Compensation for motor accident enhanced.

KARPAGAVINAYAGAM, J.

( 1 ) THE award of compensation of Rs. 50,000 in favour of the claimant No. 9 in M. C. O. P. No. 12 of 1989 on the file of the Motor Accidents claims Tribunal, Tiruchirappalli is challenged in this appeal by the Dheeran chinnamalai Transport Corporation Ltd. , the appellant herein.

( 2 ) I have heard the counsel for the parties.

( 3 ) IN my view, on a short and simple ground, the impugned award has to be set aside and remitted back to the Tribunal for fresh consideration.

( 4 ) THE claim was made in M. C. O. P. No. 12 of 1989 by the claimants seeking for a compensation of Rs. 12,50,550 for the death of Elvis Vassou. The Tribunal on consideration of the materials placed by both the parties, concluded that both the victim and the bus driver contributed to the accident by their negligence in the ratio of 50:50 and held that the claimant no. 9 who is dependent on the income of the deceased was entitled to 50 per cent of the total compensation of Rs. 1,00,000.

( 5 ) THOUGH there is no appeal by the claimants with regard to the contributory negligence as well as the quantum, the corporation has filed this appeal with regard to the quantum.

( 6 ) THE main contention urged in this appeal is that the multiplier of 30 cannot be invoked. However, on going through the records and the impugned award and considering the submissions made on either side, I am of the view that the Tribunal has not considered the negligence on the part of both the victim and the driver of the bus in the proper perspective and consequently, the quantum of compensation directed to be paid, in my view, is too meagre.

( 7 ) IT is pointed out by the learned counsel for the respondents, on the strength of the decision in Hurnera Bhanu v. Cholan roadways Corporation, 1995 ACJ 325 (Madras), that this court can enhance the quantum of compensation, even though there is no cross-objection filed by the claimants. It is also pointed out that the tribunal ought to have considered the main aspect of the negligence on the part of both the parties in the context of rules 6 and 7 of Schedule X of the Motor Vehicles Act.

( 8 ) ON going through the order impugned, I am of the view that the Tribunal is wrong in holding that the negligence could be apportioned to both the victim as well as the driver by 50:50, merely on the reason that the victim came in the wrong direction.

( 9 ) THIS court in Alagammal alias Indirani v. Managing Director, Marudhu pandian Trans. Corpn. , 1997 ACJ 1323 (Madras), would hold on similar facts of the case that the driver of the bus driving from an elevated position, would be able to visualise the movement of the vehicle in front of him because of his position and that had he been more, diligent, he could have avoided the accident and that merely because the rider of the scooter came in the wrong direction, the apportionment of the negligence fixed by the Tribunal 50:50 between the bus driver and the rider of the scooter cannot be accepted to be a correct one. In the said case, the Division Bench of this court fixed the negligence on the part of the driver and the victim as 60:40.

( 10 ) ADMITTEDLY, the relevant rules as indicated above and the principles relied on by the Division Bench of this court have not been taken into consideration by the Tribunal. Under Order 41, rule 33 of civil Procedure Code this court has got powers to enhance the amount of compensation in the circumstances of the case, even though there is no cross-objection or cross-appeal by the other side. Therefore, i am of the view that the amount awarded could be modified to the effect that the negligence on the part of the driver of the bus and the victim could be fixed as 60:40.

( 11 ) NOW the Tribunal held that the claimant, who is dependent on the income of the deceased was entitled to 50 per cent of the compensation of Rs. 1,00,000 on the basis of the finding with reference to negligence in the ratio of 50:50. In view of the finding by this c