BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1223 of 2006 and C.R.P.(NPD) No.742 to 744 of 2006 The Managing Director, Tamil Nadu State Transport Corporation (Madurai) Ltd., Dindigul Region, Dindigul. .. Appellant in the appeal and Revision Petitionerin all the revision Petitions. Vs. K.Sridharan .. 1st respondent in the
appeal and in CRP(NPD) No.744 of 2005
S.Chithra .. 2nd respondent in the appeal and 1st respondent
in CRP(NPD)No.742 of 2005
K.Ramesh
The Oriental insurance Company Ltd.,
(Rep. through its Manager,
Having Office at Kamala Arcade,
II Floor, 669, Mount Road,
Chennai — 600 003) .. Respondents 3 and 4
in the appeal and R2 & R3 in the revision petitions
Prayer in all the cases
Appeal and revision petitions filed under Section 173
of Motor Vehilce Act, 1988, against the order dated 28.01.2005, passed in
M.C.O.P.Nos.563 to 566 of 2005, on the file of the Motor Accidents Claims
Tribunal, Principal District Judge, Dindigul.
!For Appellant and Revision petitioner ... Mr.D.Saravanan For Rajnish Pathiyil ^For Respondents 1 and 2 in appeal and 1st respondent in revision petition ... Mr.S.Srinivasa Raghavan For Respondents 3 and 4 in appeal and respondents 2 and 3 in revision petitions ... No appearance :COMMON JUDGMENT
C.M.A.No.1223 of 2006 and C.R.P(NPD)Nos.742 to 744 of 2006, are focussed
as against the judgment and decrees dated 28.01.2005, passed in M.C.O.P.Nos.563
to 566 of 2005, on the file of the Motor Accidents Claims Tribunal, Principal
District Judge, Dindigul.
2. Heard both sides. Despite printing the name of the Respondents 3 and
4 in appeal and respondents 2 and 3 in revision petitions, no one represents
them.
3. The contention in this Civil Miscellaneous Appeal and Civil Revision
Petitions are to the effect that the Tribunal fixed the responsibility on the
driver of the bus as well as the car in equal proportion, which is against the
available evidence on record and that the quantum of compensation awarded by
the Tribunal in M.C.O.P.No.563 of 2001 is excessive. Accordingly, the revision
petitioner/ appellant prays for modifying the award by fixing more
responsibility on the driver of the car rather than on the driver of the bus and
also for modifying the compensation amount.
4. During trial, on the side of the claimant P.W.1 to P.W.3 were examined
and Exs.P.1 to P.22 were marked and on the side of the respondents R.W.1 was
examined and Exs.R.1 was marked.
5. Points for consideration are:
(i) Whether the tribunal’s fixing the responsibility equally on both the
drivers is justified or not?
(ii) Whether the quantum of compensation arrived at by the Tribunal in
M.C.O.P.563 of 2001 is just and proper?
6. Point No.1: The learned counsel for the revision petitioner and the
appellant concerned would develop his argument to the effect that this is a case
wherein the evidence of P.W.1 would speak by itself that the driver of both the
vehicles were negligent even though he did not depose so in the chief
examination. The learned counsel also would highlight that there was an attempt
by the driver of car to over take a lorry and in that process alone the driver
of the car invited the accident. Whereas, the learned counsel for the
claimants, being not very much concerned with the apportioning of the
responsibility would generally argue and highlight by way of helping the Court
to arrive at a just conclusion.
7. The averments in the F.I.R. would clearly demonstrate that the evidence
of P.W.1 cannot be taken for gospel truth. The F.I.R. would clearly indicate
that only after hearing the collusion noise, P.W.1 found himself jettisoned from
the car, where he was sitting in the front seat next to the driver. In such a
case, there is nothing more in the F.I.R as to how the accident occurred.
However, in the Chief examination, P.W.1 would depose fixing the responsibility
only on the bus driver. During cross examination it was suggested to him by the
Transport Corporation’s Counsel to the effect that while the driver of the car
was attempting to over take a lorry, the accident occurred, for which P.W.1
simply pleaded ignorance.
8. At this juncture this Court looks into deposition of R.W.1 with the
hope to find out as to whether his deposition would enlighten this Court. The
perusal of R.W.1’s evidence would further worsen the situation. My attempt to
find out some clinching evidence from the deposition of R.W.1 amounted to trying
to catch a black cat in a dark room. At this juncture I would like to recollect
the maxim “obscurum per obscurius”.
9. Here, P.W.1’s evidence is not reliable, because he had not seen how
the accident occurred, even though he sustained injury and his son died in the
accident and his wife also sustained injury. Whereas R.W.1, the driver of the
bus has not whispered anything about the alleged theory of the car attempting to
over take the lorry, even though there was a suggestion to P.W.1 by the learned
counsel for the corporation.
10. As such, I could see reasons in the finding arrived by the Tribunal
based on the fact that the right side of the bus and the right side of the car
got damaged when they were moving in opposite direction. R.W.1 in his evidence
deposed in fact, that the right side of the bus got damaged. Ex.P.17, motor
vehicles report relating to the car reveals that major damage to the car was on
the right side. As such damage to the right side of the car and damage to the
right side of the bus, indicate almost an head on collusion of the two
vehicles.
11. In such a case, in the absence of any clinching evidence, the Court
cannot fix more responsibility on the driver of the car and less responsibility
on the driver of the bus. Hence, I could see no reason to interfere with the
order of the Tribunal relating to fixing of liability. Accordingly, the first
point is answered.
12. Point No.2: The learned counsel for the appellant in C.M.a.No.1223 of
2006 disputed the quantum of compensation awarded relating to the death of one
Sundar Sri Ram on the ground that the compensation fixed at Rs.2,80,000/- is on
the higher side. The learned counsel for the claimant in that C.M.A.1223 of
2006 would contend that the compensation awarded is moderate and no
interference is required.
13. The perusal of the records would reveal that the deceased boy was 15
years old student at the time of accident. He was a violinist and undoubtedly he
was earning a sum of Rs.2,500/- and to that effect documents were relied on by
the tribunal. The claimants’ annual dependency was fixed at Rs.20,000/- after
deducting 1/3rd amount towards the expenditure which the deceased would have
incurred for maintaining himself had he been alive.
14. Multiplier 13 has been chosen taking into consideration the age of the
father, who is one of the claimants as 48 and loss of income was ultimately
arrived at Rs.2,60,000/-, which requires no interference. The compensation
awarded under the other heads viz. Rs.15,000/- towards loss of love and
affection and Rs.5,000/- towards funeral expenses, are found to be reasonable.
As such no interference with the award of compensation is warranted.
15. Accordingly, I could see no merits in the appeal and the civil
revision petitions.
16. In the result, C.M.A.(MD) No.1223 of 2006 and C.R.P.NPD (MD) Nos.742
to 744 of 2006 are dismissed. Consequently, connected Miscellaneous Petitions
are also closed. No costs.
sj/rsb
To
1.The Motor Accidents Claims Tribunal,
The Principal District Judge,
Dindigul.