere registering of F.I.R. is more enough for fixing negligence on the part of the driver of the bus. The Tribunal erroneously fixed negligence on the driver of the bus merely relying on the F.I.R. It is well settled that negligence cannot be fixed relying on the F.I.R. or judgments of the Criminal Court. The Tribunal has to independently consider the evidence let in before it. The respondent failed to prove his avocation and income by producing valid documents. The Tribunal ought not to have fixed the disability of the 1st 5/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 respondent at 35%, which is on the higher side. The amount awarded by the Tribunal towards medical expenses is on the higher side as the 1 st respondent has already claimed a sum of Rs.42,171/- under Kalaignar Insurance Scheme. The total compensation awarded by the Tribunal is excessive and prayed for setting aside the award passed by the Tribunal.
11.Heard the learned counsel appearing for the appellant-Transport Corporation and perused the entire materials on record.
12.It is the case of the 1st respondent that while he was travelling as pillion rider in the motorcycle from North to South on the Kovai – Sathy NH Main Road near Anna Nagar, the driver of the bus bearing Registration No.TN 38 N 1827 belonging to appellant-Transport Corporation, who was driving the bus behind the motorcycle in which the 1 st respondent was traveling as pillion rider, came in a rash and negligent manner and dashed against the motorcycle and caused the accident. To prove the said contention, he examined himself as P.W.1 and marked F.I.R. as Ex.P1, which was registered against the driver of the bus belonging to appellant. On the other hand, it is the case of the appellant that while the driver of the bus was driving the same slowly near Balaji Nagar on the Coimbatore – Sathy road, 6/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 he sounded horn and overtook the motorcycle in which the 1st respondent was traveling as pillion rider. At that time, the rider of the motorcycle drove the same to the left edge of the tar road, fell down on the mud road along with the 1st respondent as there was uneven surface between the mud road and tar road and invited the accident. To prove the said contention, the driver of the bus was examined as R.W.1. The learned counsel for the appellant further contended that the driver of the bus was not responsible for the accident and due to the same, no action was taken against him by the appellant. The appellant has not examined any eyewitness to prove their case that accident has occurred only due to the negligence on the part of the rider of the motorcycle except general denial. Further, R.W.1 is an interested witness. The appellant has not proved by acceptable evidence that the 1st respondent was not wearing helmet at the time of accident. Further, the appellant has not filed any objection to the F.I.R., which was registered against the driver of the bus. The Tribunal considering the evidence of P.W.1, Ex.P1/F.I.R. and failure on the part of the appellant for not filing any objection to the F.I.R. and not examining any other independent witness except R.W.1, held that accident has occurred only due to the negligence on the part of the driver of the bus belonging to appellant-Transport Corporation. There is no error in the said finding of the Tribunal warranting interference by this Court. 7/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021
13.As far as quantum of compensation is concerned, it is the case of the 1st respondent that in the accident he suffered multiple abrasions in right knee, right dorsum of hand, contusion, abrasion, dorsum of right foot, fracture of 1st & 5th metatarsal right foot, fracture of right fibula and right tibia and multiple grievous injuries all over the body. To prove the nature of injuries and disability, the respondent examined himself as P.W.1 and examined Dr.P.Senthilkumar as P.W.2. P.W.2/Doctor examined the 1st respondent and certified that he suffered 37% disability and issued Ex.P9/disability certificate to that effect. The Tribunal in the absence of any contra evidence by the appellant to disprove the evidence of P.W.2/Doctor and Ex.P9/disability certificate considering the evidence of P.W.2/Doctor and Ex.P9/disability certificate, fixed the percentage of disability of the 1st respondent at 35% and awarded a sum of Rs.1,05,000/- (Rs.3,000/- X 35% of disability) at the rate of Rs.3,000/- per percentage of disability and the same is not excesssive. It is the further case of the 1st respondent that at the time of accident he was an Agriculturist aged 67 years and was earning a sum of Rs.10,000/- per month. Except, oral evidence, the 1st respondent has not filed any document to prove his avocation and income. In the absence of any material evidence with regard to avocation and income, the Tribunal following the judgments of this Court, fixed a sum of Rs.6,000/- per month 8/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 as notional income of the 1st respondent and awarded a sum of Rs.30,000/- (Rs.6,000/- X 5 months) towards loss of income for five months and the same is not excessive. The appellant has not taken a stand before the Tribunal that the 1st respondent has already claimed a sum of Rs.42,171/- under Kalaignar Insurance Scheme and proved the same. In view of the same, the new ground now raised by the appellant-Transport Corporation is not acceptable. Immediately after the accident, the 1st respondent was taken to Government Hospital, Annur and thereafter, he was admitted at Kovai Medical Centre Hospital, Coimbatore, where the 1st respondent has taken treatment as inpatient. Considering the nature of injuries, disability and the period of treatment taken by the 1st respondent, the amounts awarded by the Tribunal under different heads are not excessive. The Tribunal considering the entire materials on record, has awarded a sum of Rs.2,33,835/- as compensation to the 1st respondent, which is not excessive warranting interference by this Court.
14.In the result, this Civil Miscellaneous Appeal is dismissed and a sum of Rs.2,33,835/- awarded by the Tribunal as compensation to the 1st respondent, along with interest and costs is confirmed. The appellant- Transport Corporation and the 2nd respondent are jointly or severally directed 9/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.955 of 2021 to deposit the award amount along with interest and costs, less the amount if any already deposited, within a period of twelve weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.777 of 2012 on the file of the Motor Accidents Claims Tribunal, Additional Sub Court, Tiruppur. On such deposit, the 1st respondent is permitted to withdraw the award amount along with interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. Consequently, the connected Miscellaneous Petition is closed. No costs.
19.03.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional Subordinate Judge,
Motor Accidents Claims Tribunal,
Tiruppur.
2.The Section Officer,
VR Section,
High Court,
Madras.
10/11
https://www.mhc.tn.gov.in/judis/
C.M.A.No.955 of 2021
V.M.VELUMANI, J.
krk
C.M.A.No.955 of 2021
19.03.2021
11/11
https://www.mhc.tn.gov.in/judis/