IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 .04.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.2617/2006 CMP.No.9602/2006 The United India Insurance Company Limited Hosur Appellant/3rd Respondent Vs 1.S.Ramesh 2.The Managing Director, Tamil Nadu State Transport Corporation Limited Dharmapuri 3.R.Selvaraj 4.The Managing Director, Tamil Nadu State Transport Corporation Limited, Salem Petitioner and 1, 2 and 4th respondent Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 31.3.2005 made in MCOP.No.153/2001 by the learned I Additional Sub Judge, (MACT) Villupuram. For Appellant : Mr.S.Ramalingam For Respondent : Mr.J.Antony Jesus-R1 Mr.P.Jagadeeswaran-RR2&4 JUDGEMENT This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the Judgement and Decree dated 31.3.2005 made in MCOP.No.153/2001 by the learned I Additional Sub Judge, (MACT) Villupuram. 2. The brief facts of the case are that on 19.5.2000 at about 9.45 a.m. the 1st Respondent/claimant was proceeding in a scooter on the left side of the road in Bangalore National Highways and while he was overtaking a Tempo Van, the transport Corporation bus bearing Reg.No.TN-27-N-0902 dashed against the scooter, due to which the claimant sustained multiple grievous injuries. He was 30 years of age at the time of the accident and was earning Rs.8000/- p.m. The claimant filed a claim petition for a sum of Rs.2,00,000/- as compensation. https://hcservices.ecourts.gov.in/hcservices/ 3. The owner of the scooter, who is the father of the claimant remained exparte. The Appellant Insurance Company with whom the scooter was insured filed its counter and alleged that the accident occurred only due to the negligence of the driver of the Corporation bus. 4. On behalf of the 4th Respondent/Transport Corporation, it was alleged in the counter that the bus was driven at a moderate speed in the Bangalore Salem Highways on its proper side and the driver of the bus noticed a scooter overtaking a tempo was hit by the tempo on its right side and due to the said impact, the rider of the scooter fell on the road. It was further alleged that on seeing the scooterist falling on the road, the bus driver slowed down the speed and applied brake, in spite of it, the right side of the vehicle hit the scooterist. According to the Transport Corporation, the accident occurred due to own fault of the scooterist who hit against the tempo. 5. The claimant examined himself as PW.1 and narrated the incident. The driver of the Transport Corporation was examined as RW.1. The Tribunal, after hearing the learned counsel for the parties and considering the material on record, held that the negligence of the bus driver was the cause of the accident, however, apportioned the liability to the Appellant Insurance Company to the extent of 50 per cent. The Tribunal awarded a sum of Rs.1,24,179/- as total compensation, apportioning 50 per cent liability to the Appellant Insurance Company. Aggrieved against the apportionment of liability as against the Appellant Insurance Company, the Appellant has filed this Civil Miscellaneous Appeal. 6. While dealing with the question of negligence, the Tribunal held that the driver of the Transport Corporation bus was responsible for the accident on appreciation of evidence led by the parties. It is pertinent to mention here that PW.1 stated that he overtook a stationary tempo and at that time, the bus did not come on the opposite side. His evidence indicated that the road was wide enough and it was 100 ft. It is his categoric evidence that since the tempo driver slowed down and stopped the vehicle, he had to necessarily overtake the tempo and at that time, the bus came and hit the scooter. 7. The accident had taken place on 19.5.2000 at 9.15 a.m. and the FIR has been lodged at 11.30 a.m. by the injured himself and his statement has been recorded by the Head Constable of Hosur Police Station. In the FIR, it has been stated that when he was proceeding in Hosur Bangalore National Highways, the tempo van which was going ahead of scooter suddenly slowed down the speed and was stopped and on seeing it, he turned down his scooter to the right and tried to overtake the tempo and at that time, the bus came at a high speed on the opposite direction and hit against him causing grievous injuries to him. https://hcservices.ecourts.gov.in/hcservices/ 8. Whereas RW.1 the driver of the Transport Corporation deposed that the scooterist overtook a moving tempo and in that process grazed against the tempo and the injured fell down on the road and on seeing it, RW.1 applied brake and stopped the bus. He has further stated that he did not hit the scooter and he is not responsible for the accident. His evidence indicated that he was not involved in the accident at all, as he stopped the vehicle well ahead of the place where the injured fell down. 9. It is pertinent to mention here that in the counter statement, the 4th Respondent/Transport Corporation has stated that on noticing the claimant falling down after being hit by the tempo, the bus driver slowed down the vehicle and applied brake, but in spite of it, the right side of the bus hit the claimant. Contrary to the above said statement, RW.1 the bus driver deposed that the bus did not hit the claimant and it was stopped well ahead of the accident site. RW.1 further deposed that though he reported the matter to the police, but, the police did not register any case on his report. There is nothing on record to show that RW.1 tried to give a report to the Police. There is no consistent version by the Transport Corporation regarding the manner of the accident. As far as the theory put forth by RW.1 is concerned, there is no evidence, except the self supporting of evidence of RW.1 10. Merely on the fact that the claimant had overtaken the tempo, it cannot be said that he contributed to the accident. It revealed from the evidence placed on record that because the tempo suddenly stopped, the claimant had to overtake the tempo. PW.1 has clearly stated that the bus was not sighted at the time of his overtaking the tempo. The evidence only indicated that the bus was driven at a high speed and had dashed against the claimant when he was overtaking the tempo that stopped suddenly. The scooter is admittedly a smaller vehicle than the bus. The driver of the bus had greater responsibility to drive the vehicle with care and caution on the road. It is also seen that the road at the place of the accident was quite wide i.e. 100 ft. as disclosed from the statement of PW.1 and therefore, there was every opportunity for the bus driver to aver the accident. 11. The Tribunal on appreciation of evidence found that the negligence was on the part of the bus driver and the Transport Corporation has not assailed these findings by filing an appeal or a cross objection. The claimant has established that the accident occurred due to the rash and negligent driver of the bus driver and I do not find any material to come to a conclusion that the scooterist also contributed to the negligence to an extent of 50 per cent. Hence, the findings of the Tribunal to the extent of apportionment of liability on the owner of the scooter and the Insurance Company with which the scooter is insured cannot be sustained and the same is liable to be set aside. As the bus driver is wholly responsible for the accident, there cannot be any apportionment of liability on the part of the scooterist, the claimant herein. https://hcservices.ecourts.gov.in/hcservices/ 12. Having analysed the issue as far as the negligence aspect is concerned and in view of my finding that there was no negligence on the part of the claimant, the question whether the liability could be fastened on the Appellant Insurance Company is answered in the negative and the insurer has no liability to indemnify the owner of the scooter. Hence, the contention of the learned counsel for the Appellant citing various judgements of the Honourable Supreme Court and this court in support of his contention that even in the event of holding that the claimant is responsible to the accident to a certain extent, the Appellant Insurance Company cannot be made liable to such an extent as the claimant himself was the tortfeaser need not be gone into. 13. In so far as the quantum of compensation is concerned the Tribunal has awarded a sum of Rs.1,24,179/-. The break up figures are given below is found to be just and proper. S.No Category Award Amount (Rs.) 1 Disability 45000 2 Injuries 25000 3 Medical Expenses 19179 4 Conveyance 10000 5 Extra Nourishment 10000 6 Mental agonoy 15000 Total Compensation 124179 14. The claimant is entitled to a total compensation of Rs.1,24,179/- with interest at 7.5 per cent p.a. from the date of the petition till the date of realization. The 4th Respondent / Transport Corporation is liable to pay the entire compensation with interest at 7.5 per cent p.a. from the date of the petition till the date of payment. 15. For the reasons stated above, this Civil Miscellaneous Appeal is allowed and the Appellant Insurance Company is absolved from the liability to pay the compensation. The 4th Respondent/Transport Corporation is directed to pay the entire compensation of Rs.1,24,179/- with interest at 7.5 per cent p.a. from the date of the petition till the date of payment. The 4th Respondent/Transport Corporation is directed to deposit the compensation awarded after giving credit to the deposit if any already made by them with interest as mentioned above within a period of eight weeks from the date of receipt of a copy of this order. The claimant is entitled to withdraw the entire award amount after giving credit to the amount if any already withdrawn https://hcservices.ecourts.gov.in/hcservices/ by him with interest. *The Appellant Insurance Company is permitted to withdraw the amount already deposited by them before the Tribunal with interest. No costs. Consequently, the connected MP is closed. srcm Sd/- Asst. Registrar 2.6.2011 *Corrected as per being mentioned order of this Court dated 30.6.2011 and made in CMA.No.2617 of 2006. Sd/- Asst Registrar 1.7.2011 //True Copy// Sub Asst. Registrar To: 1.The I Additional Sub Judge, (MACT) Villupuram To be substituted to the order already despatched on 23.6.11 2.The Record Keeper, VR Section, High Court, Madras + 1 cc to Mr. J.. Antony Jesus, Advocate SR No.28258 + 1 cc to Mr. S. Ramalingam, Advocate SR No.37928 + 1 cc to Mr.P. Jagadeeswaran, Advocate SR No. 27320 PUR(CO) SR/3.6.2011 SR/1.7.2011 Judgement in CMA.No.2617/2006 CMP.No.9602/2006 https://hcservices.ecourts.gov.in/hcservices/