IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.Nos.3433 and 3434 of 2008 CMA No. 3433 of 2008:- Metropolitan Transport Corporation Ltd., rep. By its Managing Director, No.2 Pallavan Salai, Chennai.2. .. Appellant/ Respondent Vs. 1. R. Satishkumar 2. Minor S. Pradeep Kumar 3. Minor S. Suriya (minors rep. by father & next friend the first respondent) 4. R. Jaya .. Respondents/Claimants CMA No. 3434 of 2008:- Metropolitan Transport Corporation Ltd., rep. By its Managing Director, No.2 Pallavan Salai, Chennai.2. .. Appellant/ Respondent Vs. R. Sathishkumar .. Respondent/Claimants Appeals filed under Section 173 of M.V. Act against the order and decretal order dated 19.12.2007 made in MCOP No. 2611 and 2613 of 2006 on the file of the Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai. For Appellant : Mr. S.S. Swaminathan For Respondents: Mr. P.T. Salim Fathima https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT Transport Corporation has filed these two appeals challenging the award dated 19.12.2007 made in MCOP Nos. 2611 and 2613 of 2006 on the file of the Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai. 2. MCOP No. 2611 of 2006 relates to fatal accident. MCOP No. 2613 of 2006 relates to a case of injury. The claimants in MCOP No. 2611 of 2006 are the husband aged 40 years, two children aged 16 years and 7 years respectively and mother aged 65 years. The claimant in MCOP No. 2613 of 2006 Satishkumar is the husband of the deceased wife. 3. Brief facts of the case are as follows:- On 1.4.2006 at about 15.15 hours, the husband Sathishkumar and his wife were travelling from North to South on Thiruvotriyur High Road. When they were near Ezhil Hospital opposite to a bus stop, it is stated that the driver of the appellant transport corporation bus drove the vehicle in a rash and negligent manner and dashed against the motor cycle. In that accident, the driver of the two wheeler sustained grievous injuries and the wife, the pillion rider, fell down and sustained grievous injuries on the head. She was taken to Apollo Hospitals for treatment where she died. The said Sathishkumar sustained injuries and was taken to a private hospital and thereafter referred to Government Stanly Hospital for treatment. The driver of the two wheeler Sathishkumar filed a claim petition claiming a sum of Rs.3,00,000/- as compensation for the injuries suffered by him. 4. On the death of the wife, the husband and two children and the aged mother filed a claim petition claiming a sum of Rs.9,00,000/- as compensation. Both the cases were tried and disposed in a common award. Thiru Sathishkumar, husband of the deceased, was examined as P.W. 1 and one V.P. Sivaraman was examined as P.W. 2. Documents Exs. P1 to P13 were marked. Ex.P.1 is the school transfer certificate of the deceased. Ex.P2 is the death certificate . Ex.P3 is the legal heirship certificate. Ex.P4 series are the medical bills. Ex.P5 is the O.P. Chit issued by stanly hospital. Ex.P6 is the prescription given by Dr. Sampathkumar. Ex.P7 is the copy of the F.I.R. Ex.P8 is the copy of the sketch. Ex.P9 is the death certificate. Ex.P10 is the copy of the post mortem certificate. Ex.P11 is the photo copy of the driving licence. Ex.P12 is the copy of the charge sheet. Ex.P13 is the copy of the M.V.I. Report. On behalf of the Appellant transport corporation, one Sundararajan, driver of the transport corporation bus was examined as R.W.1. N.L.Raj, officer of the transport corporation was examined as R.W.2. Documents Exs. R1 to R3 were marked. Ex.R1 is the M.V.I. Report. Ex.R2 is the investigation report. Ex.R3 is the photo with negatives. https://hcservices.ecourts.gov.in/hcservices/ 5. Insofar as the compensation is concerned, the claimant in MCOP No.2613 of 2006 suffered the following injuries. Multiple contusion and dislocation of bone in the skull and chest. Multiple internal and external injuries all over the body. He was 40 years old and a partner in M/s. Wings Cargo International, Chennai. Considering the age, occupation, nature of injuries and the period of hospitalisation, the Tribunal granted the following amount as compensation with interest at the rate of 7.5% p.a. Sl.No. Head Amount granted by the Tribunal 1 Transport to hospital, medical expenses and damages to clothing and articles etc. Rs. 10,000/- 2 Pain and Suffering and mental agony Rs. 20,000/- Total Rs. 30,000/- 6. Insofar as the case of death is concerned, on the death of Sumathi, the husband aged 40 years, minor son aged 16 years, daughter aged 7 years, mother aged 65 years claimed a sum of Rs.9,00,000/- as compensation stating that the income of the deceased was Rs.7,000/- p.m. The Tribunal by adopting 17 multiplier and fixing the income at Rs.3,000/- granted the following amount as compensation with interest at the rate of 7.5% p.a. Sl.No. Head Amount granted by this Court 1 Loss of pecuniary benefits Rs. 3,36,000/- 2 Transport expenses Rs. 5,000/- 3 Loss of consortium to the husband Rs. 20,000/- 4 Loss of love and affection to the children and mother (Rs.10,000/- x 2 =Rs.20,000/- and Rs.5,000/- to the mother totally Rs.25,000/-) Rs. 25,000/- Total Rs.3,86,000/- rounded off to Rs.3,90,000/- 7. Learned counsel for the appellant referred to oral and documentary evidence and stated that the accident in this case is totally denied stating that the bus was not involved in the accident. The rider of the two wheeler and the occupant suffered injuries due to rash and negligent driving on the their part. Reliance was placed on the evidence of R.W.1 and the documents Exs.R1 and R3 which are marked to support the case of the transport Corporation that the corporation vehicle was not involved in the accident. https://hcservices.ecourts.gov.in/hcservices/ 8. As far as the compensation granted by the Tribunal is concerned, the learned counsel for the appellant does not have any serious objection. In fact, no plea was raised for reduction in the quantum of compensation. Accordingly, the order of the Tribunal granting compensation is confirmed. 9. The only contention raised by the learned counsel for the appellant is on the negligence. In support of this plea, the learned counsel for the appellant stated that only in the police enquiry, the transport corporation bus was suspected to have been involved in the accident, in which the wife and husband sustained injuries. He placed reliance on the M.V.I. Report and the investigation report to support the plea that the vehicle was not involved in the accident. According to the Tribunal, the respondent/corporation have admitted their liability in the counter affidavit by stating as follows:- " The respondent submitted that the pleading reveals that the two wheeler was driven in a rash and negligent manner without observing traffic rules and caused the accident. The rider of the motor cycle was rash and negligent and suddenly deviated to his right side to pass through the gap between the median and the stationery vehicle without observing or giving the right of way to the vehicle proceedings nearing the median. This respondent submits that since the accident was caused due to the negligence on the part of the rider of the motor cycle, no compensation is payable under law of torts. In any event, the rider of the two wheeler was guilty of contributory negligence and hence, the liability has to be apportioned with greater percentage on the rider of the motor cycle if and when the liability is apportioned on the appellant transport corporation also. 10. Contrary to the pleadings in the counter affidavit, R.Ws. 1 and 2 have stated that the vehicle was not involved in the accident. The sketch Ex.A8 clearly shows the manner of the accident. The two wheeler is on the right hand side of the bus and both the vehicles were proceeding towards south. There is only a small gap between the median and the bus. The two wheeler was caught between the median and the bus. Consequently, the accident happened and the occupants sustained injuries. Further, the evidence of P.W.2 Police constable, Ex.P2 charge sheet, and Ex.P7-F.I.R. have been relied upon to state that within two hours of the accident, police visited the spot and filed a report against the driver of the transport corporation bus for rash and negligent driving. 11. The Tribunal in paragraph 6, has clearly held that the witnesses R.Ws. 1 and 2 have pleaded contrary to the counter filed before the Tribunal. There is no material relied upon by the department to deny that the vehicle was not involved in the accident https://hcservices.ecourts.gov.in/hcservices/ and that it did not ply on the said road on the said day. The Tribunal relied on the evidence of R.W.2 to state that even if the bus had hit against the driver or the pillion rider of the two wheeler, there would not be such a damage. The claimant has stated that R.W.1 and five officers visited the vehicle on the same day. However, there is no oral or documentary evidence let in by those persons with regard to the nature of the accident and the involvement of the two vehicles so as to come to a different conclusion. 12. In view of the evidence which clearly establishes that the bus was proceeding on a main road and next to the two wheeler and failed to keep the distance. The F.I.R. was lodged against the driver of the bus and also keeping in mind the complaint was given within two hours of the accident, the Tribunal held that the negligence was on the part of the driver of the appellant transport corporation bus. Such finding stands confirmed. 13. Finding no merits, these two civil miscellaneous appeals are dismissed. Consequently, M.P.No. 1 and 1 of 2008 is also dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To The Motor Accident Claims Tribunal, (Chief Judge, Court of Small Causes), Chennai. Copy to The Record Keeper, V.R.Section, High Court, Madras. 2 cc To Mr.S.S.Swaminathan, Advocate, SR.64915 & 64916. 2 cc To Mr.M.Swamikkannu, Advocate, SR.64641 & 64642. CMA Nos. 3433 and 3434 of 2008 VSV(CO) RVL 27.01.2009 https://hcservices.ecourts.gov.in/hcservices/