IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 06.02.2017 CORAM THE HONOURABLE DR. JUSTICE S.VIMALA C.M.A. No.3285 of 2014
1. S.Punitha
2. Minor S.Arvind
3. Minor S.Divya Priya
4. M.Neelaveni .. Appellants (Appellants 2 and 3 represented by their mother Natural guardian the first petitioner herein) versus The Managing Director, Metropolitan Transport Corporation Ltd., Pallavan House,Anna Salai, Chennai-2 ... Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree passed in M.C.O.P.No.549 of 2009 dated 07.10.2013 on the file of the I Additional District Judge (Motor Accidents Claims Tribunal) Tiruvallur.
For appellant : Mr.D.Baskar For Respondent : Mr.K.S.Suresh J U D G M E N T The deceased M.Senthil Kumar aged 35 years, an Office Assistant in Corporation of Chennai, earning a sum of Rs.10,372/- met with an accident that took place on 19.05.2009. The Legal Representatives of the deceased viz., the Wife, Son, daughter as Legal Representatives filed a Claim Petition in M.C.O.P.No.549 of 2009, claiming compensation for a sum of Rs.20,00,000/-). As against the claim made, the Tribunal has granted award for a sum of Rs.11,15,120/- (deducting contributory negligence @50% i.e. Rs.27,30,240- 11,15,120). The break-up details of the same are as under:
Loss of income to the petitioners - Rs.21,00,240/- For Funeral Expenses - Rs. 15,000/-
Love and affection - Rs. 40,000/-
Consortium - Rs. 25,000/-
For Loss of guidance - Rs. 50,000/-
Rs.22,30,240/-
Less- 50% towards contributory negligence Rs.11,15,120/-
Rs.11,15,120/-
2. The Claims Tribunal, while quantifying the compensation has deducted 50% towards contributory negligence of the driver of the offending vehicle. This finding is under challenge in this Civil Miscellaneous Appeal.
3. The learned counsel for the appellant would submit that when Ex.P7- charge sheet clearly speaks about the negligent of the respondent driver. Evidence let in through R.W.1- driver of the respondent Corporation bus and R.W.2- conductor of the respondent Corporation bus, are contradictory to each other and hence it cannot be relied upon; It is his further submission that fixing of 50% contributory negligence on the driver of the two wheeler is unsustainable.
4. The learned counsel for the respondent would submit that claimants should have impleaded the driver of the two wheeler; Since, the same was not done, the Tribunal is justified in rightly reducing 50% of the compensation towards contributory negligence.
5. In Paragraph 22 of the Judgment of the Claims Tribunal, has clearly held as follows:
“... As per Ex.P3 and Ex.R1 opinion evidence as well as the photo evidence one can visualize that how much of speed the bus could have been driven, wherein,the bumper, the grill of the bus sustained heavy damages make clear though on seeing the two wheeler at the bus side area, where two wheeler was driven by the rider in a rash and negligent manner the bus driver RW1 also driven his bus in a high speed. If at all, RW1 evidence is considerable one, the said damage in the bus as seen from Ex.P3 and Ex.R1, the bus could not be damaged to such an extent. To an extent possible RW1 was also drove his bus not in a normal speed, therefore, in the given circumstances, this Court is of the firm view both the two wheeler rider as well as the bus driver have equally responsible for the accident and both the rider of the two wheeler as well as the respondent's bus driver are jointly liable for the said accident and both of them have negligent on their own part.”
6. As already pointed out, for the mistake committed by the driver of the two wheeler, the deceased pillion rider cannot be made responsible. Only if the claim is made either by the driver or on behalf of the driver then the deduction on account of contributory negligence may be permissible. In this case the claim is made not by the driver but by the pillion rider. moreover, the driver has not been impleaded in the Claim Petition.
7. The learned counsel for the respondent would submit that the respondent- Corporation would submit that they may be given liberty to recover 50% of the compensation from the Tort feasor, the driver of the two wheeler as well as the Insurance Company of the two wheeler bearing No.TN 05 U 1985. Under normal circumstance, this court would have either order apportionment of payment of compensation by the two tort feasors separately or the tribunal would have permitted one of the tort feasor to pay the compensation and recover the balance from the other tort feasor in this case the other tort feasor has not been impleaded at all therefore, the question of deduction does not arise.
8. In the result, this appeal is allowed. The Transport Corporation is directed to deposit the entire compensation amount (without deducting 50% towards contributory negligence), awarded by the Tribunal, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this order. No costs.
06.02.2017 arr To The I Additional District Judge (Motor Accidents Claims Tribunal) Tiruvallur DR.S.VIMALA,J.
arr C.M.A. No.1543 of 2015 06.02.2017 http://www.judis.nic.in