Managing Director, Tamil Nadu State Transport Corporation, Madurai Division III, Nagercoil v. Manikantan and Chellan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 MACA NO. 2882 OF 2009 ``` ``` AGAINST THE AWARD IN OPMV 480/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT/1st RESPONDENT:`** ``` MANAGING DIRECTOR TRANSPORT CORPORATION, MADURAI DIVISION III, NAGERCOIL. BY ADV SRI.SUBHASH CYRIAC ``` ## **`RESPONDENTS/APPLICANTS AND 2ND RESPONDENTS:`** |**`1`**|**`MANIKANTAN`**| |---|---| ||**`S/O. LATE CHELLAPPAN NADAR,`**| ||**`KALATHUVILAKATHU VEEDU, ARAYOOR,`**| ||**`ARAYAOOR.P.O., NEYYATTINKAR.`**| |**`2`**|**`CHELLAN`**| ||**`S/O. GNANAKANNU,PANAVILA VEEDU`**| ||**`NEAR GOVT. HOSPITAL,`**| ||**`THUCKALAY,K.K.DISTRICT,TAMILNADU.`**| ||**`BY ADVS.`**| ||**`SRI.BENOJ C AUGUSTIN`**| ||**`SRI.NAGARAJ NARAYANAN`**| ||**`SRI.PRATHAP PILLAI`**| ||**`SRI.RAJAN VELLOTH`**| ||**`SRI.RAFEEK. V.K.`**| ||**`SRI.SAIJO HASSAN`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2882 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** The first respondent, Managing Director, Tamil Nadu State Transport Corporation, is the appellant in this appeal filed under Section 173 of the MV Act. The appellant impugns award dated 15.05.2008 in O.P.(MV). No.480/2001 on the files of the Motor Accidents Claims Tribunal, Neyyattinkara. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the first respondent, who is the claimant before the Tribunal. 3. In this case, a minor sustained injuries and he lodged petition under Section 166 of the MV Act. The Tribunal recorded evidence of PWs1 to 3 and marked Exts.A1 to A34 on the part of the claimant. RW1, the driver of bus, involved in the accident was examined on the part of the respondent. Exts.X1 to X4 were marked. Finally, the Tribunal granted Rs.1,75,800/- as ``` MACA NO. 2882 OF 2009 ``` ``` 3 ``` compensation along with 7.5% interest. 4. The learned counsel for the appellant disputed finding of negligence attributed against the second respondent, the driver of the bus relying on Ext.B1 judgment of acquittal. In this matter, the case of the claimant before the Tribunal is that while the claimant was riding on his bicycle, he was hit down by a bus bearing registration No.TN 74/N 0831 owned by the first respondent and driven by the second respondent in a rash and negligent manner. On investigation, the Police lodged charge against the second respondent and the copy of the same is marked as Ext.A27 in this case. It is submitted by the learned counsel for the appellant that as per Ext.B1, copy of judgment in C.C.No.401/2001 dated 12.12.07, the driver of the bus was acquitted by the Judicial First Class Magistrate Court-II, Neyyattinkara when he was tried alleging commission of offences under Section 279, 337 and 338 of IPC. ``` MACA NO. 2882 OF 2009 ``` ``` 4 ``` 5. It is pointed out by the learned counsel for the appellant that, when final report is relied upon by the claimant to fasten negligence upon the driver of the bus, and when the criminal court acquits the driver of the bus, police charge cannot be relied on to find negligence. In this matter, RW1 examined is the driver of the bus involved in the accident. During chief examination, he had given evidence that he was the second respondent in the original petition and he had driven the vehicle at the time of accident. According to him, the bus started from Kovalam at 10.20 p.m. and reached Udiyankulangara at 11.45 p.m. When the vehicle reached before the service station in Udiyankulangara, a lorry came from the opposite direction and a boy was pedaling a bicycle in front of the lorry. The lorry came in the opposite direction not given side. Accordingly, he alarmed the boy with horn. Then the boy fell on the water on the left side and he sustained minor injuries due to fall in the water. Even without going into cross-examination, the evidence given by the driver in ``` MACA NO. 2882 OF 2009 ``` ``` 5 ``` chief examination itself is suggestive the fact that, the boy fell into the river due to horn sounded by him, to get side from the lorry, came in the opposite direction and to alarm the minor. 6. Judgment of acquittal in a criminal case and its impact in a civil case are matters governed under Sections 40 to 44 of the Evidence Act. 7. In the decision reported in **K.G.Premshanker v Inspector of Police [2003 SCC (Cri) 223],** the Apex Court held that the previous judgment which is final can be relied upon as provided under sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, section 300, Cr.P.Code makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of sections 40 to 43 are ``` MACA NO. 2882 OF 2009 ``` ## **`6`** satisfied, but it cannot be said that the same would be conclusive except as provided in section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under section 40 and 42 or other provisions of the Evidence Act then in each case, the Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Therefore, the argument disputing negligence merely based on Ext.B1 judgment of acquittal and ignoring the evidence of RW1 is of no significance. Accordingly, relying on the evidence of RW1 at par with Ext.A27 police charge, I hold that the second respondent is negligent in the matter of accident. Consequently, the argument advanced by the learned counsel for the appellant disputing negligence found to be unsustainable. 8. It is submitted by the learned counsel for the appellant that the appellant is aggrieved in the matter of ``` MACA NO. 2882 OF 2009 ``` ``` 7 ``` disability fixed by the Tribunal. According to him, as per Ext.A14 disability certificate issued by Dr.Arun Mathew George, Sr.Lecturer in Orthopedics MCH, Trivandrum, disability of the claimant, who was aged 17 years at the time of accident is fixed at 15%. However, the Tribunal, after discussing the multiple injuries sustained and the treatment thereof, as borne out from Exts.A28, 29, 30 and 31 and Exts.X1 to X4, fixed disability at 20%. According to the learned counsel for the appellant, the same is impermissible. 9. In this matter, a minor aged 17 years sustained injuries and his income claimed in the petition is at Rs.3,000/- per month as a manual labour, though he was a minor. Though the Tribunal fixed 20% disability, only Rs.2,000/- per month is considered for calculating ‘disability income’. Since it is zealously argued by the learned counsel for the appellant that the disability shall be confined to 15% only. I am inclined to consider 15% only as the disability in this case, while fixing Rs.3,000/- ``` MACA NO. 2882 OF 2009 ``` ``` 8 ``` per month as the income of the minor, taking note of the fact that the Apex Court in **Kajal V. Jagdish Chand and Others (2020 (1) KLT 743, SC)** fixed Rs.4,846/- as monthly income in the case of a minor aged 8 years. While assessing the ‘disability income’, the Tribunal applied ‘16’ as the multiplier. However, the multiplier also is ‘18’, following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** Therefore, the disability income is re-calculated as under: 3,000 x 12 x 15 x 18/100 = Rs.97,200/- Out of which, Rs.76,800/- was granted by the Tribunal. Thus, **Rs.20,400/-** more is granted under the head ‘loss of disability income’. 10. Therefore, while reducing the disability to 15%, as per Ext.A14 based on the evidence given by PWs.1 to 3 Doctors, who treated and issued the certificate, on calculation, it is found that Rs.20,400/- more is entitled by the claimant. ``` MACA NO. 2882 OF 2009 ``` ``` 9 ``` In the result, the appeal stands disposed of reducing the percentage of disability to 15% and by granting **Rs.20,400/-** (Rupees twenty thousand and four hundred only) as enhanced compensation to the claimant, being just compensation in this case, with the same rate of interest granted by the Tribunal. The appellant is directed to deposit the same in the name of the claimant, within two months from today. On deposit, the claimant can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr