Kanthabhai vs Kattabdmman Transport Corporation

Venkataswami, J.—These two appeals are preferred by the legal representatives of the deceased persons in an accident that look place on

11th January, 1983.

On 11-1-1983, a tourist taxi bearing Registration No. TMN 2623 collided head-on with a bus belonging to Kattabomman Transport

Corporation as a result of which two persons, one driver of the taxiand Anr. a passenger in the taxi, died. The legal representatives of these two

individuals have filed M.C.O.Ps. 49 and 67 of 1983, on the file of the Motor Accidents Claims Tribunal (Sub-Court), Tirunelveli, claiming a

compensation of Rs. 60,000 and Rs. 80,000 respectively.

The respondent-corporation inter alia contended that the accident look place purely on account of negligent driving on the part of the driver,

who died in the accident and there was no negligence on the pan of the driver of the bus belonging to the respondent corporation and, therefore,

they are not liable to pay any compensation.

After elaborately discussing the matter and in the light of the sketch drawn with reference to the accident spot and the F.I.R. and the oral

evidence, the tribunal has found that the accident was on account of rash and negligent driving on the part of the driver of the tourist taxi and not

due to any rashness and negligence on the pan of the corporation''s bus driver. Consequently, the tribunal dismissed the applications for

compensation. It may also be mentioned that even before the tribunal, on behalf of the respondent, a plea was taken, namely, that they should have

implicated the owner of the taxi as well as the Insurance Company with which the taxi has been insured. Accepting that plea as well, the tribunal,

while dismissing the petitions, has given a finding that the petitions are bad for non-joinder of proper panics.

Aggrieved by the dismissal of the said O.Ps., these appeals arc filed.

learned Counsel appearing for both the appellants have fairly slated that they cannot, on merits, convince us that the findings given by the tribunal

are in any way erroneous. They submitted that assuming that there was negligence on the part of the taxi driver, that does not automatically lead to

the only conclusion that the respondent''s bus driver was not at all at fault. Having regard to the facts and circumstances, they submitted that the

tribunal should have held that the respondent''s driver also was partly negligent and partly responsible for the accident and as such liable for

compensation. They also contended that at least the compensation for no fault liability as contemplated u/s 92-A of the Motor Vehicles Act, 1939

may be given to the legal representatives of the deceased persons after fixing partial liability on the corporation''s driver.

Mr. A.R. Ramanaihan, learned Counsel for the corporation submitted that the above pleas were not taken before the tribunal and even

otherwise, in the absence of proper parties, it is not possible to grant such relief. In other words, according to the learned Counsel, having regard

to the finding of the tribunal that the accident was on account of the rashness and negligence on the pan of the taxi driver, the liability, if at all, u/s

92A of the Act will be on the owner of the taxi and consequently on the insurance company with which the taxi was insured. Therefore, the learned

Counsel submitted that the corporation is not liable to pay any amount u/s 92-A of the Act or towards compensation.

We have considered the rival submissions. On a perusal of the judgment and in the light of the fact that the legal representatives of the deceased

persons have filed these appeals and having regard to the circumstances under which the deceased met with the death, we are of the view that

there is some force in the argument of the learned Counsel for the appellants. The mere fact that the taxi driver was negligent will not automatically

absolve the respondent from all liabilities. From the narration of events, it is possible to hold that if only the driver of the bus belonging to the

respondent-corporation was careful and vigilant and stopped the bus on seeing the taxi overtaking another vehicle, the accident could have been

avoided. To that extent, we hold that the respondent''s driver was also responsible partly for the accident. This cannot be overcome by taking a

technical objection that this point was not taken. As the point for consideration was, who was responsible for the accident, the above issue can

very well be brought under this large issue.

Inasmuch as the negligence on the part of the driver of the respondent-corporation was only minimal, we do not propose to go into the details of

the respective claims, but split the no fault liability and award a sum of Rs. 7, 500 to each set of the appellants in C.M.A. Nos. S of 1985 and 112

of 1987. We, therefore, feel that the respondent corporation can be directed to pay a lumpsum of Rs. 7, 500 to the legal representatives in each

case in all. This direction is given in the peculiar facts and circumstances of these cases.

Accordingly, the respondent is directed to pay a sum of Rs. 7, 500 to the appellants in C.M.A. 5 of 1985and another sum of Rs. 7, 500 to the

appellants in C.M.A. No. 112 of 1987. We direct the corporation to pay these amounts within four weeks from the date of receipt of a copy of

this order. As the claimants are all residing at Rasipuram, we direct the respondent-corporation to send the amount to the Secretary, Tamil Nadu

State Legal Aid and Advisory Board, who in turn will send the amount through proper channel to the claimants.

The Office is directed to send a copy of the judgment and decree to the Tamil Nadu State legal Aid and Advisory Board to enable the same to

send the amounts to the appellants.

The appeals are disposed of accordingly. No costs.