The Managing Director State Express Transport Corporation Ltd. vs Raniammal <BR>Raniammal Vs The Managing Director State Express Transport Corporation Ltd.

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated

26.07.2004, made in M.C.O.P. No. 452 of 2001, on the file of the Motor Accident Claims Tribunal, Additional Sub-ordinate Court,

Chengalpattu, awarding a compensation of Rs. 1,09,000/ - together with interest at the rate of 9% per annum from the date of filing the claim

petition till the date of payment of the compensation.

Both appeal and cross objection arising out of the same Judgment, they are taken up together and disposed of by a common Judgment.

The short facts of the case are as follows:

On 09.08.2001, at about 23.15 hours, the deceased Gnanasekaran was travelling in his TVS50 motorcycle bearing registration No. TN21 S7169

towards Pavazhakarasathiram having the other deceased Mani as the pillion rider. He was proceeding from Adayalchari in E.C.R. Road at the

extreme end of the road and correct side of the road. At that time, the respondent''s Corporation bus bearing registration No. TN01 N6562 came

in a rash and negligent manner and dashed against the motorcycle and a pedestrian. In the result, the deceased Gnasekaran got multiple grievous

injuries all over the body and on the head and died. The pillion rider also died and one pedestrian got grievous injury. The petitioner is the mother

of the deceased. The deceased was the only breadwinner of the family. The accident had happened due to the rash and negligent driving of the

driver of the respondent''s Corporation bus. As such, the petitioner claimed a compensation of Rs. 5,00,000/ - before the Tribunal.

The respondent, in their Counter, had resisted the claim petition, which reads as follows:

The respondent submits that there is no rash and negligent driving by the driver of the respondent''s bus. The bus was proceedings according to

traffic rules and regulations from Chennai to Velankanni. Its driver was P.V. Raja, Staff No. 5207 and its conductor was Thamizharasan, Staff No.

4722. While the bus was so proceedings at normal speed on its proper side observing the traffic rules and regulations. The TVS Champ mentioned

in the petition carrying three adults came rashly and negligently from the opposite direction and owing to over and uncontrollable speed it came to

its wrong side. On seeing the motorcyclist causing to the wrong side encroaching the other side of the road violating the traffic rules. The driver of

the bus went to its extreme left and stopped the bus. He could not go further severally the bus to further left as there was a long pit there. In spite

of it the said TVS Champ hit the bus on its right side and courted the accident. As such, the rider of the TVS Champ alone was responsible for the

accident and he was guilty of contributory negligence all the allegations in Para 23 of the petition are denied as untrue and invented.

The deceased and two other riders have violated the traffic rules and the three person ride in a single two wheeler disobey the traffic rules.

The motorcyclist was not in a possession of the valid driving licence.

The respondent submits that in any event the deceased was guilty of contributory negligence.

Therefore, the respondent prays that the petition may be dismissed with costs.

The learned Motor Accident Claims Tribunal had 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 respondent''s Corporation bus?

(ii) What is the quantum of compensation, which the petitioner is entitled to get?

On the petitioner''s side, the claimant was examined as PW1 and one Manohar was examined as PW2 and three documents were marked as

Exs.P1 to P3 namely Ex.P1-First Information Report, Ex.P2-Post Mortem Report, Ex.P3-Legal Heir Certificate. On the respondent''s side the

conductor of the bus Tamilarasan was examined as RW1 and a portion of evidence in M.C.O.P. No. 454/2001 was marked as Ex.R1.

The PW1, the claimant, had adduced evidence stating that on 09.08.2001, at about 23.15 hours, the deceased Gnanasekaran was travelling in

his TVS50 motorcycle bearing registration No. TN 21 S7169 towards Pavazhakarasathiram having the other deceased Mani as the pillion rider.

He was proceeding from Adayalchari in E.C.R. Road at the extreme end of the road and correct side of the road. At that time, the respondent''s

Corporation bus bearing registration No. TN01 N6562 came in a rash and negligent manner and dashed against the motorcycle and a pedestrian.

In the result, the deceased Gnasekaran got multiple grievous injuries all over the body and on the head and died. The pillion rider also died and one

pedestrian got grievous injury. At the time of the accident, her son was aged about 26 years and was working Mason job, through which he was

earning a sum of Rs. 5,000/ - per month. In order to prove her case she had marked Ex.P1-First Information Report, Ex.P2-Post-mortem Report

and Ex.P3-Legal Heir Certificate. The PW1 further had adduced evidence stating that her son was a Mason and was earning a sum of Rs. 5,000/

- per month, his age was 22 years.

One Manohar was examined as PW2, he had adduced evidence stating that the deceased was proceeding on the TVS50 motorcycle on the left

side of the ECR Road, the respondent''s Corporation bus coming at high speed and dashed against the motorcyclist, resulting in the accident.

RW1, Tamilarasan, conductor of the bus had adduced evidence stating that the driver Raju had driven the bus from Chennai to Velankanni.

When the bus was proceeding on the ECR road, the TVS50 motorcycle came and dashed against the bus on the right side of the bus''s mudguard.

The driver had driven the bus cautiously.

After considering the evidence of PW1, PW2 and RW1 and documents, which were marked as exhibits, the learned Tribunal had come to the

conclusion that the driver of the respondent Corporation bus and the rider of the motorcycle were both responsible for the said accident, hence

negligence was by both sides (50% : 50%) and awarded the compensation as follows:

i. Rs. 2,04,000/ - under the head of loss of income, adopting multiplier method (Rs. 18,000/ - X 1/3 X 2 X 17),

ii. Rs. 2,000/ - under the head of funeral expenses,

iii. Rs. 2,000/ - under the head of loss of estate,

iv. Rs. 10,000/ - under the head of loss of love and affection,

In total, the Tribunal awarded a sum of Rs. 2,18,000/ -. After deducting 50% contributory negligence on the part of the rider of the motorcycle the

balance 50% compensation i.e. a sum of Rs. 1,09,000/ -, together with interest at the rate of 9% per annum from the date of filing the claim

petition till the date of payment of compensation, was awarded to the claimant. Further, the Tribunal directed the respondent to deposit the

compensation amount of Rs. 1,09,000/ - together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of

payment of compensation, within a period of one month from the date of its order. In turn, the said amount to be deposited, under a fixed deposit

scheme, in a nationalised bank for a period of three years. Accordingly ordered.

Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to scale down the award and decree

passed by the Tribunal.

12.The learned Counsel appearing for the appellant/State Express Transport Corporation Ltd., argued that the claimant and two other persons had

travelled on the TVS50 motorcycle, as such they lost their balance and dashed against the respondent''s Corporation bus. The entire negligence is

on the part of the deceased. The motorcycle was also came in the opposite direction. The claimant''s age was 52 years, but the multiplier 17 was

adopted, which is erroneous. In the absence of proof of income, the Tribunal ought to have fixed the income of the deceased as Rs. 15,000/ - per

year, but the Tribunal had fixed it at Rs. 18,000/ - per year, which is also erroneous. Hence, the learned Counsel prays before this Court to scale

down the compensation amount awarded by the Tribunal.

The learned Counsel for the respondent/claimant argued that the liability fixed on the deceased is unreasonable. The income of the deceased

was Rs. 50,000/ - per month as a Mason, for which documentary proof cannot be expected. The income fixed by the Tribunal at Rs. 18,000/ -

per year is erroneous. At the time of accident the deceased''s age was 22 years and his earning was Rs. 60,000/ - per year, as such the

compensation is on the lower side. The learned Counsel for the respondent/claimant in support of his appeal has cited the following Judgments

made in 2009(1) TN MAC 700 (SC), Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., the relevant head notes of which

are as follows:

Motor Vehicles Act, 1988, Section 66 Negligence Finding of Legality Deceased, a Police constable allegedly died on spot when driver of

Transport Corporation Bus reversed bus without blowing any horn That, conductor did not bother to check whether anybody was standing behind

bus Respondents denied and disputed factum of accident Evidence of R.W.1/Driver that he had seen dead body of deceased wrapped in blanket

behind bus even before starting bus in morning Tribunal, in view of statement of P.W.3/eye witness, FIR, Post-Mortem Report and other

circumstances of case held that death of deceased took place after being hit by Bus when it was being reversed in backward direction High Court

in Appeal of view that since in Post-Mortem Report except head injury no other crush injury found, version of claimants not believable That, police

fabricated case and wrongly lodged FIR against driver of bus Appeal against Occurrence of accident sine qua non for entertaining Claim Petition

u/s 166, but that would not mean that despite evidence to that effect same would be ignored only on basis of Post-Mortem Report vis-a-vis

averments made in Claim Petition Claimant, though might not be aware of details as to how accident took place, FIR lodged in relation to accident

cannot be ignored Core question before Tribunal and High Court as to whether bus in question was involved in accident or not For determining

said issue Court required to apply principle underlying burden of proof in terms of Section 106, Evidence Act as to whether dead body wrapped

in blanket found at spot at early hour And, same was required to be proved by Respondents 2 and 3/driver and conductor of bus In such situation,

Tribunal rightly taken holistic view of matter Strict proof of accident caused by particular bus in particular manner not possible to be done by

claimants Claimants merely required to establish their case on touchstone of preponderance of probability Standard of proof beyond reasonable

doubt could not have been applied High Court should have taken into consideration respective cases set forth by both parties Order of High Court

based on conjectures and surmises High Court in absence of any material and without assigning any reason held that Police might have implicated

respondents Impugned judgment of High Court, held, not sustainable.

2009(1) TN MAC 411 (DB) National Insurance Co., Ltd., v. S. Chitra, the relevant head notes of which are as follows:

Negligence Contributory Negligence Appeal against finding of negligence Deceased proceeding in Motor Cycle in Main Road alongwith his wife

on pillion and his son seated in front Deceased took a diversion through a gap in median into right side of road, because his own side of road to left

of median was under repair and closed Offending vehicle/Motor Cycle coming from opposite direction on its own side of road, took a sharp

swerve to right resulting in head-on collision Deceased lost his balance, fell down and died due to internal head injuries Tribunal on basis of Rough

Sketch/Ex.P2 held that offending motor cycle drifted from its path and came to its extreme right side causing accident and found offending vehicle

solely responsible for accident Insurer contending that deceased in part contributed to his own death Tribunal rejected contention regarding

contributory negligence in absence of evidence to show that vehicle was ridden in high speed Appeal against Deceased who entered other side of

road because of road block ought to have been very cautious, since he was entering wrong side of road Accident occurred due to loss of balance

when offending vehicle swerved sharply across road Fact that deceased was carrying should have seen vehicle coming from opposite direction

Therefore, definitely there is element of contributory negligence especially in cases of head-on collision High Court deprecated practice of drivers

of two wheelers carrying more than one person Contributory negligence on part of deceased fixed at 20%.

Considering the facts and circumstances of the case, the arguments advanced by the learned Counsel appearing on either side and the award

and decree passed by the Tribunal, this Court is of the view that the award amount of Rs. 1,09,000/ - together with interest at the rate of 9%, for

the 22 years old deceased, who was a mason before the accident, even fastening the liability at 50% on the deceased, the amount is still somewhat

lower. Hence this Court is not willing to interfere with the quantum of compensation and negligence. Therefore, this Court concurs with the

decision.

On 29.08.2005, this Court directed the appellant/ respondent to deposit the entire compensation amount, into the credit of the M.C.O.P. No.

452 of 2001, on the file of the Motor Accident Claims Tribunal, Additional Sub-ordinate Court, Chengalpattu.

As the accident had happened in the year 2001, it is open to the claimant/respondent to withdraw the entire compensation amount with

accrued interest thereon, lying in the credit of the M.C.O.P. No. 452 of 2001, on the file of the Motor Accident Claims Tribunal, Additional Sub-

ordinate Court, Chengalpattu, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law.

In the result, this Civil Miscellaneous Appeal is dismissed and the Cross Objection No. 24 of 2007 is also dismissed and the Award and

Decree, dated 26.07.2004, made in M.C.O.P. No. 452 of 2001, passed by the Motor Accident Claims Tribunal, Additional Sub-ordinate Court,

Chengalpattu is confirmed. Consequently, connected civil miscellaneous petition is closed. No costs.