COMMON JUDGMENT

The above Civil Miscellaneous Appeal is filed by the Tamil Nadu State Transport Corporation aggrieved by the judgment and decree of the Motor Accident Claim Tribunal, dated 23.02.2021.

2. The brief facts of the case are as under:

The Petitioner’s son, by name, S.Vinoth Kumar, while driving the motor cycle viz., Bajaj Boxer Motor cycle bearing Registration No.KL-01-AC-8944, while going on the Nagercoil to Kanyakumari Road near Anaipalam, was hit by a bus bearing Registration No.TN-74-N-1684, which came in the opposite direction in a rash and negligent manner. Due to the motor accident the petitioner's son died. The Driver of the Transport Corporation filed FIR on 30.08.2016 and criminal case in Crime No.97 of 2016 under Section 279 and 304-A IPC was registered against the deceased. According to the claimant, the criminal case was falsely foisted by the Driver of the Transport Corporation and the accident occurred only due to the rash and negligent driving of the Driver of the Transport Corporation. The claimant therefore filed a claim application under Section 166 of the Motor Vehicle Act claiming a sum of Rs.40,00,000/- (Rupees Forty Lakhs only) as compensation for the death of his son.

3. The Appellant Corporation filed a counter denying all the contentions of the claimant. The appellant Corporation in the counter affidavit submitted that as per the criminal case in Crime No.97 of 2016, the deceased, Vinoth Kumar drove the motor cycle in a rash and negligent manner and caused the accident. The Appellant Corporation further contended that the Transport Corporation Driver was not responsible for the accident and therefore, the Appellant Corporation was not liable for the compensation amount claimed by the claimant.

4. The Motor Accidents Claims Tribunal, on an appreciation of the facts and law involved in the case allowed the claim petition and ordered compenstion of Rs.5,00,000/- (Rupees Five Lakhs only) along with 7.5% interest per annum from the date of petition i.e., 21.04.2017 till the date of realization. Aggrieved by the said judgment and decree, the appellant Corporation has filed the above appeal. The claimant filed the cross objection challenging the order of the tribunal on the ground that the finding on negligence was errorneous and that the tribunal erred in converting the application from one under Section 166 of the Motor Vehicle Act to one under Section 163-A of the Motor Vehicle Act.

5. The learned counsel for the Transport Corporation submitted that the Motor Accidents Claims Tribunal erred in converting the application under Section 166 of the Motor Vehicle Act into one under Section 163 A of the Motor Vehicle Act on its finding that the claimant failed to prove negligence of the Driver of the Transport Corporation. He further submitted that the Tribunal had categorically found that the claimant himself was negligent and therefore, the application under Section 166 of the Motor Vehicle Act ought to have been rejected.

6. In contra, the learned counsel for the claimant submitted that the Tribunal need not have converted the application to one under Section 163-A of the Motor Vehicle Act to award the compensation as the facts on record clearly establish that the claimant was entitled to compensation even under Section 166 of the Motor Vehicle Act. The counsel further submitted that there was absolutely no justification for the finding of the Tribunal that the claimant himself was negligent and that there was no negligence on part of the Driver of the Transport Corporation.

7. I have heard both sides and also perused the materials on record.

8. At the inception, the contention of the learned counsel for the appellant is that the Tribunal had no jurisdiction to convert the application under Section 166 of the Motor Vehicle Act into one under Section 163 A of the Motor Vehicle Act, for the reasons that the claimant had failed to establish negligence. It is to be seen from the facts on record as to whose