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2022 DIGILAW 1083 (MAD)

Y. Santhi v. Manickam

2022-05-06

RMT.TEEKAA RAMAN

body2022
JUDGMENT (Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act,1988, against the judgment and decree made in M.A.C.T.O.P.No.42 of 2003, dated 5.5.2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate,Nagercoil). 1. This Civil Miscellaneous Appeal is directed against the judgment and decree made in M.A.C.T.O.P.No.42 of 2003, dated 5.5.2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate),Nagercoil. 2. The claim Petitioners are the appellants herein challenging the award passed in M.C.O.P.No.42 of 2003, on the ground of negligence as well as on quantum. 3. The claim Petitioners in the claim petition as well as in evidence stated that on 5.10.2002, at about 6.00 a.m., the deceased Ebesh, son of Varghese was driver in Lorry bearing Registration No.KL 06-3537 driving towards Madras and he reached near MAM Engineering College, Siruganoor, Tiruchy District on the National Highway. He was driving his lorry very carefully on the left side of the road. At that time, the Tamil Nadu State Express Transport Corporation bus bearing Registration No.TN 01 N 6460 driven by the first respondent in a rash and negligent manner with a very high speed and the bus went out of the control of the first respodnent and suddenly moved towards the lorry and collided with the lorry driven by Ebesh. 4. The Transport Corporation in its counter has stated that on 5.10.2002, the first respondent was driving the vehicle bearing Registration No.TN 01/N 6469 from Chennai to Madurai very slowly with utmost care and caution. He was driving the vehicle in his left side at Siruganoor at 6.00 a.m. But the deceased drove the vehicle in a rash and negligent manner with a high speed and in an uncontrollable speed and come to the extreme right side of the road. On seeing the vehicle which was driven by the deceased was coming to the extreme right side, the first respondent drove the bus in his left side and stopped there. At the very next movement, the deceased with his vehicle in an uncontrollable speed and hit the seond respondent's bus in the front side. It can be observed in the rough sketch. The accident could have been averted if the deceased took some caution in driving the vehicle. Immediately after the acident, the Conductor of the second respondent's bus only gave the information to the Police Station. It can be observed in the rough sketch. The accident could have been averted if the deceased took some caution in driving the vehicle. Immediately after the acident, the Conductor of the second respondent's bus only gave the information to the Police Station. Accordingly, the First Information Report was registered against the deceased. 5. The owner of the lorry and its Insurance Company namely, Respondents 3 and 4 before the Tribunal, have also filed a statement. 6. During trial, the Petitioner is examined as P.W.1.The cleaner of the lorry is examined as P.W.2 and a third party is examined as R.W.3. Ex.P1 to Ex.P12 were marked. On behalf of the respondents, the Conductor of the Transport Corporation is examined as R.W.1 and no douments were marked. 7. The rough sketch is marked as Ex.P2. The trial Court has held that the accident has taken place due to the contributory negligence of the deceased namely, lorry driver at 50% and the driver of the bus at 50% and awarded a sum of Rs.4,32,856/- with interest at the rate of 9% p.a. Aggrieged against the said finding, the claim Petitioners have filed the present Civil Miscellaneous Appeal. 8. Heard the respective counsels appearing for the respective parties and perused the materials placed before this Court. 9. With regard to the accident there is no dispute. With regard to the manner of the accident, two versions are available before the Court, one by P.W.2 and another by R.W.1.The photographs taken as to the position of the vehicle after the accident is marked as Ex.P11.The rough sketch drawn by the Police is marked as Ex.P2. Since the photos are after the accident, the same cannot be taken for discussion. 9(b)As to whether there was any contributory negligence by the deceased namely, the husband of the first claim petitioner. P.W.2-Nagarajan is the Cleaner of the lorry. As per his evidence, both the vehicle came in the opposite direction and made hit on collision. From Ex.P11 Photographs, respective damage happened to the front portion of both the lorry is clearly seen. 9(c)On behalf of the transport Corporation, R.W,.1 was examined and his evidence is to the effect that the accident has taken place only due to the rash and negligent driving of the deceased namely, the driver of the lorry alone. It appears to be a self-serving statement to save the skin. 9(c)On behalf of the transport Corporation, R.W,.1 was examined and his evidence is to the effect that the accident has taken place only due to the rash and negligent driving of the deceased namely, the driver of the lorry alone. It appears to be a self-serving statement to save the skin. 9(d)After going through Ex.P2 and Ex.P11, I find that both the vehicle are coming in the opposite direction. Had the drivers of both the vehicles have taken sufficient caution to keet left so that the opposite vehicle coming in the opposite diection can easily pass through. It appears that both the drivers have lost their vital art of driving, which resulted in hit on collision. Damage to the front portion of both the vehicles clearly demonstrates that both the drivers of both the vehicle are negligent enough, which resulted in the accident. 9(e)It remains to be stated that there is not less than six feet mud road on the leftern side of the bus. It is also duly corroborated by the Observation Mahazar Ex.P10. So also, even if there is a six feet mud road on the leftern side of the bus, the driver of the bus is not inclined to keep left so that the vehicle coming from the opposite direction can smoothly pass through. So also the accident has taken place on the Tar Road on the eastern side of the road. Had the driver of the lorry was cautious in driving, he should have taken in all probability to keep the vehicle on the leftern side. It appears that he has also committed an error instead of going on his direction, there was a deviation in the direction, which resulted in the accident and hence I find that both driver of the lorry as well as the bus driver had loss the art of driving to avoid accident. However both of them are not diligent enough to avoid the accident and hence they have equally contributed to the accident by their rash and negligent driving and accordingly 50% of contributory negligence fixed on each of the drivers by the Tribunal, appears to be just and fair and the same does not require any interference by this Court. 10. The date of accident is 5.10.2002.The deceased is a Driver. 10. The date of accident is 5.10.2002.The deceased is a Driver. Though document has been marked through P.W.3 to show that he has got Rs.6000/- abd daily batta is Rs.50/-and accordingly a sum of Rs.7,500 p.m., is the monthly income of the deceased and filed Ex.P9. The Tribunal, for the reasons recorded therein, has fixed Rs.6,000/- as notional income. Taking into consideration the date of the accident and avocation of the deceased being a lorry driver, I find that the sum fixed as notional income seems to be just and fair. Since the age of the deceased is 30 years, multiplier 17' is to be adopted. As per Pranay Sethy's case, 30% of future prospects has to be added and 1/4th deduction has to be made towards personal expenses and accordingly, the loss of dependency is arrived at Rs.6000+30%(1800)=Rs.7800 x12x17 x4/5 = Rs.12,72,960/-.The first claimant wife is entitled to filatial consortium at Rs.40,000/- and the appellants/Claimants 2 to 5 are each entitled to Rs.40,000/- as parental consortium which amounts to Rs.1,60,000/-.Further, this Court awards a sum of Rs.15,000/- for funeral expenses, Rs.15,000/- for loss of estate and another Rs.15,000/- for transportation and in total, the compensation payable to the claimants is Rs.15,24,960/- rounded of to Rs.15,24,960/- with interest at the rate of 7.5% p.a. Since 50% contributory negligence is fixed on the Transport Corporation, the second respondent Transport Corporation has to pay a sum of Rs.7,62,480/- 11. In the result, this Civil Miscellaneous Appeal is partly allowed, enhancing the compensation from Rs.4,32,856/- to Rs.7,62,480/- with interest at the rate of 7.5% p.a.,from the date of claim petition till the date of realisation. The second respondent Transport Corporation is directed to deposit the enhanced award amount of Rs.7,62,480/- to the credit of claim petition, with accrued interest and costs,less the award amount if any already deposited, within a period of 12 weeks from the date of receipt of a copy of this order. The apportionment as done by the Tribunal shall holds good. On such deposit being made, claimants/appellants 1,4 and 5 are permitted to withdraw their share in the award amount with proportionate accrued interest and costs, as per the terms and ratio of apportionment made by the Tribunal. The apportionment as done by the Tribunal shall holds good. On such deposit being made, claimants/appellants 1,4 and 5 are permitted to withdraw their share in the award amount with proportionate accrued interest and costs, as per the terms and ratio of apportionment made by the Tribunal. The Tribunal is directed to deposit the share of the minor claimants/appellants 2 and 3, in an inerest bearing fixed deposit, in any one of the nationalized Bank, initially for a period of three years, renewable thereafter, till they attain majority. The first claimant/first appellant, mother and natural guardian of the minor claimants is permitted to withdraw the interest from the said fixed deposits, once in three months, directly from the Bank and utilize the same for the welfare of the children. No costs.