(Prayer: The Civil Miscellaneous Appeal filed under Section 173 of Motors Vehicle Act, 1988, against the judgement and decree dated 05.02.2015 made in in M.C.O.P.No.447 of 2013 on the file of the Motor Accident Claims Tribunal, Kanchipuram (District Court-II, Kanchipuram

The Cross Objection has been filed under under Order XLI Rule 22 of C.P.C., against the Judgement and Decree dated 05.02.2015 in in M.C.O.P.No.447 of 2013 on the file of the Motor Accident Claims Tribunal, Kanchipuram (District Court-II, Kanchipuram)

Common Judgment

1. The present Civil Miscellaneous Appeal and the cross objection have been preferred against the judgment and decree dated 05.02.2015 passed by the Motor Accident Claims Tribunal, Kanchipuram (District Court-II, Kanchipuram) in M.C.O.P.No.447 of 2013 by the respondent and the claimants respectively.

2. The facts giving rise to the present lis is that the deceased, Mr. Santhosh Kumar, aged about 20 years and employed as a Supervisor in a private company at Sriperumbudur, met with a fatal road accident on 19.07.2013 .On the said date, the deceased was riding his motorcycle from his residence towards Sriperumbudur Bazaar, at a normal speed, observing all the necessary traffic rules and regulations. At about 10.00 p.m., near Mayura Hotel on Gandhi Road within, Sriperumbudur limits, a Corporation bus bearing Route No. 76C registration number of which is unknown, proceeding from Kanchipuram to Chennai, was driven in a rash and negligent manner and hit the deceased from behind, causing a fatal accident. A criminal case was registered against the unidentified bus by Padalam Police Station in Crime No. 549 of 2013 under Sections 279 and 304-A IPC. The legal heirs of the deceased filed a claim petition in M.C.O.P. No. 447 of 2013 before the Motor Accident Claims Tribunal, Kancheepuram, seeking compensation of Rs.25,00,000/- with interest.

3. The 1st and 2nd petitioners in the claim petition are the parents of the deceased, and the 3rd petitioner is the minor brother of the deceased, represented by his father, the 2nd petitioner. The respondent is the Transport Corporation operating Route No. 76C bus. A Claim has been made that the accident occurred due to the rash and negligent driving of the driver of the Route No. 76C bus. Reliance was placed on the judgment of the Hon’ble Apex Court reported in 2011 ACJ 926, along with other judgments of various High Courts. Its contended that since the said bus belongs to the respondent Corporation, it is liable to compensate the loss suffered by the petitioners. On the contrary, the respondent submitted that the petitioners failed to mention the registration number of the vehicle, and even the FIR does not bear the registration number. The respondent further maintained that there is no record of the said accident and that it has been unnecessarily impleaded as a party.

4. In order to prove their respective contentions, both parties adduced oral and documentary evidence. The petitioners examined three witnesses, namely, the 1st petitioner examined as PW1, Mr. Duraimurugan, an eyewitness to the accident examined as PW2, and Mr. Irudikesavan, Special Inspector of Sriperumbudur who has been examined as PW3 and further had marked seven documents as Exs. P1 to P7. On the other hand, the respondent examined Mr. Veerabathiran, Senior Assistant of the respondent Corporation as RW1.

5. The learned Claims Tribunal, after hearing both sides and upon perusing the oral and documentary evidence on record, held that the accident was solely due to the rash and negligent act of the driver of the respondent Corporation’s bus bearing Route No. 76C. The Tribunal further applying the ratio laid down by the Hon’ble Apex Court in Sarla Verma case to the instant case had determined the quantum of compensation payable to the petitioners as Rs.5,50,000/-. Accordingly, by Award and decree dated 05.02.2015, the learned Claims Tribunal held that the Respondent Corporation is liable to pay a compensation of Rs.5,50,000/- to the petitioners, together with interest at 7.5% per annum from the date of the petition. Aggrieved by the aforesaid judgment and decree, the respondent has filed the present Civil Miscellaneous Appeal before this Court challenging the same and being not satisfied with the quantum, the claimants have filed their cross objection

6. Heard both the learned counsels appearing for the respective parties in both the Appeal and the Cross Objection

7. The learned counsel appearing for the appellant, submits that the respondent Transport Corporation in the claim petition is the appellant in the present appeal. He contends that the learned Claims Tribunal erred in fastening liability on the appellant, without appreciating the fact that no conclusive evidence was produced by the respondent to establish that the appellant’s vehicle was involved in the accident. He further submits that there was no basis to assume that the appellant’s vehicle had caused the accident, and that even on applying the test of preponderance of probability, the respondent ought to have proved the involvement of the appellant’s vehicle. However, the Tribunal relied merely on certain judgments to fix negligence on the appellant.

8. It is contended that, except for marking the FIR, the respondent did not produce any documentary evidence to prove negligence. Even the FIR marked in evidence does not disclose the registration details of the vehicle involved and merely mentions the route number of a bus, which is insufficient to establish the involvement of the vehicle belonging to the appellant. Further he would submit that PW2 who is alleged to be the eye witness, in his cross has categorically admitted not to have witnessed the accident. He also submits that the compensation awarded is highly disproportionate and contrary to the principles laid down by the Hon’ble Apex Court. In view of the above, it is contended that the award of the learned Claims Tribunal suffers from illegality. Therefore, he prays that this Court allow the present appeal and set aside the judgment and decree passed by the learned Claims Tribunal.

9. Per contra, learned counsel for the respondents, who have also filed Cross Objection, would submit that the vehicle involved in the accident is the bus of the appellant corporation running as route 76C. As it was night the registration number could not be noted as it was a hit and run case. The respondent cannot wriggle out of their liability without showing a good cause. On the question of quantum, it was contended that the learned Claims Tribunal awarded a meagre sum of Rs.5,50,000/- as against the claim of the cross appellants Rs.25,00,000/-. It was further submitted that the Tribunal ought to have applied the principles laid down by the Hon’ble Apex Court in Amrit Bhanu Shali v. National Insurance Company Ltd and others reported in 2012 (2) TN MAC 321 (SC), and ought to have adopted a multiplier of 18, considering that the deceased was aged 18 years at the time of death. It is also contended that the Tribunal erred in fixing the monthly income of the deceased at Rs.5,000/- instead of Rs.10,000/-, thereby awarding a lesser amount under the head of loss of dependency.

10. It is further submitted that the Tribunal failed to consider future prospects and did not award compensation under other heads such as loss of love and affection, funeral expenses, and transport charges. The learned counsel also submits that the Tribunal failed to take into account that the crossappellants were solely dependent on the income of the deceased and should have, therefore should’ve awarded a higher compensation to the dependants. In view of the above, it was prayed that this Court may be pleased to interfere with the award dated 05.02.2015 passed by the learned Claims Tribunal and enhance the compensation as sought for in the cross objection.

11. I have heard the rival submissions and have perused both the oral and documentary evidences available on record.

12. It is clear from the submissions advanced by both sides that the significant issue to be determined by this Court is the question of liability. Accordingly, the following issues arise for consideration before this Court.

                     (i)Whether it has been duly proved that the accident was caused by the bus belonging to the Transport Corporation?

                     (ii) Whether the cross-appellants are entitled to enhancement of the award as prayed for in the Cross Objection?

13. The primordial contention advanced by the appellant is that the respondents have not produced sufficient evidence to substantiate their claim that the accident was caused due to the rash and negligent driving of the driver of the Route No. 76C bus belonging to the appellant Corporation. It is significant to note, upon perusal of the deposition of PW2, one Mr.R.Duraimurugan, who is the alleged eyewitness to the accident, that although he initially deposed that he had witnessed the accident and stated that it was caused by the rash and negligent driving of the said bus driver, he contradicted himself during cross-examination. In the course of crossexamination, he admitted that he had not actually witnessed the accident. Further it had been noted that PW2 had also resiled from his earlier statement that he had informed the police about the occurrence of the accident. Further, it is to be noted that the respondents have not furnished the registration number of the vehicle alleged to have caused the accident in their Claim petition and neither it can found in the FIR copy. PW3, who is the Special Sub-Inspector of Sriperumbudur, had also deposed that the registration number of the vehicle which had alleged to have caused the accident cannot be traced. As far as Issue No.1 is concerned, the above facts and circumstances clearly establishes that the respondents have not produced sufficient evidence to prove that the accident was caused by the driver of the Route No. 76C bus. Accordingly, this Court is of the considered view that the respondents have failed to establish their claim that the accident occurred due to the rash and negligent driving of the bus belonging to the Transport Corporation

14. In view of the finding to the Issue No.1, holding that the accident has not been proved to have taken place due to the involvement of the bus belonging to the Transport Corporation Issue No.2, need not be answered.

15. In light of the above, the impugned Award and decree dated 05.02.2015, passed by the learned Claims Tribunal in M.C.O.P.No.447 of 2013 is set aside. Accordingly, the present Civil Miscellaneous Petition is allowed and the Cross Objection stands dismissed. Consequently, all connected miscellaneous stands dismissed. However, there shall be no order as to costs.