IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.12.2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.(NPD)No.126 of 2005 Tamil Nadu State Transport Corporation, Salem Division, 12 Ramakrishna Road, Salem 636 007. ... Appellant/Respondent vs. 1.Parimala, 2.Shanmugham. ... Respondents/Claimants Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 24.2.2003 passed in M.C.O.P.No.942 of 2001 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Salem. For appellant : Mr.R.Arunmozhi For Respondents : Mr.R.Neelakandan ----- JUDGMENT
The Tamil Nadu Transport Corporation, is on appeal challenging the award dated 24.2.2003 passed in M.C.O.P.No.942 of 2001 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Salem.
2. It is a case of fatal accident. The brief facts of this case are as follows:- The accident in this case happened on 4.4.2001. A child by name Singaravelu alias Gokul, was travelling in the appellant transport corporation bus as a passenger along with his maternal grand parents. The said bus overtook two tipper lorries parked on the side of the road and hit a lorry coming from the opposite direction. The bus caught fire. In that accident, several passengers suffered grievous injuries. The maternal grant parents and the child were burnt and the child died. The parents of the child filed a claim for compensation in a sum of Rs.3,00,000/-.
3. In support of the claim, the father of the child was examined as P.W.1. Exs.P-1 to P-4 were marked, the details of which are as follows as mentioned in the award of the Tribunal:-
Ex.P-1 is the certified copy of FIR dated 4.4.2001,
Ex.P-2 is the photocopy of postmortem certificate dated 5.4.2001,
Ex.P-3 series are the Original School Fee receipts (three in numbers),
Ex.P-4 is the certificate issued by the Principal, St. Thomas
Matriculation School, Salem.
Thiru Bhoopathy, the conductor of the appellant transport corporation bus was examined as R.W.1. No document was marked on behalf of the appellant, the respondent before the Tribunal.
4. The Tribunal came to conclusion that the negligence was on the part of the driver of the appellant transport corporation bus stating that he had failed to take proper care and caution while overtaking the parked tipper lorries and that resulted in grievous accident resulting in large number of passengers suffering injuries and death, including the small child. In the counter-affidavit filed by the transport corporation it is stated that the non-impleading of the owners and the insurers of the stationary tipper lorries will be fatal to the claim. The Tribunal clearly held that the bus driver ought to have been careful while overtaking the stationery tipper lorries and since he did not take proper care and caution, he acted in a rash and negligent manner and hit the lorry coming from the opposite direction and caused the accident. The Tribunal rejected the defence that the owners and the insurers of the tipper lorries should be impleaded.
5. Considering the plea of the claimants that the deceased child is their only child, the Tribunal granted the following amounts as compensation with interest at 9% per annum:-
Sl.No.
Head
Amount granted by the Tribunal
1
Loss of dependency
Rs.2,50,000/-
2 Funeral expenses Rs. 2,000/- 3 Loss of love and affection Rs. 10,000/- Total Rs.2,62,000/-
6. The appeal has been filed after much delay that too on account of payment of court fee. The claimants made an objection at the time of condonation of delay and on 7.4.2004, the Division Bench of this Court while condoning the delay, gave liberty to the respondents/claimants to raise objections relating to the delay at the time of final hearing of the appeal. Thereafter, the appeal was admitted on 21.3.2005 with condition to deposit entire award amount. The order reads as follows:-
“Learned Additional Advocate General appearing for the appellant Transport Corporation submits that in spite of batch of Claim Petitions filed against the very same accident, the Corporation have already taken steps for impleading two other vehicles, which according to them were responsible for the accident, the Tribunal has dismissed their petition for impleading them as respondents.
2. The Transport Corporation has filed Civil Revision Petitions under Article 227 of the Constitution of India in C.R.P.Nos.1787 to 1802 of 2004 and the learned single Judge of this Court has entertained the above revision petitions and ordered notice. However, according to him, in one Claim Petition, viz., MCOP No.942 of 2001, the Tribunal disposed of the same and passed an award against the appellant Transport Corporation. Though the appellant is not serious about the quantum determined in view of the pendency of other connected O.Ps., the Corporation has filed the present appeal to safeguard their interest.
Admit. Notice.”
In the C.M.P.No.556 of 2005 filed for stay, the Division Bench passed the following order:-
“Interim stay on condition, the petitioner/appellant, deposits the entire balance compensation amount including interest and costs to the credit of M.C.O.P.No.942 of 2001 on the file of Motor Accidents Claims Tribunal (District Judge), Salem within a period of eight weeks from today, failing which the stay shall stand vacated automatically. Notice”
7. It is stated that the above said conditional order dated 21.3.2005 was complied with and by order dated 27.6.2005, the respondents/claimants were permitted to withdraw 25% of the deposited amount apportioned to them.
8. At the time of final hearing of the appeal, it was pointed out to the counsel for the appellant that in the order dated 21.3.2005 it has been clearly observed by the Division Bench that the appellant is not serious about the quantum of compensation. In such view of the matter, the learned counsel for the appellant restricted his plea with regard to negligence and liability alone.
9. Learned counsel for the appellant pointed out that in respect of other claims relating to the same accident, petition to implead the owners of the tipper lorries and the insurers was filed and same was rejected by the Tribunal. Against the rejection order, Civil Revision Petition(PD) Nos.1802 to 1807 of 2004, etc. were filed before this Court. This Court by order dated 25.1.2008 set aside the rejection order and remitted the matters back to the Tribunal for adjudication. He, therefore, pleaded that the award in this case also should be remanded back to the Tribunal.
10. The above said plea of the appellant is not tenable in the present case for the following reasons:-
(i) Before the Tribunal no petition to implead the owners and the insurers of the tipper lorries were filed in this case except a statement in the counter affidavit.
(ii) Obviously, the appellant has not filed civil revision petition as in the other cases. It is, therefore, clear that the appellant has given up the said plea insofar as the present case is concerned.
(iii) Even in the grounds of the appeal memorandum, there is no indication that the implead petition was filed and was dismissed and therefore, the order of the Tribunal is bad. Since no such ground is raised, this Court is unable to accept the plea at this point of time.
(iv) In the typeset of papers, there is no document to show that application to implead the owners and the insurers of the tipper lorries have been filed.
(v) This Court, while admitting the appeal on 21.3.2005 was informed that application to implead the owners and the insurers of the tipper lorries was filed and the same was dismissed. Such fact is not established at the time of final hearing. Therefore, the decision of this Court in Civil Revision Petition batch of cases decided by this Court in C.R.P.Nos.1802 to 1804 of 2008, etc. on 25.1.2008 will not apply to the facts of the present case.
11. Even at the time of admission it has been clearly observed that the appellant is not serious about the quantum of compensation and in any event, it is justified in view of the Apex Court’s decision in R.K.Malik and another vs. – Kiran Pal and others reported in 2009(1) Tamil Nadu MAC 593 (SC).
12. The plea with regard to interest that 9% is on the higher side is also rejected in view of the fact that there is a delay in prosecuting the appeal and that has been observed by the Division Bench of this Court on 7.4.2004 while condoning the delay. The prejudice caused to the respondents by the action of the appellant can be compensated by the marginally higher rate of interest awarded by the Tribunal.
13. In the result, finding no merits, this Civil Miscellaneous Appeal is dismissed. No costs. The finding of this Court in this appeal will not in any way affect the proceedings before the Tribunal in respect of the cases which have been remanded by this Court for readjudication consequent to the orders passed in the Civil Revision Nos.1802 to 1804 of 2008 etc.
6.12.2010
Index: No
Internet: Yes
ts
To
1.The Principal District Judge,
(Motor Accidents Claims Tribunal),
Salem.
2.The Record Keeper,
V.R. Section,
High Court,
Madras.
R.SUDHAKAR,J.
ts
Judgment in
C.M.A.(NPD)No.126 of 2005
6.12.2010