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2013 DIGILAW 3878 (MAD)

V. Thangaraj v. Dhandapani

2013-11-11

S.VIMALA

body2013
Judgment 1. The injured Thangaraj and Ayyappan and the legal representatives/parents of the deceased Chandra Bose, filed the respective claims petitions in M.C.O.P.Nos.321 of 1998, 325 of 1998 and 324 of 1998, before the Claims Tribunal, claiming compensation in respect of the injuries sustained by the claimants Thangaraj and Ayyappan and in respect of the death of Chandra Bose. 2. Brief facts : On 30.09.1997 at about 10.30 p.m., the deceased Chandra Bose was driving the motor cycle. The injured persons, Thangaraj and Ayyappan, were carried as pillion riders. At that time, the lorry bearing Reg.No. TN-33-W-6494, which was driven in a rash and negligent manner, came and hit against the motor cycle. In the said incident, Chandra Bose died and the pillion riders, Thangaraj and Ayyappan, sustained injuries leading to permanent disablement. 3. In respect of the claim made by Thangaraj, the Tribunal awarded a sum of Rs.50,000/-, as compensation. But, having found that there is violation of provisions of Motor Vehicles Act, the Tribunal reduced the compensation to Rs.25,000/-, fixing contributory negligence on the part of the claimant at 50%. 3.1. The break-up details of the award of Rs.50,000/- are as hereunder: Heads Amount (Rs.) Medical treatment 5,000/- For 25% disablement 15,000/- Extra nourishment and transport expenses 5,000/- Pain and suffering 10,000/- For grievous injury 15,000/- Total 50,000/- 4. In respect of the injuries sustained by Ayyappan, the Tribunal quantified the amount of compensation at Rs.40,000/- and reduced it to Rs.20,000/-, on account of contributory negligence. The break-up details are as hereunder: Heads Amount (Rs.) Medical treatment 5,000/- For 20% disablement 10,000/- Extra nourishment and transport expenses 5,000/- Pain and suffering 10,000/- For grievous injury 10,000/- Total 40,000/- 5. In respect of death of Chandra Bose, a sum of Rs.2,72,000/- was awarded as compensation and that was reduced to Rs.1,36,000/-, on account of contributory negligence. While arrving at the quantum of compensation, loss of contribution to the family was quantified at Rs.2,52,000/- (Rs.1750/- x 12 – 1/3rd x 18). A sum of Rs.5,000/- was awarded towards funeral expenses and a sum of Rs.15,000/- towards loss of love and affection. 6. In all the three cases, the claimants have challenged the judgment, mainly on the reduction of 50% of compensation, towards contributory negligence. 7. A sum of Rs.5,000/- was awarded towards funeral expenses and a sum of Rs.15,000/- towards loss of love and affection. 6. In all the three cases, the claimants have challenged the judgment, mainly on the reduction of 50% of compensation, towards contributory negligence. 7. The first contention of the learned counsel for the claimants is that mere travelling of three persons in a motor cycle, which may be in violation of the provisions of the Motor Vehicles Act, will not amount to contributory negligence and in any event, without there being any evidence to show that the travelling in violation of the provisions of the Act was a contributory cause for the accident, the reduction of 50% towards contributory negligence is not sustainable. In support of this contention, the decision reported in (Kattabomman Transport Corporation Limited vs. Vellai Duraichi & Ors.) is relied upon, whereunder it has been held that when there is no evidence to show that the accident occurred because of the travelling of three persons in the motor cycle, the contributory negligence would not be made out. 8. On the other hand, learned counsel for the respondent relied upon a Division Bench decision of this Court reported in 2009 (1) TNMAC 411 (National Insurance Co. Ltd., vs. S.Chitra & Ors.). In the said decision, the Division Bench has referred to a decision reported in 2003 (1) MLJ 489 (Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division I) Limited, Coimbatore, vs. Abdul Salam), wherein it has been pointed out that the unusual movement of the pillion riders would make the rider of the motor cycle to lose his control over the vehicle. 9. So far as this case is concerned, it is true that the travelling of three persons in the motor cycle is contrary to the statute. But, the Court has to find out whether the conduct of the persons so travelled was the cause for this accident. When the facts are looked into, it is evident that the driver, who was driving the lorry, who was alleged to be responsible for causing this accident, has admitted his guilt before the criminal Court and he has paid the fine amount. A copy of the Criminal Court judgment has been filed as Ex.P-5. When the facts are looked into, it is evident that the driver, who was driving the lorry, who was alleged to be responsible for causing this accident, has admitted his guilt before the criminal Court and he has paid the fine amount. A copy of the Criminal Court judgment has been filed as Ex.P-5. When the claimants have filed the copy of the judgment to prove that the driver of the offending vehicle, viz., lorry, was responsible for the accident, then the burden is shifted on the respondents to show that the conduct of the claimants alone was the cause for the accident or at least, to show that the claimants have also contributed for the accident. 10. If the specific case of the respondents rely on the conduct of the persons who travelled in the motor cycle, in violation the provisions of the Motor Vehicles Act, then it is for the respondents to prove that that conduct was responsible/contributory cause for the accident. But, unfortunately, no evidence has been let in before the Tribunal. Therefore, there is absolutely no evidence to show that the mere travelling of three persons in the motor cycle have contributed for the accident. In the absence of such a positive evidence, the finding of the Tribunal that the two injured persons and the deceased were responsible for 50% of the accident, cannot be sustained. 11. So far as the quantum of compensation is concerned, the Tribunal has taken the appropriate factors into account and has rightly quantified the amount. The amount as ordered by the Tribunal does not require any interference, especially when the amount of compensation already awarded, is not reduced by 50%, in view of the finding of this Court. 12. In the result, all the three Civil Miscellaneous Appeals are allowed, setting aside the finding on contributory negligence, thereby, confirming the entire amount of compensation, without reduction of 50% towards contributory negligence. 13. The third respondent/insurance company has already deposited 50% of the compensation and the balance 50% of the award of compensation together with proportionate interest from the date of petition till the date of deposit, is directed to be deposited within a period of eight (8) weeks from the date of receipt of copy of this judgment. On such deposit, the claimants are entitled to withdraw the same. No costs. 14. On such deposit, the claimants are entitled to withdraw the same. No costs. 14. It is represented that one of the claimants in M.C.O.P.No.324 of 1998, i.e., father of the deceased, died during trial and the only surviving claimant, mother, also expired during the pendency of the appeal, steps are to be taken to bring the legal representatives on record. A memo has been filed to this effect. It is open to the legal representatives of the appellant in C.M.A.No.2751 of 2004 to file an application before the Tribunal and on filing of such application, the Tribunal shall pass appropriate orders on the apportionment of the award of compensation.