G.Murugan v. The Managing Director

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2024 C O R A M THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY and C.M.P.No.29521 of 2023 C.M.A.No.421 of 2023: G.Murugan ...Appellant Vs The Managing Director, Metropolitan Transport Corporation Limited, Pallavan House, Anna Salai, Chennai 2 ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to allow this appeal and to enhance the amount awarded in MCOP.No.7351 of 2017 dated 05.03.2022 on the file of Motor Accident Claims Tribunal (IV Small Causes Court) Chennai. For Appellant : Mr.K.Varadha Kamaraj For Respondent : Mr.A.Vinothraj C.M.A.No.3118 of 2023: The Managing Director, Metropolitan Transport Corporation Limited, Pallavan House, Anna Salai, Chennai 2 ...Appellant Vs G.Murugan ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree dated 05.03.2022 passed in MCOP.No.7351 of 2017 by the Motor Accident Claims Tribunal, Chennai (IV Court of Small Causes), Chennai by allowing this appeal. For Appellant : Mr.A.Vinothraj For Respondent : Mr.K.Varadha Kamaraj COMMON JUDGMENT The appeal in C.M.A.No.421 of 2023 has been filed by the claimant challenging the negligence fixed by the Tribunal.

¶2The appeal in C.M.A.No.3118 of 2023 has been filed by the Insurance Company challenging the quantum of compensation awarded by the Tribunal.

¶3The learned counsel appearing for the claimant would submit that since the FIR was filed against the injured, the Tribunal had fixed the contributory negligence at the rate of 50% against the injured. Further, he would contend that even though it was deposed by the driver of the bus that only due to the sudden application of break, the injured was thrown out of the bus, the said evidence was not at all considered by the Tribunal because for the Tribunal, it appears as a single line evidence and there is no law to ignore when a vital evidence is available. Therefore, since the Tribunal has wrongly came to the conclusion and fixed the negligence only on the ground that the FIR has been filed against the injured, he prays this Court to set aside the negligence fixed by the Tribunal.

¶4The learned counsel for the Transport Corporation would submit that in the present case, only after taking into consideration of the information available in the FIR, the Tribunal had fixed the contributory negligence against the injured at 50% and hence, he requests this Court to confirm the same. Further, he would submit that the quantum of compensation has been challenged by the Transport Corporation vide C.M.A.No.3118 of 2023 since the same is on higher side.

¶5In reply, the learned counsel appearing for the appellant would submit that since the left leg of the injured was amputated and the disability was determined by the medical board as 90%, the Tribunal had rightly fixed the functional disability of the injured as 100% and hence, he requests this Court to confirm the same.

¶6Heard the learned counsel for the appellant and the respondents and also perused the materials available on record.

¶7In the present case, at the time of examination, the PW1 had stated as follows: ehd; 04/02/2016 md;W fhiy Rkhh; 12/00 kzpf;F jpUty;ypf;nfzpapy; ,Ue;J 32V vd;w ngUe;jpy; Vwk;nghJ ,e;j tpgj;J ele;jJ/ ehd; ngUe;jpy; gazk; bra;jjw;fhdg; gazr;rPl;il jhf;fy; bra;atpy;iy vd;why; rhpjhd;/

¶8Further, in the cross-examination, he had stated as follows: tpgj;J rkaj;jpy; ngUe;J rw;W Tl;lkhf ,Ue;jJ/ ehd; ngUe;jpd; Xl;Ldh; ,Uf;iff;F 2tJ rPl;oy; cs;s fk;gpia gpoj;Jf;bfhz;L ,Ue;njd;/ tpgj;J rkaj;jpy; ngUe;jpd; gof;fl;oy; ahUk; gazk; bra;atpy;iy/ tpgj;J ele;j rhiy jpUty;ypf;nfzp bkapd; rhiyapy; uj;jpdnfg; Xl;ly; vjpnu ele;jJ/ uj;jpdnfg; vjphpy; ngUe;J epWj;jk; fpilahJ/

¶9A reading of the aforesaid depositions of PW1 makes it clear that the injured had not travelled on the foot board of the bus and only due to the sudden application of brake, the injured was thrown out of the bus. Further, the said statement was also confirmed by the driver of the bus (RW1) at the time of examination, wherein he had stated as follows: tpgj;jpy; fhak; mile;jth; ehd; ngUe;ij jPobud;W gpnuf;nghl;ljpdhy; jhd; ngUe;jpy; ,Ue;J fPnH tpGe;jhh; vd;why; rhpjhd;/

¶10A perusal of the above deposition makes it clear that only due to the sudden application of brake, the injured was thrown out of the bus. However, the Tribunal had considered the aforesaid depositions as a single line evidence and fixed the negligence against the injured based on the information available in FIR. However, this Court is of the view that when a vital evidence is available, the same has to be considered by the Court even if it a single line evidence. In such case, the aforesaid single line evidence indicates that the accident was occurred only due to the sudden application of brake and the same was also confirmed by the driver of the bus. Hence, the said statement is a very vital evidence and it has to be almost considered as an eye-witness. However, the Tribunal had failed to consider the said evidence. Therefore, this Court is of the view that the fixation of 50% negligence against the injured is not proper and the same is liable to be set aside. Therefore, this Court is inclined to fix the entire negligence against the driver of the bus. Accordingly, the entire negligence is fixed against the driver of the bus.

¶11Further, with regard to the challenge made against the quantum of compensation awarded by the Tribunal, this Court is of the considered view that since the left leg of the injured was amputated, the Tribunal had fixed the functional disability as 100% and hence, there is no force in the submission made by the learned counsel appearing for the Transport Corporation. Thus, this Court does not find any fault in the said aspect of determining the compensation by the Tribunal since the injured, who was aged about 36 years at the time of accident, cannot carry on the day-to-day activities and he has to depend on someone for the same. In such view, this Court is inclined to confirm the compensation awarded by the Tribunal. Accordingly, the same stands confirmed.

¶12In the result, the CMA.No.3118 of 2023, which has been filed by the Transport Corporation, is dismissed and the CMA.No.421 of 2023, which has been filed by the injured, is partly allowed.

¶13Therefore, the Transport Corporation is directed to deposit a sum of Rs.27,26,000/- along with interest at the rate of 7.5% and costs, less the amount already deposited, if any, within a period of 6 weeks from the date of receipt of a copy of this judgment, to the credit of MCOP.No.7351 of 2017 on the file of the Motor Accident Claims Tribunal, Chennai (IV Court of Small Causes). Further, the claimant/injured shall pay necessary Court fee, if any, on the enhanced compensation. Thereafter, the Tribunal is directed to immediately transfer the entire amount to the bank account of the injured by way of RTGS, in the same proportions determined by the Court below, within a period of 3 weeks from the date of deposit and from the date of receipt of the Bank details obtained for the claimant or application for withdrawal from the claimant, whichever is earlier. No costs.

05.01.2024 Index: Yes/No Internet:Yes/No Speaking order/Non-speaking order nsa To: The Motor Accident Claims Tribunal, Chief Small Causes Court, Chennai C.M.A.Nos.421o&oa11coofo202a KRISHNANoRAMASAMY,J. nsa C.M.A.Nos.421o&o3118oofo2023 andoC.M.P.No.29521oofo2023

05.01.2024