C.P. Chikkanna Chettiar (deceased) and Another vs Tamil Nadu State Transport Corporation

M. Karpagavinayagam, J.—This is an appeal filed by the claimant challenging the judgment and decree passed in M.C.O.P. No. 854/1987

on the file of the 11 Additional District Judge, Salem dated 10-8-1989.

The claimant, Chikkanna Chettiar filed a petition u/s 110-A of the Motor Vehicles Act claiming a compensation of Rs. 1,25,000/- for the

injuries sustained by him in a motor accident that took place on 17-8-1987 at about 11.30 a.m. due to the negligent driving of driver of the Bus

belong to respondent Corporation. The Tribunal on consideration of the materials though rejected the claim of Rs. 1,25,000/-found that the

claimant is entitled to Rs. 10,935/- out of the total amount of compensation of Rs. 22,870/- since the claimant himself contributed 50% negligence

to the accident. This Award is being challenged in this appeal on the ground that there is no material to establish that there was contributory

negligence on the part of claimant.

During the pendency of this appeal, the claimant died. So, the legal representative of the claimant was impleaded as second appellant by the

order of this Court dated 27-8-1998 to prosecute this appeal on behalf of the other claimant. Though on the basis of the judgment in C.P.

Kandaswamy and Others Vs. Mariappa Stores and Others, learned counsel for the Transport Corporation, respondent herein states that u/s 306

of the Indian Sue-cession Act, the cause of action regarding the injury sustained by the claimant would not survive on his death, the judgment

rendered in Thailammal and Others Vs. A.V. Mallayya Pillai and Others, was brought to the notice by the counsel for the appellant to state that the

cause of action would not get lost in respect of the items of the expenses actually incurred. So, in view of the decision referred to above following

the earlier decision in C.P. Kandaswamy and Others Vs. Mariappa Stores and Others, , I feel that this appeal could be dealt with on the basis of

the merits.

The case of the claimant is that on 17-8-87 when he was proceeding at Kajalnayakkanpatti near Annamalai Cotton Mills in the north-south

road on his cycle keeping to the left side, the bus bearing TML 5699 driven in a high speed came and dashed against him as a result of which he

fell down and sustained grievous injuries. After taking first aid in the Government Head Quarters Hospital, Salem, he was admitted in R.C.R.

Nursing Home, where he stayed till 9-9-87 as an impatient.

According to the respondent, the claimant who was coming in the east-west road, suddenly entered into the north-south road from the eastern

mud road proceeding to Veerasami Pudur without noticing the bus coming in its direction and the driver of the bus did his best to avert the collision

by swerving the vehicle towards left, but the cyclist came and dashed against the bus and therefore, the negligence cannot be attributed to the

driver and as such, the claimant is not entitled to any compensation.

On the side of the claimant, the claimant examined himself as P.W. 1 and marked Exs. A1 to A6. On the side of the respondent, the conductor

was examined as RW1. The Tribunal though found the negligence on the part of the bus driver, held that there is contributory negligence on the

part of the claimant also, since he admitted that he entered into the main road (north-south) from the cast-west road and that the accident took

place when he crossed the road without noticing the bus corning from north to south.

I have gone through the evidence of PW1 and RW1. The finding of the Tribunal is factually incorrect, because P.W. 1 never admitted that he

crossed the road when the bus came from north to south. According to P.W.1, he entered into the main road and crossed a distance of 200 feet in

the said road going on the left side and at that time the bus came and hit against him and he fell down from the cycle and sustained a fracture on the

thigh. The sketch, Ex. A3 also would support the case of PW1, as it reveals that there is a considerable distance between the corner of the east-

west road and the place where the bus was stopped. In view of the above fact there is no difficulty for this Court to come to the conclusion that the

accident had occurred due to the negligence on the part of the bus driver alone and as such, the respondent is liable to pay the compensation.

Consequently, the total amount of compensation as ordered by the Tribunal comes to Rs. 21,870/-. So, the legal representative of the claim-ant is

entitled to get the same.

Regarding the expenses incurred, the claims of Rs. 600/- towards damage to the cycle, Rs. 1,000/- towards transport and Rs, 5,000/- towards

extra nourishing were made. Though evidence has been let in through PW1 with reference to this, there is no discussion about this aspect of the

evidence by the Tribunal. As a matter of fact. Tribunal did not make any reference about these heads at all Therefore, in my view, the

compensation of Rs. 500/- towards damages to cycle, Rs. 500/- towards transport and Rs. 1,500/- towards extra nourishing would be a proper

amount and therefore, the respondent is directed to pay an amount of Rs. 2,500/ for all these three heads, in addition to the Award of Rs.

21,870/-.

With the above observation, the appeal is allowed. No costs.