Nageswari vs The State Transport Corporation

The aggrieved claimant is on appeal challenging the order dated 28.6.2004 made in MCOP No.110/2003 on the file of Motor Accidents

Claims Tribunal, Sankarankoil.

The case of the claimant is that her aunt was riding her TVS Moped when the bus belonging to the respondent dashed her from behind and

caused her death. The claimant sought compensation to the tune of Rs.5 lakhs, but the Tribunal awarded a sum of Rs.72,000/- with interest at 9%

p.a., and cost. Contending that the sum awarded was inadequate, this appeal has been filed.

Even though this court has serious doubts as to the very entitlement of the appellant to lodge this claim, the fact remains that the respondent

corporation did not choose to file any appeal. Therefore this court has to necessarily adjudicate the appellant''s contentions.

The primary contention of the appellant''s is that the Tribunal erred in attributing 20% contributory negligence to the deceased. In support of the

allegation that the bus driver was exclusively at fault, the claimant had examined PW2 Karuppaswamy said to be an eye witness. He had deposed

that the deceased was riding her moped when the bus dashed her from behind. Merely because the driving license of the deceased was not

produced, one cannot come to the conclusion that the rider was at fault. A person not having license can drive well and need not be responsible for

the accident. A licensed driver can fumble at times and be the cause for the accident. In fact in almost all the accidents, the drivers causing the

accidents are having license. Therefore possession or nonpossession of driving license by itself cannot be determinative of the issue of contributory

negligence. That will have to be decided based on the other available evidence on record. Therefore the court below erred in attributing

contributory negligence to the deceased. This court modifies the order of the court below only on this aspect. In all other respects, the order

passed by the court below is confirmed.

The Tribunal below quantified the compensation payable at Rs.88,000/-. Deduction to the tune of Rs.16,000/- was made on account of the

contributory negligence fixed on the deceased. Since this court has come to the conclusion that fastening contributory negligence was bad, this

appeal is partly allowed directing the respondent to deposit the sum of Rs. 88,000/- with interest at @ 7.5.% p.a., and costs from 8.10.2003 till

date of deposit, deducting the amount already deposited, if any, to the credit of M.C.O.P.No.110 of 2003 by the Subordinate Judge,

Sankarankovil. On such deposit, the appellant is entitled to withdraw the amount by filing appropriate application before the Tribunal. The Tribunal

is directed to collect the court fees for the enhanced award amount.

This appeal is partly allowed as indicated above. No costs.