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MS.THIRUVALLUVAR TRANSPORT CORPORATION LTD. versus NOORNISSA

High Court of Madras

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Ms.Thiruvalluvar Transport Corporation Ltd. v. Noornissa - C.M.A.(MD).No.189 of 1998 [2007] RD-TN 1573 (23 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/04/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.(MD).No.189 of 1998

Ms.Thiruvalluvar Transport Corporation Ltd.,

Anna Salai,

Madras -2

rep. by its

Managing Director. .. Appellant

Vs.

1.Noornissa

2.Managing Director,

Dheeran Chinnamalai Transport

Corporation Ltd.,

Trichy. .. Respondents

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 17.02.1997 made in M.A.C.T.O.P.No.513 of 1996 on the file of the Motor Accident Claims Tribunal (Sub Judge), Trichy. For Appellant .. Mr.D.Sivaraman

For Mr.Rajnish Pathiyil

For 1st Respondent .. No Appearance

For 2nd Respondent .. Mr.Arunmozhi

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the award dated 17.02.1997 passed by the Motor Accident Claims Tribunal (Sub Judge), Trichy in M.A.C.T.O.P.No.513 of 1996 directing payment of a sum of Rs.60,000/- together with an interest at the rate of 12 from the date of claim till realisation and costs for the death of her husband in an accident alleged to have taken place on 08.05.1995 at about 05.55 p.m.

2. The first respondent herein/claimant preferred a claim on the file of the Motor Accident Claims Tribunal (Sub Judge), Trichy by filing M.A.C.T.O.P.No.513 of 1996 praying for an award against the appellant/first respondent and the second respondent/second respondent for the death of her husband Syed Karim Basha who met with an accident on 08.05.1995 at about 05.55 p.m. and died on the spot.

3. The first respondent/claimant in her claim petition had made the following averments in support of her claim:

Syed Karim Basha, the husband of the first respondent/claimant was walking along the north-south road near the Trichy Junction Zonal Training School Roundtana on 08.05.1995 at about 05.55 p.m. While so, the passenger bus bearing Registration No.TN-01-N-6055 belonging to the appellant/first respondent which came to the spot in the direction of north to south hit the deceased, as the said vehicle was driven by its driver at a high speed and in a rash and negligent manner. Due to the impact, the deceased was thrown on the western part of the road, was again hit by the vehicle (bus) belonging to the second respondent/second respondent bearing Registration No.TN-45-N-0199 that came in the opposite direction and died on the spot instantaneously. The deceased had worked as a Head Sorter in Railway Mail Service and was in receipt of pension after his retirement and thus was a pensioner on the date of accident. He was 65 years old and the first respondent/claimant was the sole legal heir and dependant of the deceased.

4. Based on the above said averments, the first respondent/claimant estimated the damages at Rs.2,00,000/- and prayed for an award for the above said amount with future interest and costs.

5. To substantiate the petition averments, the first respondent herein/claimant examined two witnesses including herself and relied on five documents marked as Exs.A-1 to A-5.

6. The second respondent/second respondent, Dheeran Chinnamalai Transport Corporation, filed a counter-statement supporting the case of the first respondent/claimant, contending that the appellant/first respondent alone was liable to pay compensation and prayed for the dismissal of the claim petition, so far as the second respondent/second respondent was concerned.

7. The appellant/first respondent resisted the claim of the claimant by filing a counter statement, denying the involvement of the vehicle belonging to the appellant and denying the petition averments regarding the manner in which the accident took place, the age, occupation and income of the deceased and the reasonableness of the amount claimed as compensation. With the further contention that the deceased tried to cross the road behind the bus belonging to the appellant/first respondent when the same had a brief stop near the place of accident and in such an attempt to cross the road, he was hit by the bus belonging to the second respondent; that the said fact was not even known to the driver of the appellant/first respondent, as he had moved the bus even before the accident took place; that the same came to the knowledge of the driver of the bus, when a constable stopped the bus at Thuvarankuruchi and informed him of the accident; that the driver of the second respondent alone was responsible for the accident and that the claim made against the appellant/first respondent was not maintainable, since all the legal representatives of the deceased had not been made parties, the appellant/first respondent had prayed for the outright dismissal of the claim made against the appellant.

8. The driver of the bus bearing registration No.TN-01-N-6055 belonging to the appellant/first respondent was examined as R.W.1, whereas one Paramasivam the driver of the bus bearing Registration No.TN-45-N-0199 belonging to the second respondent/second respondent was examined as R.W.2. No document was marked on the side of either the appellant or the second respondent herein.

9. The Tribunal, after completion of evidence on both sides, framed necessary issues for determination, heard the arguments advanced on both sides and held that the driver of the bus bearing Registration No.TN-01-N-6055 belonging to the appellant/first respondent was solely responsible for the accident and hence mulcted the entire liability on the appellant/first respondent. Hence the appellant/first respondent has brought forth this appeal challenging the correctness of the award, so far as the fixing of the liability on the appellant/first respondent as well as quantum.

10. This Court heard the arguments advanced on either side and paid its anxious consideration to the same.

11. The learned counsel for the appellant/first respondent, advancing his arguments on behalf of the appellant, contended that the Tribunal had committed an error in coming to the conclusion that the rash and negligent driving of the bus belonging to the appellant by its driver was the cause of the accident and in casting the entire liability to pay compensation to the first respondent/claimant on the appellant alone; that the Tribunal ought to have held the driver of the bus belonging to the second respondent alone was responsible for the accident and mulcted the liability solely on the second respondent and that in any event, the liability should have been apportioned between the appellant and the second respondent.

12. It is a fact not in controversy that Syed Karim Basha, the husband of the first respondent/claimant met with an accident on 08.05.1995 at about 05.55 p.m., at a place near Trichy Junction Zonal Training School Roundtana and died on the spot. According to the case of the first respondent/claimant, supported by the second respondent/second respondent, while the deceased was walking along the north-south road, the bus bearing Registration No.TN-01-N-6055 belonging to the appellant/first respondent came in the direction of north to south and hit him, as a result of which, the deceased was thrown on the other side of the road, viz., the western side of the road and was again hit by the bus bearing Registration No.TN-45-N-0199 belonging to the second respondent/second respondent that came in the opposite direction. The above said contention was supported by the eye witness examined as P.W.2. P.W.2 was a traffic constable, who after witnessing the occurrence, chose to lodge a complaint and inform the control room to stop the bus belonging to the appellant/first respondent as its driver did not choose to stop it after the accident. P.W.2's evidence stands corroborated by the testimony of R.W.2, the driver of the bus bearing Registration No.TN-45-N-0199 belonging to the second respondent and the documentary evidence, viz., Ex.A.1 - copy of the First Information Report and Ex.A.5- charge sheet. It is obvious from the said documents that it was against R.W.1, the driver of the appellant/first respondent a criminal case was registered in Crime No.178 of 1995 on the file of the Traffic South Cantonment Police Station and after investigation, the case was charge sheeted for an offence punishable under Section 304(A) IPC. Apart from the same, it is the clear testimony of R.W.2, the driver of the second respondent that the appellant's bus, which came in the direction of north to south, hit the deceased, a pedestrian, as a result of which the deceased was thrown on the western side of the road; that R.W.2 saw the appellant's bus hitting the deceased at a distance of 10 feet and immediately applied the breaks of his vehicle and that in spite of the efforts put in by him, he could not avoid the deceased hitting the bumper of his bus and breathing his last on the spot. The evidence of P.W.1 and R.W.2 in this regard are clear and cogent, besides being fully corroborated by the documentary evidence indicated above.

13. On the other hand, the evidence of R.W.1 seems to be unnatural and unbelievable. It is the case of the appellant/first respondent and the evidence of R.W.1 that there was no connection between the appellant's vehicle and the accident and that the second respondent's vehicle alone was responsible for the accident. If it was so, what was the animosity for P.W.2, a traffic constable to lodge a complaint immediately after the accident implicating the driver of the bus belonging to the appellant/first respondent and inform the control room to stop the bus at Thuvarankurichi. There is no acceptable explanation forthcoming from the appellant/first respondent. The only possible inference from the same will be that the case of the first respondent/claimant supported by the second respondent alone could be true. The Tribunal has appreciated the evidence in a proper perspective, correctly relied on the evidence of P.W.1 and R.W.2 corroborated by Exs.A-1 and A-5, rejecting the evidence of R.W.1 and took the correct view that it was the driver of the appellant/first respondent who drove the bus bearing Registration No.TN-01-N-6055 in a rash and negligent manner and caused the accident. Consequently, the Tribunal has rightly fixed the liability solely on the appellant/first respondent. The finding of the Tribunal in this regard, according to the considered view of this Court, is not infirm and erroneous. The arguments advanced on behalf of the appellant in this regard is liable to be discountenanced and the said finding of the Tribunal regarding the question of negligence should be confirmed.

14. Though the appellant had chosen to incorporate an averment in the counter-statement that the petition was bad for non-joinder of necessary parties, as all the legal heirs of the deceased were not impleaded as parties. No evidence has been adduced to the effect that any one of the legal representatives of the deceased had been left out, besides the first respondent/claimant had been left out.

15. Coming to the next question of reasonableness of the compensation awarded by the Tribunal, the learned counsel for the appellant was fair enough in not advancing any argument regarding the same. The deceased was proved to be a pensioner aged about 65 years. The Tribunal seems to have awarded only a sum of Rs.50,000/- for loss of dependency, Rs.5,000/- for funeral expenses and Rs.5,000/- for loss of consortium, making the total amount of compensation to Rs.60,000/-. The said amount was directed to be paid along with an interest at the rate of 12 from the date of claim till realisation and with costs. The minimum liability fixed under Section 140(2) of the Motor Vehicles Act in case of death is Rs.50,000/-. Even though no document was produced to prove the amount of pension of the deceased, now it is well settled that a person's income cannot be fixed below the notional income. If the notional income of Rs.15,000/- per annum is adopted and Rs.10,000/- is taken as loss of dependency after deducting 1/3 from the said notional income, the amount of Rs.50,000/- awarded by the Tribunal towards loss of dependency could be justified, as the appropriate multiplier that can be used in case of a deceased aged about 65 years is 5. At no stretch of imagination, the award of Rs.5,000/- for funeral expenses and Rs.5,000/- for loss of love and affection can be termed either excessive or exorbitant. That is the reason why, the learned counsel for the appellant has not chosen to advance any arguments regarding the quantum. Therefore, this Court comes to a conclusion that in respect of quantum also the award of the Tribunal deserves to be confirmed.

16. For all the reasons stated above, this Court is of the considered view that there is no scope for interference with the award of the Tribunal legally or factually either on the question of negligence or on the question of quantum of compensation. There is no merit in the appeal and the appeal deserves to be dismissed with costs.

17. In the result, this Civil Miscellaneous Appeal is dismissed with costs.

SML

To

The Motor Accident Claims Tribunal

(Sub Judge),

Trichy.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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