{"id":141872,"date":"2004-01-30T00:00:00","date_gmt":"2004-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kattabomman-transport-vs-vellai-duraichi-on-30-january-2004"},"modified":"2016-01-26T09:16:14","modified_gmt":"2016-01-26T03:46:14","slug":"kattabomman-transport-vs-vellai-duraichi-on-30-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kattabomman-transport-vs-vellai-duraichi-on-30-january-2004","title":{"rendered":"Kattabomman Transport … vs Vellai Duraichi on 30 January, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Kattabomman Transport … vs Vellai Duraichi on 30 January, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 30\/01\/2004\n\nCoram\n\nThe Hon'ble Mr. Justice P. SATHASIVAM\nand\nThe Hon'ble Mr. Justice S.R. SINGHARAVELU\n\nC.M.A.(NPDB) No. 483 of 1997\nand C.M.A.No. 484 of 1997\n\nKattabomman Transport Corporation\nLimited, represented by its\nManaging Director, Vannarpettai,\nTirunelveli. .. Appellant\/Respondent in both  appeals.<\/pre>\n
-Vs-\n<\/p>\n
1. Vellai Duraichi,\n<\/p>\n
2. Minor Malayarasi,\n<\/p>\n
3. Minor Shanmugathai,\n<\/p>\n
4. Vadivammal
\n   (Minor respondents 2 and 3
\n    represented by their mother and
\n    next friend, first respondent) ..Respondents\/Petitioners- CMA No.483\/1997\n<\/p>\n
1. Lakshmi,\n<\/p>\n
2. Minor Krishnaveni,\n<\/p>\n
3. Minor Ramakrishnan,
\n   (Respondents 2 and 3 represented by
\n    their mother and natural guardian
\n    1st respondent)<\/p>\n
                      .. Respondents\/Petitioners-CMA 484\/97.\n<\/p>\n
Appeals against Common Order and decree dated 4-7-96 and made in  M.C.O.P.Nos.
\n15  of  1993  and  382 of 1993, on the file of Motor Accidents Claims Tribunal
\n(Prl.  District Judge) Tuticorin.\n<\/p>\n
!Mrs.  Kala Ramesh:- For Appellant in both C.M.As.\n<\/p>\n
^Mr.  J.  Pothiraj:- For Respondents in both C.M.As.\n<\/p>\n
:COMMON JUDGMENT
\n(Judgment of the Court was made by P.  Sathasivam, J.,)<\/p>\n
Kattabomman Transport Corporation, Tirunelveli is the appellant in  the  above
\nappeals.   In  respect  of  grievous  injuries  sustained  in  a motor vehicle
\naccident on 14-8-1992, one Srirengam filed M.  C.O.P.No.  15 of  1993  praying
\nfor a  compensation  of  Rs.1,00,000\/-.    During  the  pendency  of  the said
\npetition, the said Srirengam died and his legal representatives  were  brought
\non record as petitioners 2 to 4.  In respect of death of one Duraipandi in the
\nvery same accident, his wife, children and mother filed M.C.O.P.No.  382 of 93
\npraying for  a  compensation  of Rs.1,50,000\/-.  Both the claim petitions were
\ntried together.  2nd claimant in the former petition  (M.C.O.P.No.    15\/1993)
\nwas  examined  as  P.W.1  and  first  petitioner  in  the  latter petition (M.
\nC.O.P.No.  382\/1993) as P.W.2, besides marking of Exs.  P-1 to P-8 in  support
\nof their  claim.    On the side of the Transport Corporation, their driver was
\nexamined as R.W.1 and no document was marked.  The Tribunal,  on  appreciation
\nof  evidence,  both  oral and documentary, after holding that the accident was
\ncaused due to the negligence of the driver of the Corporation bus,  passed  an
\naward  for  Rs.16,500\/- with interest at 12 per cent from the date of petition
\nin respect of the former M.C.O.P.; and for Rs.1,50,000\/- with interest  at  12
\nper  cent  from  the date of petition in the latter M.C.O.P., and directed the
\nTransport Corporation to pay the same.    Questioning  the  said  awards,  the
\nTransport Corporation has preferred the above appeals.\n<\/p>\n
2.    Heard   the   learned   counsel   for  the  appellant  as  well  as  the
\nrespondents\/claimants.\n<\/p>\n
3.  Mrs.    Kala  Ramesh,  learned   counsel   for   the   appellant-Transport
\nCorporation,  would  contend that in the absence of specific finding regarding
\nnegligence that the driver of the Corporation bus alone  was  responsible  for
\nthe  accident, the ultimate direction to the Transport Corporation for payment
\nof compensation cannot be sustained.  She  also  contended  that  since  three
\npersons  were  riding  on the motor cycle at the time of the accident which is
\ncontravention of the provisions of the Motor Vehicles Act, the Tribunal  ought
\nto  have  dismissed the claim petition or, in any event, ought to have reduced
\nthe compensation towards contributory negligence.  She further contended  that
\nthe award amount is on the higher side.  On the other hand, Mr.  J.  Pothiraj,
\nlearned  counsel  appearing for the respondents\/claimants, by pointing out the
\nentire materials placed before the Tribunal, would contend that  the  Tribunal
\nis fully justified in rendering the finding against the bus driver and passing
\nan award  which  is just and reasonable.  He also contends that in the absence
\nof any acceptable evidence that since three persons  travelled  in  the  motor
\ncycle  which  alone  has  resulted  in  the  accident,  there  cannot  be  any
\ncontributory negligence on the part of those persons travelled  in  the  motor
\ncycle and consequently there will be no reduction in the compensation.\n<\/p>\n
4.  We have carefully considered the rival submissions.\n<\/p>\n
5.   Though  the  injured  Srirengam  (pillion  rider)  was  not available for
\nevidence at the time of trial, the said Srirengam, after  the  occurrence  had
\ngiven  a  statement  to  the police with regard to the accident wherein he has
\nspecifically men tioned that the Kattabomman bus was  driven  in  a  rash  and
\nnegligently  manner  and  it  dashed  against the motor cycle, resulted in the
\naccident,as seen from Ex.P-1, certified copy of First Information Report.   As
\nrightly  observed  by  the Tribunal, even in his claim petition in M.C.O.P.No.
\n15\/93, he had mentioned all the above statements as found in Ex.  P-1.  It  is
\nalso  seen that based on the complaint-Ex.P-1, after investigation, a criminal
\ncase has been filed against the driver of the  Kattabomman  bus  for  offences
\nunder Sections  279, 337, 338 and 304-A I.P.C.  and that subsequently a charge
\nsheet was also filed against him.  Ex.  P-2  is  the  certified  copy  of  the
\ncharge sheet.  Motor Vehicle Inspector’s report is Ex.P-3 which shows that the
\naccident was not due to any mechanical defect.  Ex.P-4-wound certificate shows
\nthat the said Srirengem sustained injuries in the said accident.  Subsequently
\nSrirengem died on 10-5-94 and his death is not due to the injuries.  Ex.  P-7,
\ncertified  copy  of  the post-mortem certificate, shows that another person by
\nname Duraipandi died in the said accident.  It is further seen that the  motor
\ncycle  was  coming  to  Kovilpatti  from  Pasuvanthanai,  on the Kovilpatti to
\nPasuvanthanai road and the bus was going from the  opposite  direction.    The
\npolice  had  prepared  rough sketch regarding the manner of the accident which
\nhas been marked as Ex.P-8.  The perusal of Ex.P-8 shows that the accident  had
\ntaken place  on  the  eastern  end  of  the  road.  As rightly observed by the
\nTribunal, the motor cycle was coming along the left side of the road and after
\nthe occurrence, the bus went to the western side.  Therefore, it is clear that
\nat the relevant time, the bus came on the wrong  side  of  the  road  and  hit
\nagainst the  motor  cycle  and  caused the accident.  In the light of the said
\nconclusion and the stand taken by the appellant\/Transport Corporation, we also
\nverified the rough sketch-Ex.P-8 which shows that the bus came  on  the  wrong
\nside of the road and hit the motor cycle coming on the left side, which is the
\nproper side,  and  caused  the  accident.    From the contents of the earliest
\ndocument-First Information Report-Ex.P-1, Rough sketch-Ex.P-8, which shows the
\nplace of occurrence, and of the fact that after investigation, the  driver  of
\nthe  Corporation  bus was charge sheeted as seen from Ex.P-2, we hold that the
\naccident was caused solely due to the rash and negligent driving of the driver
\nof the Corporation bus and reject the argument of the learned counsel for  the
\nappellant.\n<\/p>\n
6.  Coming to the other contention that travelling of three persons in a motor
\ncycle,  which  is  prohibited,  has  contributed for the accident, it is to be
\nnoted that this objection  was  not  seriously  raised  before  the  Tribunal.
\nFurther,  admittedly, the bus driver did not lodge any complaint finding fault
\nwith the rider of the motor cycle  as  well  as  the  carrying  of  3  persons
\ntherein.   Admittedly,  only  the  injured  Srirengam  (since deceased) gave a
\nstatement  with  regard  to  the  accident,  which  was  registered  as  First
\nInformation Report-Ex.    P-1  and  based  on  it, the police investigated the
\nmatter, prepared a rough sketch-Ex.P-8 and charge sheeted the  driver  of  the
\nCorporation bus for offences under Sections 279, 337, 338 and 304-A I.P.C.  In
\nthe  discussion relating to the earlier issue, we have said that Ex.P-8 sketch
\nclearly shows that the accident occurred on the left side of the road which is
\nthe proper side for the motor cycle and it is also clear that the  Corporation
\nbus  had gone to the wrong side and after hitting the motor cycle, came to the
\nwest.  The position of the motor cycle, the bus and the other damaged articles
\ngive the following inferences:  (1) The motor  cycle  was  proceeding  on  the
\nproper side i.e., left side of the road; (2) Though 3 persons travelled in the
\nmotor cycle, the same was in no way connected with the accident.  As discussed
\nearlier,  the  materials  placed would clearly show that it was the bus driver
\nwho had gone to the other side of the road and hit the  motor  cycle,  thereby
\ncaused the  accident.    There  is  no iota of evidence to show that the fatal
\naccident had occurred because of the mere travelling of the three  persons  in
\nthe motor  cycle.    In this regard, learned counsel for the appellant pressed
\ninto service a Division Bench decision of this  Court  in  Managing  Director,
\nTamil  Nadu  State  Transport  Corporation  (Coimbatore  Division  I) Limited,
\nCoimbatore v.  Abdul Salam,<\/a> reported in (2003) I M.L.J.  489.  In  that  case,
\nthere  was a collision between three persons riding in a motor cycle and a bus
\ncoming in an opposite direction resulting in  accident,  thereby  one  of  the
\npillion rider died for which the legal representatives of the deceased claimed
\ncompensation.  The Tribunal therein awarded a sum of Rs.2,20,000\/-.  Aggrieved
\nby  the  said  award,  the  owner  of  the  vehicle-Tamil Nadu State Transport
\nCorporation, Coimbatore Division I preferred an appeal before this Court.  The
\nDivision Bench, after holding that when three persons  travelled  in  a  motor
\ncycle  which  is  meant  for two persons, after depricating the conduct of the
\npersons who travelled, held that they are liable for contributory  negligence,
\nand  reduced  the  compensation  to  50  per  cent, namely, Rs.1,10,000\/- with
\ninterest at 9 per cent per annum.  In para 13, the Division Bench has observed
\nthus:\n<\/p>\n
“13.  When three persons travelled in a motor cycle which  is  meant  for  two
\npersons,  this  Court is of the view, the conduct of the persons who travelled
\nin such a manner are liable or contributory negligence; especially when  their
\naction is contrary to the statute.”\n<\/p>\n
A  perusal  of  the  said  decision  does not show that except the fact that 3
\npersons travelled in the motor cycle, there is no evidence to  show  that  the
\naccident took place only because of such act (taking one more passenger).  The
\nDivision  Bench went on saying that since 3 persons travelled in a motor cycle
\nwhich is meant for two persons, they are liable for  contributory  negligence.
\nBy saying so, the Division Bench fixed their liability to the extent of 50 per
\ncent.\n<\/p>\n
7.   It  is also useful to refer another Division Bench decision of this Court
\nin the case of M.  Anandavalli Amma v.    Arvind  Eye  Hospital,  reported  in
\n2002-3 L.W.   710.    Among other questions, the Division Bench considered the
\nquestion   when   the   vehicle   carrying   more   persons   than   what   is
\nallowed\/prescribed in the policy, whether insurance company is absolved of the
\nliability on  that  ground.    The  relevant  question that was decided by the
\nDivision Bench is,  whether,  in  view  of  the  fact  that  a  medical  squad
\nconsisting of 16 persons were taken in the ill-fated van and which is contrary
\nto  one  of  the conditions that is found in the conditions of the policy, the
\nInsurance Company is absolved from liability.  After referring to  a  decision
\nof the  Privy  Council  in  AIR  1943  PC 63 (Canadian Pacific Railway Co.  v.
\nLeonard Lochart), an earlier Division Bench decision of this Court in the case
\nreported in 1981 ACJ 399 (K.R.  Sivagami v.  Mahaboob Nisa Bi and  others<\/a>),  a
\njudgment of the Supreme Court reported in (1996) 4 SCC 647 (B.V,.  Nagaraju v.
\nOriental  Insurance  Company  Ltd.,),  and<\/a>  a  decision  of  the Supreme Court
\nreported in (1987) 2 SCC 654 (Skandia Insurance Company Ltd.,  v.    Kokilaben
\nChandravadan),<\/a>  a Division Bench decision of the Bombay High Court reported in
\nAIR 1997 Bombay 242 (Shivraj Vasant Bhagwat v.   Shevanta  Dattaram  Indulkar)
\nand  a  decision  of a learned Single Judge of this Court reported in 1998 (1)
\nL.W.  59 (Branch Manager, National Insurance Co.    Ltd.,  v.    Murugesh  and
\nothers), concluded that, (para 19)<\/p>\n
“19.   Coming  to  the  case  on hand, as many as 10 persons were taken in the
\nill-fated van, when the terms  and  conditions  of  the  policy  prescribe  or
\nrestrict the  maximum  number  as  14.    From the cases cited supra and other
\nrulings, it could be  seen  that  in  most  of  the  cases,  the  driver  took
\nadditional  passengers  without the knowledge of the owner that is insured and
\nin the rest, it is not clear as to whether the owner had knowledge.  As far as
\nthe present case is concerned, the insured is none else than  the  Arvind  Eye
\nInstitute.   It  cannot  be said, in this case, that the Driver took two extra
\npersons without the knowledge of the insured or to benefit him in any  manner.
\nThen the  question  is, whether it would make any difference.  We may straight
\naway say, the answer is in the negative.  Merely by lifting a person  or  two,
\nit  cannot  be  said to be such a fundamental breach that the owner should, in
\nall events, be denied indemnification.  The breach of  the  condition  of  the
\npolicy was somewhat irregular, though, but not so fundamental in nature, so as
\nto  put  an  end  to  the  contract,  unless  some  factors existed, which, by
\nthemselves, had gone to contribute to the causing of the  accident.    If  the
\nInsurance  Company  is able to prove that it is because of the presence of the
\nadditional persons who were  allowed  to  occupy  the  vehicle,  the  accident
\noccurred, the position would be different.  Consequently, we hold that even in
\ncases where more passengers are taken with or without the knowledge or implied
\nconsent  or even consent of the owner, unless the Insurance Company is able to
\nprove that the accident took place only  because  of  such  act  (taking  more
\npassengers)   the   Insurance   Company  will  be  liable  to  make  good  the
\nloss\/compensation….”\n<\/p>\n
8.  In the light of the  said  conclusion,  we  have  carefully  verified  the
\nfactual  details  and  the  ultimate decision arrived at in the first Division
\nBench decision, namely, Tamil Nadu  State  Transport  Corporation,  Coimbatore
\nDivision v.   Abdul  Salam<\/a> (cites supra).  As observed earlier, except stating
\nthat 3 persons travelled in a motor vehicle, which is prohibited, no  specific
\nfinding  was  given  to the effect that travelling of three persons in a motor
\ncycle was responsible for the accident; hence we are  of  the  view  that  the
\nconclusion in 2003  I  M.L.J.    489 is to be confined to that case.  In other
\nwords, merely because there is violation of the provisions of the Act or Rules
\nor the policy conditions, it is not automatic that in every case the principle
\nof contributory negligence is to be applied mechanically.  As rightly observed
\nin the other Division Bench decision, namely, M.  Anandavalli Amma v.   Arvind
\nEye Hospital  (2002-3  L.W.   710), unless there is evidence to prove that the
\naccident took place only because of such act that  is  taking\/travelling  more
\npersons in a motor cycle which resulted in an accident, the owner of the other
\nvehicle and  its insurer will be liable to pay compensation.  To put it clear,
\nif the appellant-Transport Corporation is able to prove that it is because  of
\nthe addition of one more (third person in the motor cycle instead of two), the
\naccident occurred,  the  position  would be different.  In other words, unless
\nthe owner of the vehicle or the Insurance Company is able to  prove  that  the
\naccident  took place only because of such act that is taking more persons than
\nthe prescribed number, the owner\/ Insurance Company will  be  liable  to  make
\ngood the  loss\/compensation.   In the case on hand the materials placed before
\nthe Tribunal show that it was the bus driver who had gone to the other side of
\nthe road, hit the motor cycle thereby  caused  the  accident.    There  is  no
\nevidence  to  show  that  the accident occurred because of travelling of three
\npersons in the motor cycle.  In the light of the  above  said  conclusion,  we
\nreject the contra argument made by the learned counsel for the appellant.\n<\/p>\n
9.   Though  it  is  stated  that the amount awarded by the Tribunal is on the
\nhigher side, except mere statement, the same was not substantiated by  placing
\nacceptable materials.    On  the  other  hand,  after  perusing  the  oral and<\/p>\n
documentary evidence let in before the Tribunal, we are of the view  that  the
\namount  awarded  in  both  the cases is just and acceptable, and no ground for
\ninterference.\n<\/p>\n
10.  In the light of what is stated above, we do not find any  merit  in  both
\nthe Appeals; accordingly the same are dismissed.  No costs.\n<\/p>\n
R.B.\n<\/p>\n
Index:- Yes.\n<\/p>\n
Internet:- Yes<\/p>\n
To:-\n<\/p>\n
1.  The Motor Accidents Claims Tribunal (Prl.  District Judge)
\nTuticorin with records.\n<\/p>\n
2.  The Record Keeper, V.R.  Section, High Court, Madras<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kattabomman Transport … vs Vellai Duraichi on 30 January, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30\/01\/2004 Coram The Hon’ble Mr. Justice P. SATHASIVAM and The Hon’ble Mr. Justice S.R. SINGHARAVELU C.M.A.(NPDB) No. 483 of 1997 and C.M.A.No. 484 of 1997 Kattabomman Transport Corporation Limited, represented by its Managing […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-141872","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKattabomman Transport ... vs Vellai Duraichi on 30 January, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kattabomman-transport-vs-vellai-duraichi-on-30-january-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kattabomman Transport ... vs Vellai Duraichi on 30 January, 2004 - 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