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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the claimant against the award dated 27.03.2002 made in MACTOP No. 2100 of
1998 by the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Chennai.
Background facts in a nutshell are as follows:
The deceased met with a motor vehicle accident that took place on 18.05.1997 at about 6.00p.m. While the deceased was travelling as a
occupant in D.A.T.C. Bus TML 1850, the driver of the bus drove the same in a rash and negligent manner from South to North at S.N. Chetty
Street and taken a right turn with dangerous speed, due to which, the deceased fell down from the rear entrance and sustained grievous injuries
and died on the spot. The claimants are wife, mother, father and three minor children of the deceased. They claimed a sum of Rs. 3,95,500/- as
compensation. The said claim petition was filed u/s 163A of the Motor Vehicles Act. The respondent-Transport Corporation resisted the claim.
On pleadings the Tribunal framed the following issues:
Whether the accident to deceased Vincent on 18.05.1997 was due to rash and negligent driving of the respondent bus driver TML 1850?
Whether the petitioners are entitled to get compensation and if so to what amount?
After considering the oral and documentary evidence, the Tribunal held that the accident occurred not only due to rash and negligent driving of the
driver of the bus but the deceased was also guilty of contributory negligence since he tried to get down from the running bus and fell down and died
on the spot and awarded a compensation of Rs. 3,27,000/- with interest at 9% per annum from the date of petition and the details of the same are
as under:
Loss of income due to disability Rs. 2,97,000/-
Loss of consortium Rs. 15,000/-
Loss of love and affection and funeral
expenses Rs. 15,000/-
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Total. Rs. 3,27,000/-
Less: 50%-negligence on the deceased Rs. 1,63,500/-
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Total Rs. 1,63,500/-
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Aggrieved by that award, the claimants have filed the present appeal for enhancement.
The learned Counsel appearing for the claimants/appellants vehemently contended that the Tribunal is wrong in holding that the deceased was
guilty of contributory negligence, when the claim petition was filed u/s 163A of the Motor Vehicles Act. According to the learned counsel, the
Tribunal, without considering the same went into the question of negligence and given a finding and therefore, the order passed by the Tribunal is
not in accordance with law and it is a fit case for enhancement.
Learned Counsel appearing for the respondent/Transport Corporation submitted that originally the claim petition is filed u/s 166 of the Act.
Therefore, the Tribunal has considered the same and correctly apportioned the negligence on the part of the driver of the bus as well as the
deceased. The Tribunal had considered all the relevant materials and evidence on record and correctly apportioned the negligence on the part of
the driver of the bus as well as the deceased and, therefore, the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel. On the side of the claimants, P.Ws.1 to 3 were examined and documents Exs.P1 to P5 were marked. On the side of the
respondents RW1-Mohammed Hussain, the driver of the bus was examined and no documents were marked to substantiate their claim. P.W.1 is
the wife of the deceased. PW2-Rajendiran is an eye witness to the occurrence. PW3-Shanmugasundaram is the Supervisor of the Ramesh
Roadways. Ex.P1 is the legal heir certificate. Ex.P2 is the copy of the post mortem certificate. Ex.P3 is the certified copy of the first information
report. Ex.P4 is the copy of rough sketch. Ex.P5 is the pay certificate. Learned Counsel appearing for the claimants/respondents submitted that the
claim petition was filed only u/s 163A of the Act, but wrongly shown in the printed caption as ""petition filed u/s 166 of the Act"". In the said caption,
the section shown as ""166"" is wrong. In the subsequent paragraph it is stated that the compensation be granted u/s 163A of the Act. In Column g,
Part-I at page 3 of the claim petition it is stated as follows:
(g) Others
Amount of compensation payable u/s 163A as per II Schedule of M.V. Act:
(1) Future pecuniary loss : 3,86,000/-
(2) Funeral expenses : 2,000/-
(3) Loss of consortium : 5,000/-
(4) Loss of estate : 2,500/-
Further, it is to be noted that in the first line of the judgment, it is stated that ""the petition is filed u/s 163A of Motor Vehicles Act"". But the Tribunal
disregarded all the above factors and proceeded as, though the claim petition was filed u/s 163A of the Act, awarded compensation u/s 166 of the
Act. As per Section 163A of the Act, negligence aspect need not be taken into consideration. The Supreme Court in the case of Deepal Girishbhai
Soni and Ors. v. United India Insurance CO. Ltd. reported in 2004 ACJ 934, has considered the scope of Section 163A and 166 of the Act and
held as follows:
The provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force.
Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to section 166 and the
concept of social justice has been duly taken care of.
Following the principles enunciated in the above judgment, the Tribunal is wrong in going into the issue of contributory negligence. Therefore, the
said judgment squarely applies to the facts of the present case and it is held that the claimants are entitled to the compensation of Rs. 3,27,000/-
with interest at 9% per annum from the date of petition. The finding that there is contributory negligence on the part of the claimant is set aside. In
respect of the award, there is no serious dispute. Therefore, the claimant is entitled to the compensation of Rs. 3,27,000/- with interest at 9% per
annum as worked out by the Tribunal. Accordingly, the Civil Miscellaneous is allowed. No costs.