IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.650 of 2006
and
C.M.P.No.2692 of 2006
The Managing Director
Metropolitan Transport Corporation Ltd.,
Division No.1, Chennai-2 .. Appellant
Vs
1.N.Selvi
2.K.Nagaraj .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.08.2005, made in M.C.O.P.No.2793 of 2001, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai.
For appellant : Mr.K.S.Narasimhan
For respondents : Mr.S.Gangaram Prasad
for RR1 & 2
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 10.08.2005, made in M.C.O.P.No.2793 of 2001, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, awarding a compensation of Rs.4,66,600/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/respondent, The Managing Director, Metropolitan Transport Corporation Ltd., Division No.1, Chennai-2 has filed the above appeal praying to scale down the said compensation amount granted by the Tribunal.
3.The short facts of the case are as follows:
On 25.04.2001, at about 21.15 hours, the victim alighted from Metropolitan Transport Corporation bus bearing registration No.TN01 N1606, Route No.56C, which was proceeding from south to north on the Thiruvottiyur High Road, Tondiarpet, Chennai at Appollo Hospital bus stop, after alighting at the said bus stop the victim was walking from south to north on the said road (in front of VPMA Kalyanamandapam), whileso, the driver of the said bus bearing registration No.TN01 N1606 employed under the respondent and during the course of his employment came from behind on the said road and drove the said bus in a rash and negligent manner and knocked down the pedestrian victim, resulting he sustained grievous injuries. Immediately, he was taken to hospital, wherein he died. The petitioners are the parents of the deceased.
4.Regarding the said case, a criminal case was registered by the Traffic Investigation No.I, Washermanpet Police Station, in Crime No.138/H3/2001.
5.The petitioners further submitted that at the time of accident their son ie.deceased was aged about 20 years old and working as a Contract Labour in Manali Petro Chemicals Ltd., Malali, Chennai and he was earning a sum of Rs.3,500/- per month. Further, the deceased was supporting his family by way of his earning.
6.The respondent has filed a counter statement and denied the averments of the claim petition. The respondent submitted that on 25.04.2001, the respondent’s bus bearing registration No.TN01 N1606 with Route No.56C was proceeding from high Court to Thiruvottiyur at Tondiarpet near Tablots Company at 21.15 hours. The deceased was solely responsible for the alleged accident by travelling in the bus in a hanging manner and lost his balance and fell down on the road and sustained fatal injuries. Hence, the respondent is not liable to pay any compensation to the petitioners. Further, the driver of the respondent’s bus was cautious in driving the bus with lawful speed and with due observance of Traffic rules at the time of accident. The respondent further submitted that the petitioners cannot claim any amount under Section 140 of Motor Vehicles Act unless it is proved that this accident happened only due to the negligence of the Driver of the respondent. Further, the respondent denied the age, income and occupation of the deceased and the claim amount also as excessive. Hence, the respondent has prayed to dismiss the claim petition.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whether the accident had happened due to the rash and negligent driving of the driver of the bus?
(ii) Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation, which the petitioners are entitled to get?
8.On the petitioners’ side four witnesses were examined as PW1 to PW4 and 12 documents were marked as Exs.P1 to P12. On the respondent’s side one witness was examined as RW1 and one document was marked as Ex.R1.
9.The second petitioner herein was examined as PW1. PW1 had adduced evidence stating that on 25.04.2001 at about 09.15 hours, his son was travelling in the respondent’s Corporation bus bearing registration No.TN01 N1606 from Chennai Tondiarpet to Thiruvottriyur and the bus was proceeding from south to north direction at high speed and in a rash and negligent manner and dashed against the deceased. Resulting, he sustained grievous injuries. Immediately, he was rushed to Tondiarpet Appollo Hospital, wherein he was an inpatient for about ten days. Subsequently, he died due to the failure of medical treatment. Further, the PW1 adduced evidence stating that at the time of the accident, the deceased was aged about 20 years. The driver of the respondent’s Corporation bus is responsible for the said accident. Hence, FIR, Ex.P1, was registered against him and Charge Sheet, Ex.P10, filed against the driver of the bus.
10.The driver of the bus, one Sekar, was examined as RW1. RW1 had adduced evidence stating that the deceased was travelling in a hanging manner in the bus. Hence, he lost his grip and fell down on the road and sustained grievous injuries. At the time of the said accident, the driver had driven the bus in a cautious manner and slowly by observing all traffic rules. As such the driver of the bus is not responsible for the said accident. At the time of accident, the deceased and other passengers were also hanging in the bus, so, the driver and the conductor of the said bus had requested them to come up into the bus. Even though, they did not come up into the bus. Hence, due to the negligent act of the deceased, the accident had happened. Under the circumstances respondent is not liable to pay compensation to the petitioners.
11.One eye witness Mohan was examined as PW3. PW3 had adduced evidence stating that he was there at the time of accident and witnessed the said accident. Further, he adduced evidence that he is a driver of Auto. He stated evidence that due to the rash and negligent driving of the driver of the bus, the accident had happened.
12.PW1, in his evidence stating that his son was working as a Contract Labour and his qualification was 10th standard at the time of accident. He was earning a sum of Rs.3,500/-, he was also marked Ex.P7, school certificates.
13.The employer was examined as PW4. He had admitted the employment of the deceased and salary of the deceased. PW4 has marked Ex.P11, P9, Salary Certificate and P8, Identity Card stating that the deceased was working under the Raja Engineering Works, P3, P5, Legal heir certificate and Ex.P6,Post-mortem Certificate.
14.After considering the evidence of the petitioners’ side, respondent’s side and documentary evidence, the Tribunal granted a compensation as follows:
1.Rs.1,000/- under the head of transport expenses,
2.Rs.1,000/- under the head of nutrition,
3.Rs.3,000/- under the head of funeral expenses,
4.Rs.4,41,600/- under the head of loss of income,
5.Rs.20,000/- under the head of loss of love and affection,
In total, the Tribunal awarded a sum of Rs.4,66,600/- as compensation to the petitioner, together with 7.5% per annum from the date of filing the claim petition till the date of payment of compensation and directed the respondent to deposit the compensation amount with accrued interest within a period of eight weeks from the date of its Order. In turn the said amount to be deposited in any of a nationalised bank for a period of three years, in a fixed deposit scheme. The Advocate fees was fixed at Rs.11,666/-.
15.Aggrieved by the said award and decree, the appellant/Metropolitan Transport Corporation Ltd., has filed the above appeal praying to scale down the compensation amount granted by the Tribunal.
16.Learned counsel appearing for the appellant submitted that the multiplier method adopted by the Tribunal is erroneous; the age of the deceased was 19 years is not proper and the accident had happened due to the negligence of the deceased, while he was travelling on the footboard by hanging. Hence, the learned counsel has prayed to scale down the compensation amount granted by the Tribunal.
17.The learned counsel appearing for the respondents argued that the accident had happened in the year 2001, the age of the deceased was 20 years and he was earning a sum of Rs.3,500/- per month. Further, the accident had happened due to the rash and negligent driving of the driver of the bus. To prove the same, a criminal case was registered against the driver of the bus. Further, one eye witness had also adduced evidence stating that the driver driving the bus in a rash and negligent manner at high speed had dashed against the pedestrian. In the result, he sustained grievous injuries. Immediately, he was admitted as inpatient for about 10 days and due to failure of the treatment he died in the said hospital. The learned counsel further argued that the deceased was an active person and supporting his family by way of his earning. After the said accident, the parents of the deceased are suffering a lot.
18.At the time of admission, this Court imposed a condition on the appellant to deposit the entire compensation amount with accrued interest into the credit of the M.C.O.P.No.2793 of 2001, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, within a period of eight weeks from the date of receipt of a copy of its Order. The same was not complied by the appellant. Hence, the conditional stay was vacated. After vacating the conditional stay, the appellant deposited the entire compensation amount with accrued interest and cost, into the credit of the M.C.O.P.No.2793 of 2001, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai. The same was also withdrawn by the claimants.
19.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and the arguments advanced by the learned counsel appearing on either side, this Court is of the view that at the time of the said accident, the deceased was aged about 20 years. Further, he was earning a sum of Rs.3,500/- per month and as a contract labour. To prove the same his employer was also examined. Sufficient documents were also marked before the Tribunal. As such, the claim petition well established before the Tribunal. Hence, the award granted by the Tribunal under the head of loss of income, funeral expenses, transport expenses and loss of love and affection are all pertinent and the award and decree passed by the Tribunal is found to be fair and equitable. There is no discrepancy in the said award and decree.
20.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 10.08.2005, in M.C.O.P.No.2793 of 2001, passed by the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, is confirmed. Consequently, connected civil miscellaneous petition is closed. There shall be no order as to costs.
krk
To
1.The Motor Accident Claims Tribunal,
Small Causes Court No.II, Chennai.
2. The Section Officer,
VR Section, High Court,
Madras